Opinion
A158060
01-28-2022
THE PEOPLE, Plaintiff and Respondent, v. LA RAY NELSON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 17-CR-033358)
RICHMAN, ACTING P. J.
A jury convicted defendant LaRay Nelson Jr. of 12 criminal counts based on his harassing and threatening behavior toward his former wife: one count of stalking; five counts of misdemeanor contempt for violating a criminal protective order; two counts of criminal threats; two counts of misdemeanor violating a restraining order; one count of child abuse; and one count of assault with a deadly weapon. On appeal, defendant contends that the trial court erred by granting his pretrial Faretta motion to represent himself, and by not later staying the proceedings to conduct a new competency evaluation and reversing the Faretta order or, alternatively, appointing standby counsel after his mental health issues became apparent during the trial. Defendant also argues that the court abused its discretion 1 in denying his motion for a mistrial based on a witness's false testimony that defendant had been in jail for murder. We reject these contentions and affirm the judgment.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
BACKGROUND
The Facts
All of the charges against defendant are based on numerous incidents involving his former wife A.W. dating back to February 2016. We summarize the evidence at trial in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and without unnecessary detail, as defendant does not challenge the sufficiency of the evidence.
Defendant and A.W. married in 2000. A.W. described their relationship as "crazy," because defendant's use of crack cocaine and alcohol caused him to get angry with her and call her names. They divorced, but continued to live together at A.W.'s home. Defendant eventually moved out.
At least once, and sometimes more than once, per month between February and July 2016, defendant would call A.W., go to her home, or try to break into her home. On multiple occasions, A.W. either saw defendant break the windows of her car or home or found those windows already broken. A.W. called 911 during each incident. When police officers responded to the scene, they observed the damage to A.W. windows and sometimes recorded the damage on their body-worn cameras.
A.W. believed her "life was in danger" when defendant strangled her on February 10. A.W. then called 911 and was heard on the call saying she was "getting ready to get my shotgun and I'm gonna kill him if you guys don't get over here quick." And during another episode on April 5, defendant called A.W. and when asked to leave her alone, said that A.W. would "miss [her]self," which she understood to mean defendant was going to kill her. 2
On July 10, defendant was served with a civil restraining order protecting A.W.
On September 17, defendant went to A.W.'s house and threatened to throw a bomb through her window. A.W. called 911. A.W. reminded defendant of the restraining order, but he said he did not care, it was a "free country," he could go wherever he wants, and the restraining order was "nothing but a piece of paper."
Between September 17, 2016 and February 3, 2017, defendant continued to harass A.W, resulting in defendant being served with a criminal restraining order on February 3, 2017. A.W. called 911 during these incidents and officers responded. On January 13, 2017, the responding officer's body-worn camera recorded defendant stating, "I bet I am" when told he was violating a court order and "go kick my wife's ass."
Defendant further harassed A.W. on April 23, September 1, and September 7 in 2017. On April 23, defendant went to the home of A.W., who saw defendant use the cement cap from her water meter to break her car's windows. After A.W. called 911, the responding officer saw the smashed window of A.W.'s car and collected the water meter cover as evidence. Photographs of the damaged car were introduced at trial. On September 1, defendant again broke the window of A.W.'s car, and a responding officer took photographs of the damage to A.W.'s car. On September 7, defendant broke the front windshield of A.W.'s car. A.W. called 911, and the responding officer took photographs of the damage to the car and of cement blocks next to the car. That same day, A.W.'s neighbor called the police because he had heard brick breaking glass again and saw that the man damaging A.W.'s car was the same man who had broken A.W.'s car window in September 2016. 3
On February 1, 2018, a neighbor told A.W. that her car windows had been broken. A.W. called 911. The responding officer saw the smashed windows.
On March 19, defendant went to A.W.'s house. A.W. was in her car outside of her house with her eight-year-old great-granddaughter in the backseat. A.W. saw defendant right next to the driver's side of the car. She rolled down her window and spoke to defendant, who threatened to kill A.W. and her family. Afterwards, defendant pulled a brick out of his pocket and told her he "out [sic] to smash [her] in the face with it." He also said that even if he was dead in jail, "Somebody will do my deed for me. They would do it for me." A.W.'s great-granddaughter called 911. After looking at A.W.'s great-granddaughter, defendant threw a brick through the rear window of the car. The window shattered, causing A.W.'s great-granddaughter to scream for her mother. Defendant then threw a rock through the broken rear window, which cracked the front windshield. The police responded to the scene and arrested defendant one block away from A.W.'s home.
On June 18, defendant mailed a letter addressed to A.W. at her mother's house. A.W. recognized defendant's handwriting and did not open the letter.
The Proceedings Below
The operative amended information charged defendant with stalking (Pen. Code, § 646.9, subd. (b)) (count 1); misdemeanor contempt for disobeying a protective order (§ 166, subd. (c)(1)) (counts 2, 3, 4, 7, and 11); disobeying a domestic relations court order (§ 273.6, subd. (a)) (counts 6 and 10); making criminal threats (§ 422) (counts 5 and 9); child abuse (§ 273a, subd. (a)) (count 8); and assault with a deadly weapon (§ 245, subd. (a)(1)) 4 (count 12). The amended information further alleged as sentence enhancements that defendant had served five prior prison terms (§§ 667.5, 1170.12, subd. (c)(1)) and had suffered two serious felony strike convictions for voluntary manslaughter and arson (§ 667, subd. (a)(1)).
All further undesignated statutory references are to the Penal Code.
In May 2018, defendant's appointed counsel advised the court of a doubt as to defendant's competency to stand trial. Pursuant to section 1368, Judge Yolanda Northridge appointed three psychologists to examine defendant and suspended the proceedings. Two psychologists opined defendant was competent to stand trial, while the third did not. In July 2018, Judge Northridge held a competency hearing. Defense counsel stipulated that defendant was mentally competent to stand trial. And based on the three doctors' reports, Judge Northridge found defendant competent to stand trial.
In August, defense counsel again declared a doubt as to defendant's mental competency. Judge Northridge appointed two additional psychologists to evaluate defendant. One of two the psychologists found defendant competent to stand trial. In January 2019, Judge James Cramer conducted the second competency hearing. Based on the reports of all five appointed psychologists, he found defendant competent to stand trial.
On April 8, the scheduled trial date, defendant's attorney advised Judge Cramer that defendant wished to invoke his right to self-representation. Judge Cramer gave defendant a written Faretta advisement and waiver form, which defendant signed; he also discussed with defendant the dangers of self-representation and his potential prison sentence of over 21 years. During these discussions, Judge Cramer found defendant "clearly" mentally competent, and also found defendant "made a voluntary, knowing, 5 and intelligent waiver of the right to counsel" and granted his request to represent himself.
On April 9, the operative amended information was filed.
Meanwhile, between April 8 and 16, the trial judge, Judge Andrew Steckler, heard trial motions and discussed other trial issues with the parties. Judge Steckler bifurcated the trial on the underlying charges from the trial on defendant's alleged prior convictions.
The prosecutor requested that Judge Steckler assign defendant an investigator and standby counsel "so that that person would be up to speed if something happens in that regard in the middle of trial." Defendant said he would like standby counsel after Judge Steckler explained to him the role of standby counsel. Judge Steckler assigned defendant an investigator and deferred the matter of standby counsel pending further argument from the parties. He revisited the issue of standby counsel. After conferring with defendant on whether he indeed wanted standby counsel, defendant stated he wanted to represent himself. Judge Steckler then declined to appoint standby counsel.
On April 16, the day after voir dire was completed, the prosecutor and defendant gave opening statements. The prosecution called as witnesses A.W.; A.W.'s two neighbors who witnessed and/or captured on his home surveillance cameras incidents involving defendant throwing a brick at A.W.'s car window; A.W.'s daughter A.M.; several police officers who responded to A.W.'s 911 calls; the district attorney who appeared at the February 3, 2017 hearing where defendant was served with a protective order, and an audio-visual technician from the district attorney's office who modified some of the 911 call recordings to make it audibly clearer. 6
Defendant cross-examined A.W., A.W.'s daughter, and four of the police officers.
For his part, defendant recalled A.W. to testify. During cross-examination by the prosecutor, A.W. was asked whether she knew defendant was a convicted felon. A.W. answered that defendant "had been in jail for murder and stuff." Judge Steckler interjected, stating to both A.W. and the jury that defendant was not in jail for murder. At the conclusion of A.W.'s testimony, Judge Steckler and the parties engaged in a lengthy discussion about A.W, 's statements outside the presence of the jury. Defendant orally moved for a mistrial. Judge Steckler denied the motion, but instructed the jury that A.W.'s statements were false and that they must disregard them in their deliberations.
On April 22, the parties presented closing arguments. And on April 23, the jury found defendant guilty of all charges.
Defendant waived his right to a jury trial on the prior convictions and a court trial was set for April 24. After discussing that defendant faced a potential sentence of 28 years in prison, defendant stated he wanted a lawyer, namely, to advise him on whether to submit his fingerprints that the prosecution would use to prove his alleged prior convictions. Defendant requested a two-week continuance to look for private counsel, as he did not want a public defender. Judge Steckler thrice continued the matter to afford defendant more time to find counsel. On June 6, defendant stated he still did not have counsel, but that he was ready to proceed in pro per.
On that same day, Judge Steckler proceeded with the bench trial on the prior convictions. The prosecutor called a fingerprint technician, who testified that defendant's fingerprints taken that day matched the fingerprints taken in connection with his prior convictions. Judge Steckler 7 found the five prior conviction allegations to be true beyond a reasonable doubt.
On July 3, defendant was sentenced to 25 years four months in state prison.
This timely appeal followed.
DISCUSSION
The Grant of the Faretta Motion
Defendant argues that the trial court erred in granting his request to represent himself pursuant to Faretta, supra, 422 U.S. 806 because he was mentally incompetent to do so. We disagree.
Background
In May 2018, appointed counsel advised Judge Northridge of a doubt as to defendant's competency to stand trial. Pursuant to section 1368, Judge Northridge appointed three psychologists to examine defendant and suspended the proceedings.
Dr. David Howard opined that defendant was not competent to stand trial. He met with defendant for 15 minutes before defendant, who "appeared psychotic, primarily disorganized and paranoid," terminated the meeting. In Dr. Howard's opinion, "more likely than not that Mr. Nelson is suffering from a significant mental illness most likely on the Schizophrenia spectrum of mental disorders. Due to his untreated mental illness Mr. Nelson is not able to assist counsel at this time."
By contrast, Dr. Jennifer Kirkland opined defendant was "competent to stand trial." Dr. Kirkland recounted defendant's psychiatric history, which included 15 admissions to a psychiatric hospital between 1995 to 2016, a diagnosis of intermittent explosive disorder in 1985, a diagnosis of psychotic disorder that was possibly substance induced and cocaine abuse between 2008 and 2010, and most recently, diagnoses of malingering and adjustment 8 disorder with disturbance of conduct. Defendant was initially relaxed and polite during Dr. Kirkland's evaluation, but became agitated and angry when they discussed the instant case. Asked about his understanding of the charges against him, defendant replied, "Disobeying a restraining order. I've got nine charges altogether, three felonies." Dr. Kirkland opined: "In this case, the defendant is indeed angry and can get volatile when considering his legal predicament. However, there is no indication that his tendency to deny and externalize responsibility for the charged offenses are related to a mental health issue. If anything, the defendant might be struggling with a characterological/behavioral pattern of coping that is getting in the way of his working with counsel and/or considering his legal options in a rational fashion. . . . [¶] Thus, it is my opinion that this defendant is competent to stand trial."
Dr. Vicky Campagna also found defendant competent to stand trial. She reported that defendant "was well aware of his charges but immediately said 'One of them is true, but the others are all lies.'" Although defendant strenuously objected "to anything that does not conform to his position," Dr. Campagna explained defendant's intransigence reflected more of his personality style rather than a symptom of psychosis.
In July 2018, Judge Northridge held a competency hearing. Defense counsel stipulated that defendant was mentally competent to stand trial. Based on the reports from the three doctors, Judge Northridge found defendant competent to stand trial.
In August, defense counsel again declared a doubt as to defendant's mental competency. Judge Northridge appointed two new psychologists to evaluate defendant. Dr. Michael Wright opined that defendant, "more likely than not, suffers from psychiatric syndrome diagnoses ('intermittent 9 explosive disorder' and chronic substance abuse) and these explain his behavior and adversely affect his ability to rationally cooperate with counsel or to understand the nature (and likely outcomes) of the proceedings outstanding against him. Additionally, there is notable indication that he also suffers from personality disorder traits, if not a formal disorder itself ('antisocial personality disorder'), although that indication may not rise to the level of 'probable.' "
Dr. Amy Watt also found defendant presented with symptoms related to the diagnosis of intermittent explosive disorder, as well as a personality disorder, but ultimately concluded he was competent to stand trial. Dr. Watt reported that "[w]hile [defendant] can be angry and agitated and difficult to work with at times, Mr. Nelson presented as being alert and oriented. Even though he would go off-topic at times and would focus on complaining about the legal system and about his ex-wife, Mr. Nelson was able to redirect his focus back to the topics of discussion. Mr. Nelson demonstrated sufficient factual and rational understanding of the proceedings against him. With a thinking process that is alert and oriented, Mr. Nelson has the ability to assist counsel on his defense. Mr. Nelson is competent to stand trial."
In January 2019, Judge Cramer conducted the second competency hearing. The parties submitted on the five competence reports, and based on those reports, he found defendant competent to stand trial and reinstated the proceedings.
On April 8, defendant's attorney Sydney Levin advised Judge Cramer that defendant wished to invoke his right to self-representation. Judge Cramer gave defendant a written Faretta advisement and waiver form. Defendant signed and submitted the form, and the following exchange ensued: 10
"THE COURT: What crimes are you charged with? "THE DEFENDANT: Whatever, whatever you ha[ve] on the paper. Where's the indictment?
"THE COURT: I don't have it. "How can you say you are ready to represent yourself when you don't know the charges you are facing?
"THE DEFENDANT: Well, I know the charges I have I'm not guilty of, that's why I want to challenge all of them.
"THE COURT: Okay. So I want to be honest with you, Mr. Nelson, when you've come into court before-today you are calm and responsive in our communications, and I have watched the interaction with you and Ms. Levin and you and the deputies, and everything has been quiet and peaceful and calm. You have had some outbursts before. You had one last week when I ordered you to be taken out of the courtroom. Can you tell me why you are so calm today?
"THE DEFENDANT: Right. Because you wouldn't let me talk, you wouldn't let me say nothing. Every time we come in here all you guys talking about me, but I can't speak for myself. I thought we had freedom of speech, Constitutional rights, my due process observed. [¶] . . . [¶]
"THE COURT: So the reason that it is such a bad idea to represent yourself is that Ms. Levin is an accomplished criminal defense lawyer, and she works really hard on behalf of her clients. And I'm afraid that if you reject her representations and represent yourself, you are just going to end up with a much worse result. [¶] But I'm just afraid that it would be a short-cited decision to represent yourself against a skilled lawyer like Mr. Sjoberg. 11
"THE DEFENDANT: Well, I would politely disagree. . . . [S]he might be as good as you say she is. He might be as good as you say he is, he might be even better.
"Even time [sic] I come in here you want me to plead to something I didn't do. You want to raise the bail from $200,000 to $800,000. All I want to do is give me a jury with some common sense, face the charges, and I will get my part of the defense."
Judge Cramer asked defendant if he was requesting a trial continuance, to which he replied he was not and that he was ready for trial. The following exchange occurred:
"THE COURT: Here's a concern I have. So I've got to ask myself a couple of questions, are you competent? And that's more along the lines of mentally competent, and you clearly are. I have no doubt about that.
"You do not know the ins and outs of the law, you are not trained in the law. Ms. Levin has been a public defender for at least 13 years. 2006?
"MS. LEVIN: 11 years. [¶] . . . [¶]
"THE DEFENDANT: . . . I don't question her credibility or whatever you want to say about her expertise in her field. But she doesn't know the situation, she doesn't live there. She wasn't there, she's not part of this. And all she had know [sic] is what somebody told her, okay? I know the truth. And, see, this could be ascertained in a courtroom, and we just get down to point by point, okay?
"All the rest of this stuff here, all this courtroom decorum, that's fine with you guys. I can't keep up with that, I don't even care about that. What I care about is my life. I'm competent, I been trying to tell you that five competency hearings [ago]." 12
Defendant then added, "I got a California Rules of Court . . ." and "studied a little law."
Judge Cramer and the prosecutor discussed defendant's potential exposure of 21 years in prison if he were convicted of the charges in this case. And he then asked defendant, "Could you hear that, 21 years?" and defendant replied, "Yes. The lady told me this in the first competency hearing." Judge Cramer then stated his decision:
"THE COURT: So you understand if I allow you to represent yourself and I assign you to a trial courtroom the judge will require that you follow the same rules as any attorney. Do you understand that?
"THE DEFENDANT: Sure.
"THE COURT: Are you ready to do that?
"THE DEFENDANT: Yes.
"THE COURT: Okay. And the judge, I think it might be Judge Steckler, won't help you at all. Understand that? [¶] . . . [¶]
"THE DEFENDANT: "I'm pretty sure I do. It said it on the paper. I'm not expecting any kind of favors or favoritism. As long as you are right, I have to go along with the law. . . . I can't object to it?
"THE COURT: You can do whatever is in the rules, yeah. "You understand that if I grant this Ms. Levin won't be waiting in the wings?
"THE DEFENDANT: I don't want her to be there at all. [¶] . . . [¶] "THE COURT: How come you didn't ask to represent yourself three or four months ago?
"THE DEFENDANT: You never gave me the chance. Every time I walk in here I tried to tell her something, she got an idea for me. She 13 running my life better than I am. She running my life trying to do my defense. She didn't want to do nothing I asked her to do. [¶] . . . [¶]
"THE COURT: I am finding that you have been advised of all your Constitutional rights and the dangers and disadvantages of self representation. You have made a voluntary, knowing, and intelligent waiver of the right to counsel. [¶] . . . [¶] I'm going to grant your request to represent yourself."
The Law
The Sixth Amendment to the United States Constitution gives criminal defendants the right to represent themselves when the defendant knowingly and intelligently elects to do so. (Faretta, supra, 422 U.S. at pp. 818-832, 836.)
After Faretta, California courts tended to view the right to self-representation as absolute so long as the defendant validly waived his right to counsel. (People v. Johnson (2012) 53 Cal.4th 519, 526 (Johnson).) In Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), the high court recognized the existence of "gray-area defendants"-those who are mentally competent to stand trial but who suffer from severe mental illness that renders them incompetent to conduct trial proceedings by themselves. (Id. at pp. 174, 177- 178.) In such cases, the United States Constitution gives states the option of insisting upon representation by counsel. (Id. at pp. 177-178.)
In People v. Taylor (2009) 47 Cal.4th 850 (Taylor)-a case defendant's counsel acknowledged at oral argument was "binding"-the California Supreme Court rejected the defendant's argument that the trial court erred under Edwards by granting his request to represent himself, or not later revoking his self-representation status, on grounds of mental incompetence. (Id. at pp. 866-867.) The Taylor court emphasized the limited holding of Edwards: "Edwards did not hold . . . that due process mandates a higher 14 standard of mental competence for self-representation than for trial with counsel. The Edwards court held only that states may, without running afoul of Faretta, impose a higher standard . . . . 'Edwards did not alter the principle that the federal constitution is not violated when a trial court permits a mentally ill defendant to represent himself at trial, even if he lacks the mental capacity to conduct the trial proceedings himself, if he is competent to stand trial and his waiver of counsel is voluntary, knowing and intelligent.' [Citation.] Edwards thus does not support a claim of federal constitutional error in a case . . . in which defendant's request to represent himself was granted." (Taylor, at pp. 877-878.)
In Johnson, supra, 53 Cal.4th at page 527, our Supreme Court was "present[ed] [with] the reverse situation [of that in Taylor]: the trial court denied self-representation under Edwards." Therefore, the Court was tasked with "decid[ing] whether California courts may accept Edwards's invitation and deny self-representation to gray-area defendants." (Ibid.) The Supreme Court answered yes. (Id. at p. 528.) Following Edwards, "the 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.) "Trial courts must apply this standard cautiously," however, as "defendants still generally have a Sixth Amendment right to represent themselves" that "may not be denied lightly." (Id. at p. 531.) "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. Rather, it may deny self-representation only in those situations where Edwards permits it." (Ibid.) 15
"As with other determinations regarding self-representation, we must defer largely to the trial court's discretion. [Citations.] The trial court's determination regarding a defendant's competence must be upheld if supported by substantial evidence. [Citation.] Such deference is especially appropriate when, as here, the same judge has observed the defendant on numerous occasions." (Johnson, supra, 53 Cal.4th at p. 531.)
The Court Did Not Err in Granting the Faretta Motion
Defendant does not argue he was not competent to stand trial at the time the court granted his Faretta request. Nor does he contend that the court did not obtain defendant's knowing and intelligent waiver of counsel. Rather, relying on Edwards and Johnson, defendant asserts that the trial court violated his constitutional rights in granting his Faretta motion because he lacked the mental capacity to represent himself. We disagree.
Defendant, however, argues that his conduct after the Faretta hearing and during trial revealed his competence to stand trial had devolved, requiring the court to initiate new competency evaluations pursuant to section 1368. ~(AOB 63-67)~ We address this contention below.
Defendant's claim of constitutional error is foreclosed by Taylor, supra, 47 Cal.4th 850. As noted above, both Edwards and Johnson addressed the legal standard a trial court must apply when denying a Faretta request to represent oneself due to the lack of mental capacity. (See Johnson, supra, 53 Cal.4th at p. 527.) Here, we have the reverse situation-defendant challenges the trial court's decision to grant his request for self-representation. Our situation thus is indistinguishable from Taylor, in which our Supreme Court held that because the Edwards rule is permissive, not mandatory, there is no federal constitutional error in allowing a defendant who is competent to stand trial to represent himself. (Taylor, at p. 878; 16 Johnson, supra, 53 Cal.4th at p. 527; accord, People v. Miranda (2015) 236 Cal.App.4th 978, 988 (Miranda) ["[N]o constitutional error occurs when a mentally ill defendant's request to represent himself is granted"].) And here, defendant makes no claim that he was not competent to stand trial as of the Faretta hearing.
There also was no error under state law, even assuming Johnson's competency standard applies to this case, in which the trial court granted, not denied, self-representation. Under Johnson, a trial court may deny a self-representation request when "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.) However, the Johnson court explained, "[a] trial court need not routinely inquire into the mental competence of a defendant seeking self-representation. It needs to do so only if it is considering denying self- representation due to doubts about the defendant's mental competence." (Ibid.)
Here, there is no indication that Judge Cramer had doubts about defendant's mental competence as of the Faretta hearing. To the contrary, Judge Cramer apparently found that defendant was competent to represent himself. During the hearing, Judge Cramer engaged in a lengthy conversation with defendant about the impact of self-representation and other pretrial and trial issues. And within this conversation, Judge Cramer explained to defendant that it was faced with the question of "whether or not you are going to be able to represent yourself." Judge Cramer then stated, "Here's a concern I have. So I've got to ask myself a couple of questions, are you competent? And that's more along the lines of mentally competent, and you clearly are. I have no doubt about that." 17
This finding was supported by substantial evidence. Judge Cramer had reviewed the reports of the five psychologists that were appointed to evaluate defendant's competence. According to the reports, defendant had a diagnosis of intermittent explosive disorder predating this case, and during his competency evaluations, presented with symptoms related to that diagnosis and also a possible personality disorder. Defendant reportedly had a tendency to become angry and agitated when discussing the charges in this case and to launch into tirades against his ex-wife. Notwithstanding, three of the five psychologists opined defendant was competent to stand trial. Among other things, they cited defendant's "linear, logical and goal directed" thinking, and sufficient understanding of the charges and proceedings against him. And "[a]lthough he often steered off topic, [defendant] was able to return to the topic of discussion when redirected."
Additionally, at the Faretta hearing, although Judge Cramer noted that defendant had been disruptive in prior proceedings, he acknowledged his calm demeanor and responsiveness. He also explained to defendant the dangers of self-representation and explored the reasons for defendant's desire to waive counsel. Defendant gave reasoned responses to Judge Cramer's questions and acknowledged he understood the warnings about self-representation before unequivocally invoking that right. Defendant also had substantial experience with the criminal justice system and demonstrated some familiarity with criminal law and procedure, such as when he referred to the California Rules of Court and indicated he "studied a little law." On this record, we conclude substantial evidence supports Judge Cramer's finding at the Faretta hearing that defendant was mentally competent to represent himself. 18
Defendant, however, questions whether the court "truly evaluate[d]" his mental competence because at the Faretta hearing it did not expressly refer to Dr. Howard's report opining defendant possibly suffered from a significant mental illness or Dr. Campagna's summary of defendant's mental health history. But any failure to reference the reports does not demonstrate that it did not adequately consider them. At defendant's second competency hearing, Judge Cramer, who also decided the Faretta motion, expressly stated he had reviewed the reports of all of the five appointed psychologists, including Dr. Howard's, and based on the reports, found defendant was competent to stand trial. Further, to the extent defendant argues the court should have credited the opinions of Dr. Howard over the other psychologists, he misperceives the substantial evidence standard of review. It is the trial court's province, not ours, to assess the relative credibility of the witnesses.
Defendant also points to portions of the transcript of the Faretta hearing that he claims showed his lack of mental competence. These excerpts, defendant argues, "showed that [he] had difficulty organizing his thoughts and presenting them in a coherent manner," as he often "stray[ed] from legal questions and diverge into factual claims and allegations of wrongdoing against [A.W.]" We are not persuaded. Here, defendant's imprecise responses to legal questions and tendency to digress in argument about the facts of his case reflect his lack of training in the law, not mental incompetence. (See People v. Butler (2009) 47 Cal.4th 814, 824 [" '" 'technical legal knowledge' is irrelevant to the court's assessment of the defendant's knowing exercise of the right to defend himself"' "]; see also People v. Koontz (2002) 27 Cal.4th 1041, 1073 ["a proclivity to boast or exaggerate, a tendency to digress in argument, a shaky grasp of the legal concept of relevancy, even a certain tangentiality in speech patterns does not necessarily mean that a 19 defendant lacks a rational and factual understanding of the proceedings, the basic criterion for competency"].)
Defendant's reliance on People v. Gardner (2014) 231 Cal.App.4th 945 (Gardner) is unavailing. There, the appellate court affirmed the denial of the defendant's Faretta motion based on a doctor's determination that while defendant demonstrated an understanding of legal terminology and the evidence against him, he lacked competence to represent himself at trial because his expressive language disorder prevented him from communicating coherently with the court or a jury. (Id. at p. 954.) The doctor also reported that the "defendant did not demonstrate 'the higher cognitive abilities necessary to litigate his case in court.'" (Id. at p. 960.) On that record, the trial court "believed that defendant, due to his mental illness, was not capable of carrying out the basic tasks required to present a defense-tasks such as organizing a defense, making motions, and questioning witnesses." (Ibid.)
This case is distinguishable. Here, no similar psychological report opining that the defendant was incompetent to represent himself was presented. Also, in contrast to the inability of the defendant in Gardner to "exhibit the ability for abstract thinking, higher level problem solving or cognitive flexibility" or "be educable and process information" (Gardner, supra, 231 Cal.App.4th at p. 955), the psychologists here found defendant "demonstrated sufficient factual and rational understanding of the proceedings against him" and "thinking that was linear, logical and goal directed," and "was able to redirect his focus back to the topics of discussion" when he went off-topic. There also is no indication defendant suffered from a language disorder or impediment that prevented him from communicating coherently with the court or a jury. 20
In sum, having reviewed the record, and giving appropriate deference to the trial court, we find no error in the trial court's decision to grant defendant's Faretta request.
The Failure to Revoke Defendant's Self-Representation Status
Defendant next argues that the trial court had a sua sponte duty to revoke its order allowing defendant to represent himself at trial "where it was abundantly clear that [he] was [not] competent to represent himself," and that it was reversible error when it failed to do so.
But defendant does not identify the point in the proceedings at which this became "abundantly clear," making his argument an unhelpful moving target. It is also unhelpful and improper that defendant at times refers us generally to his brief's statement of facts-which consists of approximately 35 pages-to argue "[t]here are simply too many examples of [his] incompetence to represent himself." (See Cal. Rules of Court, rule 8.204(a)(1)(C); see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16; Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835 ["An appellate court is not required to search the record to determine whether or not the record supports appellants' claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellants' position"].) Other times, however, defendant does provide specific examples with record citations to support his claim that he was not competent represent himself. We will consider these examples in our analysis.
Background
Before trial, Judge Steckler discussed a number of procedural matters with the parties. Defendant often asked Judge Steckler to explain legal concepts and issues being discussed, such as standby counsel, the question of hardship typically asked on a juror questionnaire, and bifurcation of trial. 21
Judge Steckler provided the necessary explanations, and defendant either expressly acknowledged he understood or stated his position on the particular matter being discussed.
Defendant attempted to file motions. One of them was an oral section 995 motion to dismiss. Judge Steckler denied the motion explaining, "You can't bring a 995 in trial court." Defendant also stated he had a Romero motion, and was told that "Romero has to do with at the end of the trial."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The People filed several motions in limine, which Judge Steckler heard over several days. Defendant remained engaged and provided reasonable responses. For example, motion in limine no. 1 sought an order that the defense produce all discovery. Defendant did not dispute the motion and explained how he would produce the names and addresses of witnesses. Motion in limine no. 2 sought an order that witnesses not discuss their testimony with anyone except with attorneys and their investigators. Defendant responded, "Well, I understand. I understand not to discuss the subject while the trial's going. Who knows what they talk about when they leave out the door?" Motion in limine no. 10 sought to exclude "any mention of any arrests or convictions of any witness for the People." When asked to be heard, defendant replied, "No. I want to ask a question, though, about the people being excluded being a witness they have a record or past record sealed maybe 10, 15, 20 years ago." Defendant explained that his question was pertinent to "a couple of [his] witnesses" he intended to call.
In response to other motions in limine that sought introduction of certain evidence, defendant did not oppose them. For example, defendant acknowledged he understood his Miranda rights but nonetheless did not 22 oppose motion in limine no. 6 to introduce statements he made to law enforcement because he did not "have anything to hide." Similarly, defendant took no issue with letting the jury know he was in custody, stating "I don't care. I am in custody. That's a fact." Defendant also did not want evidence of his prior convictions sanitized, explaining, "If the jury wants to hear it, if he wants to introduce it, that's fine."
Miranda v. Arizona (1966) 384 U.S. 436.
At trial, defendant made a brief opening statement, arguing: "I wanted to have this day in court because these things are the revelations of me also. Some of the stuff is true. . . . You're going to find me guilty of some of this stuff." He continued, "And I have information, different side of the story here. So this is what I wanted to bring out because my ex-wife is not telling the whole story. . . . You hear both sides. And like I said, there's two sides to every story. . . . I wanted a jury to hear this, common sense or whatever you want to say. Let them decide, because I am guilty of something. But other things you're talking about, I am not guilty of. And I could show the proof by their statements."
When A.W. testified for the prosecution, defendant objected to certain parts of her testimony, but they were not in the proper form of a legal objection. Defendant's objections, however, were aimed at contesting the manner in which questions were asked or how exhibits were presented. For example, defendant objected to the prosecutor's questions as "misleading"; requested the entire recording of a 911 call be played, rather than an excerpt selected by the prosecutor; and requested that an entire recording from officer's body camera be shown. Other objections were aimed at challenging A.W.'s credibility. These included when defendant commented that A.W.'s testimony concerning being strangled by defendant was "impossible," and 23 when he criticized her "theatrics" and accused her of rehearsing her testimony with the prosecutor.
During cross-examination of A.W. and other witnesses, defendant struggled with phrasing statements into questions or asked compound or argumentative questions. Notwithstanding, defendant reasonably was focused on undermining the credibility of the witnesses, particularly A.W. For example, he questioned A.W. as to why she continued to communicate with him despite the existence of a restraining order against him; how she was certain defendant was the person who broke her window during one incident if she did not see him to do it; "if you are so terrified, why do you keep on allowing me in your presence?"; and why she did not have any injuries from the alleged assaults. Similarly, in examining A.W.'s daughter, defendant asked her why she was lying about his past behavior. Defendant also cross-examined several police officers for purposes of testing their credibility. For example, defendant questioned Officer Borogna about a particular incident: "Can you really say what transpired while your back was turned away on my identification and stuff?" Officer Borogna answered, "Correct. When I was in the vehicle, I cannot attest to what you discussed between Officer Miller."
For his part, defendant recalled A.W. to testify. Although he continued to make argumentative statements or ask compound questions, he asked A.W. questions again primarily directed at challenging A.W.'s credibility. For example, defendant noted that in one of A.W.'s calls to 911, the dispatcher told A.W. that a police officer would not respond to a report for broken issues. Defendant then asked A.W., "Did that make you change your mind and include the stalking and threats?" 24
After the close of evidence, defendant expressed he did not understand Judge Steckler's and the prosecutor's discussion of jury instructions. At one point, Judge Steckler stated, "I understand. Again, that was discussed with you by Judge Cramer at the time of the Faretta waiver. I am not surprised. But that's true for most non-lawyers." Defendant was not entirely lost in the discussions. With respect to CALCRIM No. 821 jury instruction for child abuse, for instance, the prosecutor stated the instruction should read that "the defendant willfully inflicted unjustifiable mental suffering," without reference to "physical pain" since there was no evidence of it. When asked if he wanted to keep the "physical pain" reference, defendant replied, "Keep it in. That's what the charges said." Judge Steckler agreed with defendant and later stated, "You already gave good feedback on keeping physical pain."
Defendant presented a closing argument. He began, "some of the statements [the] district attorney made were true. . . . Some of the things that he used continuously and gets his dates mixed up. And I would like to . . . give you my version of the truth. This is just a piece of pager. [Sic.] But he uses the piece of paper to exaggerate the situation and accusing me of. Okay. But I have information I want to show you myself." Defendant argued that the times of the various incidents described by the district attorney and A.W. "differ very distinctly." Defendant also stated the district attorney "wouldn't bring up all this information. . . . A lot of things he hides he doesn't want to play the whole tape. So you can't get the whole information on the statement they made. . . . Make up your own mind . . . ." Defendant also highlighted A.W.'s testimony that defendant was the person who broke her windows was "a lie" since "[t]hat was happening before [they] were married." Judge Steckler sustained several objections to defendant's arguments for referring to facts not in evidence. 25
After the jury rendered its verdict, Judge Steckler and parties discussed how to proceed on the trial on defendant's prior convictions. Defendant wanted a lawyer for that trial, namely, to advise him on whether to submit his fingerprints that the prosecution would use to prove his alleged prior convictions. Defendant did not want to be appointed a public defender and requested a two-week continuance to look for private counsel. Judge Steckler granted the request and after the continuance, defendant requested another continuance to locate an attorney when he could not find one, and the matter was continued another 30 days. At the continued trial date of June 6, 2019, defendant stated he still did not have counsel, but that he was ready to proceed in pro per.
The trial on the alleged prior convictions was commenced by Judge Steckler. Defendant mistakenly believed the proceeding was on sentencing, and also asked the relevance of his prior offenses and expert testimony on fingerprint identification. Afterwards, defendant stated, "I can't deny those [prior convictions]. I did that back 30, 40 years ago. I can't say nothing about what happened in the past. But I told you my story about that situation. . . . I don't care what the man got to say about me and my character. It's an assassination. I come for the rest of the charge. That's it. Leave it to the Court. You're the Judge."
At sentencing, defendant became less patient, stating, "I would like to get it over with. Give me whatever you want to give me." Later, he clarified, "I am not trying to disrespect you at all. I would like to get it over with." A.W. provided a brief statement and in response, defendant expressed that both A.W. and the prosecutor had lied in court. Defendant then stated, "I know there's no justice in court. I don't give a damn about the damn court. None of the damn lies in court. They lie in court too." And he added, "I 26 would like to get the hell of here [sic] and away from her. Give me my sentence to work on my appeal."
The prosecution submitted on the matter and then the following exchange occurred:
"THE DEFENDANT: Okay. She ain't said enough already?
"THE COURT: Okay.
"THE DEFENDANT: You always get the last say.
"THE COURT: You know who has the last say here? It's me.
"THE DEFENDANT: Thank you.
"THE COURT: You're welcome. In terms of the indicated and the time, you just talked yourself into four more years in prison.
"THE DEFENDANT: Thank you.
"THE COURT: It is 29 years, four months. . . ."
The Law
Initially, it is unclear what standard defendant is asserting should govern a determination of whether the trial court erred by not terminating his self-represented status. He incorporates by reference the authorities he cited in the previous argument section of his brief on the issue of whether the court granted his self-representation request in the first instance under Edwards and Johnson. However, defendant also cites People v. Carson (2005) 35 Cal.4th 1, 6, which discusses the court's authority to terminate self-representation status when he or she deliberately engages in disruptive or obstructionist conduct. He also cites People v. Watkins (1992) 6 Cal.App.4th 595, 600, which held "that a criminal defendant with a speech impediment so severe that it renders him unable to communicate with the judge and jury is unable to abide by rules of procedure and courtroom protocol" could not exercise the right of self-representation. Neither addressed the mental competence of a criminal defendant. 27
Based on the assertions in defendant's briefs, we understand his argument to be that the trial court was required to revoke his Faretta rights because he was not mentally competent to represent himself, not because he was deliberately disruptive or had a severe communication impediment. Thus, neither Carson nor Watkins is controlling.
As explained in Miranda, supra, 236 Cal.App.4th at pp. 988-989: "Although Edwards and Johnson expressly grant trial courts the discretion to deny self-representation under certain circumstances, those courts did not address when, or even whether, trial courts may revoke that right after it has been granted. Assuming that a defendant has a 'right' to have the court revoke his [self-represented] status if the court becomes aware of defendant's serious mental disability, we therefore have no guidance as to the appropriate standard of review." The Miranda court declined to resolve the question "because under any possible standard of review the record shows that [the defendant] was capable of performing the basic tasks of self-representation without the assistance of counsel." (Miranda, at p. 989.) Likewise, here, we will assume that the Johnson standard applies.
The Court Had No Duty to Revoke Defendant's Self-Representation Status
We have reviewed the record, including the portions defendant has cited in his briefs, and conclude there is no substantial evidence of a severe mental illness that prevented defendant from carrying out the basic tasks necessary for self-representation at trial and sentencing. (Johnson, supra, 53 Cal.4th at p. 530.)
As Judge Steckler observed, defendant had "been very respectful to the Court" throughout the proceedings. And although defendant lacked legal knowledge, for the most part, he remained engaged and responded appropriately during discussions of procedural and substantive matters, 28 including the People's motions in limine and proposed jury instructions, as explained above.
At trial, defendant made an "opening statement [which], although brief and inelegant, still conveyed the essence of his defense"-that A.W. was lying about the charges, had poor memory, her lack of fear, and the prevalence of vandalism in her neighborhood. (See Miranda, supra, 236 Cal.App.4th at p. 989.) Defendant correctly notes that during opening statement he admitted he was guilty of some, but not all, of the charges. This was consistent with a broader theme in his defense, that he wanted to convey "the truth" about the charges and that the jury should hear "the whole story." His chosen defenses, though ill-advised, were coherent. Indeed, as explained in People v. Mickel (2016) 2 Cal.5th 181 (Mickel), the courts have "accepted that the cost of recognizing a criminal defendant's right to self-representation may result' "in detriment to the defendant, if not outright unfairness." '" (Id. at p. 206.) Thus, a defendant's right to control his defense includes the right to decide to present no defense, or a defense that has little or no chances of success. (Id. at p. 209, citing People v. Clark (1990) 50 Cal.3d 583, 617 [" 'The defendant has the right to present no defense and to take the stand and both confess guilt and request imposition of the death penalty' "]; see also People v. Mayfield (1993) 5 Cal.4th 142, 177 ["candor may be the most effective tool available to counsel"].)
We agree that defendant struggled with raising proper legal objections when the prosecution examined A.W. and with forming his statements into concise or non-argumentative questions when he examined her. However, this demonstrates defendant's lack of legal training, not mental incompetence to carry out the tasks to present his defense. (See People v. Poplawski (1994) 25 Cal.App.4th 881, 894 ["[A] lack of legal expertise or unfamiliarity with 29 technical legal terms is not a proper basis for denying pro se status"].) As noted, defendant's attempted objections demonstrated that he understood, and made reasoned challenges, to what he perceived as a "misleading" manner of questioning by the prosecutor. And though not typically asserted as proper legal objections, defendant's interjections during A.W.'s examination were reasonably aimed at challenging her credibility. The same is true when it was defendant's turn to examine A.W. and other witnesses. As explained above, however inartful or argumentative his questions, they were rationally focused on undermining the credibility of the witnesses' factual accounts.
Defendant made a closing argument, asserting among other things that the prosecutor confused some of the dates underlying the charges, failed to present the entirety of the video footage of certain incidents, and "exaggerate[d] the situation." This was a cogent defense.
Following the jury's verdict, defendant expressed confusion about the second phase of trial on the prior conviction allegations and mistakenly believed the court instead had proceeded to sentencing. But again, we view defendant's comments as underscoring his lack of acumen as a trial attorney, not as proof that he suffered from a mental illness prohibiting him from carrying out the basic tasks necessary to his defense.
Overall, we recognize that defendant was sometimes inarticulate and ineffective, expressed confusion about the law, and digressed into arguments that strayed from the legal issues at hand. "Of course that is no doubt the norm in many self-represented cases, not the exception. Those are the risks assumed by any defendant who chooses to represent himself." (Miranda, supra, 236 Cal.App.4th at p. 989, citing Taylor, supra, 47 Cal.4th at p. 866 [the likelihood or actuality of a poor performance does not defeat the right of 30 self-representation]; see Johnson, supra, 53 Cal.4th at p. 531 ["Trial courts must apply [the Edwards] standard cautiously. . . . 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"].) Although defendant's lack of legal skills was evident during the trial, he conducted a basic, if tactically ineffective, defense.
Defendant nonetheless asserts the court should have recognized he was incompetent to represent himself-an argument that is based on a myopic reading of the record, attempting to view the evidence in the light most favorable to him, when it must be viewed otherwise. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
First, he points to the fact that "he did not understand any of the procedural rules," as illustrated by his failure to raise objections for lack of foundation and hearsay; the filing of a section 995 motion in the middle of trial; his statements that the court expressed difficulty understanding; his struggle with asking questions, as opposed to statements, while examining witnesses; and his confusion or exhaustion by the proceedings. None of this is persuasive. As explained above, the evidence cited by defendant demonstrates at most a lack of legal training, not an ability to perform basic defense tasks.
Second, defendant asserts he had a "penchant for making incriminating statements in front of the jury." Defendant notes that he referenced inadmissible matter such as his custody status and criminal history, including having served jail time for involuntary manslaughter, and admitted to facts that were harmful to his case. But defendant's reference to inadmissible matter again demonstrates his lack of technical legal knowledge of the evidentiary rules. Moreover, as explained, defendant's decision to 31 admit to harmful facts was consistent with his desire to "tell[] the whole story." Although his choice to present no defense on certain issues is not one that trained legal counsel likely would have made, it was "a valid exercise of his right to control his defense." (Mickel, supra, 2 Cal.5th at p. 209.)
Third, defendant argues that even if his "deficiencies at trial were insufficient for the court to impose an attorney upon [him], then his requests for counsel before sentencing should have settled the matter." Defendant does not explain with any supporting authority why his request for private counsel obligated the court to revoke his self-representation status. Thus, as the People note, the assertion is to be disregarded. (Cal. Rules of Court, rule 8.204(a)(1)(B).) In his reply brief, defendant attempts to avoid application for the forfeiture rule by saying his argument is not "an independent claim of relief." Even so, this does not exempt him from explaining his position with citations to legal authority. In any event, defendant appears to argue that his request for counsel midtrial, when viewed together with "his comments at sentencing," should have alerted the court that he was not competent to represent himself. We disagree.
At the sentencing hearing, defendant became less patient and stated to Judge Steckler, "I don't give a damn what you do," and "Go on give me the sentence," a comment could reasonably be attributed to defendant's desire to quickly resolve his case, rather than incompetence. As defendant stated, "I am not trying to disrespect you at all. I would like to get it over with." Judge Steckler could find that defendant's acquiescence also was based on his dissatisfaction with the verdict and frustration with the prosecutor and A.W., who made a victim statement at sentencing. Defendant argued that they both lied in court, that "there's no justice in court," and that he "would like to 32 get the hell of here [sic] and away from her. Give me my sentence to work on my appeal."
In short, defendant has not shown that the trial court abused its discretion in failing to revoke its order that he be permitted to represent himself. We thus reject defendant's claim that the court erroneously deprived him of his Sixth Amendment right to counsel.
The Refusal to Appoint Standby Counsel
Defendant argues that even if the trial court was not required to terminate his self-representation status, it abused its discretion by denying his request for standby counsel. Again, we disagree.
" 'Standby counsel' is an attorney appointed for the benefit of the court whose responsibility is to step in and represent the defendant if that should become necessary because, for example, the defendant's in propria persona status is revoked." (People v. Blair (2005) 36 Cal.4th 686, 725, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919; see Faretta, supra, 422 U.S. at p. 834, fn. 46.) As defendant acknowledges, there is "no constitutional right to advisory or stand-by counsel or any other form of 'hybrid' representation." (People v. Garcia (2000) 78 Cal.App.4th 1422, 1430; People v. Moore (2011) 51 Cal.4th 1104, 1119-1120.)
We will not set aside a trial court's determination whether to allow standby counsel" 'as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken.'" (People v. Clark (1992) 3 Cal.4th 41, 111, abrogated on another ground as stated in People v. Edwards (2013) 57 Cal.4th 658, 704-705.)
Defendant argues that the trial court should have appointed him standby counsel because it was "apparent that [he] needed the assistance of counsel" and lacked the mental "capacity to represent himself" based on his failure to understand the proceedings. Defendant is incorrect. First, he 33 misapprehends the role of standby counsel, which is not the equivalent of advisory counsel, whose role is "to assist the self-represented defendant if and when the defendant requests help. [Citations.]" (People v. Blair, supra, 36 Cal.4th at p. 725.) In contrast, standby counsel "takes no active role in the defense, but attends the proceedings so as to be familiar with the case in the event that the defendant gives up or loses his or her right to self-representation." (People v. Moore, supra, 51 Cal.4th at p. 1119, fn. 7.)
Second, defendant fails to show there was not"' a reasonable or even fairly debatable justification, under the law'" for the Judge Steckler denial of standby counsel. (People v. Clark, supra, 3 Cal.4th at p. 111.) Instead, Judge Steckler had a reasonable basis to conclude that a standby counsel was unnecessary. As we have explained, the record supports Judge Cramer's earlier finding that defendant was competent to represent himself. Further, Judge Steckler asked if defendant envisioned the possibility that he would wish to withdraw self-representation midtrial. Defendant replied that "once the trial starts, I can't give up and change my mind" and "[n]o backing up once I make a commitment" and confirmed that he would "stick with it," before reiterating he wanted to represent himself. Judge Steckler therefore acted reasonably in not anticipating that defendant would change his mind about his desire to represent himself.
Third, defendant unpersuasively argues that Judge Steckler's treatment of the appointed investigator as essentially defendant's counsel demonstrated the need for standby counsel. This argument is based on an incorrect factual assumption. The portions of the record that defendant cites show Judge Steckler expressly told defendant, "It's not up to [the investigator] to allow you to do anything or not." Contrary to defendant's 34 assertions, Judge Steckler did not "require [defendant's] investigator to essentially act as standby or advisory counsel."
The Failure to Stay Proceedings Prior to Judgment
Defendant next asserts that the court also should have stayed proceedings to conduct a third competency inquiry under section 1368 because there was evidence that defendant had begun to "decompensate[]" throughout trial.
As explained by our Supreme Court in Mickel, supra, 2 Cal.5th at pp. 194-195: "A criminal trial of an incompetent person violates his or her federal due process rights. (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) The state Constitution and section 1367 similarly preclude a mentally incompetent defendant's criminal trial or sentencing. (§ 1367, subd. (a) ['A person cannot be tried or adjudged to punishment . . . [while] mentally incompetent']; People v. Lightsey (2012) 54 Cal.4th 668, 691 (Lightsey).) A defendant is incompetent to stand trial if the defendant 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.' (Dusky v. United States (1960) 362 U.S. 402, 402 (Dusky); Lightsey, at p. 691 ['[s]tate constitutional authority is to the same effect' as Dusky].)
"Under section 1368, subdivision (a), a judge must state on the record any doubt that arises in her mind as to the mental competence of the defendant, and either seek defense counsel's opinion as to the defendant's mental competency, or appoint counsel if the defendant is unrepresented. The decision whether to order a competency hearing rests within the trial court's discretion, and may be disturbed upon appeal 'only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.' (People v. Pennington (1967) 66 Cal.2d 508, 518 35 (Pennington).) . . . On review, our inquiry is focused . . . on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial." (Mickel, supra, 2 Cal.5th at p. 195.)
Defendant does not challenge the court's finding he was competent to stand trial before the preliminary hearing. Rather, he contends that "he decompensated" later during the trial, requiring the court to stay proceedings and order another competency evaluation. In support, he refers to the same evidence that he cited in support of his arguments that the court had a duty to revoke its Faretta order midtrial or alternatively, to appoint standby counsel. We are unpersuaded. We already explained in the previous section that the evidence defendant incorporates by reference here at most demonstrated his poor legal training, not mental incompetence.
Defendant refers to "Section III, subs. (c) and (d), supra." ~(AOB 65)~ Presumably, defendant meant to refer to Section II of his opening brief instead, as the brief does not contain a Section III, subsections (c) and (d).
Defendant also points to a comment he made comparing Judge Steckler to Kevin Costner and arguments during his examination of A.W. and closing argument showing "[h]e was unable to stay focused on the evidence presented." The reference to Kevin Costner, though somewhat odd, was made in the context of defendant praising Judge Steckler for his fairness to both sides and his "common sense down to earth" approach. And defendant's purportedly irrelevant statements to A.W. appeared to be part of his questioning that attempted to challenge A.W.'s memory of certain events. While it is true defendant often had difficulty focusing on the legal issues at hand and tended to engage in "discursive soliloquies," "a tendency to digress in argument, a shaky grasp of the legal concept of relevancy, even a certain tangentiality in speech patterns does not necessarily mean that a defendant 36 lacks a rational and factual understanding of the proceedings, the basic criterion for competency." (People v. Koontz, supra, 27 Cal.4th at p. 1073.) We thus conclude the portions of the record defendant points to does not furnish substantial evidence of mental incompetence. As such, the trial court did not err in suspending proceedings and conducting a third competency inquiry under section 1368.
The Denial of the Mistrial Motion
Finally, defendant asserts the trial court abused its discretion and denied him a fair trial by denying his motion for a mistrial based on A.W.'s testimony that defendant had been in jail for murder. We reject the claim.
Background
Defendant recalled A.W. to testify as a witness in the defense case. During the prosecutor's cross-examination, the following exchange occurred:
"Q. And did you know that he was a convicted felon? "A. I knew that he had been in jail and stuff. I don't know all that. I don't know about
"Q. I am not blaming you. I am just saying, did you know that?
"A. I knew he had been in jail for murder and stuff. I didn't
"Q. Did you know that it was illegal for him to possess a shotgun?
"THE COURT: As a matter of fact, he wasn't in jail for murder. . . .
"THE WITNESS: Yes, he was.
"THE COURT: No, he was not.
"THE WITNESS: He went to prison for it.
"THE COURT: He did not. Look, I know for a matter of fact, he did not. That's a statement of fact that I'm stating. Please, there's no question pending. That's not a question of an in limine ruling. That's a matter of fact. Period. Next question.
"MR. SJOBERG: Thank you. 37
"THE WITNESS: That's the truth.
"THE COURT: You're out of order, ma'am. You're out of order. It's not true. You are just saying it's true. I am not going to take that anymore at this time in this trial. [¶] . . . [¶]
"THE COURT: You just said, 'That's true.' It's not true as a matter of fact, and I'm not going to let that influence you. Next question. [¶] . . . [¶]
"Q: Do you know if it was murder or manslaughter?
"THE COURT: Wait. I don't want her to-I don't want this-look. Approach counsel table."
At the conclusion of A.W.'s testimony, defendant initially stated he did not want a mistrial. Judge Steckler then discussed the prosecution's request for a curative instruction to the jury. The prosecutor explained that although A.W. may have inaccurately testified that defendant had committed murder, defendant "did kill someone" and "was convicted of manslaughter." Judge Steckler stated, "This jury should never have heard of a manslaughter conviction, period, or a manslaughter event. It shouldn't have happened. I will correct the record such as it is. If error occurred, it will be dealt with down the line. There's no mistrial motion."
After hearing further argument from the prosecutor, Judge Steckler stated, "I need to cure that or declare a mistrial on my own motion. Which do I do? I'll choose one or the other." The defendant then stated, "I would like to declare a motion for mistrial." The prosecutor argued a mistrial was not required and that any prejudice could be cured by an admonition. Judge Steckler denied the motion for a mistrial, but instructed the jury as follows:
"THE COURT: This morning [A.W.] testified that the defendant, . . . had been in jail for murder. And I corrected that at the time. And I want to reiterate and add a little bit to my instruction now. But you're to disregard 38 that statement and any statement she made in that area. And do not let it influence you in any way at all in your deliberations in this case. I stated then and reiterate it now that as a matter of fact, as a matter of true fact, he was not in jail for murder. And that he never murdered anyone. These are matters of fact. Any statements that the witness made to the contrary, are untrue. And you must disregard them. Furthermore, any statement or statements the witness may have made while Court and counsel were conferring at sidebar counsel table, are to be disregarded by you, if you heard any such statement. That too, untrue. Disregard it. Do not let it enter in your deliberations in any way. Thank you for your attention."
The Law
" '[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 985- 986.) "A witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice." (People v. Ledesma (2006) 39 Cal.4th 641, 683.) However, "a motion for mistrial should be granted only when' "a party's chances of receiving a fair trial have been irreparably damaged." '" (People v. Ayala (2000) 23 Cal.4th 225, 282.) "[I]t is only in the 'exceptional case' that any prejudice from an improperly volunteered statement cannot be cured by appropriate admonition to the jury." (People v. Franklin (2016) 248 Cal.App.4th 938, 955; see People v. Navarette (2010) 181 Cal.App.4th 828, 836 ["[A] trial court can almost always cure the prejudice of an improperly volunteered statement by granting a motion to strike and charging the jury with an appropriate curative instruction"].) 39
The Supreme Court has held that references to a defendant's past criminality do not necessarily result in incurable prejudice. In People v. Valdez (2004) 32 Cal.4th 73, a detective who was testifying about a witness's positive identification of the defendant, explained he had found the defendant's picture when he went to the jail and obtained defendant's mug shot photo. (Id. at p. 123) Our high court concluded that "an admonition would have cured any prejudice," since the detective's "fleeting reference to 'jail' was not 'so outrageous or inherently prejudicial that an admonition could not have cured it.'" (Ibid.; see also People v. Collins (2010) 49 Cal.4th 175, 197, 199 [holding that defendant's girlfriend's remarks he called her from Susanville state prison was "brief and ambiguous" and that "any prejudicial effect could be cured by an admonition"]; People v. Avila (2006) 38 Cal.4th 491, 572-574 [a codefendant's volunteered statement that the defendant had "barely got[ten] out of prison" when the crimes occurred did not amount to incurable prejudice]; People v. Bolden (2002) 29 Cal.4th 515, 554-555 [arresting officer's "very brief" testimony about having obtained the defendant's address from the parole office did not irreparably damage the defendant's chances of receiving a fair trial].)
In People v. Ledesma, supra, 39 Cal.4th 641, the Supreme Court held that prejudice was curable even when the jury learned that an earlier jury convicted the defendant of the same crime for which he is on trial. There, the defendant was convicted of murder in a prior trial, sentenced to death, and on appeal his conviction was reversed. (Id. at pp. 655-656.) At his second trial, a witness inadvertently referred to the fact the defendant was on death row. (Id. at pp. 681-682.) Observing" 'it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote, '" our high court found "no basis for concluding, on the present record, that the 40 knowledge that defendant previously had been convicted of murder and sentenced to death was incurably prejudicial." (Id. at p. 683.)
The Court Did Not Abuse Its Discretion In Denying The Mistrial Motion
As in the Supreme Court cases just described, A.W.'s improperly volunteered testimony in this case was not so prejudicial that it could not be cured by admonition or instruction.
A.W.'s statement that defendant had been in jail for murder was brief and isolated. Judge Steckler minimized the taint when he immediately interrupted A.W.'s testimony to admonish the jury not to consider it. And he dispelled any room for jury speculation into the veracity of A.W.'s statement by advising both A.W. and the jury that A.W.'s statement was false. Judge Steckler reiterated in further instructions to the jury that they should not consider A.W's statement during their deliberations and that, as "matters of fact," defendant "was not in jail for murder" and "never murdered anyone." Although defendant asserts these admonitions were inadequate, we see no basis for the assertion and presume that the jury followed Judge Steckler's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Judge Steckler thus reasonably determined that his actions in the wake of A.W.'s improper testimony were sufficient to cure any resulting prejudice. The denial of the mistrial motion was not an abuse of discretion.
Even assuming it was error to deny the mistrial motion, we would conclude the error was harmless under any standard. (See People v. Welch (1999) 20 Cal.4th 701, 749-750 & fn. 9 [finding any error in denying mistrial motion based on inadmissible reference to defendant as a drug dealer was harmless under either People v. Watson (1956) 46 Cal.2d 818, 836 for state error, or Chapman v. California (1968) 386 U.S. 18, 24 for federal constitutional error]; see also People v. Rolon (1967) 66 Cal.2d 690, 693 ["An 41 improper reference to a prior conviction . . . is nonprejudicial 'in the light of a record which points convincingly to guilt' "].) Here, the evidence of defendant's guilt was overwhelming. A.W. testified in detail about the incidents involving defendant's harassing and threatening behavior toward her, and her testimony was corroborated by eyewitnesses, police officers, photographs of the damage inflicted on A.W.'s property, recordings of her 911 calls, and footage from the officers' body-worn cameras. Additionally, A.W.'s statement that defendant had been in jail for murder was cumulative of other evidence that he had a criminal history and was violent. We are thus confident that defendant would not have obtained a more favorable result had A.W. not volunteered her improper statement. Reversal is not required.
DISPOSITION
The judgment is affirmed. 42
We concur: Kline, J., [*] Miller, J. 43
[*] Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.