People v. Jones CA1/2 ( 2015 )

Filed 11/25/15 P. v. Jones CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A140717
v.
DAVID LEE JONES, (Napa County
Super. Ct. No. CR165475)
Defendant and Appellant.
Defendant David Jones was convicted of four felonies: three counts of criminal
threats (Pen. Code, § 422)1 and one count of stalking (§ 646.9). He contends all counts
must be reversed, his sentence vacated, and a new trial held because the trial court failed
to conduct an inquiry into his competence to stand trial, despite substantial evidence that
objectively raised a doubt as to his competence. He also contends all four counts were
unsupported by substantial evidence. Defendant’s arguments are meritless, and we
affirm.
EVIDENCE AT TRIAL
The Parties
James Pryor and his girlfriend of nine years, Joy Hale, lived together in American
Canyon. Pryor and defendant, who lived in Vallejo, had been friends for about 16 years.
Pryor was also friends with Joseph Fowler, who considered Pryor his “adopted uncle.”
1
All subsequent statutory references are to the Penal Code.
1
The Incidents Involving Fowler
After being introduced to defendant by Pryor in October 2012, Fowler moved into
an apartment defendant shared with his girlfriend. One night in December 2012, Fowler
woke up and found defendant standing nearby, staring at him. Fowler asked what he was
doing, but defendant did not answer, continuing to stare at him for two or three minutes.
Defendant then went outside to have a cigarette, and Fowler joined him. Defendant
finished his cigarette first and went back inside, followed later by Fowler. Fowler went
into the bathroom, where he found defendant standing in the dark with a knife in his hand
and the bathroom window open. Fowler asked him what he was doing, and defendant
told him not to worry about it and left the room. The next day, defendant told Fowler he
was not in his right mind because he had been doing drugs and had thought about killing
his girlfriend and escaping through the bathroom window.
Two days later, there was a “violent incident” that prompted Fowler to move out
of the apartment. Defendant and his girlfriend got into a “huge fight,” she “left for a little
bit” and defendant “just went crazy” and “took off, started hiding from people.” When
he came back, he threatened Fowler with a knife, telling him, “[G]et the fuck out of my
house, you traitor.” Fowler immediately left the apartment and moved in with Pryor and
Hale. Fowler returned a couple of days later to retrieve his belongings, bringing some
friends with him because he was afraid to go back.
Shortly after Fowler moved in with Pryor and Hale, he was involved in a car
accident that left him wheelchair-bound with his leg in a boot. During the time he was
confined to the wheelchair, defendant occasionally visited the house to see Pryor.
Defendant would wait until Fowler was alone and then threaten to “kick [his] ass” or beat
him up once he was out of the wheelchair. Fowler estimated that defendant threatened
him at least 11 times. Defendant would also walk by Fowler and punch him on his
injured leg. On multiple occasions, defendant brandished a knife at Fowler, telling him
the knife was waiting for him when he got out of the wheelchair and that he was going to
stab him. At first, Fowler did not think anything of the incidents, but then he started to
worry.
2
By March 2013, Fowler no longer needed the wheelchair. One night, he went out
to dinner with his grandmother. She had invited a few of her friends to join them, one of
whom was defendant. When defendant showed up and saw Fowler, he said, “[O]h,
you’re walking now. I’ll see you tomorrow.” Fowler was concerned because defendant
had been threatening to beat him up once he was out of the wheelchair. During the time
Fowler had known defendant, defendant carried a knife with him most of the time.
Threats Made Via Text Messages
On March 13, 2013, Hale and Pryor were home when they received a call from
defendant on a cell phone they shared. Pryor answered the call, and defendant told him
to give papers that defendant had left at Pryor’s house to defendant’s Aunt Vicki. He
hung up after threatening Pryor that he would kill him if he did not turn over his
daughter’s papers.
Pryor repeatedly attempted to call defendant back, and when defendant would not
answer, Pryor sent him a text message that read, “fuck you.” Pryor and Hale immediately
received the following texts from defendant:
“Jimmy I will take ur life and u will be missing forever do not fuck with my
daughters money give it to Vicki like you said u would I will be in Vallejo and all who
thinks there bad I will show you who’s the bitch 30 seconds or less cour is Tue b ready
bitch”
“We will see who gets fucked punk” (3:36p.m.)
“Carl u joy Joey”2 (3:37 p.m.)
“Check it homie last chance give my daughter’s life to Vicki” (3:38 p.m.)
Pryor and Hale went to the police station and filed a police report. They were both
scared by the texts, and they wanted to establish that there was an ongoing problem
because defendant had previously stolen their car.
After they returned home, defendant sent them a second series of texts:
2
Carl was a mutual friend of Pryor and defendant. Joey was Joseph Fowler.
3
“U still from my daughter and make a police report ur a nigger piece of shit rat”
(6:40 p.m.)
“Just like David sr at co . . .”
“Call the cops birch IM still gonna get ur punk ass” (6:49 p.m.)
“U should of just stayed out of my business like I did yours n u allowed people to
do so I would never do that to u in a million years call the cops there not gonna save ur
life”
“U made ur choice no I IM just gonna do wat u cowards can’t do” (6:56 p.m.)
“Honesty and loyalty is the hardest thing to face in life” (6:56 p.m.)
“IM not scared of shit bitch I will go to all means nigger for my daughter and u
know it bitch I have nothing to say u ducked up when Susan left because of u Joey Carl
and ur AIDS infested bitch now it’s my business you made it that way fuck u nigger IM
gonna set u on fire alive u and ur punk ass friends want to play God with my life well the
table has turned IM God know bitch”
“U allow your friends to make shit up and ruin my life so me n my homebody r
Gonna take yours period u know what Carl joy and Joey were doing the whole time fuck
you bitch IM not gonna have mercy on u like u didn’t for me”
Pryor testified that after receiving the texts, he “was worried about what
[defendant] was going to do”: “I didn’t know—I don’t know how crazy he was. You
know what I mean. He was off the hook. I don’t know how to explain it. I don’t know.
I was scared.” He also described his feelings as “[n]ervous, worried. I mean every night
I go park my car two blocks from my house, which in turn means—and two—two blocks
isn’t real far to walk, but I mean he’d stolen my car in the past, and I was worried he was
going to do it again. And I didn’t know what else he was going to do. [¶] . . . He just
wasn’t acting right.”
Hale believed defendant was referring to her when he said, “ur AIDS infested
bitch,” which made her feel “[i]rritated, angry, . . . scared.” She believed “if [defendant]
had been right there he would have done exactly what he said,” which was to hurt them.
4
According to Hale, defendant “wasn’t balanced” and she had seen a “progression over the
past few months” that led her to believe he would carry out his threats.
Hale also described a Facebook message defendant had sent sometime before he
sent the text messages. She had posted “something on [her] wall on [her] Facebook page,
and [defendant] had left a nasty message underneath it, uncalled for, but we defriended
him from all our accounts.” Before they “defriended” him, they saw another message
that defendant had sent to Pryor in which he said, according to Hale, “he could find him
anywhere, stab him, find him anywhere, at the home, at the hospital, in Sacramento . . . .”
Pryor and Hale were scared because they did not know where defendant was when
he sent the texts, and they were relieved upon learning he had been taken into custody.
Hale also testified that she would still be afraid of defendant if he were released because
“he has a temper” and “[h]e pretty much always carries a knife.”
Pryor and Hale also showed the texts to Fowler, who then reported to the police
the threats defendant made to him. He was concerned for his safety and felt like he
needed protection because defendant had threatened that he was going to burn him alive.
At the time, he did not know where defendant was, although he later learned from Hale
and Pryor that he was in custody on this case. From the time he read the text messages
until he learned defendant was in custody, Fowler was frightened because he thought
defendant was capable of doing the things he threatened in the texts. As Fowler testified,
“I’ve talked to a lot of people that know him, and they say that he’s not a safe person to
be around when he’s angry.”
PROCEDURAL BACKGROUND
By criminal complaint dated March 28, 2013, the District Attorney of Napa
County charged defendant with three counts of stalking (§ 646.9, subd. (a)) and three
counts of making criminal threats (§ 422). It was also alleged that defendant had a prior
strike (§§ 459, 667, subds. (b)–(i)), a prior serious felony (§§ 459, 667, subd. (a)(1)), and
a prison prior (§ 667.5, subd. (b)).
At defendant’s May 24 arraignment, the court observed that defendant was facing
“a substantial amount of time” (18 years, eight months) and asked if he would like to
5
have an attorney appointed to represent him. Defendant responded, “I don’t know.” The
court informed him he could represent himself but that it was “advisable” to have an
attorney, especially when facing “so many years of prison time.” After defendant again
responded, “I don’t know,” the court stated it would appoint him counsel. The matter
was then set for a preliminary hearing.
On June 5, the day before the preliminary hearing, the public defender’s office
declared a conflict, and the court suggested continuing the matter so a new defense
attorney could be located. Defendant refused to waive time, however, so the matter was
put off only long enough to locate counsel, at which point the court proposed continuing
the matter for a week so counsel could prepare for the preliminary hearing. Defendant
objected that he was being deprived of his right to a speedy trial and stated that he wanted
his former attorney back. When defendant’s new counsel said he needed a week of
preparation in order to provide effective assistance, the court explained to defendant that
his prior attorney could not represent him and if he insisted in proceeding with the
preliminary hearing at that time, his only option was to represent himself. Despite the
court urging him not to do so, particularly in light of how much time he was facing,
defendant insisted on representing himself at the preliminary hearing.
The court informed defendant that if he represented himself, he would be required
to comply with the rules of criminal procedure and evidence, would not be afforded
special treatment, would be opposed by an trained prosecutor, and would be removed
from the courtroom if he was disruptive. And if he subsequently decided to retain
counsel, the court might not continue the matter to allow his attorney time to prepare.
Defendant responded that he had graduated from high school and was competent to
represent himself. The court found that he “knowingly, intelligently, and voluntarily is
deciding to represent himself with full knowledge of the risks and dangers of doing so”
and granted him permission to proceed in propria persona. Defendant signed a Faretta3
3
Faretta v. California (1975) 422 U.S. 806.
6
warnings form, although next to his signature he wrote, “I did not get to see this for
myself.”
Defendant proceeded to ask the court if the matter was on for a pretrial hearing, to
be released on his own recognizance, and to see the evidence against him, believing that
the prosecution had to represent all of the witnesses, evidence, and “all that other stuff”
against him at the preliminary hearing. When the court explained how the preliminary
hearing would function, defendant responded, “Okay. Thank you.” He also inquired
about the discovery he had not received and access to a law library.
The preliminary hearing was held the following day. At the outset, the court
confirmed that defendant had decided to represent himself. Defendant responded, “I was
forced to,” claiming he had to represent himself in order to have a speedy trial. The court
inquired of defendant what he meant by his notation on the Faretta warnings form, to
which defendant responded, “[T]he Judge told me here’s the form. The Bailiff said sign
it, and then sent me out of the room. When they came into the holding tank, you have
two seconds to sign it, and I have to give it back. And I said I haven’t read it.” In light of
this claim, the court took a recess to afford defendant an opportunity to read the Faretta
warnings and asked him a series of questions to confirm his understanding of the
warnings and the risks of self-representation. Defendant confirmed his understanding by
responding, “Yes, sir” to each question.
The court also confirmed with defendant that he had not prepared for the
preliminary hearing and had not received discovery delivered to the jail by the prosecutor
the prior afternoon. As the court put it, “[Y]ou don’t have a lawyer, and you don’t have
the police reports, you would rather do the preliminary hearing today, representing
yourself, than waive time, have the attorney represent you, and be able to do this hearing
in a few days to a week with an attorney representing you . . . .?” Despite that the court
labeled this “a pretty poor decision,” defendant responded, “Yes, your Honor.”
The preliminary hearing then proceeded, with defendant doing, as the court would
later describe it, “a fairly decent job” at representing himself. At the conclusion of the
hearing, the court held defendant to answer the charge of stalking Fowler and all three
7
criminal threats charges (one each as to Fowler, Hale, and Pryor). Indicating that trial
would be in mid-August, the court again inquired of defendant whether he would like to
have an attorney appointed, since an attorney would have time to get up to speed without
compromising defendant’s right to a speedy trial. Defendant responded, “No, they can
give me life. I didn’t do this. I don’t want an attorney. I didn’t do this.” The court
countered, “[N]ow you have to decide whether you want to act emotionally, and because
you’re mad, and represent yourself, or if you want to act logically and consider the value
of having a lawyer represent you.” Defendant answered, “Napa County can do whatever
they want. I’ll represent myself.”
On June 10, an information charged defendant with stalking Fowler and making
criminal threats against Hale, Pryor, and Fowler, and again alleged a prison prior, a prior
serious felony, and a prior strike. When the matter came on for arraignment on the
information, it was continued because defendant was “medically unavailable.”
At a continued arraignment on June 24, the court asked defendant whether he still
wanted to represent himself or would prefer to have an attorney appointed. Defendant
responded, “Um, I would like—due to my medication, I wasn’t on my medication when I
did this, and now that I’m on my medications, they did the Depakote level, and I’m not
capable of representing myself.” The court confirmed that defendant wanted a lawyer,
referred him for the appointment of conflict counsel, and continued the matter with no
time waiver. After counsel was appointed, defendant pleaded not guilty on all counts,
and the matter was set for trial, a date later continued at defendant’s request. At a
subsequent pretrial hearing, both sides agreed to waive their right to a jury trial, although
the record is silent as to why.
On August 28, 2013, defendant’s counsel moved the court for funds for clinical
and forensic psychologist Richard Geisler, Ph.D., to conduct a psychological test and
examination of defendant. In the motion, defense counsel informed the court:
“According to Mr. Jones’s records and statements he has made to me, it appears that from
the age of nine until the present, he has been diagnosed with a number of mental
disorders, including attention deficit/hyperactivity disorder, schizoaffective disorder
8
(bi-polar type) and depression; that he has been prescribed such psychoactive drugs as
Ridilin [sic], Prozac, Depecote [sic], Lithium, Geodone and Respirdol [sic]; that he has
abused morphine, Vicodin and Valium; that he has been confined within locked mental
health wards in Solano and Sacramento Counties and that he attempted suicide while
confined within the California Department of Corrections, one month before he was to
have been paroled. Therefore, a salient issue presented in the case is whether Mr. Jones
formed and acted upon the required specific mental states when he allegedly engaged in
the conduct that forms the basis of the charges against him.”4 The court granted the
motion, and Dr. Geisler conducted an evaluation of defendant.
A bench trial took place on October 15, 2013, with Hale, Pryor, and Fowler the
only witnesses. After the court heard evidence, it found defendant guilty on all four
counts and found the special allegations to be true.
Prior to sentencing, defendant filed a Romero5 motion to strike his prior strike and
a motion for new trial on the ground that there was insufficient evidence of his guilt. Dr.
Geisler testified at length in support of defendant’s Romero motion, which testimony was
as follows:
Dr. Geisler interviewed defendant in July and August 2013, after which he
prepared a report summarizing his evaluation of defendant. In the report, he described
defendant’s “affect” as “full range and congruent.” He explained that this meant
defendant “showed a variety of emotions during my interview with him that were
appropriate to the topic at hand. I think he probably smiled when it was appropriate. He
was serious when the conversation called for it. He was sort of sad when talking about
some of the past problems he’s had.” He also described defendant’s mood as
“moderately dysphoric,” which meant depressed.
According to Dr. Geisler, defendant was diagnosed with attention deficit
hyperactivity disorder at the age of seven, for which he was prescribed Ritalin and
4
Notably, defense counsel did not express any concern about defendant’s present
competency.
5
People v. Superior Court (Romero) 13 Cal. 4th 497, 529–530
9
underwent counseling. He started smoking marijuana when he was eight years old, and
was institutionalized the following year for eight months, returning after his release on an
outpatient basis for three years of counseling. When he was 12 years old, he attempted to
kill his younger brother and neighbor and was sent to juvenile hall.
Defendant began using methamphetamine sometime between the ages of
12 and 15. When he was 16 years old, he stopped taking Ritalin, left the care of his
mother, and went to live with his father, a methamphetamine manufacturer with whom
defendant took drugs. Defendant claimed that when he was young, the
methamphetamine worked to calm him down like the Ritalin had, unless he used too
much. He developed a dependence on it, however, which caused mental and physical
problems and contributed to the deterioration of his personal relationships and
occupational endeavors. While he primarily abused methamphetamine and marijuana, he
also used heroin while in prison. Despite defendant’s chronic drug use, he had never
received substance abuse treatment.
Dr. Geisler testified that after defendant was released from state prison in 2012, he
received psychiatric treatment from the Department of Corrections and Rehabilitation’s
parole outpatient clinic. He was diagnosed with bipolar disorder and anti-social
personality disorder and was treated with Lithium and Depakote (both mood stabilizers).
Dr. Geisler believed defendant suffered from a combination of anti-social personality
disorder and borderline personality disorder, describing how the combination can lead to
problems with impulse control and judgment. In addition, defendant had a substance
abuse disorder. According to Dr. Geisler, “the interaction of those three
[conditions] . . . was instrumental in this particular case.”
Defendant also received psychiatric treatment while in custody in Napa County,
when he was again diagnosed with bipolar disorder and treated with Lithium, Depakote,
and Risperdal (an anti-psychotic). Dr. Geisler believed defendant was treated with
Risperdal because he had reported hearing voices at various times. Dr. Geisler also
believed defendant responded well to Lithium and Depakote, and likely Risperdal, noting
that historically he had an amelioration of symptoms when he was on those medications.
10
Dr. Geisler believed it was possible defendant may have been suffering from
psychoses leading up to the incidents in March 2013. He engaged in “some very bizarre
behavior that . . . could have been the product of psychotic thinking,” citing the incident
when Fowler found defendant in the bathroom with the knife.
Defendant told Dr. Geisler that in January of that year—2013—he had tried to
commit suicide by hanging himself from a fruit tree, an attempt that was unsuccessful
because someone intervened. Dr. Geisler also noted in defendant’s jail records that
defendant had mentioned suicide attempts, including thoughts in May 2013 that he might
try to kill himself. Defendant also reported having experienced auditory hallucinations,
including while he was in custody in this case. He reportedly heard the voice of his
fiancée, although he did not hear voices encouraging him to harm himself or others.
While in custody in June 2013 (the same month defendant was “medically unavailable”
for his arraignment), defendant banged his head against the county jail wall in an attempt
to commit suicide and stop pains in his head. He was moved to a safety cell and put
on 15-minute interval watch.
Dr. Geisler administered tests to measure defendant’s cognitive functioning. One
test, which he described as “a general estimator of a level of intellectual functioning” that
“can be administered fairly quickly,” registered an I.Q. of 83, which put defendant in
the 13th percentile of the general population, with a likely I.Q. in the range of 75 to 91.
The test had a “fairly good reliability and validity to it,” although it was not considered to
be as definitive a measure as a Wexler exam. Defendant performed well on a
neurobehavioral cognitive status examination, although his results on a general screening
test for neuropsychological symptoms showed “some possible abnormalities in his visual
perceptual skills . . . .” The court interrupted Dr. Geisler’s testimony at this point to
interject that defendant’s I.Q. as Dr. Geisler reported it was “somewhat inconsistent” with
how well he conducted himself during the preliminary hearing, having done, in the
court’s words, “a fairly decent job” at representing himself.
Dr. Geisler continued with his testimony, noting that on a depression inventory
which measures depression levels, defendant scored “extremely high,” indicating “he
11
probably has a very severe depression going on at that time.” While Dr. Geisler
acknowledged that individuals in custody often experience depression, defendant’s result
was “one of the highest scores” he had ever seen. Defendant reported feelings of
worthlessness, self-loathing, extremely low self-esteem, pessimism, and vegetative signs
consistent with severe depression.
Defendant acknowledged to Dr. Geisler that he did threaten to harm Pryor,
claiming he wanted to scare him into returning documents and a safe deposit key he was
holding. He denied threatening or stalking Fowler, however. And he said he did not
intend to do anything after making the threats.
Dr. Geisler was of the opinion that defendant was addicted to methamphetamine
and marijuana, and suffered from bipolar disorder with psychotic symptoms. He
considered the possibility that defendant was legally insane at the time he committed the
offenses, but he did not express a belief that that was the case. At no time did Dr. Geisler
suggest defendant was incompetent to stand trial.
After hearing further evidence, the court denied defendant’s Romero motion, as
well as his motion for new trial. It then sentenced defendant to seven years, eight months
in state prison.
Defendant filed a timely appeal.
DISCUSSION
The Record Does Not Contain Substantial Evidence that Objectively Raised a
Doubt as to Defendant’s Competence to Stand Trial
In his first argument, defendant contends the trial court had a sua sponte duty to
conduct a hearing to determine whether he was competent to stand trial. Its failure to do
so, he submits, deprived him of due process. We disagree.
Section 1367 prohibits the prosecution of an individual while that person is
mentally incompetent, defining mentally incompetent as “unable to understand the nature
of the criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner” as a result of a mental disorder or developmental disability. (Accord,
Dusky v. United States (1960) 362 U.S. 402 [test for mental competence to stand trial is
12
“whether [defendant] has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well as
factual understanding of the proceedings against him.”].)
Section 1368 requires a court to hold a hearing on present sanity “[i]f, during the
pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to
the mental competence of the defendant . . . .” (§ 1368, subd. (a).) Once substantial
evidence of incompetence has been offered, “a doubt as to the sanity of the accused
exists, no matter how persuasive other evidence—testimony of prosecution witnesses or
the court’s own observations of the accused—may be to the contrary.”
(People v. Pennington (1967) 66 Cal. 2d 508, 518.) “Although section 1368,
subdivision (a), refers to a doubt that arises ‘in the mind of the judge as to the mental
competence of the defendant,’ case law interpreting this subdivision establishes that when
the court becomes aware of substantial evidence which objectively generates a doubt
about whether the defendant is competent to stand trial, the trial court must on its own
motion declare a doubt and suspend proceedings even if the trial judge’s personal
observations lead the judge to a belief the defendant is competent.” (People v. Castro
(2000) 78 Cal. App. 4th 1402, 1415; see also People v. Hayes (1999) 21 Cal. 4th 1211,
1281; People v. Stiltner (1982) 132 Cal. App. 3d 216, 222–223; People v. Humphrey
(1975) 45 Cal. App. 3d 32, 36–37.)
The court in People v. Burney (1981) 115 Cal. App. 3d 497, 503, expanded on the
concept of substantial evidence in this context:
“What constitutes substantial evidence in a proceeding under section 1368 cannot
be answered by a simple formula applicable to all situations. [Citation.] Where there is
no substantial evidence to raise the required doubt in the mind of the trial judge the
failure to proceed under section 1368 sua sponte is not error. More is required to raise a
doubt than mere bizarre actions, or bizarre statements, or statements of defense counsel
that defendant is incapable of cooperating in his defense, or psychiatric testimony that
defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with
little reference to defendant’s ability to assist in his own defense. [Citation.] It is not
13
enough that an expert state that the defendant is mentally ill or insane to satisfy the
substantial evidence test. [Citation.] The expert must state with particularity that in his
professional opinion the accused is, because of mental illness, incapable of understanding
the purpose or nature of the criminal proceedings being taken against him or is incapable
of assisting in his defense or cooperating with counsel. [Citation.] However, a single
doctor’s report which concludes that the defendant is incapable of standing trial, even in
the face of other reports to the contrary, is substantial evidence requiring that a
section 1368 proceeding be instituted. [Citation.]” Here, there was no substantial
evidence objectively raising a reasonable doubt as to defendant’s competence to stand
trial.
From the outset of the case, defendant demonstrated an understanding of the
nature of the proceeding,6 evidenced by his refusal to waive time for his preliminary
hearing, acknowledgement of the self-representation advisements at the hearing, demand
to see the evidence against him, request to be released on his own recognizance,
acknowledgment of the different burdens at a preliminary hearing than a trial, and
inquiries regarding access to a law library. Additionally, his courtroom demeanor was
appropriate, devoid of outbursts, and replete with polite and respectful responses to the
court.
Defendant also, in the words of the trial court, “did a fairly decent job”
representing himself at the preliminary hearing. He successfully asserted, and opposed,
objections and conducted reasonably skillful cross-examination for a layperson. He knew
that a witness could be cross-examined with prior convictions. He made an oral motion
for dismissal based on a claim that he was denied due process because he was not served
with discovery. And he evidenced an understanding of the concepts of relevance,
hearsay, leading questions, and vagueness.
At the hearing following the preliminary hearing, defendant demonstrated his
understanding of the nature of the proceeding by informing the court that, now that he
6
This is not to say that defendant understood the procedural intricacies, which
understanding often only comes with years of experience as a practicing attorney.
14
was taking his medication, he wanted to be represented by counsel. He was able to
contribute to his defense by confirming his desire to withdraw his 60-day waiver for trial,
and later consenting to a continuance and waiving time again. He knew the difference
when he was represented by substitute counsel at a subsequent hearing, and when faced
with a term he did not understand (“zealous” advocate) he sought clarification of what the
term meant.
On the other hand, there is no evidence in the record that defendant was unable to
understand the nature of the proceedings or assist his counsel in his defense. He
identifies no evidence that he experienced hallucinations or delusions during trial that
impeded his defense. There is no evidence that he refused to cooperate with his trial
counsel. There is no evidence of outbursts during trial. Dr. Geisler described in detail
defendant’s mental struggles but never suggested he did not understand the nature of the
proceeding or lacked the ability to aid in his own defense. Dr. Geisler considered the
possibility that defendant was legally insane at the time he committed the offenses, but he
expressed no belief that defendant was incompetent at the time of trial. Again,
People v. Burney, supra, 115 Cal.App.3d at p. 503 is apt: “It is not enough that an expert
state that the defendant is mentally ill or insane to satisfy the substantial evidence test.
[Citation.] The expert must state with particularity that in his professional opinion the
accused is, because of mental illness, incapable of understanding the purpose or nature of
the criminal proceedings being taken against him or is incapable of assisting in his
defense or cooperating with counsel.” Dr. Geisler offered no such opinion here.
Defendant cites five factors that he claims, “individually and collectively, raised a
doubt about [his] competence to stand trial, which required the court to order” a
section 1368 hearing: (1) multiple suicide attempts; (2) depression; (3) psychotropic
medication; (4) litigation concessions contrary to his interest; and (5) his pre-existing
mental illnesses. But the mere existence of these factors—assuming they were all
present—does not compel a conclusion that there existed an objective doubt as to
defendant’s mental competence. Without something to suggest that these factors
rendered defendant incapable of understanding the proceeding or assisting in his own
15
defense, there was no basis for the court to order a competency hearing. As the
California Supreme Court stated in People v. Laudermilk (1967) 67 Cal. 2d 272, 285:
“[M]ore is required to raise a doubt than mere bizarre actions [citation] or bizarre
statements [citation] or statements of defense counsel that defendant is incapable of
cooperating in his defense [citation] or psychiatric testimony that defendant is immature,
dangerous, psychopathic, or homicidal or such diagnosis with little reference to
defendant’s ability to assist in his own defense [citation].”
Defendant also discusses at length three Ninth Circuit cases he considers “highly
instructive.” We do not find them persuasive. Two cases, Moran v. Godinez (9th Cir.
1992) 972 F.2d 263 (Moran I) and Moran v. Godinez (9th Cir. 1994) 57 F.3d 690
(Moran III) involved a defendant (Moran) who, following a suicide attempt, confessed to
killing three people, including his ex-wife. (Moran III, supra, at p. 694.) Faced with
three counts of capital murder, Moran discharged his counsel, changed his plea to guilty,
refused the court’s offer of standby counsel, and announced that he wanted no mitigating
evidence presented on his behalf at sentencing. The court asked if he was taking drugs
and he replied that he was on medication, but the court asked no follow up questions.
When advised about his legal rights and the charges against him, Moran responded to
questions in monosyllabic responses. He was ultimately sentenced to death. (Moran I,
supra, at p. 264.)
Moran’s subsequent claim that he was not legally competent to waive his right to
counsel or enter guilty pleas eventually made its way to the Ninth Circuit, which agreed
the record did not support a conclusion that Moran was competent to make a valid waiver
of constitutional rights. (Moran I, supra, 972 F.2d at p. 264.) The court reasoned as
follows: “[T]here was substantial evidence available at the time [defendant] pled guilty
to trigger a good faith doubt about his competency to waive constitutional rights. Moran
had attempted suicide only a few months before his plea hearing. In addition, Moran
stated at the plea hearing that he wanted to fire his attorney to ensure that no mitigating
evidence would be presented on his behalf at sentencing. [Citation.] The transcript of
the plea hearing shows that virtually all of Moran’s responses to the court’s questions
16
were monosyllabic. Furthermore, at the time he discharged his counsel and changed his
pleas to guilty, Moran was taking four different kinds of medication: Inderal, Dilantin,
Phenobarbital, and Vistaril. [Citation.] Although the transcript shows that Moran
advised the court that he was taking medication, no further inquiry was made on this
subject. [Citation.] [¶] Given the record in this case, the state court should have
entertained a good faith doubt about Moran’s competency to make a voluntary, knowing,
and intelligent waiver of constitutional rights.” (Id. at p. 265.)
Moran I does not stand for the proposition that evidence of a defendant’s prior
suicide attempts, drug use, or depression is sufficient to trigger a trial court’s sua sponte
duty to hold a competency hearing, as defendant apparently believes. Rather, the critical
issue there, and one that distinguishes the outcome from this case, was that Moran
eschewed the presentation of a defense, possibly as a consequence of the medications he
was taking, but the court never made any inquiry into the medications. By contrast,
defendant’s medication here appeared to aid him in participating in his defense, since he
refused counsel while off his medication but requested counsel—and presumably
followed his counsel’s advice—after he resumed taking his medication. This is
consistent with Dr. Geisler’s testimony that defendant historically responded well to the
medications he was taking. And there was no evidence that defendant took any action
out of a desire to forgo a defense; to the contrary, defendant maintained his innocence
and repeatedly insisted on invoking his right to a speedy trial.
United States v. Howard (9th Cir. 2004) 381 F.3d 873, also relied upon by
defendant, provides no greater assistance. There, defendant’s counsel presented him with
a plea bargain on the morning trial was set to begin. Defendant was taking Percocet, a
prescription narcotic pain killer, for a leg injury. During the colloquy at the plea hearing,
the court asked defendant if he was under the influence of alcohol or a narcotic drug.
Defendant responded, “No,” but when the court noted a hesitation, defendant went on to
explain he was taking Percocet for pain pursuant to a doctor’s order. When that court
asked, “That’s pretty tough stuff, isn’t it?”, defendant responded, “The pain I am going
17
through is pretty tough.” Without conducting any further inquiry regarding the drug or
its effects, the court accepted defendant’s guilty plea. (Id. at p. 876.)
Defendant appealed from the district court’s denial of his habeas petition claiming
that his counsel’s performance was ineffective in permitting him to enter into the plea
agreement while he was incompetent. (United States. v. Howard, supra, 381 F.3d at p.
875.) The Ninth Circuit reversed, agreeing that the district court should have held an
evidentiary hearing on the question of defendant’s competency. (Id. at p. 881.) In
addition to citing defendant’s representation to the district court that he was a taking
Percocet, which the judge recognized was “strong” medication, the court cited
defendant’s subsequent sworn statement in support of his habeas petition that because of
the medication, he was “ ‘incapable of understanding the nature and consequences of his
plea,’ ” he suffered from “ ‘mental clouding,’ was so befuddled he was unable to count,
was ‘incoherent’ and ‘almost devoid of sensible meaning’ in his speech, was not ‘in full
possession of his mental faculties,’ was ‘narcoticized’ and ‘did not fully understand the
nature and consequences of his agreement.’ ” (Id. at p. 880.) This, the court concluded,
raised a question of whether defendant was competent such that an evidentiary hearing
was required. (Id. at p. 881.) Here, there was significant testimony from Dr. Geisler
concerning defendant’s medications, none of which suggested they impeded his mental
abilities. Indeed, the evidence was to the contrary.
Defendant also details what he describes as the “leading cases” on the issue of a
defendant’s present competence, each of which held that the trial court’s failure to inquire
into defendant’s competence or to hold a competency hearing deprived defendant of his
right to a fair trial. But in those cases, there was objective evidence that defendant was
incapable of understanding the nature of the proceedings against him or of assisting in his
defense, evidence that was missing here. (See Pate v. Robinson (1966) 383 U.S. 375,
378–383 [defendant suffered severe head trauma as a child, “had a long history of
disturbed behavior,” “appeared in a daze, with a ‘glare in his eyes,’ and would not speak
or respond to questions”; presented symptoms of mental illness; heard voices and saw
hallucinations; experienced serious “irrational episodes”; attempted suicide by shooting
18
himself in the head after shooting and killing his young son; four lay witnesses were of
the opinion that defendant was insane]; Drope v. Missouri (1975) 420 U.S. 162, 165–170
[psychiatric report described defendant as “ ‘markedly agitated and upset’ ” with
difficulty in relating, “ ‘markedly circumstantial and irrelevant in his speech,’ ” and
“ ‘a very neurotic individual who is also depressed’ ”; defendant was diagnosed with a
sociopathic personality disorder, sexual perversion, borderline mental deficiency, and
chronic anxiety reaction with depression; defendant’s wife testified that defendant and
four friends raped her and “subject[ed] her to other bizarre abuse and indignities”;
defendant choked his wife a few days before trial; on the second day of trial, defendant
shot himself in the abdomen; two psychiatrists testified that there was reasonable cause to
believe defendant might not be competent to stand trial]; People v. Pennington, supra,
66 Cal.2d at pp. 508, 511–514 [defendant repeatedly interrupted trial with obscenities and
comments; he declared midtrial that he did not want an attorney; defense counsel advised
the court that defendant was unable to cooperate with him and requested a hearing on
defendant’s sanity; two psychologists and a psychiatrist testified that they believed
defendant was incompetent to stand trial in light of hallucinations and delusions he
experienced at the time of trial; defense counsel observed defendant crying in his jail cell
with abrasions on his wrists; defendant displayed his penis to courtroom spectators and
invited them to come to the trial and bring Cracker Jack].)
In short, nothing in the record suggests that at any time during these proceedings
defendant was unable to understand the nature of the proceedings or to assist counsel in
conducting the defense in a rational manner.
Substantial Evidence Supports the Court’s Guilty Finding on All Three
Criminal Threat Counts
Defendant next challenges the sufficiency of the evidence to support his
convictions, beginning with a claim that there was insufficient evidence he made criminal
threats against Fowler, Pryor, or Hale. The crime of criminal threat is set forth in
section 422, which provides: “Any person who willfully threatens to commit a crime
which will result in death or great bodily injury to another person, with the specific intent
19
that the statement, made verbally, in writing, or by means of an electronic communication
device, is to be taken as a threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby causes that
person reasonably to be in sustained fear for his or her own safety or for his or her
immediate family’s safety, shall be punished by imprisonment in the county jail not to
exceed one year, or by imprisonment in the state prison.” A violation of section
422 consists of the following five elements: (1) defendant “willfully threaten[ed] to
commit a crime which will result in death or great bodily injury to another person,”
(2) defendant made the threat “with the specific intent that the statement . . . is to be taken
as a threat, even if there is no intent of actually carrying it out,” (3) the threat—which
may be “made verbally, in writing, or by means of an electronic communication
device”—was “on its face and under the circumstances in which it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the threat,”
(4) the threat actually caused the person threatened “to be in sustained fear for his or her
own safety or for his or her immediate family’s safety,” and (5) that the threatened
person’s fear was “reasonabl[e]” under the circumstances. (People v. Toledo (2001) 26
Cal. 4th 221, 227–228, quoting § 422; see also In re Ryan D. (2002) 100 Cal. App. 4th 854,
860; CALCRIM No. 1300.)
On a challenge to the sufficiency of the evidence to sustain a criminal conviction,
“we must determine ‘whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’ [Citation.] ‘[T]he court must review the whole record
in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.] We ‘ “presume in support of the judgment the existence of
20
every fact the trier could reasonably deduce from the evidence.” ’ [Citation.]”
(People v. Davis (1995) 10 Cal. 4th 463, 509.) Reversal is not warranted unless it appears
“ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal. 4th 297, 331; People v.
Zamudio (2008) 43 Cal. 4th 327, 357.)
When considering the sufficiency of the evidence to support a criminal threats
conviction, we evaluate the totality of the circumstances, including the parties’ prior
contacts and the manner in which the communication was made, to determine whether
the communication conveyed to the victim a gravity of purpose and an immediate
prospect of execution of the threat. (In re Ryan D., supra, 100 Cal.App.4th at pp. 859–
860; People v. Butler (2000) 85 Cal. App. 4th 745, 753–754; In re Ricky T. (2001) 87
Cal. App. 4th 1132, 1137; People v. Solis (2001) 90 Cal. App. 4th 1002, 1013.)
As to Fowler, defendant brandished a knife at him while calling him a traitor.
This threat occurred two days after Fowler encountered defendant in a bathroom holding
a knife and one day after defendant told Fowler that he was not “in his right mind”
because he had been doing drugs and felt like he was going to murder his girlfriend.
Later, when Fowler was confined to a wheelchair with his leg in a boot, defendant
repeatedly hit him on his injured leg and threatened to beat him up, eventually
threatening to stab him while again brandishing a knife. On at least 11 occasions,
defendant threatened to harm Fowler once he was no longer wheelchair-bound. And
once defendant saw that Fowler was able to walk again, he perpetuated his threats, telling
him, “[O]h, you’re walking now. I’ll see you tomorrow,” suggesting he was going to
make good on his threats. This evidence alone was sufficient to support the criminal
threats conviction as to Fowler. But there was more.
The text messages defendant sent to the phone shared by Pryor and Hale likewise
constituted substantial evidence that defendant made criminal threats to Fowler, as well
as Pryor and Hale. He mentioned all three victims by name several times, threatened to
set them on fire alive and, in the case of Pryor, to take his life and show him “who’s the
bitch.” He threatened that he was “not gonna have mercy” and that the police were not
21
“gonna save ur life.” The victims all testified they were fearful and took the threats
seriously in light of defendant’s history and unpredictable conduct, and were only
relieved upon learning defendant was in custody. Again, this was substantial evidence
supporting the three criminal threats convictions.
Defendant’s chief complaint is that the texts did not satisfy the third element of a
section 422 violation because they were, as he puts it, “written in an equivocal,
conditional tone—i.e., if Pryor or Hale withheld from [defendant] valuable documents
related to money intended for his daughter, then ‘Jimmy, I will take ur life and u will be
missing forever do not fuck with my daughter’s money give it to Vicki like u said u
would. I will be here in Vallejo and all who thinks there bad I will show u who’s the
bitch 30 seconds or less . . .;’ and ‘Check it homie last chance give my daughter’s life to
Vicki . . . .’ ” But this mischaracterizes what the texts actually said. The texts conveyed
defendant’s anger that Pryor and Hale apparently had in their possession important
documents belonging to defendant, but he did not make the threats contingent on their
failure to return the documents. This is especially true of the second set of texts, in which
defendant expressed his anger that the victims had filed a police report based on the first
set of texts and threatened them with violence: “Call the cops birch IM still gonna get ur
punk ass”; “U should of just stayed out of my business like I did yours n u allowed
people to do so I would never do that to u in a million years call the cops there not gonna
save ur life”; “U made ur choice no I IM just gonna do wat u cowards can’t do”; “IM not
scared of shit bitch I will go to all means nigger for my daughter and u know it bitch I
have nothing to say u ducked up when Susan left because of u Joey Carl and ur AIDS
infested bitch now it’s my business you made it that way fuck u nigger IM gonna set u on
fire alive u and ur punk ass friends want to play God with my life well the table has
turned IM God know bitch”; “U allow your friends to make shit up and ruin my life so
me n my homebody r Gonna take yours period u know what Carl joy and Joey were
doing the whole time fuck you bitch IM not gonna have mercy on u like u didn’t for me.”
There was nothing conditional in these threats of violence.
22
Defendant also argues the record does not support a finding the victims were
reasonably in “sustained fear” that defendant would harm them. Their testimony that
they were all afraid until they learned he was in custody is substantial evidence of such
fear.
Viewed in the light most favorable to the judgment, the totality of the
circumstances contained substantial evidence that defendant made criminal threats
against Pryor, Hale, and Fowler.
Substantial Evidence Supports the Trial Court’s Guilty Finding on the
Charge of Stalking Fowler
Lastly, defendant contends the prosecution failed to present sufficient evidence
that he stalked Fowler. Again, this argument lacks merit.
The crime of stalking is set forth in section 646.9, which provides in pertinent part:
“Any person who willfully, maliciously, and repeatedly follows or willfully and
maliciously harasses another person and who makes a credible threat with the intent to
place that person in reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable by imprisonment in a
county jail for not more than one year, or by a fine of not more than one thousand dollars
($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.”
(§ 646.9, subd. (a).) “[H]arasses” means “engages in a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes
the person, and that serves no legitimate purpose. (Id., subd. (e).) “[C]ourse of conduct”
means “two or more acts occurring over a period of time, however short, evidencing a
continuity of purpose,” excluding constitutionally protected activity. (Id., subd. (f).)
“[C]redible threat” means “a verbal or written threat, including that performed through
the use of an electronic communication device, or a threat implied by a pattern of conduct
or a combination of verbal, written, or electronically communicated statements and
conduct, made with the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her family, and made with the
apparent ability to carry out the threat so as to cause the person who is the target of the
23
threat to reasonably fear for his or her safety or the safety of his or her family. It is not
necessary to prove that the defendant had the intent to actually carry out the threat.”
(Id., subd. (g).)
The evidence showed that defendant threatened Fowler on multiple occasions,
punctuated by hitting him on his injured leg or brandishing a knife. Fowler testified that
after he moved in with Pryor and Hale, defendant repeatedly threatened to “kick [his]
ass” or beat him up once he was out of the wheelchair. In Fowler’s estimation, defendant
threatened him in this manner at least 11 times. On multiple occasions, defendant
brandished a knife, telling Fowler the knife was waiting for him when he got out of the
wheelchair. And then when defendant discovered that Fowler was no longer wheelchair
bound, he told Fowler, “[O]h, you’re walking now. I’ll see you tomorrow.” This was
sufficient evidence that defendant maliciously harassed Fowler and made a credible
threat with the intent to place him in reasonable fear for his safety.
DISPOSITION
The judgment of conviction is affirmed.
24
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A140717; People v. Jones
25