People v. Robinson

• Decision Date: 29 May 2007
• Docket Number: No. C051338.,C051338.
• Citation: 151 Cal.App.4th 606,60 Cal.Rptr.3d 102
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward ROBINSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

60 Cal.Rptr.3d 102

151 Cal.App.4th 606

The PEOPLE, Plaintiff and Respondent, v. Edward ROBINSON, Defendant and Appellant.

No. C051338.

Court of Appeal, Third District.

May 29, 2007.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

MORRISON, J.

Defendant was convicted by jury of burglary (Pen.Code, § 459) and petty theft with a prior (Pen.Code, § 666). The jury found defendant had two strike convictions (Pen.Code, § 667, subds.(b)-(i)), and four prior prison terms (Pen.Code, § 667.5, subd.(b)). The trial court struck two of the prison term allegations and found two others were not separate terms. It sentenced defendant to an aggregate term of 26 years to life.

On appeal defendant contends the trial court erred in failing to appoint counsel for defendant, who at that time was representing himself, when the court declared a doubt as to defendant's competency. Defendant contends this denial of the right to counsel is prejudicial per se and requires reversal. Defendant further contends the trial court abused its discretion in failing to appoint two doctors to examine defendant.

We find the trial court erred in failing to appoint counsel to represent defendant at the second competency hearing. Whenever the trial court declares a doubt as to defendant's competency to stand trial and suspends proceedings for an evaluation under Penal Code section 1368, counsel must be appointed to represent defendant. Given the unusual circumstances of this case, in which a competency report was prepared, a new trial may not be required. Instead, we reverse and remand for a retrospective competency hearing. In the event defendant is found to have been competent, the judgment will be reinstated. Since defendant did not inform the court that he was not seeking a finding of mental incompetence, the court did not err in failing to appoint a second expert to examine defendant.

FACTS

T.A. worked at More For Less, a convenience store where defendant was a regular customer. On January 25, 2005, defendant had been in the store several times. He wanted T.A. to sell him a single cigarette. She told him she could not.

At midnight, T.A. left the store by the glass exit door, locking it behind her. About 45 minutes later, her manager called and said the broken window alarm had gone off. T.A., who lived nearby, went to the store. She found the exit door smashed.

When an officer arrived they entered the store. T.A. noticed cigarettes and alcohol were missing. A hat defendant had been wearing that day was in the driveway.

D.R., who worked at a nearby business, heard a crash around 1:00 a.m. He saw an individual go into More For Less and then leave.

CHP Officer Ronald Ross was parked at Tehama-Vine Road in Mill Creek Park the next morning. He had been dispatched to recover a stolen vehicle. He heard someone say, "Help me, please help me." He saw defendant who was drunk, cold, wet, muddy and missing a shoe. Defendant said he was cold and thought he would die. Defendant told the officer he had been drinking all night and asked the officer to take him home. Ross took him to defendant's daughter's house. Once there, defendant's ex-wife asked the officer if defendant was drunk. When the officer said yes, she told him to take defendant to jail or detox. She did not want him influencing the grandkids.

Detective David Greer learned that morning that someone was in custody for being drunk in public who might be a suspect in a burglary. Detective Greer went to the jail and learned that defendant was sleeping. He checked defendant's possessions and found two packs of cigarettes similar to those stolen. That afternoon, when defendant was awake, Detective Greer interviewed him. At first defendant denied any involvement in the burglary of More For Less, but he later admitted he used a bolt from a braking system of a railroad car to break the glass door. He took two bottles of Black Velvet whiskey and three packages of cigarettes and left. Defendant drew a diagram for Detective Greer from which Greer was able to locate the two bottles and one pack of cigarettes. Defendant told Detective Greer the two packs of cigarettes in his possession had been taken from More For Less.

Defendant called T.A. about six months after the burglary and said he was sorry.

Before trial defendant told the court he wanted to "go pro per." The court asked defense counsel if there were any issues under Penal Code section 1368. Counsel indicated he had considered such, but was not prepared to suggest proceedings at that time. The court gave defendant Faretta forms.

One week later, defense counsel suggested proceedings under Penal Code section 1368. The court concurred and referred the matter to Dr. Joseph Busey. The parties stipulated one expert would suffice.

Dr. Busey submitted a report in which he found defendant competent. There was no evidence of brain damage or dysfunction or a psychotic process, although defendant reported he had been "`drunk and druggin'" since he was 13 years old. Dr. Busey found defendant's self-described diagnoses of Bipolar 2 and ADHD were probably accurate, as well as alcohol dependency. "Underlying it all is a core layer of an antisocial character structure."

Based on the report, the trial court found defendant competent to stand trial. Defendant told the court, "I am crazier than anything you've ever seen." Defendant asserted a man would have to be crazy to confess when he had two strikes. Defendant wanted time to hire an attorney. Defendant suggested the court "[m]ake me pro per until I can hire another attorney." The court agreed; it relieved appointed counsel and allowed defendant to represent himself.

Two weeks later defendant placed the matter on calendar concerning motions he had not filed. Upon inquiry of the court, defendant stated he did not understand court proceedings. The court put the matter on calendar the following week to consider appointment of standby counsel.

At that hearing one week later, on June 6, 2005, the court noted defendant had said he was incompetent and asked for appointment of another psychiatrist the week before. The court stated defendant was not entitled to appointment of another psychiatrist, but it intended to appoint one because it had concerns about defendant's competence. Defendant thanked the court but indicated he did not want co-counsel. The court explained the role of standby counsel. The court appointed Dr. Ray Carlson to examine defendant.

Dr. Carlson submitted a report in which he found defendant competent to stand trial and capable of acting as his own attorney. Defendant appeared with standby counsel and agreed with the report's conclusions; he submitted the matter. The court found defendant competent.

Almost two months later the court indicated it intended to appoint Kenneth Miller as standby counsel. The court tried to convince defendant to accept an attorney. Eventually, defendant agreed to appointed counsel and the court appointed Miller to represent defendant. A few weeks later the court denied defendant's request to remove Miller. The court found defendant was attempting to delay the proceedings. Miller represented defendant at trial.

DISCUSSION

I. Failure to Appoint Counsel for Competency Hearing

This case presents a potential conflict between constitutional rights. A criminal defendant has the right to represent himself under Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. In order to exercise this right, a defendant must "`knowingly and intelligently'" waive the benefits of the right to counsel. (Id. at p. 835, 95 S.Ct. 2525.)

A mentally incompetent defendant may not be put on trial. (Cooper v. Oklahoma (1996) 517 U.S. 348, 354, 116 S.Ct. 1373, 1377, 134 L.Ed.2d 498, 506; Pen.Code, § 1367, subd. (a).) "A defendant may not be put on trial unless he '"has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.'" [Citation.]" (Cooper, supra, at p. 354, 116 S.Ct. 1373.) A defendant has the right to assistance of counsel in proceedings to determine his competence to stand trial. (See Estelle v. Smith (1981) 451 U.S. 454, 469-471, 101 S.Ct. 1866, 1876-1878, 68 L.Ed.2d 359, 373-374; Kirby v. Illinois (1972) 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411, 417; Appel v. Horn (3rd Cir.2001) 250 F.3d 203, 215 [competency hearing is critical stage of a trial]; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 503, 122 Cal.Rptr.2d 673 [right to counsel clearly applies to Penal Code section 1368 competency hearing].)

The competency standard is the same whether the question is competency to stand trial or competency to waive counsel and represent oneself. (People v. Blair (2005) 36 Cal.4th 686, 711, 31 Cal.Rptr.3d 485, 115 P.3d 1145.)

Defendant contends the trial court denied him the constitutional right to assistance of counsel by failing to appoint counsel to represent him on June 6, 2005, when the court declared a doubt as to his competency. Defendant argues that since there was a doubt as to his competency, his exercise of his Faretta right could not be considered a knowing and intelligent waiver of his right to counsel. The Attorney General disagrees, contending the trial court properly balanced defendant's right of self-representation with the concern of proceeding to trial with a mentally incompetent defendant.

In Pate v. Robinson (1966) 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, the State insisted defendant waived the defense of his competence to stand trial by failing to demand a competency hearing. The high court rejected this...