People v. Davis-Murray CA1/2 ( 2023 )

Filed 2/9/23 P. v. Davis-Murray 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A164865
v.
BLAKE DAVIS-MURRAY, (Contra Costa County
Super. Ct. Nos. 02-334654-1,
Defendant and Appellant.
01-196480-8, 01-196346-1)
Defendant Blake Davis-Murray appeals from orders finding him not
competent to stand trial and committing him to the Department of State
Hospitals pursuant to Penal Code section 1370 et seq.
Finding no arguable issues on appeal, defendant’s appointed counsel
filed a brief setting forth the applicable facts and law pursuant to
Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) and informed
defendant that he could file a supplemental brief.
We have considered defendant’s supplemental filings and reviewed the
record, and we affirm.
1
BACKGROUND
The Three Underlying Criminal Cases
Case No. 02-334654-1
On May 26, 2021, a five-count complaint was filed against defendant.
He was charged with possession of a firearm by a felon (Pen. Code,1 § 29800,
subd. (a)(1); count 1), carrying a loaded firearm with a prior conviction
(§ 25850, subd. (a); count 2), having a concealed firearm on his person
(§ 25400, subd. (a)(2); count 3); possession of ammunition (§ 30305, subd.
(a)(1); count 4), and felony vandalism with over $400 damage (§ 594, subd.
(a); count 5) related to alleged damage to a patrol car. It was alleged all the
offenses occurred on May 24, 2021.
On June 29, 2021, the parties reached a negotiated disposition under
which defendant entered a plea of no contest to count 1 and misdemeanor
vandalism (designated count 6) in exchange for two years’ felony probation
and dismissal of the remaining charges. The trial court (Hon. Charles B.
Burch) accepted defendant’s plea and ordered formal probation.
Case No. 01-196480-8
On July 12, 2021, a six-count complaint was filed against defendant
relating to an incident involving his relative that was alleged to have
occurred on July 8, 2021. He was charged with second degree robbery (§ 211;
count 1), first degree burglary (§ 459; count 2), false imprisonment by
violence (§§ 236, 237; count 3), felony assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 4), felony dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1); count 5), and evading an
officer (Veh. Code, § 2800.1, subd. (a)). It was further alleged that defendant
violated probation in case no. 02-334654-1.
1 Undesignated statutory references are to the Penal Code.
2
The next day, the trial court (Hon. Jon R. Rolefson) granted defendant’s
Faretta motion.2
At the preliminary hearing on July 23, 2021, the trial court (Hon.
Leslie Landau) declared a doubt as to defendant’s competence and suspended
criminal proceedings.
Case No. 01-196346-1
On July 29, 2021, defendant was charged with a single count of
misdemeanor vandalism with over $400 damage (§ 594, subd (a)) related to
allegations that defendant defaced a cell door on June 7, 2021, while he was
in county jail. It was further alleged that defendant was in violation of
probation (although the case listed, case No. 05-190724-5, is not one of the
criminal cases in this appeal).
First Competency Determination
At a hearing on August 4, 2021, the trial court (Hon. Laurel S. Brady)
appointed two psychologists to evaluate defendant pursuant to section 1368
in respect to all three criminal cases. At a hearing on September 22, 2021,
the court stated there was a disagreement between the two psychologists and
appointed another psychologist to evaluate defendant. The court asked
defendant whether he would consider having an attorney appointed to
represent him, and he declined. However, at a hearing on October 20, 2021,
an attorney from the Public Defender’s Office appeared on defendant’s behalf.
The minutes indicate “pro per revoked.”
2 “With a Faretta motion, the defendant is seeking permission to
proceed without any lawyer at all. Faretta held that when a competent,
literate defendant makes a timely, knowing, voluntary, and unequivocal
[request to represent himself and] waiver of the right to counsel, then the
trial court must permit him to proceed without assistance of counsel.”
(People v. Percelle (2005) 126 Cal.App.4th 164, 174, citing Faretta v.
California (1975) 422 U.S. 806, 835–836.)
3
On November 15, 2021, the trial court held a hearing on whether
defendant was competent to stand trial. The prosecutor stated that Dr.
Johnson, in a report dated September 12, 2021, found defendant not
competent, that Dr. Griffith, in a report dated September 15, 2021, found him
not competent, and that Dr. Siggins, in an undated report from October 2021,
found him competent.3
Defendant testified on his behalf and was the only witness. He
answered defense counsel’s questions about the charges against him and who
might be witnesses. He knew that a jury would decide whether he was
guilty, the maximum punishment he faced was eight years, and the judge
would decide his punishment if the jury found him guilty. Defendant
testified he did not believe he had a mental disorder.
Following his testimony, defense counsel argued that defendant’s
mental health had improved, stating that jail mental health staff reported a
“notable transformation” in defendant from September (when staff
documented “many specific delusions and specific concerns . . . related to his
mental illness”) to October (when defendant “was doing well in the jail
environment”). The prosecutor agreed that defendant’s testimony showed “he
does not appear to be suffering from the issues that were initially brought to
the Court’s attention back in September at the time of the . . . two reports”
from Dr. Johnson and Dr. Griffith. Judge Brady agreed with the attorneys
3The prosecutor stated that Dr. Griffith’s report had a typographical
error. The report stated defendant was competent, but it was contradictory;
the prosecutor contacted Dr. Griffith, who clarified that he concluded
defendant was not competent. Dr. Siggins’s report was also inconsistent. Dr.
Siggins wrote that defendant was not competent, but he clarified that he
meant defendant was competent.
4
and found defendant competent to stand trial. Criminal proceedings were
reinstated.
Defendant stated he wanted to represent himself in the criminal
matters.
Second Competency Determination
At a hearing on December 13, 2021, the trial court (Hon. Mary Ann
O’Malley) declared a doubt as to defendant’s competence and suspended
criminal proceedings. (There is no reporter’s transcript in the record for this
hearing.)
At a hearing two days later, the trial court (Hon. Laurel Brady) revoked
defendant’s pro per status, appointed defendant counsel from the Public
Defender’s Office, and appointed two psychologists to evaluate defendant
pursuant to section 1368 in respect to all three criminal cases.4 Defendant’s
mother appeared and addressed the court. She told the court defendant’s
family had a history of mental illness with relatives placed in mental
institutions. She said defendant suffered from mental illness that was “not
easily detectible” because he was “articulate and intelligent.” Defendant’s
appointed counsel noted that defendant “vehemently objects to having his pro
per status ended and to the appointment of counsel.”
At a hearing on February 2, 2022, to determine whether defendant was
competent to stand trial, counsel stipulated the matter could be decided on
the psychologists’ reports; Dr. Griffith’s report was dated January 31, 2022,
and Dr. Smith’s report was dated February 1, 2022. The trial court also
received and considered a three-and-a-half-page handwritten document from
4The trial court reappointed Dr. Griffith because he was “somewhat
familiar” with defendant already. Dr. Johnson was not available, and the
court appointed Dr. Smith.
5
defendant. Based on the reports, Judge Brady court found defendant was not
presently competent to stand trial, adding “the letter brief that was
submitted by the defendant adds weight to that.” The court referred
defendant to CONREP (Conditional Release Program) pursuant to section
1370, subdivision (a)(2)(A).
Commitment to the Department of State Hospitals
At a hearing on February 16, 2022, the prosecutor reported that
CONREP’s placement evaluation for defendant dated February 9, 2022,
recommended commitment to the Department of State Hospitals. Defense
counsel stated, “[Defendant] wholeheartedly objects to this recommendation
and objects to the Court’s earlier finding that he is not competent.” The trial
court (Hon. Laurel Brady) ordered defendant committed to the Department of
State Hospitals for a maximum of two years. Defendant did not consent to
administration of antipsychotic medication.
The court scheduled a nine-month review for November 16, 2022.
On March 3, 2022, defendant filed a notice of appeal of the finding of
incompetence and commitment to the Department of State Hospitals.
DISCUSSION
In Ben C., our Supreme Court held that “[i]f appointed counsel in a
conservatorship appeal finds no arguable issues, counsel . . . should (1) inform
the court he or she has found no arguable issues to be pursued on appeal; and
(2) file a brief setting out the applicable facts and the law.” (Ben C., supra, 40
Cal.4th at p. 544.) In addition, “[t]he conservatee is to be provided a copy of
the brief and informed of the right to file a supplemental brief.” (Id. at p.
544, fn. 6.) The reviewing court may then dismiss the appeal if there are no
arguable issues. (Id. at p. 544.)
6
The Ben C. procedure applies to appeals of competency proceedings.
(People v. Blanchard (2019) 43 Cal.App.5th 1020, 1025–1026.)
Here, defendant’s appointed appellate counsel followed Ben C. and
informed defendant he could file a supplemental brief. Defendant sent a
letter dated “11-8-22” indicating that he would like to file a supplemental
brief. On December 15, 2022, the court received a letter from defendant
dated “12-9-22,” stating that he was indigent and did not have access to legal
reference material. He also informed the court there was no “electric filing
system” where he was. On December 29, 2022, a clerk of this court sent
defendant a letter informing him he would be allowed to file a supplemental
brief in paper and he did not need to use the electronic filing system.
Defendant sent a letter dated “12-17-22,” which was filed December 29,
2022. In this letter, defendant asks for a stay in case No. 01-196346-1 (the
pending misdemeanor vandalism charge) and case No. 02-334654-1 (the case
in which he entered a plea and was placed on probation for two years).
Defendant writes that these cases have been “resolved already” since June
29, 2021. He writes that “the record states case No. [0]1[-]96346[-]1 was a
probation violation [but] this can’t be because [he] was not on probation at
this time.” Defendant is mistaken. Case No. 01-196346-1 was filed on July
29, 2021, when defendant was on probation in case No. 02-334654-1, and
involves a later alleged incident of vandalism. Defendant has offered no basis
for a stay.
Defendant writes that he was found competent in Judge Brady’s
courtroom, and this is true. He was found competent to stand trial on
November 15, 2021. Defendant writes that “only after denying my motion for
ancillary services was I found incompetent in Dept. 4 in Judge M. O’Malley’s
courtroom . . . .” But Judge O’Malley did not determine that he was
7
incompetent; she only raised a doubt about his competence pursuant to
section 1368, subdivision (a). As for his request for ancillary services, the
record does not include any written request from defendant for such services.
There is an “Order Denying Motion” dated December 28, 2021, signed by
Judge Brady. It provides, “The court directs defendant to contact the Contra
Costa County Office of the Public Defender’s Office who represents him in the
above case. Mr. Davis-Murray is not in pro-per and all requests for ancillary
funds must be made by his attorney of record, Ms. Maya Nordberg.” There is
no error in this order. First, defendant’s pro per status was properly revoked
on December 15, 2021, after Judge O’Malley declared a doubt about
defendant’s competence. In People v. Lightsey (2012) 54 Cal.4th 668, 691, our
Supreme Court held that self-representation in competency proceedings is
not permitted because, among other things, section 1369 contemplates “a
defendant would be represented by counsel throughout the competency
proceedings.” (Id. at p. 692.) Second, after defense counsel was appointed,
defendant could not make requests of the trial court on his own. “ ‘Motions
and briefs of parties represented by counsel must be filed by such counsel.’ ”
(People v. Carter (2022) 86 Cal.App.5th 739 [303 Cal.Rptr.3d 71, 80].)
Defendant writes of “the recent discovery of new evidence and a civil
action being filed,” but we do not consider matters outside the record. “[I]t is
an elementary rule that ordinarily matters not presented to the trial court
and hence not a proper part of the record on appeal will not be considered on
appeal.” (People v. Brawley (1969) 1 Cal.3d 277, 294.) Defendant asks to
“join the criminal complaint to the civil complaint or be allowed to wait until
the right of review is complete . . . .” But we cannot join the criminal appeal
before us with a civil complaint, and, again, defendant has offered no basis
for a stay of this appeal.
8
Defendant writes that appellate counsel’s brief is not an accurate
account of the record, but he has not raised an arguable issue for appeal.
We have reviewed the record, and the finding defendant was not
competent to stand trial was supported by substantial evidence. The
commitment ordered by the court is authorized by law and supported by
CONREP’s recommendation. Defendant was represented by able counsel.
DISPOSITION
The orders finding defendant incompetent to stand trial and
committing him to the Department of State Hospitals are affirmed.
9
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Markman, J.*
A164865, People v. Davis-Murray
*Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
10