Opinion
G054760
11-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDY KEJADI ONWUKA, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Collette C. Cavalier and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF3477) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Collette C. Cavalier and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Andy Kejadi Onwuka appeals from a judgment after the trial court found him in violation of probation and imposed a previously suspended prison sentence. Onwuka argues the court erred by permitting him to represent himself at the contested probation violation hearings because he was not mentally competent. We disagree and affirm the judgment.
PROCEDURAL HISTORY
A felony complaint charged Onwuka with one felony count of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a), all further statutory references are to the Penal Code), one misdemeanor count of resisting and obstructing an officer (§ 148, subd. (a)(1)), and one misdemeanor count of false representation to a peace officer (§ 148.9, subd. (a)). Onwuka also admitted an allegation that a non-accomplice was present in the home during the residential burglary (§ 667.5, subd. (c)(21). Onwuka pleaded not guilty to all three counts and denied the allegation.
A couple months later, the trial court granted Onwuka's request to represent himself under (Faretta v. California (1975) 422 U.S. 806, 835 (Faretta)). The following week, the court expressed a doubt regarding his mental competence to stand trial, reappointed the public defender as his counsel, and ordered a psychological evaluation pursuant to section 1368. In January 2015, the court found him incompetent to stand trial and the following month, committed him to a psychiatric hospital for a maximum term of three years. Two months later, the court found Onwuka's competency to stand trial had been restored.
Onwuka, still represented by counsel, withdrew his pleas of not guilty, pleaded guilty to all three counts, and admitted the allegation. The trial court sentenced Onwuka to six years in prison, suspended the sentence, and placed him on probation for five years. A condition of his probation was that he violate no laws.
In September 2015, the prosecution alleged Onwuka violated his probation because he allegedly committed a second burglary. At the arraignment on the probation violation, the court appointed the Orange County Public Defender to represent Onwuka. The court continued the probation violation several times for disposition. The court set the matter for disposition on November 12, 2015, and formal hearing on November 17, 2015. On November 12, 2015, Onwuka filed a motion requesting he be granted in propria persona status and filed a Faretta waiver. Onwuka indicated he intended to file a motion to withdraw his plea.
In Faretta, supra, 422 U.S. at page 807, the United States Supreme Court decided "a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, . . . a State may [not] constitutionally hale a person into its criminal courts and there force a lawyer upon him, . . . when he insists that he wants to conduct his own defense."
On the Farreta waiver form, Onwuka was advised, among other things, that it is almost always unwise for defendants to represent themselves, he would receive no special treatment from the judge if he represented himself, the prosecutor was an experienced professional attorney, and if he represented himself he would not be able to appeal based on ineffective assistance of counsel. Onwuka acknowledged he had never represented himself before but indicated he had considered his possible defenses and knew the maximum penalty in the event he was convicted. Onwuka indicated he had completed the 12th grade. Onwuka answered both yes and no in response to the question asking whether he had been treated for emotional or mental illnesses. When asked if he had any difficulty in reading and understanding the form, Onwuka indicated he did not. When asked to explain his views about the form, Onwuka wrote: "Just the policy of being [p]ro per, aka representing myself." Onwuka explained the reason he wanted to represent himself was because he had "another matter [he] ha[d] to address and the only way to address it is to represent myself." The court granted Onwuka's request but limited the in propria persona status to a period of 30 days for Onwuka to file the motion to withdraw his plea. The court continued the matter to December 17, 2015.
On our own motion we take judicial notice of the Faretta waiver form filed November 12, 2015. (Evid. Code, § 452, subd. (d)(1).) We gave notice, and the parties did not object.
On November 14, 2016, the court again granted Onwuka's motion to represent himself. The probation hearing began on November 21, 2016, and the following facts were elicited.
PROBATION VIOLATION FACTS
Late one afternoon, a neighbor called 911 and reported two black males jumped over a fence into the yard on Rathburn Avenue in Westminster (the Property). Officers Malcom Pierson and Derek Link responded. Pierson observed two men walking down the Property's driveway. Pierson identified Onwuka as being one of the two men. When officers confronted both men at gun point, the two men ran back toward the Property. The officers pursued the men and observed them to jump the backyard fence into the backyard of the Property. Officers detained Onwuka one street north of the initial location.
Officers returned to the Property. When they entered, they observed a broken glass end table directly inside the front door. The officers described the Property as having been ransacked and noted there was blue cheese dressing thrown over the television and cabinet. A bathroom window screen had been damaged and the glass broken. Pierson described the condition of the bathroom window as being consistent with forced entry.
When officers searched Onwuka, they found "miscellaneous costume jewelry" in his pocket. The victim, who lived at the Property with his wife, identified the costume jewelry as belonging to them. Officers also found an automobile key in Onwuka's pocket. Officers later determined the automobile key opened the door of a maroon Mercedes that was found parked nearby. Officers found a bill of sale found in the glove compartment indicating Onwuka had purchased the vehicle, but the vehicle was registered to a different individual. Officers found a social security card with Onwuka's name on it in the glove compartment.
Witnesses gave conflicting testimony regarding the appearance of the two subjects, including what clothing the two men were wearing. Although the 911 caller could not identify Onwuka, the caller's husband did identify Onwuka. He identified Onwuka as the man he saw walking down the Property's driveway drinking a beverage.
At the conclusion of the probation violation hearing, the court found Onwuka had violated his probation. The trial court imposed the previously suspended six-year sentence and granted Onwuka 1,938 presentence credit days.
DISCUSSION
Onwuka contends the trial court denied him due process because he was incompetent to represent himself at various stages of the probation violation proceedings. He asserts there was substantial evidence of his incompetence, but the trial court failed to question his competence to represent himself. We disagree.
Absent substantial evidence a defendant is incompetent, the court may in its discretion hold a hearing to determine the defendant's present mental competence, even if neither party requests a hearing. (People v. Shiga (2016) 6 Cal.App.5th 22, 42-43 (Shiga).) When a trial court is presented with "substantial evidence" that a self-represented defendant is not sufficiently competent to represent himself, the court must conduct a full competency hearing pursuant to section 1368. (Shiga, supra, 6 Cal.App.5th at p. 43.) Substantial evidence is evidence that raises a reasonable doubt about the defendant's competence to stand trial. (Ibid.) A trial court's inquiry regarding whether a defendant is mentally competent to represent himself and, if necessary, to deny defendant's Faretta motion on that basis, is reviewed for an abuse of discretion. (Shiga, supra, 6 Cal.App.5th at p. 43.) A trial court's decision whether to hold a competence hearing is entitled to deference because, unlike a reviewing court, the trial court has had the opportunity to observe the defendant during the course of the proceedings. (People v. Howard (2010) 51 Cal.4th 15, 45.)
Faretta, supra, 422 U.S. at p. 807 [defendant in state criminal trial has constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so].
In Indiana v. Edwards (2008) 554 U.S. 164, 178 (Edwards), the United States Supreme Court drew a distinction between competency to stand trial and competency to represent oneself. The court held "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky, but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Edwards, supra, 554 U.S. at p. 178, .) The Court acknowledged that allowing a defendant who lacks the mental capacity to conduct his own defense the right of self-representation will not "'affirm the dignity'" of that individual (one of the bases articulated in Faretta for recognizing the right of self-representation), will not be fair, and will not promote the appearance of fairness to all who observed the proceedings. (Edwards, supra, 554 U.S. at pp. 176-177.)
Dusky v. United States (1960) 362 U.S. 402 [defendant competent to stand trial if defendant has "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding'" and "'a rational as well as factual understanding of the proceedings against him'"]. --------
In People v. Johnson (2012) 53 Cal.4th 519, 530 (Johnson), our Supreme Court affirmed the standard established in Edwards. The Edwards court explained the 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." (Edwards, supra, 554 U.S. at pp. 175-176.) The Johnson court noted that "[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." (Johnson, supra, 53 Cal.4th at p. 530.) Despite the dictates in Edwards, the Johnson court stated criminal defendants still generally have a Sixth Amendment right to represent themselves and cautioned that self-representation by defendants who wish it and validly waive counsel may not be denied lightly. (Johnson, supra, 53 Cal.4th at p. 531.)
"Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways." (Edwards, supra, 554 U.S. at 175.) When "'a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant's mental state.' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 885 (Mendoza).) Even if an accused appears competent at the beginning of the criminal proceedings, the trial court must remain vigilant and alert to any circumstances that indicate a defendant's mental health has changed and that he may be unable to continue to meet the standards of competence to stand trial. (People v. Lightsey (2012) 54 Cal.4th 668, 690.)
Evidence indicating a defendant is no longer competent includes bizarre, noncompliant, or disruptive behavior in the courtroom or outside the courtroom, including repeated refusals to come to court. (Johnson, supra, 53 Cal.4th at p. 525; Shiga, supra, 6 Cal.App.5th at p. 44.) Other evidence of incompetence would be the writing and filing of "nonsensical motions" or "bizarre" documents. (Johnson, supra, 53 Cal.4th at pp. 532-533, & fn. 2.) A defendant may also be incompetent if he demonstrates "'disorganized thinking [and] deficits in sustaining attention and concentration . . . .'" (Edwards, supra, 554 U.S. at p. 176.) I. Prior Incompetency Determination
Onwuka contends the prior determination he was incompetent to stand trial should have put the court on notice he could become mentally incompetent again. He notes the court found him incompetent to stand trial in January 2015 and competent in April 2015 after time spent at Patton State Hospital. Onwuka asserts that because the contested probation violation hearings did not begin until 18 months later in November 2016, there was no valid reason to assume he was still competent. We disagree.
There is no presumption that a person once found to be incompetent will revert to incompetence with the passage of time. The court should rely on its personal observations to determine whether there has been some significant change in the defendant's mental state since he was found competent. (Mendoza, supra, 62 Cal.4th at p. 885.) The standard of proof in determining a change in circumstance giving rise to a serious doubt about the defendant's competency is the same substantial evidence standard applied by the trial court in determining whether an original competency hearing should be held. (People v. Rogers (2006) 39 Cal.4th 826, 846-847.)
Onwuka points to various aspects of the record to demonstrate there was substantial evidence he was not competent during the probation violation hearing proceedings. He relies on the following behaviors: disruptive behavior inside the courtroom; misconduct outside the courtroom; and confused and disorganized thinking, including attention and memory deficits. We will address each of these concerns anon. II. Disruptive Courtroom Behavior
Onwuka relies on his disruptive behavior, refusal to attend court, and other courtroom misconduct as confirmation he was incompetent at the time of the probation violation hearings. Onwuka states he repeatedly disrupted the courtroom proceedings, attempted to leave the courtroom without permission, and created a disruption that resulted in his removal from the courtroom. He notes the court was required to reprimand him on many occasions for his obstreperous behavior. We disagree Onwuka's disruptive behavior was substantial evidence that should have raised a doubt as to his competence sufficient to justify a renewed competency hearing.
Disruptive behavior alone may not trigger the necessity for a competency hearing. (People v. Burney (1981) 115 Cal.App.3d 497, 503.) People v. Medina (1995) 11 Cal.4th 694 (Medina), is instructive.
In Medina, supra, 11 Cal.4th at page 735, the Supreme Court rejected defendant's argument the court erred by not conducting a second competency hearing. Defendant asserted he had been removed from the courtroom during much of the voir dire and trial proceedings because of his continued cursing and other disruptive behavior and such conduct should have raised a doubt sufficient to justify a renewed competency hearing. The court held "more is required to raise a doubt of competence than the defendant's mere bizarre actions or statements, with little reference to his ability to assist in his own defense. [Citation]." (Ibid.) The court opined "[d]efendant's cursing and disruptive actions displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so, or reflect a substantial change of circumstances or new evidence casting serious doubt on the validity of the prior finding of the defendant's competence. [Citation.]" (Ibid.)
Additionally, in People v. Elliott (2012) 53 Cal.4th 535, 582, the Supreme Court addressed defendant's disruptive courtroom behavior—throwing apples and saying "'This is shit.'" The court concluded this behavior "was evidence [defendant] was angry and upset, and perhaps that he wished to interrupt the proceedings, but it was not evidence sufficient to require the trial court to conduct a mental competency hearing." (Id. at p. 583.)
Although the issue in Medina and in Elliott was defendant's competence to stand trial, the same reasoning applies here. Onwuka's disruptive and argumentative behavior clearly indicated his dissatisfaction with the trial judge and the proceedings. But this behavior did not indicate he was unable to carry out the basic tasks needed to present his defense without the help of counsel due to incompetence. III. Misconduct Outside Courtroom
Onwuka relies on his misconduct outside of the courtroom and correctly states a trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct outside the courtroom. The record reflects Onwuka threatened jail personnel, abused his non-collect telephone privileges, and ripped the telephone cord out of a telephone. As a result, the court suspended his right to make non-collect telephone calls. The court did not suspend his right to make collect telephone calls. The court ordered Onwuka's investigator to make any telephone calls on Onwuka's behalf if he wished. Later in 2016, it was alleged Onwuka committed a misdemeanor while in custody at the jail. In 2017, it was alleged Onwuka committed a felony while in custody at the jail.
A defendant's misconduct outside the courtroom can justify terminating a defendant's right to self-representation. (People v. Carson (2005) 35 Cal.4th 1, 12 (Carson).) Carson is inapposite. In Carson, the question was whether the trial court had the right to terminate defendant's right to self-representation based on conduct that arguably threatened the core concept of a trial. The specific conduct was defendant's acceptance of information it was alleged he knew he should not receive. The revocation of self-representation was not related to a question of competence, and Carson does not assist Onwuka. (Carson, supra, 35 Cal.4th at pp. 12-13.) IV. Confused Disorganized Thinking
Onwuka argues his confused, disorganized thinking, including attention deficits and memory deficits, raised a doubt as to his competence to represent himself. Not so.
"'[D]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illness can impair the defendant's ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.'" (Edwards, supra, 554 U.S. at p. 176.)
Onwuka notes that on March 17, 2017, he informed the trial court he had been diagnosed with "Attention Deficit Hyper Disorder" (ADHD). This statement was made after the court had found him in violation of probation and the court was considering the appropriate sentence. The court asked Onwuka to explain why the court should place him back on probation. As part of his response, Onwuka said he had been diagnosed with "[ADHD], something of that nature." He explained, he cannot stay on a subject for that long so he ends up doing numerous things at the same time. He moves around a lot and he ends up in places where crimes are happening. This, in his opinion, caused him to be falsely accused just because he was in the area even though he did not know crimes were being committed. He went on to describe his future plans of completing high school and going to college and perhaps majoring in computer science. Onwuka's 11th hour comment regarding an ADHD diagnosis does not constitute substantial evidence sufficient to raise a question regarding his competence to represent himself.
As evidence of his confused disorganized thinking, his difficulty sustaining attention and concentration, and his impaired memory throughout the several various probation violation proceedings, Onwuka cites the fact he filed six peremptory challenges in one month, filed five section 995 motions to dismiss the probation allegations, filed three motions in a single month to withdraw his guilty pleas, repeatedly seemed to forget he needed to give opposing counsel appropriate notice, seemed to forget motions must be in writing and filed with the court, and seemed unable to remember prior rulings. Onwuka argues these circumstances present compelling indicia of mental incapacity throughout the four-month period of the contested probation violation hearing. Again, we disagree.
In People v. Mickel (2016) 2 Cal.5th 181, 206, our Supreme Court held that the critical question in determining competence for purposes of self-representation is not whether a self-represented defendant meets the standards of an attorney, or even whether a defendant is capable of conducting an effective defense. The question is whether the defendant is able to carry out the basic tasks needed to present a defense without the help of an attorney. (Id. at p. 207.)
The record reflects Onwuka was argumentative and verbally combative, and resisted following the rules. But his interaction with the trial court both in motions and verbally in court was always focused. Onwuka did seem to have a hard time keeping track of the multitude of motions he filed, but it would be difficult for most lawyers to keep track of the array of motions Onwuka filed. Repetitive and duplicative motions are not a clear indication to the court the defendant was incompetent. A judge could reasonably view the excessive number of filings as the sign of a persistent and aggressive litigant rather than mental incompetence. It is worth noting the subject of some of the motions. Onwuka successfully moved for the appointment of an investigator and repeatedly filed motions seeking additional funds for his investigator. He also filed numerous and frequent motions seeking additional supplies. When County Counsel sought to revoke or modify his pro per privileges, Onwuka vigorously opposed the motion, including seeking a removal order for an in-custody witness. These actions demonstrate Onwuka was more than capable of carrying out the basic tasks of presenting a defense.
Lastly, nothing in the record suggests there was evidence in these proceedings similar to the evidence in other cases where an issue of incompetence was raised. In Shiga, defendant believed he was able to get "a lot of information" from statues in Catholic churches. (Shiga, supra, 6 Cal.App.5th at p. 28.) An expert in Mendoza testified defendant expressed delusions focusing on religion and exhibited paranoia, yet the court's finding of competence was affirmed on appeal. (Mendoza, supra, 62 Cal.4th at p. 872.) In Johnson, a psychologist testified there was a very strong possibility defendant had some type of delusional thought disorder coupled with conspiracy paranoia. That evidence, in addition to the trial court's observation defendant filed a number of nonsensical motions and conducted himself in a bizarre and disruptive manner was sufficient to find defendant incompetent to represent himself. (Johnson, supra, 53 Cal.4th at p. 532.)
Here, Onwuka was faced with a suspended prison sentence of six years. There was an allegation he had committed a residential burglary thereby violating his probation. Evidence of the burglary included witness identification of Onwuka and a search of his pocket at the time of the arrest that revealed costume jewelry taken from the home. Confronted by a significant prison sentence and substantial evidence of guilt, Onwuka was aggressive and persistent as he attempted to avoid prison. There is nothing irrational in Onwuka defending himself in the manner he did. The record does not reveal circumstances that would raise a reasonable doubt as to Onwuka's competence to represent himself. The court did not abuse its discretion in allowing Onwuka to represent himself in the probation violation proceedings.
DISPOSITON
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.