People v. Brevik CA3, C084931

Background

Donovan Brevik was convicted after trial of multiple offenses including spousal abuse, child molestation (counts under §§ 288.7, 288), dissuading a witness (§ 136.1), and 32 violations of a protective order (§ 166(c)(1)); total sentence 36 years 8 months plus 30 years to life.
Early in proceedings Brevik was found incompetent under § 1368, treated at Napa State Hospital, and later certified as competent; proceedings resumed in mid‑2015.
Brevik briefly invoked Faretta and then sought (but did not adequately specify) a continuance to prepare as a self‑represented defendant; the trial court denied the continuance and he withdrew the Faretta waiver.
Post‑restoration conduct included repeated outbursts, Marsden motions, counsel changes, and disputes about whether he was receiving the same meds (Napa: valproic acid/Depakote; he claimed Zyprexa/Haldol were withheld). The court ordered the jail to continue Napa‑prescribed meds.
On appeal Brevik raised multiple claims (denial of continuance/self‑rep, failure to reconvene competency hearing, Griffin error for comment on silence, invalid waiver of right to testify, insufficiency as to restraining‑order convictions based on a name‑spelling discrepancy, ineffective assistance, cumulative error, and a request to remand under pretrial mental‑health diversion § 1001.36).

Issues

Issue	People’s Argument	Brevik’s Argument	Held
Denial of continuance after Faretta request	Trial court acted within discretion; Brevik had ample time and did not specify needed length/reason for continuance	Denial deprived him of right to self‑representation and reasonable time to prepare	Affirmed—court properly denied continuance given month before trial, prior involvement, and no adequate showing of need (Maddox/Jackson cited)
Failure to hold new competency hearing after restoration	No substantial new evidence undermined Napa competency finding; jail provided Depakote and court ordered meds continued	Competency lapsed because he was not given antipsychotics (Zyprexa/Haldol) and behavior showed incapacity to assist counsel	Affirmed—no substantial change of circumstances; only Depakote was necessary/used at Napa and court ordered continuation; defer to court’s observations (Rodas distinguished)
Prosecutor’s Griffin‑type comment in rebuttal about defendant’s silence	Error was cured by immediate objection and curative instruction; harmless beyond reasonable doubt	Comment violated Griffin and prejudiced jury by drawing inference from silence	Affirmed—prosecutor’s remark improper but cured by instruction (CALCRIM No. 355); harmless error
Validity of waiver of right to testify	Waiver was knowing/voluntary; defendant expressly agreed not to testify and counsel explained consequences	Waiver was not knowing/intelligent because defendant was confused and coercively prevented from testifying	Affirmed—colloquy and counsel’s statements show defendant knowingly declined; no court duty to sua sponte colloquy absent conflict or clear problem
Sufficiency of evidence for § 166(c)(1) convictions (name spelled “Erica” vs “Erika”)	Spelling variance immaterial; identity established by distinctive last name and context; idem sonans and common‑sense inference support conviction	Variance is fatal because statute requires violation “as written” so victim must match order exactly	Affirmed—substantial evidence supports identity and violations; spelling discrepancy not dispositive
IAC for failing to use Napa report to show meds withheld	Report did not say meds were required to restore/maintain competence; counsel not ineffective for pursuing futile argument	Counsel ineffective for not using Napa report to show deprivation of antipsychotics and argue competence issues	Affirmed—claim rests on erroneous premise; failure to raise futile motion not IAC
Cumulative error	Multiple errors compounded prejudice	Harmless or single curable error cannot accumulate to reversible error	Affirmed—only Griffin error (harmless) so no cumulative prejudice
Remand for § 1001.36 diversion	People: current amended statute bars defendants convicted of certain sex offenses/§ 290 registrants; amendments apply and defendant is ineligible	Brevik: should get remand because earlier version was more favorable and theory of retroactivity/ameliorative application applies	Denied—amendments postdate offenses and render him ineligible; applying current law does not violate ex post facto or prevent Estrada principles

Key Cases Cited

Faretta v. California, 422 U.S. 806 (1975) (defendant’s right to self‑representation but entitlement to reasonable continuance is limited)
Drope v. Missouri, 420 U.S. 162 (1975) (trial court obligation to suspend proceedings and inquire if reasonable doubt about competency arises)
Griffin v. California, 380 U.S. 609 (1965) (prosecutor may not comment on defendant’s failure to testify)
People v. Rodas, 6 Cal.5th 219 (2018) (when competency restored by medication, cessation may trigger new inquiry; fact‑specific analysis)
People v. Ary, 51 Cal.4th 510 (2011) (competency standard and duty to hold hearing if reasonable doubt arises)
People v. Rogers, 39 Cal.4th 826 (2006) (trial court’s duty to inquire into competence may be triggered by defendant’s demeanor or other evidence)
People v. Maddox, 67 Cal.2d 647 (1967) (self‑represented defendant not entitled to greater privileges than counsel; continuance principles)
People v. Jackson, 88 Cal.App.3d 490 (1978) (denial of continuance proper where Faretta defendant had adequate preparation time)