THE PEOPLE, Plaintiff and Respondent, v. GRANT RICHARD POWELL, Defendant and Appellant.
No. A026877
First Dist., Div. Four.
Apr. 29, 1986.
180 Cal. App. 3d 469
THE PEOPLE, Plaintiff and Respondent, v. GRANT RICHARD POWELL, Defendant and Appellant.
Abram A. Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Martin S. Kaye and Blair W. Hoffman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ANDERSON, P. J.----Grant Richard Powell (appellant) was arrested April 20, 1969, on charges of assault with a deadly weapon (
The principal argument advanced on appeal is that appellant should never have been allowed to represent himself in the proceedings below because he lacked the capacity to knowingly and intelligently waive his right to counsel. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].)
Appellant appeared before the superior court on October 21, 1983, to set a trial date pursuant to his
The second court reviewed the petition as appellant had submitted it, noting that he had completed it properly and therefore was educated and could read and write. The court then assured itself that appellant understood the nature of the proceedings against him, the opposition he would face at trial, his responsibilities in representing himself and his burden of proof.3 It also questioned the basis for his signing the petition, “Cardinal Grant Richard Powell Ph.D.” It granted his request to represent himself subject to the understanding that it could be revoked at any time if appellant failed to conduct himself properly during the proceedings.
Back before the original court on November 3 appellant was informed that the district attorney had in the meantime filed a
Due to a breakdown in appellant‘s psychological condition, apparently brought on by his refusal to take medication while in county jail, he was unable to appear in court on his original trial date and was transported to San Francisco General Hospital (SFGH). He was present before the court on January 6 but it ordered him back to SFGH based on a report submitted by Alicia Boccellari, Ph.D., a staff psychiatrist.4 The report recommended that appellant‘s medication continue at an increased level and that he remain hospitalized, noting that he was hostile, agitated and subject to paranoid ideation. It also stated that the patient “still does not appear capable of representing himself in court.”
Appellant had recovered sufficiently by January 9 so that the trial could begin, and the case at this point was transferred to a third court which had not been privy to the previous Faretta hearings. Early in the proceedings the district attorney told the court, “the defendant has had a major psychotic episode in the last weeks. I don‘t believe that he is a suitable candidate for self-representation. He was hospitalized and unable to come to court for five days in SFGH.”
The court asked appellant if he was aware that it could appoint counsel for him and he answered that he was well aware of that fact, but still wished to represent himself. The court noted that there had already been a Faretta motion made and granted, and stated: “... I don‘t see any reason to set it aside at this time.”
Testimony began on the next day of trial and Dr. Boccellari was the second witness sworn. She made the following statements concerning appellant‘s condition days before the proceeding: “He clearly could not make his, any of his needs, make his needs known to us. [¶] One of the other aspects to this, which I found somewhat surprising, was that Mr. Powell had alerted me to the fact that he was going to be representing himself in court. I really felt, and I think just in all fairness to Mr. Powell, that he is
The district attorney‘s witnesses testified that appellant was easily agitated, assaultive, incapable of managing his emotions and unwilling to cooperate in his medication. Specifically, they diagnosed him a paranoid schizophrenic exhibiting auditory hallucinations, delusions of grandeur and persecution, grossly disorganized behavior and psychosis. However, Dr. William Johnson, a staff psychiatrist at Atascadero who had had regular contact with appellant for over four years, stated that appellant‘s symptoms ran an uneven course leaving him at times in good control.
This appeal requires us to address two basic questions: (1) did either of the courts which initially administered appellant‘s Faretta hearings abuse its discretion in determining that appellant knowingly and intelligently waived his right to counsel? and (2) did the trial court err in allowing appellant to continue representing himself, once testimony regarding his mental condition was admitted into evidence? Our answer to both questions is no. However, we find reversible error in the trial court‘s failure to appoint counsel and to determine appellant‘s competence to stand trial (
We begin our analysis with People v. Lopez, supra, 71 Cal.App.3d at p. 573, in which Justice Gardner included among many other suggestions for conducting a thorough Faretta hearing, “[i]f there is any question in the court‘s mind as to a defendant‘s mental capacity it would appear obvious that a rather careful inquiry into that subject should be made-probably by way of a psychiatric examination.” But as Justice Gardner himself indicated, in making his suggestions, he did not wish “to appear pedantic” nor “establish any horrendously complex or rigid standards such as now exist in
Later, in People v. Teron (1979) 23 Cal.3d 103, 114 [159 Cal.Rptr. 633, 588 P.2d 773], disapproved on another ground in People v. Chadd (1981) 28 Cal.3d 739, 750 [170 Cal.Rptr. 798, 621 P.2d 837], our Supreme Court held that there was no error in granting a defendant‘s motion to represent himself without first ordering a psychiatric evaluation, where nothing in the record suggested that the defendant lacked the capacity to knowingly and intelligently waive his right to counsel. In so holding, the court agreed with the language in Lopez that where such capacity is questioned, a careful inquiry into the subject should be made. (Ibid.) However, the court also emphasized that the determination of a defendant‘s competence in this area is within the sound discretion of the trial court and should not be disturbed on appeal absent a clear showing of abuse thereof. (Ibid.)
Court of Appeal decisions after Lopez shed further light on the type of evidence which should trigger a questioning of the defendant‘s capacity to waive counsel, as well as the degree of examination necessary to constitute a “careful inquiry.” In Curry v. Superior Court (1977) 75 Cal.App.3d 221 [141 Cal.Rptr. 884], the trial court was reversed for ruling that the defendant could not act as his own lawyer even though his competence to stand trial had been called into question by the district attorney. The reviewing court acknowledged that the trial court had been made aware of the defendant‘s eccentricities and mental imbalances, including his assaultive behavior, his obsession with sexual matters and “[his] own behavior in court . . . in which he constantly rambled and showed complete inability to stay with a point or follow direct instructions....” (At pp. 227-228, fn. 2.) However, it ruled that such evidence was irrelevant to the defendant‘s having knowingly and intelligently waived his right to counsel. (Ibid.) To further clarify its position it stated, “whenever a psychiatric evaluation is sought to assist the judge at the [Faretta] hearing, the evaluation should be limited to competency to make the required waiver and not to other competency aspects.” (Id., at p. 229, italics added.) Unlike our concurring colleague herein, it did not indicate that the trial judge had an affirmative duty to order such an examination based upon the prosecution‘s allegation that the defendant was not competent to stand trial.
People v. Wolozon (1982) 138 Cal.App.3d 456 [188 Cal.Rptr. 35], applied Curry in a fact pattern very similar to the case at hand. There the trial court refused to allow the defendant to represent himself in a
The most recent case to address this issue is People v. Leever (1985) 173 Cal.App.3d 853 [219 Cal.Rptr. 581], which involved a defendant who moved to be relieved of his in propria persona status. The trial court refused his request in spite of being in receipt of a letter from the Prisoner Services Division of the San Francisco Sheriff‘s Office (PSD) which stated he was “suicidal, incapable of understanding ‘the nature of his illness,’ impaired in judgment, limited in his ability to ‘conceptualize abstract thought,’ incapable of ‘remaining focused’ on a given task and demonstrating ‘bizarre thinking.‘” (At pp. 864-865.) In affirming, the Court of Appeal held that before a trial court is required to order a hearing on the issue of a defendant‘s capacity to knowingly and intelligently waive his right to counsel, there must be substantial evidence before it that he lacks this specific capacity. The PSD letter was held to be insufficient because it did not make adequate reference to the defendant‘s competency in this area. (Ibid.)
In applying these precedents5 to the case at hand it becomes clear that neither of the courts which conducted appellant‘s initial Faretta hearings erred in allowing him to represent himself. Both judges were aware of the fact that appellant was before them on a commitment proceeding, and this clearly would have raised doubts in their minds as to his capacity to knowingly and intelligently waive his right to counsel. However, People v. Wolozon, supra, 138 Cal.App.3d at page 461 stands for the proposition that a defendant‘s being tried in a
The second court herein expressed some concern over appellant‘s believing himself to be a cardinal with a Ph.D., and displayed some appre-
Finally, it is clear that appellant was made aware of all of the pitfalls of self-representation as contemplated by Faretta v. California, supra, 422 U.S. at p. 835. Appellant was given a form to complete in which he acknowledged all of the rights he was giving up and all of the standard advisements against doing so. More importantly, both courts tried earnestly to dissuade him from representing himself, stating in no uncertain terms their belief that he was making a mistake. Throughout, appellant remained unflappable in his resolve to waive his right to an attorney. On the record before us we find no abuse of discretion in the courts’ determination that he did so knowingly and intelligently.
Appellant‘s next contention is that the trial court committed reversible error in allowing him to continue representing himself once the district attorney stated, “[appellant] has had a major psychotic episode in the last weeks. I don‘t believe that he is a suitable candidate for self-representation.” He cites People v. Teron, supra, 23 Cal.3d at pages 114-115, footnotes 6-7, for the proposition that a court has the duty at any stage of the proceedings to suspend the trial and order a psychiatric evaluation of the defendant whenever the court has some reason to suspect the voluntariness of his initial waiver of counsel. In effect, he argues that a court‘s earlier determination that the defendant knowingly and intelligently waived his right to counsel remains effective only insofar as the defendant shows no subsequent signs of being mentally impaired.
We find that Teron does not support appellant‘s position. Again, the Teron court ruled there was nothing suggestive of mental illness before the trial court when it initially granted defendant‘s motion to proceed in propria persona, so the trial court did not abuse its discretion in failing to make a careful inquiry into his capacity to knowingly and intelligently waive his right to counsel at that time. (People v. Teron, supra, 23 Cal.3d at p. 114.) The court went on to suggest that later in the proceedings when some indicia of mental incapacity did begin to surface, the trial court “would have acted within its discretion in ordering a psychiatric examination.” (Id., at p. 114, fn. 6.) Here the courts which conducted appellant‘s Faretta hearings were at all times aware that his sanity was in question, but were obviously convinced that he was, nonetheless, capable of understanding the consequences of his decision to represent himself. Therefore, this case does not
It is true that portions of the Teron decision suggest that compelling evidence of mental illness, arising at later stages of the proceedings, could impose a duty on the trial court to reevaluate, by way of a psychiatric examination, defendant‘s competence to waive counsel. (People v. Teron, supra, 23 Cal.3d at pp. 114-115, fns. 6-7.) However, it is equally clear that these sections of the opinion are dictum. The appellant in Teron raised only two issues regarding the grant of his motion to represent himself: (1) whether the court should have initially granted the motion without ordering a psychiatric examination and (2) whether the court erred in allowing him to continue representing himself once it became clear that he did not intend to present a defense. (Id., at pp. 114-115.) The court answered the first contention by finding insufficient evidence of mental incapacity to compel an examination and the second, by ruling that a defendant bears no duty to present a defense. (Ibid.) These holdings alone constituted the grounds of the court‘s decision. What remained (in fns. 6 and 7) were incidental statements and conclusions not necessary to the court‘s decision and, therefore, not to be regarded as authority. (Simmons v. Superior Court (1959) 52 Cal.2d 373, 378 [341 P.2d 13]; People v. Moreno (1977) 67 Cal.App.3d 962, 967-968 [134 Cal.Rptr. 322].)
Were this court to follow the Teron dictum as it is interpreted by appellant, it would lead to preposterous results. In a case such as this, where each prosecution witness is called on to give his or her individual view of appellant‘s mental condition, the trial court is presented with a series of statements which each cast doubt on different areas of the defendant‘s mental state. Following appellant‘s logic, the proceedings would have to halt and a psychological examination be ordered each time such evidence of the defendant‘s mental impairment came to light. Either the trial could not proceed at all, or the court would be forced to appoint counsel in spite of the defendant‘s having established from the outset that he waived his right to counsel knowingly and intelligently. As illustrated by People v. Wolozon, supra, 138 Cal.App.3d at page 456, such action on the part of the trial court would inevitably lead to a reversal of the judgment on appeal. Not only would it tread on the defendant‘s constitutional right to conduct his own defense, even if ultimately to his detriment (Faretta v. California, supra, 422 U.S. at p. 834), it would ignore the precedent which holds that a defendant‘s right to self-representation may be challenged only in the face of substantial evidence pointing specifically to impairment of his ability to knowingly and intelligently waive his right to counsel. (People v. Leever, supra, 173 Cal.App.3d at p. 864; People v. Miller, supra, 110 Cal.App.3d at p. 331; Curry v. Superior Court, supra, 75 Cal.App.3d at p. 227.)
The concurrence suggests that the trial court should have felt especially compelled to reevaluate appellant‘s knowing and intelligent waiver of counsel because it was the district attorney, “to his everlasting credit” and “in the highest traditions of [his] office,” who suggested that appellant was not a suitable candidate for self-representation. This point of view overlooks the fact that the district attorney was most likely acting out of self-interest in attempting to have counsel appointed. As the deputy attorney general candidly conceded during oral argument, “district attorneys and prosecutors and [I] personally hate Faretta. It just causes trouble and any D.A. would prefer, and especially in that situation prefer to go up against a guy with a lawyer. . . . That was sort of the D.A. being an advocate, trying to push his position. He wanted this guy to have a lawyer.”
Moreover, the district attorney‘s statement that appellant had just suffered “a major psychotic episode” was somewhat misleading. It is perfectly clear from the record that appellant had experienced a setback in his condition due to the fact that he had been refusing to take his medication while he was in county jail awaiting trial. He was transferred to SFGH where his medication was increased to the point where he could be restored to his “baseline level of functioning.” The district attorney would, therefore, have better informed the court had he added that the cause of appellant‘s breakdown had been identified and subsequently remedied.
The concurrence goes on to imply that the trial court made virtually no attempt to investigate whether or not appellant had regained his sensibilities in the wake of his “major psychotic episode.” It suggests that the court‘s only effort in this regard was to obtain “yes” or “no” answers to a few general questions about appellant‘s desire to continue representing himself. This ignores the series of exchanges that took place between the court and appellant minutes before the district attorney expressed his opinion about appellant‘s mental condition, which demonstrated appellant‘s capacity for clear and logical thought. Appellant argued that his
It seems clear that the only way to protect a defendant‘s rights under Faretta, while at the same time assuring the efficient administration of justice, is to allow the trial court to defer to a defendant‘s initial grant of in propria persona status except under the most extraordinary circumstances. If, for example, specific and reliable evidence came to the trial court‘s attention which convinced it that the defendant lacked the capacity to knowingly and intelligently waive his right to counsel at the time he made this decision, it would then be compelled to reconsider the propriety of the original grant. The same would be true if the court learned of some intervening event which resulted in the defendant‘s having lost this specific capacity. We emphasize that the evidence would have to be substantial. (People v. Leever, supra, 173 Cal.App.3d at p. 864.) In addition, the decision whether or not to act on such information would be addressed to the sound discretion of the trial court, and could not be disturbed on appeal absent a clear showing of abuse thereof. (People v. Teron, supra, 23 Cal.3d at p. 114.)
By this standard the court below committed no error in failing to order a reexamination of appellant‘s waiver of counsel. The district attorney lacked sufficient expertise to render his assessment of appellant‘s condition reliable. The testimony of the experts called by the prosecution was all directed to whether or not appellant continued to present a danger to society; none were asked their opinion on the Faretta issue. The statements by the district attorney and Dr. Boccellari to the effect that appellant was incapable of effectively representing himself in court were conclusionary and irrelevant to the issue of effective waiver of counsel: “‘It is not . . . essential that defendant be competent to serve as counsel in a criminal proceeding [citation]; “his technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” [Citations.]‘” (People v. Joseph (1983) 34 Cal.3d 936, 943 [196 Cal.Rptr. 339, 671 P.2d 843].)
We next consider the question of whether or not the trial court erred in failing to order a
our attention by what we perceived to be a confusion on appellant‘s part over the standard to be applied in determining one‘s competence to stand trial, as opposed to that applied in evaluating a knowing and intelligent waiver under Faretta. Crucial to the former, but irrelevant to the latter are Dr. Boccellari‘s statements at trial to the effect that days before the hearing appellant had been unable to focus his attention sufficiently to even contact the psychologists whom he planned to call as witnesses. She concluded this testimony by observing, “in order to use the hospital phone he needed to dial 9 to get an outside line and 411. I must have given him those instructions five separate times and he was still not able to do it . . . .”
“[A]n accused has a constitutional right to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense.” (People v. Burney (1981) 115 Cal.App.3d 497, 502 [171 Cal.Rptr. 329], italics added.) “The duty imposed upon the trial judge by the statute [
It must be noted that while a trial court has broad discretion to evaluate a charge of mental infirmity as it bears on the knowing and intelligent waiver of counsel, its course of action upon hearing evidence of a defendant‘s incompetence to stand trial is more closely circumscribed. “Once such substantial evidence appears, a doubt as to the sanity of the accused exists and a hearing is mandatory no matter how persuasive other evidence, testimony of prosecution‘s witnesses, or the court‘s observations of the accused may be to the contrary.” (People v. Burney, supra, 115 Cal.App.3d at
Dr. Boccellari‘s testimony was substantial evidence that because of mental illness, appellant was incapable of assisting in his own defense. This was not a case of an in propria persona defendant doing a poor job of preparing his case or electing to present no defense at all, situations which would call for no action whatsoever on the part of the trial court. (People v. Joseph, supra, 34 Cal.3d at p. 943; People v. Teron, supra, 23 Cal.3d at p. 115.) Here, appellant had attempted to call upon the witnesses he would need to defend himself at trial, but due to an impairment of his cognitive functions, found himself unable to do so. Under these circumstances, even if the trial court was convinced that appellant had regained his faculties by the time he returned to court, it had a duty to appoint counsel to determine whether or not a hearing under
The judgment is reversed and the case remanded for proceedings not inconsistent with this opinion.7
Channell, J., concurred.
POCHÉ, J.-I concur in the judgment only. I write separately principally because I consider that the majority‘s analysis adds an additional and unnecessary layer of complexity to the already difficult task of trying
The primary issue presented in this case, also the primary issue briefed, is whether the trial court erred in allowing defendant to proceed to represent himself without making some inquiry into whether he was mentally competent to waive his right to counsel. Unlike my majority colleagues I answer that question affirmatively: the trial court erred.
The underlying rationale of the majority opinion is that the trial court had no obligation to reexamine in a genuine way whether at the time of trial defendant was mentally competent to waive his right to counsel. My colleagues’ notion apparently is that Faretta2 status once achieved is like the plague-you just must let it run its course. After all, as the trial court here explained, there had already been a Faretta hearing before another judge.
Thus there are only two questions in this present proceeding: (1) was there sufficient evidence of mental incapacity to trigger what Justice Gardner in Lopez and Justice Tobriner in Teron have described as “a rather careful inquiry“; and (2) did such an inquiry take place? The majority never reach the second question.
Well, here is what actually happened. After a five-day continuance the matter--the petition of the People to extend the commitment of defendant pursuant to
“THE DEFENDANT: That is an error. I have never in my life had a nervous breakdown. The toxic drugs they give me down at Atascadero. I have a strong powerful mind. I am in full-I am in control of myself at all times. I have never slugged somebody for no reason at all. They usually-I am usually the one that is--others initiate the fighting.
“THE DEFENDANT: No, sir. This is the first time in all this time. I can have justice. I‘m going to defend myself. My mother has paid out thousands of dollars and it‘s just wasted money. Thousands of dollars for lawyers.
“THE COURT: How many times have you gone through a 1026 proceeding?
“THE DEFENDANT: It‘s been three-about three, I believe. [¶] Let me explain to you what exactly what kept me from gaining me release before. These people from Atascadero, technicians, say they know me, observed me and they come with outright lies in court. They lie so grossly you can hardly believe just no factual thing to it at all. In fact, one thing-I will give you one example. This woman spoke. Her name is Patty. I can‘t recall her last name. Let‘s see. Thornhaven, was that it? I‘ll tell you what she said. She said that Grant had spoken to her and told her that I wanted to kill all the Sicilian people and she said she is a Sicilian also. This is not true. I have never said that statement, never even thought of a statement like that. As a matter of fact, my wife was Sicilian, my ex-wife. And I have never wanted to kill her nor any Sciclians [sic] at any time. I have form [sic] an affection for Sciclians [sic]. I know the family, my wife‘s family. They came from Italy. And I like them. I have high respect for Sicilian people.
“THE COURT: You understand that if you want a lawyer and you didn‘t have the money to hire a lawyer that the Court would appoint one for you?
“THE DEFENDANT: No. I will help--
“THE COURT: But do you understand?
“THE DEFENDANT: Yes. I do understand that very well. Thank you, sir.
“THE COURT: And you still wish to represent yourself?
“THE DEFENDANT: Yes. I do. Thank you, sir.
“THE COURT: All right. [¶] Apparently, there has been a Faretta motion made and granted, and I don‘t see any reason to set it aside at this time.”
On the first question the majority find the prosecution‘s statement of warning to be “conclusionary and irrelevant to the issue of effective waiver
The majority also points to the lack of evidence at trial regarding defendant‘s competency to waive his right to counsel. The prosecutor questioned his experts about the subject on which he had the burden of proof, i.e., did defendant, “by reason of a mental disease, defect, or disorder” represent “a substantial danger of physical harm to others.” (
In my view, intelligent, probing inquiry by the trial court was compelled once the prosecutor brought the matter of defendant‘s breakdown to the court‘s attention. No such inquiry was even begun. Reversal is thus required under People v. Teron, supra, 23 Cal.3d 103.
It is also beyond me why the majority seeks to reverse on a theory neither raised nor briefed. What the majority holds is there was no reason to examine whether defendant at the time of trial was mentally competent to waive counsel but there was reason to examine whether he was incompetent to stand trial-a matter to be determined under the majority analysis by applying the standard of
For these reasons I, too, would reverse the judgment but would do so only on the basis of the starkly obvious Faretta-Teron error.