Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC042607A
Haerle, J.
I. INTRODUCTION
In October 2003, a jury found Alvin Smart guilty of three counts of indecent exposure (Pen. Code, § 314.1) and one count of falsely identifying himself (§ 148.9, subd. (a)). In January 2006, a second jury determined that Smart was sane in December 1996 and October 1997 when he committed the charged offenses. Smart was sentenced to a Three Strikes sentence of 75 years to life in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, Smart seeks reversal of the judgment on a variety of grounds including the erroneous denial of several motions, insufficiency of the evidence, instructional error, failure to properly respond to a jury question and ineffective assistance of counsel. Smart also contends that his sentence constitutes cruel and unusual punishment. In a petition for writ of habeas corpus, which we consider along with this appeal, Smart seeks reversal of the judgment on the ground of judicial bias. We will deny the writ petition and affirm the judgment and sentence.
II. PROCEDURAL HISTORY
For context, we briefly summarize the very lengthy history of this case.
On April 21, 1998, an information was filed charging Smart with three counts of indecent exposure and one count of falsely identifying himself to authorities. Smart was also charged with three prior strikes (§ 1170.12) and two prior prison term enhancements (§ 667.5, subd. (b)).
On January 25, 1999, the superior court suspended proceedings pursuant to section 1367. A competency examination was conducted and, on August 24, 1999, the court made a finding that Smart was not competent to stand trial. Smart was committed to the State Department of Mental Heath for placement at Atascadero State Hospital on September 15, 1999.
An order filed March 21, 2001, directed that Smart be returned to court from the State Hospital. Certification proceedings commenced on March 27, 2001, and, on April 12, 2001, Smart entered a plea of not guilty by reason of insanity. A competency trial was held on September 6, 2001, at the conclusion of which the court found that Smart was competent to stand trial and ordered that criminal proceedings were reinstated.
On February 4, 2002, the date set for commencement of a jury trial, criminal proceedings were suspended again pursuant to section 1367. On February 26, 2002, the court conducted another competency examination at the conclusion of which it found that Smart was not presently competent to stand trial. On April 4, 2002, Smart was committed to the Department of Mental Health for placement at Napa State Hospital.
On April 11, 2003, Smart was returned to court for proceedings to certify that he was competent to stand trial. Another competency examination was conducted on June 10, 2003, at the conclusion of which the court made a determination that Smart was presently competent to stand trial.
In July and August of 2003, Smart filed a series of pro per motions pursuant to which he complained about such matters as ineffective assistance of counsel, being forced to take “drugs,” and having to remain in the same unit of the State Hospital where the doctors found he was competent. During this period Smart also made pro per requests for a new competency hearing, substitute appointed counsel and a new preliminary hearing. On September 5, 2003, Smart filed a pro per petition for a writ of habeas corpus seeking dismissal of charges and the institution of civil commitment proceedings on the ground that the period during which he had been detained as incompetent exceeded the maximum term of commitment authorized by section 1370, subdivision (c)(1) (section 1370(c)(1)). That petition was denied on September 16, 2003.
Trial commenced before the Honorable Stephen Hall on October 20, 2003. Smart’s defense of not guilty by reason of insanity was bifurcated and the presentation of evidence in the guilt phase commenced on October 24, 2003. The jury began deliberating on October 28, and returned a verdict of guilty as to all charges that same day. The jury returned “true” verdicts as to the prior convictions on November 4 of that year. The jury was dismissed and the sanity phase of the trial was continued after the court determined that neither side was prepared to proceed.
The sanity phase of the trial was continued several times for reasons which did not relate to Smart’s competency. On April 22, 2005, Smart filed a motion for substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and on April 26, he filed a motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). Both motions were heard and denied on May 4, 2005, by the Honorable John L. Grandsaert.
The sanity phase of the trial commenced before Judge Hall on January 17, 2006. That day, Smart made a motion for a hearing to determine whether he was competent to proceed with the trial, which was denied. The presentation of evidence began on January 23, 2006. On January 26, 2006, after deliberating for less than one and one-half hours, the jury returned its verdict that Smart was sane when he committed the offenses. On February 24, 2006, the court denied Smart’s new trial motion, refused to dismiss his prior strikes and sentenced him to a total term of 75 years to life in prison.
III. STATEMENT OF FACTS
A. Guilt Evidence
1. The Charged Offenses
On December 17, 1996, at approximately 6:15 a.m., Nancy Pangilinan went to the underground garage of her Millbrae condominium complex. She was unlocking her car when she heard a noise in the empty stall next to her parking space. Pangilinan looked over and saw a nude man masturbating. The man was approximately two feet from her car. His face was covered by a red scarf and he was “crouching down like a catcher.” The man’s genitals were “completely shaven,” and he was “stroking” his penis which was “shiny, like he was lubricated.”
Pangilinan was frightened by the man and tried to get in her car and drive away but she was so nervous that the car “jumped” as she put it into gear. The man walked in front of the car and approached her driver’s side window while he continued to masturbate. Pangilinan almost hit the man as she drove away.
On October 12, 1997, at around 2:00 a.m., Katrina Stanley was in her ground floor Burlingame apartment reading a magazine and waiting for her husband to come home. She noticed a man outside standing about a foot away from her window. She went to the window and saw that the man’s pants were down around his ankles and that something like a shirt was covering the top of his head. The man’s crotch area was completely shaved and his hand was on his shiny, fully erect penis which appeared to have some “sort of lubricant on it.” He was masturbating with one hand as he motioned with the other for Stanley to come outside. The man stayed outside while Stanley called 911 but fled once she hung up the phone.
On the morning of October 12, 1997, Nancy Pangilinan, the woman who had found a man masturbating in her garage the previous December, was preparing to take a vacation. Nancy and her husband Joel went to their garage at around 7:30 a.m. because Nancy wanted to make sure the car was properly parked while they were away.
Nancy was re-parking the car when she heard Joel shout, “what the hell are you doing here?” Through her side mirror, Nancy saw the same man who had accosted her in December of 1996. He was nude, crouched down and his face was covered with a red scarf. The man apologized and said he was “going to the bathroom.” Nancy said: “I have seen you before, you were behind my other car in this garage.” The man repeatedly said, “I am sorry, leave me alone, I will get out of here, I am going to the bathroom, leave me alone.”
Although he claimed to be going to the bathroom, Nancy did not observe the man relieving himself. Nor did she observe any urine or feces in the spot where he had been crouching after he walked away. As he walked away from Nancy, the man kept his face covered with the red shirt but did not attempt to cover his genitals which were completely shaven. The man’s penis, though not erect, was shiny and appeared to have been lubricated.
Nancy’s husband Joel followed the man as he retrieved his clothes from behind a car parked several stalls away from where Joel and Nancy had first seen him. The man, who had put his pants on and no longer covered his face, turned toward Joel who got a “good look at him.” Joel followed the man out of the garage where he encountered Jesse Capilitan who was walking his dog. Joel asked Capilitan to call the police. Joel lost sight of the man but Capilitan got in his car and followed the man while he called the police on his cell phone. The man darted behind a condominium complex into a large grassy field.
2. Police Investigation
When the police arrived at the Pangilinan’s residence, Jesse Capilitan directed them toward the field where an officer found appellant, Alvin Smart. Smart was “lying underneath a large amount of brush and leaves holding still as if trying to avoid” detection. Smart’s hands were “greasy” and “shiny” looking. He falsely reported that his name was Robert Thomas Payne. From close by, officers retrieved a jar of Vaseline and a red T-shirt.
Stains on the shirt tested positive for semen. However, the sample was degraded and could not be matched to Smart’s DNA.
Katrina Stanley was brought to the scene and identified Smart as the man who was outside her window the previous evening. She recognized his shoes, pants and the T-shirt he was wearing. At trial, Stanley testified that she may also have recognized a tattoo on his arm.
After his arrest, Smart was taken to the Burlingame police station where he was interviewed by Officer James Hutchings. Hutchings told Smart that a woman had reported seeking a man the previous evening, standing outside her window and masturbating. Smart acknowledged he knew what masturbating was, but denied any knowledge about the incident and said that he could not “even get an erection anyway” because of prostate problems. Smart also said the woman could not accuse him of anything because he “never did nothing like that.” Hutchings told Smart that another woman saw a man pull his pants down outside her apartment which was close by the place where Smart was arrested. Smart stated that the only time his pants were down was when he was “taking a crap” in the field where police found him. Smart repeatedly stated that he did not pull his pants down in front of women and that he made sure he was hidden from view when he went to the bathroom. Smart also told the officer that he had never been arrested before.
A short time after Hutchings completed his interview, Millbrae police officer Richard Dixon interviewed Smart. Dixon asked whether Smart had exposed himself to a female. Smart again denied that he had done anything. Smart also denied ownership of the jar of Vaseline and the red T-Shirt. He denied that the greasy substance on his hands was Vaseline and said he just had oily skin. Smart told the officer that his genitals were shaved because he had “crabs.” Smart also said he had “absolutely not” been incarcerated in the past, that he had not been running from anybody and that he was sleeping in the woods and was just “a victim of circumstances.”
3. Uncharged Incident
Late on the evening of November 8, 1983, Trudie Mitchang heard a knock and went to the front door of her ground floor apartment in Pacifica. Seeing nothing through the peephole, Mitchang started to return to her bedroom when she heard another knock and realized it was coming from the kitchen window. She saw a man outside the window who was wearing something over his face that resembled a ski mask, with holes for the eyes cut out. The man’s pants were unzipped and he was stroking his exposed penis which was “slick, shiny or oily looking.” Mitchang screamed to her roommate and called 911.
A San Mateo police officer who responded to Mitchang’s 911 call apprehended Smart who was found sitting on a motorcycle, with his pants falling down and his buttocks exposed. A T-shirt with eye holes cut into it was in Smart’s pocket. Smart also had a jar of Vaseline in his pants pocket. There was Vaseline on his hands and the crotch area of his pants.
An officer walked Mitchang to the location where Smart was apprehended, only a short distance from her home. Mitchang identified Smart as her assailant, although she could not be absolutely sure because his face had been covered. Mitchang said that the clothes Smart was wearing and his general appearance “matched exactly.”
B. Sanity Evidence
1. The Defense Case
To support his claim that he was insane when the charged offenses were committed, Smart presented testimony by two expert witnesses, Dr. Robert Slater and Dr. Paul Berg.
a. Dr. Robert Slater
Dr. Slater is a board certified psychiatrist who testified on behalf of the defense as an expert in the field of psychiatry. Slater interviewed Smart three times between April 2001 and November 2003, the first two times pursuant to court orders.
Slater interviewed Smart on April 30, 2001, as part of a court ordered psychiatric evaluation to determine if Smart should be found not guilty by reason of insanity. At the time, Smart was disheveled, poorly groomed, and he rocked back and forth, muttered, giggled and was generally incoherent throughout the evaluation. In a May 3, 2001, report to the court, Slater diagnosed Smart as suffering from chronic schizophrenia. Slater based his diagnosis on Smart’s medical records which reflected he had been diagnosed as schizophrenic in the past and on Smart’s “presentation.” However, Slater also determined that Smart was sane when the offenses were committed. Although Smart was too incoherent in April 2001 to respond to questions about the incidents, the police reports from that time period indicated that Smart was sane when the crimes were committed, that he knew what he had done and that what he had done was wrong.
Slater interviewed Smart again on February 15, 2002, pursuant to a court order for a determination whether Smart was competent to stand trial. Smart was responsive, more alert and made good eye contact, but he was not coherent and engaged in “almost non-stop psychotic ramblings.” When Slater interviewed Smart in 2002, he was aware that Smart had previously been identified as a malingerer. However, Slater concluded that “[t]he content of his psychotic rambling was very consistent with a genuinely mentally ill person, rather than a sane person trying to fake insanity.” Therefore, Slater concluded that Smart was not competent to stand trial in February 2002.
Slater interviewed Smart a third time on November 12, 2003, in order to reconsider his prior conclusion that Smart was sane at the time the offenses were committed. Smart’s psychological condition was “markedly improved.” He was coherent, responsive, and alert, made eye contact and was able to articulate the charges against him. Smart reported that he was “pretty much out of it” when he was arrested, that God was telling him what to do and he had to obey because he was God’s son Jesus, and that Government people were trying to kill him. Smart said that he could see the agents inside his body when he looked in the mirror and that God told him the only way to get rid of them was to masturbate in front of women to kill the agents. Smart told Slater that he strongly believed what the voices told him at the time, that he still gets confused at times, that he can think more clearly now but “it still seems real.”
Slater testified at trial that he did not believe Smart was malingering during the November 2003 interview. In Slater’s opinion, a successful malingerer would appear to be “incoherent all the time,” in order to secure a finding of incompetence and avoid trial altogether. Furthermore, Slater characterized Smart’s reported delusion as a “story told by a crazy person” and stated that “I don’t think there is any sane person that could think this up that quickly off the top of his head, even with a rehearsal, it is too real.” Slater testified that Smart “comes across as a generally psychotic person, even when he is coherent, he is still psychotic.”
When asked for his conclusion as to whether Smart was sane at the time the offenses were committed, Slater testified that “I concluded he was legally insane, on the basis of the history that he gave to me.”
b. Dr. Paul Berg
Dr. Paul Berg is a psychologist, licensed in California since 1967, who testified as an expert in the field of psychology. Berg was retained by the defense to review Smart’s medical records and evaluate him in order to determine whether he was sane at the time the offenses were committed. Berg interviewed Smart on July 22, 2004, and also administered a Mellon Clinical Multi-Axial Inventory (MCMI) test, the purpose of which was to obtain a long-term perspective on the patient’s mental health status.
During the interview, Smart explained to Berg that exposing himself to women was “the only way he could free himself from the government agents that had entered his body.” By masturbating in front of women, Smart was able to release “the holy liquid” and “cleanse him[self] and rid him[self] of this poisonous presence in his body.” Berg’s clinical impression of Smart was that he suffered from a delusional disorder and the he was a schizophrenic.
Berg offered the opinion at trial that Smart was psychotic when Berg interviewed him and was legally insane when the offenses were committed. Berg acknowledged that, in the past, Smart had been variously diagnosed as a schizophrenic and as a malingerer. In Berg’s opinion, these two diagnoses were not inconsistent. Furthermore, Berg believed that the results of the MCMI test reinforced his impression that Smart “was not trying to fake” mental illness.
2. The Prosecution Case
a. Lay witnesses
The People presented testimony from several witnesses who observed Smart’s behavior and demeanor during relevant time periods including Mark Stockton, Smart’s former parole agent. Stockton testified he saw Smart at least four times a month from December 1995 until his October 1997 arrest, except for periods when Smart was incarcerated for parole violations. Smart never exhibited any delusional thinking during parole visits. He acted “appropriate[ly],” and he knew “what was going on.”
Police officers Hutchings and Dixon both testified regarding Smart’s behavior on the day of his arrest. Hutchings testified that Smart was cooperative, acted appropriately and did not do anything to suggest he was delusional or crazy. Officer Dixon testified that Smart did not express any delusions or make any bizarre statements to him. Throughout the arrest and interview process, Dixon did not see any sign that Smart was having any mental problems.
The prosecution called several other witnesses who had previously testified at Smart’s guilt trial.
Ruthann Flament, a nurse practitioner at the Maguire Correctional Facility at the San Mateo County jail, had observed Smart on several occasions while he was in jail and was also familiar with his medical records at the jail. Flament first examined Smart on October 12, 1997, the day he was arrested, after he reported to authorities that he suffers from asthma. During the examination, Smart complained of lower back pain due to a car accident. He did not make any mental health complaints, and did not engage in any bizarre behavior. Flamant saw Smart again on October 24, 1997, to follow up regarding Smart’s back pain. Smart was in no acute distress, was pleasant, and talkative and was advised to exercise. Between October 1997 and September 1999, Smart sought medical attention close to fifty times but never for a mental health issue. Flament testified that Smart first came to the attention of mental health staff in February 1999 when a deputy observed Smart engaging in bizarre behavior and requested a mental health evaluation for him.
Stephanie Arthur, the prosecutor at Smart’s October 2003 guilt trial, testified that she took careful notes about what occurred in court during each day of trial. On the afternoon of the first day, Smart appeared wearing a green smock-type robe and sitting in a wheelchair. He was “mumbling incoherently and blowing raspberries . . . throughout the proceedings.” The next morning, Smart again appeared in the robe and wheelchair but was now talking loudly and claimed to be Jesus Christ. He called his attorney derogatory names but was not mumbling and rocking in his chair as he had done the day before. At some point during the morning session, the trial judge informed Smart that the trial would proceed with or without his cooperation. That afternoon, Smart returned to court dressed in street clothes. He stopped the yelling, the rocking and the mumbling. Smart wore a suit to court the next day, the first day of jury selection. During the remainder of the guilt trial, Smart appeared to be communicating well with counsel and was respectful of the proceedings.
b. Dr. Michael Venard
Dr. Michael Venard, a staff psychologist at Napa State Hospital, was subpoenaed by the prosecution to testify regarding an evaluation of Smart that he conducted in March 2001. Venard was not paid for his testimony and was not asked to formulate an opinion regarding Smart’s sanity.
Venard testified that, in March 2001, hospital staff at Smart’s housing unit determined that Smart “presented” differently depending on who he was talking to and requested an assessment of the authenticity of Smart’s mental health symptoms to aid them in formulating an appropriate treatment plan. Venard reviewed legal and medical records dating back to 1971, observed Smart informally on several occasions and conducted an interview with him in March 2001.
From his review of Smart’s records, Venard learned that Smart had employed several aliases over the years. This fact was significant because it indicated Smart was a sophisticated patient who knew how to protect his identity and present a different identity to medical evaluators. The records also revealed that mental health treatment was never voluntary but always followed some type of legal problem when he was put in jail. Smart’s records also suggested that he knew how to control his symptoms so that he could have himself moved from a jail setting to a treatment setting. Whenever Smart was placed in a jail setting, he would “almost immediately begin to decompensate” and would have to be returned to a hospital setting.
In March 2001, Venard visited the unit where Smart was housed several times a week and had the opportunity to informally observe Smart in that environment. Venard observed that Smart was no more or less impaired than other patients who managed their daily affairs, got to their appointments and ran their lives. When Venard told Smart he was a psychologist who was asked to perform an evaluation, Smart’s behavior changed. At first Smart made eye contact and spoke clearly. But, as Venard began to question him about his mental health, Smart became less responsive, and more isolated. After the interview was completed, Smart’s behavior changed again as he began to interact with patients and staff in a more normal way.
During the March 2001 interview, Venard asked Smart about the charged offenses. Smart claimed to have no memory of them. When Venard asked what other people had told him about the events, Smart became upset and claimed he never wanted to hurt anybody and was not a violent man. He engaged in an “ongoing upset kind of rambling,” during which he made the following statement: “It’s not fair to lock me up for three years for something that I don’t remember. Two doctors already told me I was incompetent, and I should not go to jail.” During the interview, Smart never told Venard that he had delusions that required him to masturbate in front of women.
Venard attempted to administer two tests, one designed to help clinicians determine whether a patient is exaggerating, manipulating or making up psychiatric symptoms, and the other used to determine whether a patient is engaging in memory malingering, i.e., whether he is “faking” memory problems. Smart refused to complete both of these tests.
Venard drew several conclusions from his evaluation which he shared at trial. Among other things, Venard found that Smart’s overall presentation indicated an “intentional exaggeration of his symptoms whenever he’s faced with legal consequences for his actions,” that he appeared to be self-sufficient on a daily basis, and that he was capable of recalling names and events when he needed that information to support his claim of impairment. Venard also found that Smart did have a “true mental illness,” but that it was coupled with exaggeration or even intentional manufacturing of problems when he was faced with a legal problem. Venard also testified that “[Smart] seemed fully aware of his own history. He seem[ed] aware of the potential consequences of his actions; and, in my opinion, his lack of cooperation with attorneys or mental health professionals was voluntary and goal directed.”
Venard concluded that Smart engages in “partial malingering.” Malingering describes a person “who is intentionally producing symptoms in order to get out of something.” Partial malingering, by contrast, is when the individual exaggerates very real symptoms, but can control those symptoms and “learn[s] how to use them to [his or her] own best benefit.” In Venard’s opinion, Smart is “intentionally in control of his mental health symptoms and [is] able to use those symptoms in order to obtain a goal of getting out of jail and moving into a much more comfortable situation,” like the state hospital system.
Venard found many examples of this behavior documented in Smart’s medical history. Another example occurred during Venard’s interview when Smart admitted that he had “decided not to eat or sleep so he would get out of jail.”
c. Dr. Joel Leifer
Dr. Joel Leifer is a forensic psychologist employed by the State of California to perform psychological evaluations, competency assessments and sanity evaluations on behalf of various counties. Leifer evaluated Smart on three occasions during the course of the lower court proceedings. He was called by the prosecution to testify as an expert in the field of psychology.
On May 2, 2001, Leifer interviewed Smart at the San Mateo County jail in order to determine if he was sane or insane at the time the offenses were committed. In a May 15, 2001 report, Leifer concluded that Smart was sane when the offenses were committed. During the interview Smart “appeared profoundly psychiatrically compromised. He was mute. He was nonresponsive, and he rocked incessantly in his chair.” However, Smart’s presentation at the time of the interview did not answer the legal question whether Smart was sane in October 1997. Leifer concluded that the audio tape of Smart’s police interview after his October 1997 arrest indicated that Smart understood the wrongfulness of his conduct because he denied committing the exposures and stated that “he wouldn’t do something like that because something like that was wrong.”
Leifer interviewed Smart again on February 14, 2002, to determine whether Smart was competent to stand trial and concluded that Smart was “trial incompetent.” Leifer’s conclusion was based primarily on Smart’s catatonic demeanor during his interview. Although there were questions of malingering, Leifer testified that he could not “disregard [Smart’s] very convincing presentation at that time.”
In November 2003, Leifer conducted another competency evaluation. In a report dated November 18, 2003, Leifer concluded that Smart was competent to stand trial. Leifer also opined that Smart was presently sane and noted that Smart had been “able to discuss his case coherently and consistently and with relevance.” However, Leifer also found that Smart was insane at the time the offenses were committed. During the November 2003 interview, Smart provided a “very clear, coherent, rational explanation of what was going on in his mind at the time of the offense.” Smart told Leifer that “his actions were commands from God, and that he was his son Jesus.” God ordered him to masturbate in front of women and he had to obey God’s orders. The clarity and forcefulness with which Smart expressed his delusions led Leifer to change his opinion about Smart’s sanity and to conclude that Smart was not sane when the offenses were committed.
In 2004, Leifer changed his opinion again and concluded that Smart was sane at the time of the offenses. Leifer testified at trial that, when he interviewed Smart in November 2003, he had some concern about malingering but ultimately concluded that Smart was a schizophrenic person who also exaggerated his symptoms. However, during the months following that interview, Leifer reviewed, for the first time, Smart’s extensive treatment records. Leifer was persuaded by those records and the events documented therein that Smart was a malingerer. Those records showed that Smart had turned his symptoms on and off depending on his goals and the people around him. Leifer also noted that Smart was “overheard educating other inmates on how to malinger symptoms so that they can be found to be trial incompetent.” Leifer ultimately concluded that the “very sophisticated techniques” that Smart had employed over the years were not consistent with a diagnosis of schizophrenia.
d. Dr. Ronald Roberts
Dr. Ronald Roberts is a psychologist, licensed since 1984, who testified on behalf of the prosecution as an expert in the field of psychology.
Roberts interviewed Smart on January 14, 2004. During the interview, Smart was “very focused, somewhat upbeat in his demeanor,” reported that he was being treated poorly by the jail and tried to get Roberts to feel sorry for him. Early in the interview, Smart volunteered that he currently knew that indecent exposure was a crime but claimed that, at the time of the offenses, he did not know his conduct was unlawful because he “was being directed by mental delusions.”
It appeared to Roberts that Smart had a story he was ready to tell at the January 2004 interview. Smart’s “very elaborate story” was about how he was raped at knife point when he was a child by a federal officer and, since that time, federal agents had been after him and had entered his body. Smart reported that God told him Federal agents were trying to kill him and the only way to protect himself was to kill them by masturbating. Roberts testified that Smart also explained that he “was delusional regarding the need to masturbate in front of women for the first two incidents, but not at the time of the third incident” when he “was just looking for a place to go to the bathroom.” Roberts testified that Smart appeared to appreciate that his conduct was wrong because he essentially used the delusions as an excuse for behavior that would otherwise be against the law and deserving of punishment.
Roberts identified several factors which were inconsistent with the conclusion that Smart suffers from schizophrenia. For example, Smart’s purported delusions were very concise and clearly explained whereas schizophrenics think in a “very jumbled” and “scattered” manner. Also, Smart claimed to have clear visual delusions which would be rare for a schizophrenic to experience. In addition, Smart had been involved in a long-term romantic relationship and Roberts had never known anyone with paranoid schizophrenia to have had that kind of long term romantic relationship.
Roberts acknowledged that “sometimes individuals who may be actively psychotic may get put on medications and have the active signs of psychosis subside,” but found that this possibility did not apply to Smart. Smart’s medical records showed that he was not taking any psychiatric medication during the initial phase of his incarceration after his arrest for the charged offenses, and yet he did not report any psychiatric symptoms. Indeed, Smart did not even make the claim that he was psychotic at the time of the charged offenses until 1999. Roberts testified that these circumstances were not consistent with a diagnosis of schizophrenia. Schizophrenics who are not on medication cannot control their symptoms and Smart’s alleged psychotic symptoms could not have gone unnoticed for the lengthy period of time during which he was incarcerated but not taking any medication.
Roberts administered two psychological tests during his interview with Smart, a Structured Interview of Reported Symptoms (SIRS), which is designed to help identify patients who are faking schizophrenic types of disorders and a Rorschach test which is used to identify schizophrenic or psychotic disorders in general. Smart’s responses to the Rorschach test “gave no indication of schizophrenia or any type of psychotic disorder.” The results of the SIRS established a “concern about the possibility of malingering,” although Roberts could not conclude that there was malingering based upon that one test.
Roberts found additional evidence of malingering in Smart’s records. Police reports from the time when the crimes were committed did not contain any report of “any type of psychotic symptom whatsoever,” or any sign that Smart was suffering from a mental illness. Medical and hospital records showed that Smart came to the attention of mental health professionals only after he was charged with a crime. Roberts also noted that the records showed that Smart’s symptoms of schizophrenia surfaced whenever it was time for Smart to appear in court. Roberts also found “multiple, multiple notations in the records about malingering.”
Ultimately, Roberts concluded: “From my perspective in being a psychologist with over 30 years of experience in evaluating individuals that have psychotic problems, I saw absolutely no evidence at any time at the commission of these crimes of any type of significant defect in his mental state that might warrant considering insanity.” Roberts also stated that all of the information he considered suggested that Smart “knew the difference between right and wrong and knew that the acts that were being committed were wrong.”
IV. DISCUSSION
A. Motion for Self-Representation
Smart contends his due process rights were violated when his April 26, 2005, Faretta motion to represent himself during the sanity phase of the trial was denied.
1. Background
As noted above, Smart’s April 22 Marsden and April 26 Faretta motions were both heard and denied by Judge Grandsaert on May 4, 2005. At that time, the sanity phase of Smart’s trial was scheduled to commence on May 23, 2005, and the prosecution opposed any further continuances.
Although the transcript of the Marsden hearing was originally filed under seal, relevant portions of the transcript were unsealed pursuant to this court’s order.
The Marsden motion was directed at Steven Chase, Smart’s fourth attorney during the lower court proceedings, who had represented Smart during the guilt phase of the trial. The transcript of the hearing reflects that Smart had made four prior Marsden motions all of which had been denied. Smart made several complaints about his defense counsel, including that Chase (1) accused him of faking his mental illness, (2) did not attempt to stop the guilt trial on the ground that Smart was incompetent; (3) did not present a defense at the guilt phase; (4) was not adequately prepared for the sanity phase; (5) intended to call only two doctors at the sanity phase; and (5) had failed to obtain relevant medical records and documentation. The trial court denied the Marsden motion, stating that defense counsel was a “very experienced, excellent defense attorney” who was as “good an advocate as any lawyer can be.”
After the Marsden motion was denied, the court entertained Smart’s Faretta motion. The court asked Smart several questions. It inquired why Smart had filed so many Marsden motions to which Smart replied he had been receiving “ineffective assistance of counsel.” The court asked whether Smart remembered what happened during the guilt phase. Smart responded: “Vaguely, yes I do. And it had to do with the fact--I told you in the Marsden hearing about what--the doctor had found me to be incompetent before I went to trial.” The court asked whether Smart was still having delusions. Smart responded that he was “competent,” and that it had been “quite awhile” since he had heard voices. He explained that, over the years, he had experienced “mental illnesses” at various times, that he knows “when it’s coming on,” and that at the present time, he was “very competent,” and was “not having any problems.” Smart reiterated that he was not competent at the guilt phase because that is what the psychiatrist said. He stated that he goes through a “process of hearing voices, being delusional,” and that when that happened it could get so bad that he did not “know nothing at all.”
During the Marsden hearing, Smart maintained that, before the guilt phase of the trial commenced, a doctor named Al Bruce found that he was not competent to stand trial. However, Chase advised the court: “I know nothing about that doctor. And--and like I say, I sat through the trial with this man. I talked to him daily. He was not incompetent. That’s just--that’s a fact.”
When the court asked Smart whether he would be ready to proceed with the trial on the scheduled date, Smart replied: “I think I’m ready to proceed on that date. If not, if I have to look over all the records, I want to get a trial as soon as possible, Your Honor, like I said. A couple weeks longer, maybe, or something, at the most. I want to go to court in trial as soon as possible. I’m not trying to put a trial off, Your Honor. I’m trying to go to trial and trying to win it.”
The court prefaced its ruling by expressing its opinion that Smart was articulate and intelligent, mentally ill but competent to stand trial. The court then shared several concerns including that (1) the case was seven years old, (2) Smart’s delusions and resulting problems with historical reality did not render him incompetent but would affect his ability to represent himself, (3) Smart’s request was being made mid-trial, after the guilt phase was already completed, (4) it appeared that Smart’s real motivation was to get rid of his current counsel and further delay the proceedings, (5) Smart had already made so many Marsden motions, and (6) Smart had been disruptive during the guilt phase of the trial.
With respect to its concern about Smart’s prior disruptive behavior, the court gave two examples. It mentioned Smart’s behavior during the first few days of the guilt phase when Smart attempted to convince the trial court he was not competent. The court also referred to an incident during the defense closing argument. Smart opened his shirt to show the jury that he did not have a mole or birthmark on his chest after reference was made to the fact that Katrina Stanley had reported to police that she thought she saw a mark on the chest of the man who exposed himself to her.
Ultimately, the court denied the Faretta motion on the following grounds: “In light of the fact that this case has been going on for several years. In light of the fact that you acted in a way that disrupted court proceedings at the first phase of this trial, in terms of what you did during closing argument. In light of the fact that you refused to come to court and attempted to disrupt proceedings there. In light of the fact that I don’t believe that you would be ready to proceed to trial on May 23rd if I were to grant your motion, because of the kinds of things you said to counsel this morning, about how there’s so little time left, and there’s not much time left for Mr. Chase to complete the work that needs to be done in your opinion. I’m concerned when you say that you’re not going to ask for a continuance, that it’s either unrealistic or untrue with what you intend to do. [¶] I don’t see how you can say to Mr. Chase that he’s not going to be able to be ready for trial on May 23rd, and yet say that you would be ready for trial on May 23rd. [¶] I think, in light of that history, in light of the present setting of the case, in light of the People’s right to proceed to trial after seven years, in light of your conduct in the first phase of this trial . . . . [¶] I don’t believe that you truly do seek the right to represent yourself as opposed to desire to get rid of you’re appointed counsel. I think that your request is being made here for purposes of getting rid of counsel and for the purpose of delaying proceedings. I think you would disrupt proceedings in the second phase of this trial, as you did in the first phase.”
2. Analysis
Smart contends he was denied his constitutional right to represent himself and invokes the rule that “denial of a timely Faretta motion is reversible error per se.” (Citing McKaskle v. Wiggins (1984)465 U.S. 168, 177; People v. Joseph (1983) 34 Cal.3d 936, 945-948.) This argument begs the question whether Smart’s Faretta motion was timely.
“[A] defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do so.” (People v. Windham (1977) 19 Cal.3d 121, 124, citing Faretta, supra, 422 U.S. 806.) “[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. . . . However once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court.” (People v. Windham, supra, 19 Cal.3d at pp. 127-128.)
Thus, as a preliminary matter, we must determine whether Smart’s Faretta motion was made a reasonable time before the commencement of trial. The objectively verifiable facts support the lower court’s conclusion that the motion was made mid-trial. Trial commenced on October 20, 2003, and the verdict that Smart was sane was returned on January 26, 2006. Only the guilt phase of the trial had been completed when Smart made his Faretta motion on April 26, 2005.
In his opening brief, Smart acknowledges, but then disregards, the “technical” fact that his motion was made mid-trial and then simply proceeds as though the guilt and sanity phases were two separate trials. In his reply brief, Smart argues that this matter “should be treated the same as a motion for self representation made before trial . . . .” He contends there were no proceedings already in progress when his motion was made, and points out that, by that time, the guilt jury had been dismissed and the trial had been continued several times. Therefore, Smart argues, “the proceedings had already been substantially interrupted and delayed, and there was no possibility of any significantly greater disruption of ongoing proceedings.”
We are not persuaded by this argument, which is not supported by relevant legal authority. Contrary to Smart’s contention, proceedings were in progress when the Faretta motion was made. The trial was only half over and the multiple continuances and delays were a part of that on-going trial. Nor are we persuaded by Smart’s apparent belief that the evidence that the trial had already been disrupted and delayed somehow strengthened his hand. To the contrary, it is just these circumstances which the court should be able to consider when ruling on a mid-trial Faretta motion.
After this case was fully briefed, Smart filed a letter directing our attention to People v. Halvorsen (2007) 42 Cal.4th 379 (Halvorsen), a case he characterizes as “determinative,” and as supporting his contention that his Faretta motion was timely because it was brought before the sanity phase of the trial commenced.
In Halvorsen, the defendant was convicted of two counts of first degree murder and related offenses. During the penalty phase, the jury could not reach agreement as to the penalty for one of the murder counts. (Halvorsen, supra, 42 Cal.4th at p. 384.) After a mistrial was declared and before the penalty re-trial, the defendant made a Faretta motion which was denied on the ground that the defendant, though competent to stand trial, was not competent to represent himself. (Id. at pp. 432-433.) The Halvorsen court held that this stated basis for the denial of the motion was invalid. (Ibid.) The court then proceeded to independently review the record to determine whether the motion could properly have been denied as untimely.
The Halverson court observed that, because the phases of a capital trial are stages of a unitary trial and not distinct trials, motions made after the guilt phase verdict has been returned are not timely. (Halvorsen, supra, 42 Cal.4th at p. 434.) However, the court found this rule did not apply in the case before it because the guilt phase of Halvorsen’s trial ended in a mistrial and a complete retrial would take place before a different jury. Therefore, the court found that the rationale behind the rule giving the trial court the discretion to deny an untimely Faretta motion, which is “to avoid disruption of an ongoing trial,” was not implicated in the case before it. (Id. at p. 434.) Under the circumstances, the court found, the Faretta motion was timely and the trial court had no discretion to deny it. (Id. at p. 434.)
The Halverson defendant made a Faretta motion after his first trial was completed, several months prior to the commencement of his second trial. Here, by contrast, there was only one trial, and the Faretta motion was made in the middle of that trial, after Smart had expressly elected to proceed to trial with counsel. Although the guilt and sanity phases were conducted before different juries, they were integrally-related and part of a single unitary trial. In other words, there were not two separate trials in this case as there was in Halverson. Furthermore, in contrast to Halverson, and as more fully discussed below, the circumstances of this case did directly implicate the rationale for the rule giving trial courts discretion to deny untimely Faretta motions, i.e., to avoid further disruption of this already ridiculously long trial.
For all these reasons, we find that Smart’s Faretta motion was not made a reasonable time before trial commenced. Therefore, an important premise of Smart’s argument, that he had an unconditional constitutional right to represent himself at the sanity phase, is simply erroneous.
“A motion that is not made within a reasonable time prior to trial is addressed to the sound discretion of the trial court. [Citations.] In exercising its discretion the trial court should consider such factors as the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reason for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. [Citations.] Additionally, a trial court may deny such a motion if it finds it is made for the purpose of frustrating the orderly administration of justice. [Citation.]” (People v. Howze (2001) 85 Cal.App.4th 1380, 1397; see also People v. Rogers (1995) 37 Cal.App.4th 1053, 1056-1057.)
Applying these rules to the present case, we find that the trial court did not abuse its discretion by denying the Faretta motion. Just prior to its ruling, the court had denied Smart’s fifth Marsden motion and noted that defense counsel was doing an excellent job. Although Smart stated that he wanted to represent himself, the circumstances supported the trial court’s conclusion that the true reason for his motion was to get rid of his defense counsel and to further delay the proceedings. The case had been pending for several years, the motion was made mid-trial, and, contrary to Smart’s contention on appeal, there was ample basis for concern that granting the motion would result in future disruption and delay. Indeed, in light of the record presented to us on appeal, we find that the court could well have denied the Faretta motion on the ground that its purpose was to frustrate the orderly administration of justice.
Smart completely fails to acknowledge the court’s discretion when ruling on a mid-trial, and therefore untimely, Faretta motion, a failing which undermines his argument on appeal. Smart exacerbates his error with a piecemeal attack of the court’s analysis. Under our deferential standard of review, we examine “the total circumstances confronting the court when the decision is made.” (People v. Howze, supra, 85 Cal.App.4th at p. 1399.) Nevertheless, we briefly address Smart’s major complaints.
Smart complains that the court erred by using his history of delusions to find that he was not competent to represent himself. The record shows that, although the superior court expressed concern that Smart’s delusions and problems with historical reality would affect his ability to represent himself, it did not make an express or implied finding that Smart was not competent to represent himself. Indeed, the court did not even mention Smart’s mental health issues in its long list of reasons for denying the Faretta motion. Furthermore, Smart’s claimed delusions and problems with historical reality were relevant to and supported the Faretta ruling notwithstanding that these problems did not render him incompetent to represent himself. Taking Smart at his word, his delusions could affect him at any time, e.g., in the middle of the sanity phase of the trial were it to become clear that he was going to be found sane. Such an occurrence would, of course, have disrupted and delayed the proceedings and, indeed, could have resulted in a mistrial. Therefore, the trial court would not have abused its discretion by considering this possibility when ruling on the Faretta motion.
Smart also contends the court erred by questioning his motivation for bringing the motion. He claims that motivation was irrelevant, even if he was motivated by a desire to rid himself of defense counsel. Smart is simply wrong about that. “[I]n order to protect the fundamental constitutional right to counsel, one of the trial court’s tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself.” (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall); see also People v. Barnett (1998) 17 Cal.4th 1044, 1087.) Thus, for example, even a timely motion that is made “in passing anger or frustration” may properly be denied on the ground that it is an insufficient waiver of the constitutional right to counsel. (Marshall, supra, 15 Cal.4th at p. 23.) The defendant’s motivation is also properly considered by the court in order to insure that the assertion of the right of self-representation is not being used as “a vehicle for manipulation and abuse.” (Marshall, supra, 15 Cal.4th at p. 22.) A defendant does not have a right, constitutional or otherwise, to play the “Faretta game” and subvert the orderly administration of justice by “juggling his Faretta rights with his right to counsel interspersed with Marsden motions.” (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.)
As our Supreme Court explained in Marshall, the constitutional rights to counsel and self-representation are mutually exclusive, and the United States Supreme Court has not extended the same kind of protection to the right of self-representation that it has to the more fundamental right to counsel. (Marshall, supra, 15 Cal.4th at pp. 20-22.)
Under the circumstances presented here, the lower court could reasonably have concluded that Smart lacked the desire and, indeed, the intention to actually represent himself at trial and that he attempted to invoke his Faretta right either (1) in haste and out of frustration because his Marsden motion was denied; or (2) pursuant to a plan to shed himself of counsel, delay the proceedings, and later claim that he needed a new attorney to assist him at the sanity phase of the trial.
Smart denies, as a factual matter, the court’s determination that he was disruptive during the guilt phase. In Smart’s view, pulling up his shirt during closing argument may have been inappropriate but it was not disruptive. Even if we could be convinced that Smart’s conduct during closing argument was not disruptive, that conduct was only one example the court gave at the Faretta hearing. The court also stated: “I’m concerned about what you did at the outset of the first phase of this trial, by refusing to come to Court. By acting up. And I‘m relying on the findings of Judge Hall with regard to that.” In light of the entire history of this case, rather than the one closing argument incident upon which Smart focuses, there can be no doubt that the court had ample basis for concluding that this motion was yet another attempt by Smart to disrupt, delay and perhaps even prevent completion of his trial.
Smart contends the court committed reversible error by denying his motion on the ground that he was not prepared to proceed on the scheduled trial date when the record shows that he did not seek a continuance of the trial. To support this contention, Smart relies on People v. Nicholson (1994) 24 Cal.App.4th 584 (Nicholson). That case states that, “where self-representation is requested for a legitimate reason, where there is no request for a continuance and where there is no reason to believe there would be any delay or disruption, the trial court’s denial of a Faretta motion is an abuse of discretion.” (Id. at p. 593; see also People v. Rogers, supra, 37 Cal.App.4th at p. 1057 [applying same rule].) This rule has no application here where there was evidence that the Faretta motion was made for an illegitimate reason and where there were many reasons to believe that granting the motion would result in delay and disruption.
Furthermore, although Smart did not formally request a continuance at the Faretta hearing, he expressly acknowledged that he might need additional time to prepare. Although Smart denied he was “trying to put a trial off,” the trial court was free to conclude otherwise particularly in light of the fact that it had just completed the Marsden hearing during which Smart spent significant time complaining that counsel had failed to do any of the things that Smart wanted done before the sanity phase commenced.
To summarize, Smart did not have an unqualified constitutional right to represent himself during the second half of his trial and he has failed to show that the lower court abused its discretion by denying the mid-trial Faretta motion.
B. Motion for Competency Examination
Smart next contends that the trial court committed reversible error by failing to hold a competency examination during the sanity phase of the trial.
1. Background
a. The trial
The sanity phase commenced on January 17, 2006, before Judge Hall, who had also presided over the guilt phase. That same day, the defense made a motion to continue the trial in order to hold a competency examination pursuant to sections 1367 and 1368. The motion was supported by the declaration of defense counsel, Steven Chase. Chase stated that, when he visited Smart on December 1, 2005, Smart was disoriented and had trouble focusing, and he complained that his condition was deteriorating. On January 6, 2006, Chase received an e-mail from a friend of Smart who was concerned about Smart’s mental state and competency to stand trial. Chase attempted to meet with Smart on January 10, 2006, but was informed by jail personnel that “Jesus refuses to come out of his cell for the visit.” In his declaration, Chase stated: “Because of his recent actions in refusing to see me, and his claim to the deputy that he is ‘Jesus,’ I have a question as to his competency and am making a request for his examination under Penal Code §§ 1367-[13]68.”
When Chase stated his appearance on the first day of the sanity phase of the trial, he provided the following description of his client: “He is barefoot. He’s seated in a wheelchair. His right hand has a pronounced tremor in it. His left hand has a little bit of a tremor, and he’s rocking back and forth. This was the same condition that I found him when I went to see him in the holding cell this morning.” While sharing his concerns about Smart’s mental competency and whether to proceed to trial, Chase stated: “I would certainly like to hear from the mental health people in the jail as to his most recent condition because if this is real, he certainly is not competent to assist me during this trial. If he’s doing this volitionally, . . . that’s another issue.” Chase also observed that malingering and mental illness are not mutually exclusive and urged the court to have Smart examined before Chase was “forced to go to trial with him in this condition.”
The prosecutor noted that this was the fourth time that Smart had claimed to become incompetent on the eve of trial. Smart had acted in an incompetent manner on the eve or day of the guilt phase of the trial, although the court found to the contrary. The records also showed that Smart “did the same thing” when he was tried and convicted of raping a 70-year-old woman in 1991, and he was doing it again now. The prosecutor then concluded: “So I think this is his modus operandi. And I think it’s been well-documented that this is a malingering by Mr. Smart. He’s had a lot of experience at it. He is, I would submit, very good at it.”
After the matter was submitted, the trial court reviewed the “extraordinary” history of this case. It noted, among other things, that charges had been filed in April 1998 for offenses that occurred in October 1997, that Smart had been represented by at least four attorneys, that there had been several Marsden motions, and that criminal proceedings had been suspended due to incompetency more than once. The guilt phase finally commenced in October 2003 and the court recalled the following about Smart’s appearance at trial: “When Mr. Smart came into the courtroom on that date, as I recall, he was manifesting a number of physical symptoms and symptomology which included attempting to be frothing at the mouth and acting completely incoherent. . . . I made findings and expressed to Mr. Smart the fact that we were in fact going to be proceeding with this trial and the fact that this Court viewed [his conduct] as being an act of malingering, [that] was not going to be accepted or tolerated. [¶] And suddenly Mr. Smart immediately stopped his theatrics and sat throughout the entirety of the trial. . . .” The court noted that after the guilt phase was completed the trial was continued several times for various reasons including the need to review Smart’s “voluminous” medical records from Napa, Atascadero and the jail.
The court stated that it had reviewed and considered Chase’s declaration, the arguments of counsel, the court file, and its own notes from observations of Smart, and the relevant law and that it had “carefully analyzed this matter.” The court acknowledged that Chase had “gone beyond the call in his representation of Mr. Smart,” and that it would likely have made this motion had it been in his shoes. Nevertheless, the court denied the request for a competency examination with the following statement:
“But from all I have seen at this point, I have not seen a sufficient showing of substantial change in circumstances to warrant at this point a further suspension of proceeding under [§§ 1367-1368] of the Penal Code based upon the prior adjudications in this matter and based upon Mr. Smart’s demonstrated pattern of conduct in this very department. That certainly is not saying he doesn’t have issues, which we will be addressing during the sanity phase which we will be proceeding on. [¶] So, Mr. Smart, we are going to be proceeding to the sanity phase. So I would urge you to cooperate with Mr. Chase during the course of these proceedings. . . .”
On the morning of January 18, the second day of the sanity phase, Chase stated for the record “that Mr. Smart is still dressed in his jail garb. He continues to rock back and forth in his wheelchair, and he’s trembling. I guess his hand is shaking. I spoke with -- or at him yesterday after court and told him that I required him to help me in this case and that if he’s faking it, to please stop and to cooperate. He had no response to me at that time. And he’s obviously having no response to me at this time.” The court noted that it had observed Smart in the hallway that morning as he was being wheeled to the courtroom. Smart was employing some of the symptoms he had displayed at the commencement of the guilt phase and it appeared that the symptoms became more pronounced as Smart moved closer to the courtroom. The court reiterated that it had made a finding based on the prior proceedings and its observations of Smart that the matter would proceed and it continued to view Smart’s behavior as “volitional actions at this point.”
Throughout the remainder of the trial, Chase noted for the record that Smart continued to engage in strange behavior, like rocking back and forth in his wheelchair and making whimpering noises or crying noises with his eyes closed, and that he was not communicating with Chase. Chase also asked that the record reflect that he had been unable to call Smart as a witness which was something he would have liked to do. On January 25, after all the evidence was presented, Chase stated that Smart continued with his rocking, looking at the ceiling, closing his eyes while moving his mouth and “this is the way he’s appeared to me during this whole trial.” Chase also remarked that “I would like to state as an attorney that I’m not at all pleased if this is volitional. It has prevented me from putting him on as a witness and having a jury listen to him and explain what his delusions have been. . . .” Chase reiterated that he simply did not know whether Smart was faking. He acknowledged Smart’s records “are replete with instances of him acting extremely psychotic at times when it would behoove him to do so.” However, Chase also felt his client was smart enough to realize that it did not behoove him to behave this way at trial.
On January 26, 2006, after the jury returned its verdict, Chase stated: “I think the record should reflect that Mr. Smart hasn’t broken character from the way he has been throughout this trial. He seemed to have no obvious response to the reading of the verdicts. Again, I don’t know whether it’s real or feigned, but it certainly didn’t get a rise out if him.” The court then offered this response: “I would note that I’ve made my prior observations during the course of this trial, and you have as well. I, sitting here, not only through this, throughout the guilt phase, having heard the testimony of all of the expert witnesses as it relates to this, my prior findings stand, and that’s just the way it is.”
b. The new trial motion
On February 24, 2006, the court heard Smart’s new trial motion. Chase argued that Smart was denied a fair trial at the sanity phase because the court substituted its lay opinion that Smart was malingering for a medical determination as to whether he was competent to stand trial. During his argument, Chase noted, among other things, that some time after the trial, a friend of Smart contacted him to say Smart was feeling better and could use a visit. During that visit, Smart was competent but weak and claimed and acted as though he had no memory of the sanity trial at all.
Smart testified at the hearing on his new trial motion that he believed government people were poisoning him and so had given away or refused to take his medication for several months prior to the sanity phase. Smart claimed to have no memory of the sanity phase and was shocked and confused to hear it had taken place. Smart also testified his lawyer had told him the court refused to have a doctor examine him to determine if he was incompetent and then stated: “I think that because that wasn’t done a great injustice has happened, and I say that from the bottom of my heart and soul, I really was incompetent, that’s one time I was incompetent. I was trying and couldn’t help myself, according to what my attorney said. No way in the world that I would not go to trial and not help my attorney or would not take the stand, defend myself when my life is on the line. I am sorry, Your Honor, for being emotional and crying here, this is very serious, very, very serious. . . .”
The prosecutor called a handful of witnesses who testified about Smart’s demeanor before, during and after the sanity phase of the trial. Employees at the jail testified that Smart was coherent and communicative in early December 2005 but that his behavior changed dramatically approximately three weeks before the sanity phase of the trial. Smart refused to take his medication and did not eat his meals. He began to rock and shake, although these symptoms were noticeably more pronounced when medical personnel were present. Despite this changed behavior, one day in January 2006, Smart was observed standing and walking in his cell and was also overheard having a coherent conversation. A few days after the sanity verdict was returned, Smart’s behavior changed again. He talked coherently, stopped mumbling and his tremors disappeared.
The trial court prefaced its ruling by observing again that Chase was a tireless advocate and by sharing its view that the rights of criminal defendants are “sacred rights.” Then, the court made the following statement: “I will say candidly from my perspective sitting here as a trial judge, both guilt phase and sanity phase, I have never in my entire life in many different careers ever seen an individual who in this Court’s assessment has abused the process of the Courts and tried to take advantage of those rights which we set forth for criminal defendants than Mr. Smart. [¶] I find Mr. Smart to be what I would only characterize as a master manipulator who has done everything humanly possible to [set] every conceivable booby trap . . . for any reviewing Court as it relates to the handling of this matter dating back to the time when he first wheeled into Court for the guilt phase in this trial in 2003.”
The court referred again to Smart’s behavior at the commencement of the guilt phase. It also recalled that during the sanity phase, it appeared that Smart intentionally exaggerated his symptoms as he was wheeled closer to the courtroom and that, on another occasion while defense counsel was examining a witness, Smart opened one eye and looked around as if to orient himself. The court also stated that the record was replete with evidence that Smart had been “using and abusing both the criminal justice system as well as the mental health system dating back decades.”
The court concluded there was no substantial evidence to warrant another mental status examination and stated: “I believe that was a dilatory tactic, and frankly, a very good one done on the part of Mr. Smart much to the dismay of his counsel, but if you look at it objectively made a tremendous amount of sense from Mr. Smart’s part because it yet creates another issue for the purpose of appeal in this case.” Accordingly, the court denied the new trial motion.
2. Analysis
“ ‘[T]rial of an incompetent defendant violates an accused’s right to due process.’ [Citations.] The United States Supreme Court has defined competence to stand trial as a defendant’s ‘ “ ‘ “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.” ’ ” ’ [Citation.] Under California law, a person is incompetent to stand trial ‘if, as a result of a mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ [Citation.] A defendant is presumed to be mentally competent to stand trial. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1216.)
“When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citation.] . . . The court’s duty to conduct a competency hearing arises when such evidence is presented at any time ‘prior to judgment.’ [Citations.] [¶] When a competency hearing has already been held and the defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding. [Citations.]” (People v. Jones (1991) 53 Cal.3d 1115, 1152-1153 (Jones).)
In the present case, when Smart made a request for a competency hearing on the first day of the sanity phase of the trial, three prior competency hearings had already been held and a determination made that, as of June 10, 2003, Smart was competent to stand trial. Therefore, the trial court was not required to suspend proceedings again and conduct a fourth competency hearing unless it was presented with a “substantial change of circumstances” or with new evidence that cast a “serious doubt” on the validity of the most recent competency finding. (Jones, supra, 53 Cal.3d at p. 1153.)
On appeal, Smart contends that there was a change of circumstances and substantial new evidence which raised a doubt about his competency and required a new competency hearing. We, like the trial court, reject this contention. Smart’s behavior at the sanity phase was neither new nor a change of circumstance. His history of engaging in just such conduct whenever he was required to come to court to face a criminal charge was well documented. The trial court was not only familiar with that history, it had observed this type of behavior first-hand at the commencement of the guilt phase.
Smart attempts to portray his conduct at the sanity phase as new evidence by pointing out that, in contrast to the guilt phase, his symptoms did not disappear after the court advised him that the trial would continue. However, the evidence shows that Smart did cease his behavior within days after the sanity verdict was announced. As he had done on numerous prior occasions, Smart displayed his symptoms of mental illness for a period during which he believed it benefited him to appear incompetent. In other words, Smart’s behavior at the sanity phase was not a substantial change of circumstance when viewed in the context of his extensive documented history with the criminal justice system.
To the extent a distinction can be drawn between Smart’s behavior at the sanity phase as compared to his prior behavior at the guilt phase, that distinction does not establish error on the part of the trial court. By the time of the new trial motion, it had become even more apparent to the court that Smart’s behavior at the sanity phase was nothing more than a new way to play an old game and that it did not raise a serious doubt about the prior finding of competence. As reflected in the record of the hearing on Smart’s new trial motion, the court observed additional signs of malingering during the sanity phase. Employees at the jail where Smart was held during this period also observed instances when Smart engaged in behavior which was inconsistent with the notion that his presentation at trial was genuine. Indeed, by the conclusion of this trial, there was overwhelming evidence before the court that Smart was intentionally attempting to appear incompetent at the sanity phase. His effort to appear as such, to the extent distinguishable from prior occasions, was not substantial evidence “casting a serious doubt on the validity” of the prior finding that he was competent. (Jones, supra, 53 Cal.3d at p. 1153.)
Smart repeatedly complains that the trial court erred by relying on its own observations and its own opinion that Smart was a malingerer. In fact, though, the very reason we show deference to a trial court’s decision whether to hold a competency hearing once a finding of competence has already been made is that we, as an appellate court, are “ ‘ “in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.” ’ [Citations.]” (Marshall, supra, 15 Cal.4th at p. 33.) In this case, when the trial court was presented with the request for a competency examination, it was uniquely qualified to make that determination. Not only was there a documented history of Smart’s behavior at other criminal proceedings, the court itself had witnessed that behavior during the beginning of the guilt phase. With that tremendous benefit, the court’s observations and assessment of Smart at the sanity phase are particularly valuable and we will not second guess them.
We accept and affirm the trial court’s determination that Smart’s behavior at the sanity phase was not a substantial change of circumstances but part and parcel of a pattern of conduct going back several years. In light of that finding, the court was not required to hold another competency examination during the sanity phase of the trial.
C. Smart’s Pro Per Writ Petition
Smart next contends that the superior court erroneously denied his September 5, 2003, pro per petition for writ of habeas corpus alleging a violation of his rights under section 1370(c)(1) and that his defense counsel rendered ineffective assistance by failing to assist him with the preparation of that motion.
Smart maintains that he was detained at the State Hospital beyond the maximum period allowed by section 1370(c)(1) which states: “At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter, a defendant who has not recovered mental competence shall be returned to the committing court. . . .”
1. Background
As noted above, on June 10, 2003, the superior court found that Smart was presently competent to stand trial and formally reinstated criminal proceedings against him. On September 5, 2003, Smart filed a pro per petition for writ of habeas corpus pursuant to which he requested that “my charges be dismissed forever” on the ground that he had been committed as incompetent for more than the three-year time limit set forth in section 1370(c)(1), and that he had not been “given a conservatorship of any kind.”
In an order filed September 16, 2003, the superior court denied Smart’s petition on the ground that he had failed to establish that the aggregate of all his commitments exceeded the three-year time limit of section 1370. According to the order, the three-year period for Smart’s commitment was due to expire on April 13, 2003, and, before that date, on April 4, 2003, the medical director of the State Hospital certified that Smart was competent. The order further states that Smart appeared in court for proceedings relating to his certification on April 11, 2003. Therefore, the court found, Smart’s commitment ended before expiration of the three-year period.
The three year limit in section 1370 refers to the aggregate of all commitments on the same charges. (In re Polk (1999) 71 Cal.App.4th 1230, 1238.)
2. The Petition was Properly Denied
Smart contends that his September 2003 writ petition was erroneously denied. He argues, for the first time on appeal, that the superior court mistakenly assumed that section 1370(c)(1) authorized his commitment for a total of three years when, in fact, this statute only authorized his commitment for a period of six months.
Smart reasons that section 1370(c)(1) authorizes commitment of an incompetent defendant for the shorter of three years or the maximum term of imprisonment for the most serious charged offense, and that the maximum term of imprisonment for indecent exposure in violation of section 314 is six months. Therefore, Smart argues, after six months of commitment to the State Hospital, he should have been returned to court and, because he was still incompetent at that time, he should have been referred for initiation of civil commitment proceedings pursuant to section 1370(c)(2). There are several flaws in this argument.
First, Smart cannot properly challenge the denial of his writ petition on a ground that was not even raised in that petition. As noted above, Smart sought dismissal of the pending charges on the specific ground that he had been detained beyond the three-year limit of section 1370. Smart does not now dispute the superior court’s finding that the aggregate of all of Smart’s commitments did not exceed three years. Instead, he presumes that the lower court had a sua sponte duty to determine whether the maximum term of imprisonment for the most serious offense Smart was charged with was shorter or longer than three years. We reject this presumption which is not supported by argument or legal authority. Therefore, Smart has failed to show that the petition he actually filed should have been granted.
Second, Smart mistakenly assumes that, if he had shown that his commitment was too long, the superior court that ruled on the September 2003 petition would have afforded him the remedies he requested. As noted above, Smart sought dismissal of all pending charges and/or an order directing that a conservatorship be established for him. However, neither of these remedies was appropriate or available at the time the September 2003 writ petition was filed.
Although we do not reach the question of a remedy on appeal, we note that Smart fails to include a coherent request for such a remedy in his long and confusing appellate brief. His failure to do so gives credence to the People’s argument that the issue is moot. By its very terms, the procedure set forth in section 1370 applies to criminal defendants waiting trial. Now that Smart has been found competent, tried and convicted of the charged offenses, he cannot find relief in the provisions of section 1370. Furthermore, the People point out that Smart has not been prejudiced by any alleged failure to strictly comply with section 1370 (c)(1) because the period of his commitment to the State Hospital prior to trial has been credited against his sentence.
Smart’s request for a civil conservatorship was based on section 1370, subdivision (c)(2) which provides that, once the maximum period for commitment has expired, the defendant must be returned to court and, at that time, if “it appears to the court that the defendant is gravely disabled,” the court is required to order that the conservatorship investigator of the county of commitment initiate conservatorship proceedings. In this case, however, when Smart filed his September 2003 writ petition, the determination had already been made that Smart was competent to stand trial. Therefore, the court could not properly have initiated civil commitment proceedings at that time. Furthermore, a criminal action against an incompetent defendant “remains subject to dismissal pursuant to Section 1385,” which authorizes dismissal of criminal charges in furtherance of justice. (§ 1370, subd. (d).) However, in this case, Smart has not identified any circumstance which existed at the time his writ petition was filed which would have supported a finding that dismissing the charges against him would further justice.
3. Smart’s New Theory
Even if we were to reach Smart’s new argument--that the maximum period of commitment for violating section 314 is six months--we would reject it. We find that the maximum period of commitment for violating section 314 is three years.
Section 314 states, in relevant part: “Every person who willfully and lewdly, either: [¶] 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; . . . is guilty of a misdemeanor. [¶] Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach . . ., or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year. [¶] Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison.”
In construing this statute, “ ‘our fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citations.] If the statute is clear, the Legislature is presumed to have meant what it said and the plain meaning of the language governs. [Citation.]” (People v. Johnson (2006) 145 Cal.App.4th 895, 904 (Johnson).) We find that the language of section 314 is clear and expressly provides that the maximum term that can be imposed for violating this statute is imprisonment in state prison for commission of a felony. The maximum term for a felony punishable by imprisonment in state prison is three years except where a different punishment is prescribed by statute. (§ 18.)
Smart rejects this straightforward interpretation of section 314 and argues this statute is a misdemeanor offense punishable by a six-month term and that the statutory language allowing for a longer prison term does not create a distinct offense but merely provides “increased punishment for a recidivist.” Analogizing the felony punishment language in section 314 to the Three Strikes Law, Smart urges us to construe this part of the statute as an enhancement, sentencing factor or alternative sentencing scheme rather than an actual offense. We simply are not persuaded by this argument which is inconsistent with Johnson, a case decided by our colleagues in Division Five of this District.
The issue in Johnson was whether the misdemeanor or felony statute of limitations applies when a defendant is charged with a felony violation of section 314 based upon the fact that he has one or more prior convictions for violating this statute. (Johnson, supra, 145 Cal.App.4th at p. 902.) To resolve that issue, the court first had to determine “the maximum punishment prescribed by statute for the offense,” disregarding “ ‘[a]ny enhancement of punishment prescribed by statute.’ [Citation.]” The court characterized section 314 as a “hybrid offense, classified as a misdemeanor or felony, with greatly increased maximum punishment, dependent upon the presence or absence of certain factors. [Citation.]” (Id at p. 904.) It further determined that the “maximum punishment specifically prescribed under section 314, subdivision 1 is imprisonment in state prison.” (Id. at p. 905.) Therefore, the court held that the felony statute of limitations applies to a charge that a defendant has committed a felony violation of section 314. (Id. at p. 907.)
In reaching its decision, the Johnson court expressly rejected the argument that “the felony punishment applicable to recidivist offenders under section 314, subdivision 1 is an ‘enhancement’ of punishment that cannot be considered in defining the ‘maximum punishment’ under that section . . . .” (Johnson, supra, 145 Cal.App.4th at p. 902.) The court noted, among other things, that “enhancement” is a narrowly defined term meaning “ ‘an additional term of imprisonment added to the base term.’ [Citations.]” (Id. at p. 905.) The court also rejected the contention that “any statutory use of prior convictions to increase punishment necessarily relates not to the punishment prescribed by statute for the offense, but only to the circumstances of a particular offender.” (Id. at p. 904.) Instead, the court found that section 314 is a hybrid offense which carries a maximum punishment of a felony state prison term.
Smart attempts to distinguish Johnson as a statute of limitations case. However, in contrast to Smart’s authority, Johnson construes the very statute at issue in this case. Further, in order to select the appropriate statute of limitations, the Johnson court first had to answer the very question we face here, i.e., the maximum punishment for violating this statute. We agree with Johnson that the maximum punishment prescribed by section 314, excluding any enhancements, is a felony state prison term.
4. Effectiveness of Counsel
In a supplemental opening brief, Smart argues that his trial counsel rendered ineffective assistance in September 2003 by failing to assist him when he challenged his confinement on the ground it exceeded the period authorized by section 314. Smart contends that “[t]here is a ‘reasonable chance’ that if trial counsel had filed the motion and argued that the maximum term was six months, or pointed that fact out in support of appellant’s motion, the result of the proceeding would have been more favorable, in that the court would have initiated civil commitment proceedings and dismissed the criminal charges.”
We find no legitimate reason why this issue was not addressed in Appellant’s Opening Brief. The only conceivable explanation is that appellate counsel elected to omit this argument because the opening brief he prepared was already so long. Indeed, Appellant’s Opening Brief is 130 pages long, excluding the “appendix.” Although we appreciate zealous advocacy, this brief contains significant irrelevant information and discussions of factual and legal matters that simply do not strengthen any of Smart’s substantive claims of error. By permitting the filing of a Supplemental Appellant’s Opening Brief, we by no means condone the practice of filing excessively long briefs. Length does not strengthen a weak argument and even a good argument can be lost in too many words.
The right to effective assistance of counsel is guaranteed by both the federal and California Constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) Smart carries the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance. (People v. Garrison (1989) 47 Cal.3d 746, 788 (Garrison).) “The claim of ineffective assistance of counsel involves two components, a showing the counsel’s performance was deficient and proof of actual prejudice.” (Id. at p. 786.)
To be deficient, counsel’s performance must have fallen “ ‘below an objective standard of reasonableness . . . under prevailing professional norms.’ ” (Ledesma, supra, 43 Cal.3d at p. 216.) In applying this prong of the test, courts must exercise deferential scrutiny so as to avoid the dangers of “second-guessing.” (Ibid.) Further, except in circumstances not here relevant, prejudice must be affirmatively proved. (People v. Williams (1988) 44 Cal.3d 883, 937.) “ ‘The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Smart’s perfunctory ineffective assistance claim rests on the premises that (1) the maximum term of confinement under section 314 is six months, and (2) proof of a too long commitment in September 2003 would have entitled him to a civil conservatorship and dismissal of the criminal charges. Since both premises are unsupported, Smart has not carried his burden of proving either deficient performance or prejudice.
D. Sufficiency of the Evidence
Smart contends there is insufficient evidence to support his conviction for violating section 314 by exposing himself to Nancy Pangilinan for a second time, on October 12, 1997.
“ ‘In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.] And it is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]” (People v. Carbajal (2003) 114 Cal.App.4th 978, 986-987 (Carbajal).)
As noted earlier, section 314, subdivision 1, makes it unlawful to “willfully and lewdly” expose one’s person or the private parts thereof, in a public place, or in “any place where there are present other persons to be offended or annoyed thereby . . . .” “Generally, a conviction for indecent exposure requires proof of two elements: ‘(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby.’ [Citation.]” (Carbajal, supra, 114 Cal.App.4th at p. 982.) With respect to the first element’s requirement of “lewd” intent, our Supreme Court has stated that “a person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (In re Smith (1972) 7 Cal.3d 362, 366 (Smith).)
On appeal, Smart contends there is insufficient evidence that he intended to expose himself to Nancy Pangilinan or to direct attention to his genitals. We disagree. The jury was presented with evidence that Smart was found naked in a parking garage at a time when a lone resident could be expected to be going to her car to go to work. There was also evidence that Smart had exposed himself to this female victim in just that location in the past. When discovered, Smart claimed he was relieving himself but there was no urine or feces where he was found. Although Smart apologized, he stood in front of Pangilinan completely naked so that his genitals were in clear view. Although Smart had a red scarf, he used it to cover his face rather than his genitals. Further, Nancy Pangilinan did see Smart’s genitals and the exposure was such that she was able to recall that he was clean shaven and his penis was shiny and appeared to have been lubricated. This evidence, along with other evidence relating to the first time Smart exposed himself to Pangilinan, supported the jury’s finding that Smart intended to expose himself to Pangilinan and to draw her attention to his genitals for the purposes of sexual arousal, gratification or affront.
E. Jury Instruction Regarding Elements of Indecent Exposure
Smart contends that his constitutional rights were violated because the trial court gave the jury the following instruction, a version of CALJIC No. 10.38 modified to fit the facts of this case:
“Defendant is accused in Counts 1, 2, and 3 of having violated section 314, subdivision (1) of the Penal Code, a crime.
“Every person who willfully and lewdly exposes his person or the private parts thereof in any public place or in any place where there are present other persons to be offended or annoyed is guilty of a violation of Penal Code Section 314 subdivision (1), a crime.
“The term ‘private parts’ means a person’s genitals.
“The word ‘person’ means entire body of a person. ‘Exposing the person’ means exposing the entire body including of necessity the genitals.
“ ‘Willfully’ means an intentional exposure of ones person or private parts.
“ ‘Lewdly’ means with the specific intent to direct public attention to one’s person or genitals for the purpose of ones own sexual arousal or gratification, or that of another, or of sexually insulting or offending others.
“In order to prove this crime, each of the following elements must be proved.
“1. A person intentionally exposed his person and genitals in a public place or in any place where there were present other persons to be offended or annoyed;
“2. That person did so with the specific intent to direct public attention to his genitals for the purpose of his own sexual arousal or gratification, or that of another, or of sexually insulting or offending others.”
Smart contends this instruction was erroneous because it permitted the jury to convict him of violating section 314 without finding that he intentionally exposed his genitals. Relying on Smith, supra, 7 Cal.3d at page 365, Smart maintains that “mere nudity” does not constitute indecent exposure and that this offense requires that the defendant must have intended to direct attention to his genitals. Smart argues that ambiguities in the instruction quoted above permitted the jury to find him guilty if he intentionally exposed his body but not his genitals. In assessing this claim of error, we ask whether it is reasonably likely that the jury applied the challenged instruction in a way that violates the Constitution. (People v. Raley (1992) 2 Cal.4th 870, 901; People v. Smithey (1999) 20 Cal.4th 936, 981.) We find no such reasonable probability here.
The challenged instruction accurately and unambiguously instructed the jury regarding the elements of this offense. The jury was expressly and specifically instructed that it had to find that Smart intentionally “exposed his person and genitals,” and that Smart did so “with the specific intent to attract public attention to his genitals for the purpose of his own sexual arousal or gratification or that of another or of sexually insulting or offending others.” Nevertheless, Smart finds phrases in other parts of this instruction which he characterizes as ambiguous and he argues that these phrases invited the jury to convict if it found that he intentionally exposed his body but not his genitals.
Specifically, Smart objects to the following language that appears in the instruction: (1) “Every person who willfully and lewdly exposes his person or the private parts thereof . . .”, and (2) “ ‘Lewdly’ means with specific intent to direct public attention to one’s person or genitals . . . .” Smart contends that, by referring to the person or the private parts/genitals, these parts of the instruction created an ambiguity that permitted the jury to convict even if they believed he did not intentionally expose his genitals. In contrast to Smart, we will evaluate this challenged language in its context. “‘The correctness of jury instructions is to be determined from the entire charge of the court not from a consideration of parts of an instruction or from a particular instruction.’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
The first phrase about which Smart complains is quoted from the statutory language. It, like the definition of “lewdly” about which Smart also complains, refers to a person or the person’s genitals/private parts. However, the instruction defines “person” as the “entire body of a person” and “[e]xposing the person” as “exposing the entire body including of necessity the genitals.” Thus, when read in context, these statements do not create an ambiguity which likely misled the jury regarding the requirement that Smart must have intentionally exposed his genitals. Further, any arguable ambiguity was resolved by the core of the instruction itself which, as discussed above, clearly and accurately defined the elements of this offense. In addition, we note that both the prosecutor and defense counsel provided accurate statements of the intent element of the offense during their closing arguments. On this record, there is simply no real likelihood that the jury was misled by alleged ambiguities in the instruction.
Smart also complains that, when the trial court read this instruction to the jury, it erroneously stated that “Exposing the person means exposing the entire body including if necessiry [sic] the genitals.” This language is quoted from the Reporter’s Transcript of the trial and is not consistent with the written instruction that was given to the jury. Most likely, the word “if” in the transcript, like the word “necessiry” is a typographical error. However, even if the trial court misspoke, we are not persuaded that reversible error resulted. The written instruction which was given to the jury accurately stated that exposing the entire body requires exposure of the genitals. Further, as we have already explained, the instruction as a whole unambiguously required the jury to find intentional exposure of the genitals in order to convict. That requirement was acknowledged and reinforced by both counsel during closing argument.
Under these circumstances, it is not reasonably likely that the isolated phrases that Smart extracts from the challenged jury instruction caused the jury to misunderstand the elements of the offense of indecent exposure.
F. The Jury’s Question
During deliberations, the jury that heard the guilt phase of Smart’s trial asked a question of the court. On appeal, Smart contends that (1) the court’s answer was inadequate, and (2) his defense counsel rendered ineffective assistance by failing to ensure that the question was properly answered.
1. Background
The guilt phase jury began deliberating on October 28, 2003. Toward the end of that day, the jury requested a readback of certain testimony. In the presence of the jury, Smart and both counsel, the court stated that the information would be provided the next day. The foreperson stated that the jury also had a question. The court advised that the question needed to be submitted in writing. After an off-the-record discussion, the court stated: “The court reporter will have that readback to you tomorrow morning at 9:00 o’clock to start up at that time for that purpose, and tomorrow Mr. Chase will not be here. Mr. John Digiacinto will be here in his place in case any further issues come up. So with that, at this time, we will be in recess . . . .
On the morning of October 29, the court went on the record outside the presence of the jury. John Digiacinto, the director of the private defender program, appeared on behalf of Smart who was not present. Defense attorney Chase was out of the state attending a “family emergency.” The court stated that the jury had submitted the following question: “If we find evidence of intent to direct public attention to one’s genitals for purpose of sexual arousal or sexually insulting/offending but not the actual act of directing, do we convict?”
The court then stated that it had conferred with both counsel and they agreed to provide the following answer to the jury: “In response to your question, the Court would offer the following: Please refer to CALJIC 3.31 Concurrence of Act and Specific Intent and CALJIC 10.38 – Felony Indecent Exposure.” The appellate record reflects that this answer was presented to the jury in written form.
2. Propriety of Answer
Smart contends that the trial court’s answer to the jury’s question was inadequate. We agree with the People that this claim of error is barred by the invited error doctrine since the record shows that defense counsel approved the answer before it was given to the jury. (See People v. Mays (2007) 148 Cal.App.4th 13, 37.) Even if the claim was not barred, we would reject it.
Section 1138 states that, when a deliberating jury “desire[s] to be informed on any point of law arising in the case,” the “information required must be given.” This provision reflects that “[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Applying these rules in the present case, we find the trial court did not abuse its discretion by referring the jury to the two CALJIC instructions they had previously been given, both of which addressed the issue raised by the jury’s question. Indeed, CALJIC 3.31 directly answered the jury’s question by stating that “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.” CALJIC No. 10.38 was also relevant and useful because it told the jury that it had to find that the defendant both “intentionally exposed” his genitals and that he did so “with the specific intent to direct public attention to his genitals for the purpose of his own sexual arousal . . . .”
Smart contends these standard instructions did not answer the jury’s question adequately or accurately because “the jury wanted to know what act was required not whether the act had to ‘jointly operate’ with the intent.” Even if we could be persuaded that Smart knew what the jury really meant by its question, he has provided no authority to support the novel proposition that the court was required or even permitted to answer a question which essentially sought a finding of fact. The jury, not the court or counsel, was charged with making factual findings.
According to Smart, the court was required to tell the jury that “to be found guilty, the defendant must do something--above and beyond merely exposing himself--to direct public attention to his genitals.” Although not entirely clear, it appears that Smart is arguing that the act of exposure of the genitals cannot, by itself, support a finding that the defendant intended to direct public attention to his genitals; that the defendant must have performed some additional act by which he specifically directed attention to his genitals. Smart has failed to support this contention.
At another point in his argument, Smart contends that the jury “needed to know whether it was enough that appellant exposed himself and had the intent or whether he had to do some other act which directed attention to his genitals or, at least, expose himself in such a way that attention would be directed to his genitals.” By this statement, Smart appears to concede that the act of exposure can, depending on the circumstances, support an inference of an intent to direct attention to the genitals.
The only case upon which Smart relies is Smith, supra, 7 Cal.3d 362. The Smith court held that the act of nude sunbathing on an isolated beach, without intent to engage in sexual activity does not constitute willful and lewd exposure of the private parts of the body in violation of section 314. (Smith, supra, 7 Cal.3d at p. 363.) The court reasoned that “a person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated,” and found that the “necessary proof of sexual motivation was not and could not have been made” in the case before it because mere nudity does not constitute a form of sexual activity and there was no evidence of any other conduct by which the defendant intentionally directed attention to his genitals for sexual purposes. (Id. at p. 366.)
Smith does not stand for the legal proposition that the offense of indecent exposure requires proof of some conduct in addition to the act of exposure by which the defendant directed attention to his genitals. Rather, Smith holds that the act of nude sunbathing on an isolated beach is not, in and of itself, sexual activity and, therefore, is not circumstantial evidence of lewd intent. Smart’s conduct in the present case is not arguably analogous to nude sunbathing on an isolated beach. With respect to each of the charged offenses, Smart exposed his naked genitals to a woman under circumstances which did support the jury’s findings that he intentionally directed attention to his genitals for a sexual purpose.
In summary, Smart has failed to substantiate his claim that the trial court’s answer to the jury’s question was inaccurate or incomplete. We find that the court did not abuse its discretion under section 1138 by answering the jury’s question the way it did.
3. Effectiveness of Counsel
Smart contends he was denied the effective assistance of counsel “when his attorney left town during the jury’s deliberations and another attorney who had not been present during the trial took his place for the purpose of conferring with the court about how to answer the jury’s question.”
As noted earlier, Smart carries the burden of establishing both deficient performance and actual prejudice. (Garrison, supra, 47 Cal.3d at pp. 786-788; Ledesma, supra, 43 Cal.3d at pp. 215-218.)
Smart contends that his substitute counsel performed deficiently by agreeing to an instruction that did not actually address the jury’s concern. Smart reasons that, because the substitute attorney had not participated in the trial, he simply did not understand that the jury’s real concern in this case was not whether Smart had the requisite lewd intent but, rather, whether he had acted on that intent by engaging in some conduct, other than the exposure itself, by which he directed attention to his genitals. Without that understanding of the jury’s dilemma, Smart contends, counsel’s performance was necessarily deficient and he was therefore prejudiced because competent counsel would have requested instructions that addressed the jury’s real concern.
Again, even if we accept Smart’s interpretation of the jury’s question, the answer that was given was adequate and accurate. The CALJIC instructions referenced in that answer addressed both the intent and the conduct elements of the section 314 offense. By referring to those instructions, the trial court informed the jury that it was not sufficient to find that Smart intended to expose himself but that it also had to find that he acted on that intent. Furthermore, we reject again Smart’s unsupported contention that the jury had to find that Smart engaged in some additional conduct, aside from the exposure of his naked, shaved, lubricated genitals, in order to conclude that he intended to direct attention to his genitals. Therefore, the substitute attorney did not perform deficiently by failing to request an instruction based on this erroneous theory.
G. Findings Regarding Prior Convictions
Smart contends that his constitutional rights were violated during the portion of his trial relating to the prior conviction allegations because the jury that decided the prior conviction allegations was instructed that Smart “[was] the person whose name appear[ed] on the documents admitted to establish the convictions.”
Smart argues this instruction to the jury violated Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), which holds that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Smart claims he was entitled to a jury determination as to whether he was the person who suffered the prior convictions alleged in the information.
Section 1025 provides that “the question of whether the defendant is the person who has suffered the prior convictions shall be tried by the court without a jury.” (§ 1025, subd. (c).) This provision does not violate Apprendi. (People v. Epps (2001) 25 Cal.4th 19, 23 (Epps); People v. Belmares (2003) 106 Cal.App.4th 19; People v. Garcia (2003) 107 Cal.App.4th 1159, 1164-1165.) As our Supreme Court explained in Epps, supra, 25 Cal.4th at page 23, the Apprendi rule does not apply to the fact of a prior conviction and, therefore, is not implicated by section 1025. Therefore, we reject Smart’s claim that his Apprendi right was violated.
H. Smart’s Sentence
Smart contends that his Three Strikes sentence violates both the federal and state prohibitions against cruel and unusual punishment.
“Under the federal Constitution, the issue is whether the sentence is ‘grossly disproportionate’ to the crime. [Citation.] Under the state Constitution, the issue is whether the sentence ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Gray (1998) 66 Cal.App.4th 973, 992 (Gray).)
Smart does not separately address his federal constitutional claim but contends that the standard under the federal constitution is substantially the same as the California standard.
In In re Lynch (1972) 8 Cal.3d 410 (Lynch), our Supreme Court articulated a three-prong inquiry for measuring proportionality pursuant to which courts (1) consider the nature of the offense and offender, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) compare the punishment to the penalty for the same offense in different jurisdictions. Before we apply the Lynch factors in the present case, we summarily reject Smart’s remarkable claim that his case is virtually indistinguishable from Lynch and that this court is therefore required by principles of stare decision to hold that his sentence constitutes cruel and unusual punishment. The distinctions between the present case and Lynch are too numerous and too obvious to merit discussion here.
We note, simply by way of example, that the exposure conviction in Lynch was based on proof that a carhop waitress who had not been summoned approached defendant’s car and saw him fondling his penis through his open fly while reading a pornographic magazine. (Lynch, supra, 8 Cal.3d at p. 438.) The Lynch defendant had a single prior exposure conviction. The Lynch defendant did not receive a three strikes sentence but, rather, a one year to life sentence pursuant to a statute that was no longer in effect when Smart was sentenced.
Turning to the first prong of the Lynch inquiry, Smart characterizes recidivist indecent exposure as “trivial,” a nuisance type of offense which causes embarrassment but no physical or psychological harm. We reject this wishful thinking and superficial analysis of the first prong of the Lynch test. To properly evaluate Smart’s offenses, we consider the totality of the circumstances surrounding those offenses, including such factors as motive, the manner in which the offenses were committed, the extent of the defendant’s involvement and the consequences of his acts. (People v. Dillon (1983) 34 Cal.3d 441, 479.) Furthermore, our consideration of the nature of the offense and offender must also take into account the offender’s recidivist behavior. (Gray, supra, 66, Cal.App.4th at p. 992; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.)
Smart’s present offenses were all committed against women under circumstances which created a potential for aggression or violence. Smart confronted his victims in secluded places during times they were likely to be alone and vulnerable. The first time he exposed himself to Nancy Pangilinan, Smart behaved aggressively, walked straight up to her car door and forced her to almost hit him in order to get away. Smart approached Katrina Stanley’s home late at night and exposed himself to her after he could see that she was alone. Smart then exposed himself to Pangilinan a second time in the same location as before which indicates he may have been stalking her or intended to escalate his aggression. Thus, the totality of the circumstances relating to these current offenses strongly suggests that Smart created situations in which the potential for aggression or violence was very real.
Furthermore, Smart’s recidivist history is remarkable and evidences a pattern of sexually charged criminal behavior which is far from trivial. Smart was 18 years old when he was first convicted of indecent exposure in 1959. He suffered two additional exposure convictions in 1963, notwithstanding his claim that he was just relieving himself in public. A 1968 exposure and trespassing conviction related to crimes Smart committed near the grounds of a convalescent hospital. He was arrested for indecent exposure in April 1980, June 1980, and October 1980, and each time pled to other offenses. The October 1980 incident involved allegations that Smart tried to force his way into an apartment where an 11-year-old girl and her younger sister were home alone. Smart was arrested for burglary and attempted sexual assault in October 1982 after breaking into an apartment, awaking the female occupant, and attempting to forcibly restrain her while holding a knife. Smart fled when the woman fought back but was subsequently found and arrested. In 1991, Smart was charged with raping a 70-year-old woman. There was evidence of both physical and emotional abuse of the victim who had limited mobility because of a prior hip operation and who pleaded with Smart that she was just “an old lady.” Although Smart was declared incompetent to stand trial, he was subsequently found competent and was convicted of the rape.
Smart’s criminal history is not limited to sex offenses. His other numerous convictions include burglary and auto theft in 1961, burglary and larceny in 1963, three burglaries in 1965, and loitering and narcotics violations in 1967. In 1969, Smart was also charged with burglary in Louisiana, but jumped bail and fled the State. He was apprehended the following month in Minnesota after he was arrested for receiving stolen property. After serving a sentence in Minnesota, Smart was returned to Louisiana where he was committed to a state hospital for six years. During that time, Smart wrote letters threatening President Ford’s life. Smart later explained he wrote the letters so he could be transferred to a federal facility. Before he could be tried on the federal charges, Smart escaped from the state hospital. Smart was arrested in California in 1976 and was convicted on the federal charges in 1977. He was also convicted of defrauding an innkeeper in 1982 and burglary in 1984.
In light of this and other evidence before us, the first prong of the Lynch test, requiring consideration of the offenses and offender, including in this case Smart’s very troubling criminal history, does not support Smart’s claim that his sentence is unconstitutionally disproportionate to his crimes.
Turning to the second prong of the Lynch test, Smart contends that his sentence for indecent exposure is “out of balance with the punishment prescribed by California law for offenses which must be deemed more serious.” However, case law establishes that “a comparison of appellant’s punishment for his current crimes with the punishment for other crimes in California is ‘inapposite since it is his recidivism in combination with his current crimes that places him under the three strikes law.’ ” (Gray, supra, 66 Cal.App.4th at p. 993; People v. Ayon (1996) 46 Cal.App.4th 385, 400 disapproved on other ground by People v. Deloza (1998) 18 Cal.4th 585, 600.) In other words, a comparison of Smart’s punishment for his offenses, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes but have not qualified as repeat offenders is neither logical nor meaningful. (Ayon, supra, 46 Cal.App.4th at p. 400.)
Smart purports to apply the third prong of the Lynch test by comparing his sentence to potential sentences for recidivist indecent exposure in other jurisdictions. This comparison fails, as a factual matter, because Smart’s Three Strikes sentence is not based solely on the fact that he has been convicted of recidivist exposure. Smart’s prior strikes are for rape and felony burglary. In other words, we firmly reject Smart’s effort to portray himself as nothing more than a harmless flasher.
In considering the third prong of the Lynch test we follow authority establishing that “a comparison of California’s punishment for recidivists with punishment for recidivists in other states shows that many of the statutory schemes provide for life imprisonment for repeat offenders, and several states provide for life imprisonment without possibility of parole. California’s scheme is part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. [Citation.]” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338; see also Gray, supra, 66 Cal.App.4th at p. 993.)
For all of these reasons, we hold that Smart has failed to establish that his sentence violates either the federal or state Constitutional prohibitions against cruel and inhuman punishment.
V. THE WRIT PETITION
In his petition for writ of habeas corpus, Smart contends the judgment against him is “constitutionally invalid because of judicial bias.” Specifically, Smart claims that his due process and statutory rights to an impartial judge were violated on May 4, 2005, when Judge Grandsaert heard and denied his Faretta motion. We have already held that the court did not abuse its discretion by denying that untimely motion. Now, Smart contends that Judge Grandsaert was biased against him.
A. Standard of Review
“Our state Constitution guarantees that a person improperly deprived of his or her liberty has the right to petition for a writ of habeas corpus. [Citations.] Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.’ [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 474-475 (Duvall).)
A petition for writ of habeas corpus “should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.]” (Duvall, supra, 9 Cal.4th at p. 474.)
In order to establish a prima facie case for relief, the petitioner must allege facts which if true would entitle him or her to relief. If no prima facie case for relief is stated, we will summarily deny the petition. (Duvall, supra, 9 Cal.4th at p. 475.) “ ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ [Citation.] We presume the regularity of proceedings that resulted in a final judgment [citation], and, as stated above, the burden is on the petitioner to establish grounds for his release. [Citations.]” (Duvall, supra, 9 Cal.4th at p. 474.)
B. Smart’s Allegations and Evidence
From the petition, we discern the following material allegations: (1) before Judge Grandsaert became a judge, he was a deputy district attorney; (2) while he was a deputy district attorney, Judge Grandsaert was a member of the prosecution team in this case; (3) Judge Grandsaert was biased in favor of the prosecution on May 4, 2005, when he heard and denied Smart’s Faretta motion.
To support these allegations, Smart has attached a document to his petition which appears to be a copy of a criminal case docket from the Northern Branch of the San Mateo County Superior Court in the case of “PEOPLE V. PAYNE, ROBERT THOMAS” (hereafter referred to as the Payne case docket). The Payne case docket pertains to proceedings that were held in the Municipal Court branch of the Superior Court. The first two pages consist of a “CASE SYNOPSIS,” which reflects that the defendant was arrested on October 12, 1997, a complaint was filed on October 14, 1997, and several hearings were conducted during the following months, the last of which was a preliminary hearing that was held on April 8, 1998. The remainder of the Payne case docket is a “RECORD OF CASE EVENTS” which provides details about the hearings that were conducted during that time period.
Robert Payne is an alias that Smart has used in the past and the name he used to falsely identify himself when he was arrested for the offenses charged in the present case.
Smart directs our attention to a hearing that was held on March 2, 1998. The Case Synopsis describes the “nature of proceedings” as an “appearance of counsel.” The Record of Case Events further discloses that, on the morning of March 2, defense counsel, whose last name was Deremigio, requested the hearing and it was scheduled for 1:30 p.m. that same day. At 11:08 that morning, the hearing was shifted from the Northern Branch to the Southern Branch of the Municipal Court. The hearing took place before the Honorable Barbara Mallach. “Deputy D.A. Gransaert” [sic] was listed as present. The defense attorney of record, Deremigio, was not present. The defendant was accompanied by an attorney named Halpern who appeared on behalf of Deremigio. The defendant waived time for “TOS,” the preliminary hearing date of March 3, 1998, was vacated and the case was continued to March 17, 1998.
Smart incorporates into his petition evidence from the record on appeal which contains the transcript of the May 4, 2005, hearing on Smart’s Faretta motion. Smart alleges that he did not recognize Judge Grandsaert as the district attorney who appeared at the March 2, 1998, hearing. Smart supports this allegation with his own declaration wherein he states, among other things, that he was likely incompetent at the time of the earlier hearing and that, in any event, when he attended the Faretta hearing, he did not recognize Judge Grandsaert.
Smart’s petition also contains allegations that his defense attorney at the Faretta hearing, Steven Chase, did not and could not reasonably have been expected to know that Judge Grandsaert had previously appeared on behalf of the prosecution in this case. To support this allegation, Smart has submitted Chase’s declaration. According to that declaration, Chase was first appointed to represent Smart in March 2001, and when the May 4, 2005, Faretta hearing was conducted, Chase did not realize that Judge Grandsaert had appeared for the prosecution at the March 2, 1998 hearing. Chase stated that he did not learn of this fact until late August 2007 when Smart’s appellate counsel brought the matter to his attention.
C. Due Process
Smart contends that the judgment against him is “constitutionally invalid” because of judicial bias and that the deprivation of his due process right to a fair and impartial decision maker constitutes “structural” error requiring automatic reversal of the judgment. (Citing Arizona v. Fulminante (1991) 499 U.S. 279, 309.)
Smart also points out that “a defendant may assert on appeal a claim of denial of the due process right to an impartial judge.” (Citing People v. Mayfield (1997) 14 Cal.4th 668, 811.) We note, however, that Smart did not raise this issue on appeal. “Proper appellate procedure . . . demands that, absent strong justification, issues that could be raised on appeal must initially be so presented, and not on habeas corpus in the first instance. Accordingly, an unjustified failure to present an issue on appeal will generally preclude its consideration in a postconviction petition for a writ of habeas corpus. [Citation.] ‘[H]abeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment . . . .’ [Citations.]” (In re Harris (1993) 5 Cal.4th 813, 829.)
Because Smart has not established or even identified any special circumstance to excuse his failure to raise this issue on appeal, we find that this due process claim is not properly presented to us here. We also find that Smart has failed to establish a prima facie case of judicial bias.
Smart does not address the standard for proving a due process violation predicated on a claim of judicial bias. Our own research suggests the law is unsettled as to whether proof of actual bias is required or if the appearance of bias may be sufficient to establish a due process violation. (See People v. Chatman (2006) 38 Cal.4th 344, 363.) Assuming the issue is not limited to the existence of actual bias, “[t]he question becomes whether ‘ “ ‘a reasonable man [or woman] would entertain doubts concerning the judge’s impartiality.’ ” ’ [Citations.]” (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another ground in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 346.)
For purposes of our review, we accept the allegation that Judge Grandsaert is the same person as “Deputy D.A. Gransaert” [sic] who appeared at the March 2, 1998, hearing. However, Smart’s own evidence undermines his allegation that Judge Grandsaert was previously a “member of the prosecutorial team, actively involved in prosecuting [him], and not just one of the attorneys in the District Attorney’s office who was not actively involved in the prosecution.”
The evidence shows that the March 2, 1998, hearing was held in Municipal Court in a case formally captioned as People v. Payne. The hearing was requested by defense counsel and scheduled the day it was held and its sole purpose was for the defendant to waive time so the preliminary hearing could be continued. The conclusion that this scheduling hearing was ministerial in nature is reinforced by the fact that the defense attorney of record did not even appear at the hearing. The evidence also suggests that the appearance of “Deputy D.A. Gransaert” was pure happenstance since the last minute hearing was transferred to a different building shortly before it occurred.
Since Smart incorporates the record on appeal into his petition, we can safely say that Judge Grandsaert’s potential involvement in this case prior to his appointment as a judge is limited to a single appearance at the March 2, 1998 scheduling hearing. When viewed in light of this fact, evidence produced to support the petition disproves Smart’s allegation that Judge Grandsaert was previously a member of the prosecution team in this case.
Furthermore, the evidence before us provides no basis for finding actual bias or an appearance of bias. More than seven years after the March 2, 1998 hearing, Judge Grandsaert heard and ruled on Smart’s Faretta motion. Smart does not allege that Judge Grandsaert knew or should have recalled that he previously appeared at the March 2, 1998, hearing. Indeed, we do not believe that any reasonable person would expect that the judge would have any recollection of that insignificant hearing. Nor could he have been expected to recognize Smart’s name, particularly in light of the fact that, during the Municipal Court proceedings, Smart was formally referred to by his alias, Robert Payne, whereas Smart used his real name at the Faretta hearing. Further, and perhaps most important, there is simply no reason to suspect that that one appearance so long ago would have made Judge Grandsaert a biased decision maker when he heard and ruled upon the May 4, 2005, Faretta motion.
Smart contends that “it would be practically impossible” for Judge Grandsaert to be unbiased when he heard and ruled on the Faretta motion. However, we have very carefully reviewed the transcript of the Faretta hearing and have found absolutely no evidence of bias. Smart also argues that the denial of his Faretta motion is, in and of itself, evidence that Judge Grandsaert was biased in favor of the prosecution. Smart reasons that error is more likely to occur during a trial when the defendant represents himself than if he is represented by counsel. Therefore, Smart contends, Judge Grandsaert denied the Faretta motion in order increase the likelihood that the jury would return an error-free finding that Smart was sane when the offenses were committed and would thereby deprive Smart of the opportunity to obtain a reversal of the judgment. We reject this remarkably irrational argument. To the extent any judge is motivated by an intention to provide a fair, error-free, trial, that motivation is not evidence of bias.
To summarize, we hold that Smart’s due process claim is not properly presented by this writ petition and the evidence submitted in support of the petition does not support the allegations that Smart’s due process rights were violated when Judge Grandsaert heard and ruled on the Faretta motion.
D. Statutory Right to Judicial Disqualification
Smart attempts to utilize his writ petition as a vehicle by which to retroactively disqualify Judge Grandsaert pursuant to the statutory procedure for disqualifying a judge (the disqualification statute) which is set forth in Code of Civil Procedure sections 170, et seq. He asks that we treat his petition as a “statement of disqualification,” and contends that he has not waived his statutory right to disqualify Judge Grandsaert since he has raised the issue of disqualification at the earliest practicable opportunity. Smart further contends that, because Judge Grandsaert must be retroactively disqualified, the May 4, 2005, Faretta order and all orders which followed it must be set aside.
References to sections 170.1–170.5 are to the Code of Civil Procedure.
Smart fails to provide authority to support his contention that he can invoke the disqualification statute to collaterally attack the judgment. We seriously doubt that he can. By its plain language and express terms, that statute applies to pending proceedings. For example, section 170.3, subdivision (a)(1), states that if a judge determines that he or she is disqualified, he or she is required to “notify the presiding judge of the court of his recusal and shall not further participate in the proceeding . . . unless his or her disqualification is waived by the parties . . . .” (Emphasis added.) The statute further provides that if a judge who should disqualify himself fails or refuses to do so, a party may file a statement of disqualification pursuant to which he or she “object[s] to the hearing or trial before the judge . . . .” (§ 170.3, subd. (c)(1).) This statement of disqualification must be personally served on the challenged judge who then has a limited time in which to respond to it. (Ibid.) These provisions are clearly designed to apply to a pending proceeding and, indeed, cannot be applied outside that context without modification and adaptation.
“Proceeding” is defined as “the action, case, cause, motion, or special proceeding to be tried or heard by the judge.” (§ 170.5, subd (f), emphasis added.)
Furthermore, the disqualification statute is designed to ensure that disqualification issues are resolved early and with finality. Thus, “[t]he determination of the question of the disqualification of a judge is not an appealable order” and can only be reviewed by writ of mandate filed and served within 10 days of the determination. (§ 170.3, subd. (d).) This requirement serves the “dual purpose of promoting ‘judicial economy’ and ‘fundamental fairness’ ” by requiring the timely seeking of a writ of mandate. (People v. Hull (1991) 1 Cal.4th 266, 272-273.) It requires “ ‘“speedy review of a disqualification ruling, since permitting that ruling to be attacked later on appeal of the judgment could invalidate every ruling made by the trial court judge after the disqualification motion was denied.” (People v. Brown (1993) 6 Cal.4th 322, 333, fn 8.)
In our view, permitting a criminal defendant to collaterally attack a judgment by filing a statement of disqualification is not only inconsistent with the plain language of the disqualification statute, it is inconsistent with the Legislative policy of ensuring prompt resolution of disqualification issues. Although we find no authority that is directly on point, our conclusion is strengthened by North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762 (Bisno), a case which holds that the disqualification statute cannot be applied to invalidate a final judgment. Bisno was a property dispute in which the trial court entered a permanent injunction against the defendants. After an unsuccessful appeal, defendants filed a postjudgment motion to dissolve the injunction and also filed a statement of disqualification against the trial judge. The statement of disqualification was ignored and the postjudgment motion was denied. On appeal, the Bisno court held, among other things, that the statutory disqualification procedure does not apply to final judgments. (Id. at p. 767.) Like us, the Bisno court was persuaded that “the language of the current disqualification statutes makes clear that the procedural scheme is directed at pending proceedings.” (Id. at p. 769.) Bisno is distinguishable from the present case because the Bisno judgment was already final when the statement of disqualification was filed. Nevertheless, the reasoning of Bisno fully supports our conclusion that the disqualification statute should not be applied to collaterally attack a criminal judgment.
There are civil cases in which parties have been permitted to attack nonfinal judgments on the ground of the trial judge’s disqualification. (See, generally, Bisno, supra, 147 Cal.App.4th at p. 769, fn. 4; see also, Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415 (Urias).) However Smart has not cited, nor have we found any authority authorizing a criminal defendant to invoke the disqualification statute for the first time by filing a writ petition after suffering an adverse judgment.
Urias, supra, 234 Cal.App.3d 415, a case upon which Smart particularly relies, is inapposite. In Urias, a judge granted a defendant’s summary judgment motion in a wrongful termination case. After judgment was entered, the plaintiff filed a statement of disqualification seeking to recuse the judge on the ground that the judge’s former law firm had represented the defendant in litigation for the past ten years. When the challenged judge did not respond to the statement, the plaintiff requested that another judge hear the matter. Ultimately, another judge of the court granted the request for disqualification. Thereafter, the plaintiff appealed the summary judgment and the defendant filed a petition for writ of mandate seeking to vacate the disqualification order. (Urias, supra, 234 Cal.App.3d at pp. 419-420.)
The Urias court refused to vacate the disqualification order finding that, pursuant to section 170.3 subdivision (c)(4), the challenged judge consented to disqualification by failing to take any action in response to the statement of disqualification. (Urias, supra, 234 Cal.App.3d at p. 420.) The court also determined that the judge’s subsequent disqualification required that the summary judgment be reversed. With respect to this second determination, the court found that the disqualification statute does not address the situation where a judge is found to be disqualified after judgment is entered and the only ruling in issue is a summary judgment which disposed of all the issues in the case. Therefore, the court applied the rule that the actions of a disqualified judge are voidable if the issue is properly raised by an interested party. (Id. at p. 424.) The Urias plaintiff had properly raised the issue, the court found, because his statement of disqualification had been filed at the “earliest practicable opportunity” and was, therefore, timely. (Id. at pp. 424-425.)
Urias does not validate Smart’s theory that he can utilize this writ petition to retroactively disqualify Judge Grandsaert by applying the disqualification statute. Although the Urias plaintiff filed a statement of disqualification after judgment was entered, he filed that statement in the trial court, served it on the challenged judge, and obtained a ruling on the issue from the superior court before that court lost jurisdiction of the matter. Here, by contrast, Smart is simply asking that a writ petition filed in an appellate court be deemed a statement of disqualification of a superior court judge who made an interim ruling more than two years ago. There is no evidence this so-called statement was filed in the court where the challenged judge rendered his decision or that it was served on the challenged judge. And, of course, there is no ruling on the challenge for us to review. In other words, Smart seeks to collaterally attack a criminal judgment by invoking the disqualification statute for the first time in an appellate court in order to retroactively disqualify a superior court judge who made an interim ruling prior to entry of judgment. Neither Urias, nor any other authority we have found authorizes this tactic.
Our analysis of this very discreet issue should not be misconstrued. We recognize, of course, that the disqualification statute codifies various standards that may be relevant and useful to support properly presented claims of trial court error. Our conclusion here is only that the procedure set forth in the disqualification statute cannot properly be invoked and applied for the first time in the context of a post-judgment petition for writ of habeas corpus.
Even if we were to find that the disqualification statute can be applied in this context, we would deny Smart’s petition for at least three reasons. First, a statement of disqualification is not timely unless it is “presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (§ 170.3, subd. (c)(1).) Smart contends that his declaration and the declaration from his trial counsel establish that he has presented his statement at the earliest practicable opportunity. However, as the People point out, “appellate counsel has not submitted a declaration identifying when or how he learned of the purported conflict . . . .” Thus, Smart has failed to establish that his statement is timely.
Second, “[a] party who seeks to declare a judgment void on the ground the judge was disqualified must allege and prove facts which clearly show that such disqualification existed.” (Urias, supra, 234 Cal.App.4th at p. 424.) We find that Smart has not established that grounds for disqualifying Judge Grandsaert exist.
Smart contends that Judge Grandsaert was disqualified from ruling on the Faretta motion pursuant section 170.1, subdivision (a)(2)(A), which states that a judge shall be disqualified if “[t]he judge served as a lawyer in the proceeding . . . .” Smart alleges that Judge Grandsaert served as a lawyer in this case because a “judge who served as a lawyer for . . . a public agency that is a party to the proceeding shall be deemed to have served as a lawyer in the proceeding if he or she personally advised or in any way represented the public agency concerning the factual or legal issues in the proceeding.” (§ 170.1, subd. (a)(2)(C).) However, the evidence presented to us shows that Judge Grandsaert did not personally advise or in any way represent the People concerning any factual or legal issues in Smart’s case.
Smart also alleges that Judge Grandsaert was disqualified under section 170.1, subdivision (a)(6)(A)(iii) which provides that a judge shall be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” As demonstrated by our due process analysis, the facts presented would not lead a person to reasonably doubt that Judge Grandsaert would be able to be impartial.
This standard for disqualification “ ‘ “is fundamentally an objective one.” ‘If a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge’s impartiality, disqualification is mandated. The existence of actual bias is not required.’ [Citations.] ‘The challenge must be to the effect that the judge would not be able to be impartial toward a particular party.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 446.)
Finally, even if we could be persuaded that Smart might be able to show that one of these grounds for disqualifying Judge Grandsaert does apply, the disqualification statute Smart attempts to invoke would not authorize setting aside Judge Grandsaert’s May 4, 2005, order, let alone all the other orders that followed.
Section 170.3, subdivision (b)(4), provides that [i]f “grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.” (Emphasis added.) Here, Smart has not established that “good cause” exists to set aside the May 4, 2005, order. As thoroughly discussed above, that order is substantively sound. Further, there is no evidence that Judge Grandsaert was actually biased and the evidence produced in support of the petition does not show that a reasonable person would think the judge was biased when he ruled on the Faretta motion.
The Uris court declined to apply section 170.3, subdivision (b)(4), reasoning that it does not specifically address the situation where the ground for disqualification is discovered after judgment has been entered and the only ruling at issue disposed of the entire action. (Urias, supra, 234 Cal.App.3d 423.) Here, by contrast, we address an interim ruling. Furthermore, we are uncomfortable with the fact that the Urias court modified some provisions of the disqualification statute in order to apply them post-judgment but chose to ignore other provisions. As discussed above, the judicial disqualification statute is written to apply to a pending proceeding. To the extent courts are willing to adapt this procedure to fit other situations, we see no reason why the provision regarding late discovery of a ground for disqualification cannot also be adapted.
We conclude that the disqualification statute has not been properly invoked by Smart in this writ petition. Further, under these circumstances, there simply would be no basis for setting aside the Faretta ruling even if the disqualification statute could properly be applied in this context.
VI. DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
We concur: Kline, P.J. Lambden, J.