IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KEVIN R. WILLIAMS, DEFENDANT AND APPELLANT.
(San Francisco County Super. Ct. No. 2401263)
The opinion of the court was delivered by: Kline, P.J.
P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Kevin R. Williams was convicted by a jury of possession for sale of cocaine base. Williams contends that his conviction must be reversed because the trial court failed to conduct a hearing on his competence to stand trial despite substantial evidence of his incompetence. We shall affirm.
STATEMENT OF THE CASE
An information filed on February 4, 2009, charged Williams with one count of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The information alleged that Williams's four prior felony narcotics convictions--each of which carried a three-year enhancement--rendered him ineligible for probation. (See Pen. Code, § 1203.07*fn1 ; Health & Saf. Code, §§ 11370, subds. (a) & (c), 11370.2.) The trial court granted Williams's request to bifurcate the trial on his priors.
After several delays, Williams's criminal trial commenced on November 24, 2009. On December 7, 2009, a jury convicted Williams of violating Health and Safety Code section 11351.5. Williams subsequently waived a jury trial on his prior convictions. One of the four prior felony convictions alleged in the complaint was stricken by the district attorney, and the trial court found the three remaining priors to be true. On February 11, 2010, Williams was sentenced to a 10-year prison term, consisting of four years for the underlying charge and two consecutive three-year terms on two enhancements, with the court striking a third enhancement for purposes of sentencing. The trial court credited Williams with 804 days for time served.
Williams filed a timely notice of appeal on February 18, 2010.
STATEMENT OF THE FACTS
Because Williams's sole contention on appeal is unrelated to the facts of his underlying conviction, a detailed recital of those facts is unnecessary. At approximately 11:40 p.m. on January 6, 2009, two San Francisco police officers detained Williams for jaywalking. An identification check revealed that he was a parolee. A parole search uncovered 49 individually wrapped rocks of crack cocaine within a black glove hidden beneath Williams's waistband. He was arrested on suspicion of possession of crack cocaine for sale. A subsequent search of his pants pockets turned up $464 in small denominations, but no smoking device.
Williams contends that the trial court abused its discretion when it twice denied his motion for a competency hearing pursuant to section 1368,*fn2 despite substantial evidence that he was incompetent to stand trial. (See § 1367.)*fn3
Williams's Pretrial Actions
Prior to Williams's January 22, 2009 preliminary hearing, he turned down the People's offer of a 16-month term and a reduced charge of simple possession, against the advice of trial counsel. Williams instead sought a complete dismissal of the charges.
Williams's trial was rescheduled three times as a result of his conduct. Twice on the eve of trial, Williams made unsuccessful Marsden motions*fn4 to replace his counsel. His first two attorneys made successful McKenzie motions*fn5 to withdraw as counsel. Williams subsequently refused to appear at his third scheduled trial date.
Williams's First Competency Challenge
On November 24, 2009, the fourth date set for trial, Williams again refused to appear in court. The trial court ordered Williams to undergo a physical (see § 4011.5) and psychiatric (see § 4011.6)*fn6 evaluation, and continued the cause pending results of the psychiatric evaluation. The section 4011.6 report was filed November 30, 2009, and provided, in pertinent part:
"[Williams] was seen for a psychiatric evaluation. . . . [¶] . . . [¶]
" . . . [Williams] does not appear to suffer from a major mental illness but has some mental health issues and is currently being seen by Jail Psychiatric Services. [¶] . . . [¶]
" . . . Currently, [Williams's] primary issue appears to be substance abuse. [¶] . . . [¶]
" . . . [Williams] is currently housed in the general population. He is currently being seen by Jail Psychiatric Services and diagnosed with Polysubstance Dependence and Personality Disorder not otherwise specified. [R]ule out [an] underlying psychotic disorder. [Williams] has been evaluated for psychiatric medications which were deferred secondary to detox from substances."
On the same day, proceedings resumed and the trial court met with Williams and counsel in chambers to address Williams's desire to return to jail rather than attend jury voir dire. When the trial court asked Williams why he wished to return to jail, he replied:
"I got psychological issues, hearing voices. This has been going on for years now, and I was in a traffic accident and injured my back and hip and I have a root canal. My tooth has a hole in it. [¶] So, for those reasons right there, I don't feel like I'm up to no trial at this particular time, and this has been going on for at least 11 months now. [¶] I've been to psych services. I've been in a rubber room. I had a few counseling. I was on hot meds for two years in Solano, triple CMS for psych problems. [¶] So[,] I'm trying to get counseling here for the last 11 months, and this has been really very difficult. So I don't see how I can possibly go to trial now. And I'm hearing voices and stuff now and I have psychological problems. So that's why."
The following colloquy ensued:
"THE COURT: . . . [W]ere you hearing voices last week when you were talking to me?
"[WILLIAMS]: I've been hearing voices for the last 11 months. Actually 11 months.
"THE COURT: How is it that the voices prohibit you from [appearing in court] or how do they interfere with you [appearing] and watching what's going on?
"[WILLIAMS]: They will be telling me certain things, what to do, this and that and suggesting things to me.
"THE COURT: All right.
"[WILLIAMS]: That I may say what I really don't mean to say.
"THE COURT: You wouldn't be saying anything today.
"[WILLIAMS]: If I got in trial, I probably would. If I have to, I don't know. If I got on the stand.
"THE COURT: Today you wouldn't get on the stand.
"[WILLIAMS]: Whenever I have to go on the stand, it [sic] may have to. I don't know. I hear voices.
"THE COURT: I want you to understand that you have a right to be present. [¶] I'm not going to delay the proceedings because of what I heard from you right now. [¶] So we're going to proceed with or without you . . . . If you want to go back upstairs, you are giving up your right to be present this afternoon to see the jury screening and [the] beginning of the jury selection. [¶] We'll be selecting a jury in your case. [¶] Do you understand you're giving up that right this afternoon?
"[WILLIAMS]: No, I don't understand.
"THE COURT: You don't understand?
"THE COURT: If you don't [appear] voluntarily, you will be giving up your right. [¶] If you want to go back upstairs, that indicates to me that you're giving up your right to be present this afternoon. Because right now I haven't heard any good cause to postpone the jury screening or jury selection. [¶] Do you understand that?
"[WILLIAMS]: I told my group I need a root canal. I'm in a lot of pain. My gum is swollen. I'm having [a] problem with my back and I'm hearing voices. I don't know what else. That's all I can say."
After Williams left, the trial court stated that nothing in the section 4011.6 report prepared on November 25, 2009 supported "taking any action under section 1368 or postponing the trial for any of the reasons mentioned by the defendant." It explained that the timing of Williams's complaints was suspicious: "The Court feels that his excuses for not [attending proceedings] are disingenuous and are done in an attempt to manipulate his right to be present along with potential unsupported claims to be unfit to stand trial."
Responding to the trial court's statements, defense counsel apprised the court of Williams's history of refusing to appear in court or participate in interviews or hold discussions with counsel that might further his defense. Counsel informed the court that "[Williams's behavior] has placed me in a position relative to defending him that I really haven't had meaningful, rational discussions with him about not only the possible defenses in his case, if any, but also about the offer in pretrial discussions that have occurred." Counsel then moved for a competency hearing under section 1368, adding:
"I'm declaring a doubt as to [Williams's] competency to assist me in presenting and preparing . . . a defense in a rational manner. [¶] I don't know why he is not able or whether he's just plainly unwilling to assist me, but the fact remains that he hasn't in any rational way been able to assist me. It may be because there is some underlying psychiatric issue. It may be pure stubbornness."
The trial court denied counsel's motion, stating that it had no doubt Williams was competent to stand trial:
"Based upon the timing of his behavior now, based upon the 4011.6 report that I've just read, based upon what you have said about his failure to cooperate, just because he has a psychiatric history doesn't mean that there's some psychiatric impediment to him going forward now.
"The 4011.6 [report] provides no triggering basis for the Court to suspend proceedings in this case.
" . . . [T]he Court does not have any doubt regarding the defendant's ability to proceed.
"The Court feels, based upon what I've seen and heard in front of me, that [Williams] is manufacturing excuses again, in my opinion, trying to manipulate various rights, speedy trial versus right to be present or not be present and medical issues in order to confuse the record and in an attempt to create error in these proceedings.
"[Williams] cannot get a delay in the proceedings or get a new attorney or bring these proceedings to a halt because he doesn't want to go out into the courtroom or create a problem between you and him just because he won't cooperate with you.
"As far as your inability to get help from him, that is a product of his own making, and he can't again create error by his own misconduct at attempts to manufacture improper reasons for delay on the eve of trial . . . . [¶] . . . [¶]
" . . . I'm not going to suspend criminal proceedings on the eve of trial based upon this record and particularly based upon the report that I received under 4011.6."
Jury selection took place that afternoon. Williams was not present.
Williams's Renewed Competency Challenge
On December 1, 2009, trial counsel filed a written motion for reconsideration of the section 1368 motion it had brought the previous morning. The motion contained a summary of the facts meant to demonstrate that Williams was incompetent to stand trial, as well as trial counsel's assessment that Williams was "profoundly 'out of it.' " It also included a March 25, 2009 memorandum from Williams's first public defender, Roberto Evangelista, which was offered to illustrate that Williams's long-term irrationality and intransigence--particularly the rejection of the People's pretrial offer of 16 months--were not deliberate efforts to delay the proceedings, but were instead the byproduct of a disordered mind unfit to stand trial. The court denied the motion, explaining that nothing in the motion provided substantial evidence of Williams's incompetence to stand trial:
". . . [A]n irrational refusal to communicate with an attorney is not the equivalent of an inability to cooperate with counsel. [¶] The fact [Williams] didn't make a rational decision regarding whether to accept or reject an offer, that does not appear to be substantial evidence. [¶] Other attorneys having extremely difficult times trying to communicate with your client, that is not substantial evidence. [¶] . . . [¶] The claim that [Williams] was yesterday[,] for the first time[,]  hearing voices, that wasn't reported to the Jail Psych people that did the 4011.6[.]
When proceedings resumed later that day, Williams again refused to appear, citing medical issues. His trial counsel stated his belief that the first section 4011.6 report was based upon a review of Williams's medical files, not a personal examination. The trial court, at counsel's request, said it would order a second round of physical and psychological evaluations under sections 4011.5 and 4011.6, respectively. The second section 4011.6 order, the court added, "will [contain] the notation that I want him to be seen by a psychologist or psychiatrist[.]" While the record indicates that a second section 4011.5 report was ordered, it does not indicate that a second section 4011.6 report was ordered or performed. A full jury trial ensued, and though the record does not indicate that a second 4011.6 report was ever filed, Williams's counsel never again raised the issue. Williams's attendance was inconsistent throughout the remainder of the trial and he refused to appear for closing arguments or the jury's verdict.
The Record Supports the Trial Court's Determination
Both the Fourteenth Amendment to the United States Constitution and state law prohibit criminal proceedings against mentally incompetent defendants. (People v. Lewis (2008) 43 Cal.4th 415, 524 (Lewis), citing § 1367; see also Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Ramos (2004) 34 Cal.4th 494, 507.) " 'A defendant is incompetent to stand trial if he or she lacks a " 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--[or lacks] . . . a rational as well as a factual understanding of the proceedings against him.' " [Citations.]' [Citation s.]" (Lewis, at p. 524, quoting Dusky v. United States (1960) 362 U.S. 402, 402; see also § 1367.)
A trial court shall presume a defendant's competence unless presented with substantial evidence of incompetence (§ 1369, subd. (f); People v. Young (2005) 34 Cal.4th 1149, 1216; People v. Bell (2010) 181 Cal.App.4th 1071, 1079), at which point the court must suspend criminal proceedings and conduct a competency hearing. (See § 1368; Lewis, supra, 43 Cal.4th at p. 524; People v. Halvorsen (2007) 42 Cal.4th 379, 401; People v. Rodrigues (1994) 8 Cal.4th 1060, 1110). Evidence is only substantial in this context if it raises a reasonable doubt about the defendant's competency. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047, citing People v. Young, at p. 1217.) The trial court's decision whether to grant a competency hearing is reviewed for abuse of discretion. (People v. Ramos, supra, 34 Cal.4th at p. 507, citing § 1368; People v. Welch (1999) 20 Cal.4th 701, 742.) We afford deference to a trial court's refusal to hold a competency hearing because that court has the opportunity to directly observe the defendant during trial. (Lewis, at p. 525.)
A defendant's failure to cooperate with counsel does not require a section 1368 hearing unless substantial evidence suggests "the defendant's lack of cooperation stem[s] from an inability [to cooperate] rather than an unwillingness" to do so. (Lewis, supra, 43 Cal.4th at p. 526.) In Lewis, the defendant challenged his conviction on the ground that the trial court failed to conduct a section 1368 hearing despite substantial evidence that he was incompetent to stand trial. (Id. at pp. 523-526.) The defendant pointed to his trial counsel's declaration that the defendant was unable to rationally assist in his own defense; a defense psychologist's affidavit (based on an examination) that the defendant had abnormal brain function; and the defendant's irrational and counterproductive behavior at trial (in front of the jury the defendant hinted of committing an uncharged murder). (Id. at pp. 525-526.)
The California Supreme Court rejected the defendant's argument because the evidence of his incompetence was not substantial and, therefore, did not trigger the trial court's obligation to hold a section 1368 hearing. (Lewis, supra, 43 Cal.4th at pp. 524-526.) The court first explained, "although a defense counsel's opinion that his client is incompetent is entitled to some weight, such an opinion alone does not compel the trial court to hold a competency hearing." (Id. at p. 525, citing § 1368.) The court next observed that statements by the defendant's expert psychologist did not furnish "any opinion on [the] defendant's ability to understand the trial proceedings or to assist or cooperate with counsel," but only sought to explain the defendant's violent tendencies. (Id. at p. 525.) The court then reasoned that the defendant's counterproductive outbursts failed to demonstrate incompetence insofar as they betrayed an "understanding of the proceedings and his ability to assist counsel." (Id. at pp. 525-526.) The Supreme Court concluded that nothing in the record caused it to doubt the correctness of the trial court's refusal to hold a section 1368 hearing. (Id. at p. 526.)
Much like Lewis, Williams contends that substantial evidence of his incompetence consists in (1) his trial counsel's declaration of doubt; (2) the evidence of his mental health issues; and (3) his counterproductive decision-making, including his failure to cooperate with trial counsel either in the preparation of his defense or by considering counsel's sound advice. First, while Williams's trial counsel did declare his doubts about Williams's competency to stand trial or to assist in his own defense, counsel's declaration does not by itself, mandate a competency hearing, especially since no additional evidence offered by Williams provides substantial evidence of his incompetence. (See Lewis, supra, 43 Cal.4th at pp. 524-526.)
Second, like the psychological evidence presented in Lewis, the evidence of Williams's diminished mental health does not support his claim of incompetency. As Williams acknowledges in his reply brief, the results of his section 4011.6 evaluation did not "relate to [his] competency to stand trial." Rather, the evaluation merely reflected that Williams suffered from certain mental health issues that were being monitored. (See Lewis, supra, 43 Cal.4th at pp. 525-526.)
Nor do Williams's reports of hearing voices furnish additional evidence of his incompetence. The probative value of these statements depends upon a credibility determination best made by the trial court. As the trial court observed, Williams first reported hearing voices on the eve of trial, similar to each of his previous attempts to manufacture delay. The suspicious timing of his statement undermined its credibility with the trial court. Hearing voices was also just one of four reasons that Williams simultaneously raised while urging the trial court to suspend proceedings. That he mentioned hearing voices as part of a list of reasons for delay further undermines the credibility of his statement. Under the circumstances, we cannot disagree with the trial court's determination that Williams's statements did not support his motion for a section 1368 hearing. (See Lewis, supra, 43 Cal.4th at pp. 524-525.)
Finally, Williams's appeal is similar to Lewis in one last regard: he argues that the breadth and nature of his counterproductive behavior constitutes substantial evidence of his incompetence. He offers, as one example, that each of his two previous attorneys also complained that he did not assist them in preparing a defense. As the trial court noted, however, a long history of recalcitrance does not show the kind of inability to cooperate that would trigger a section 1368 hearing. Both of Williams's previous attorneys complained of Williams's failure to assist them, but not his inability to do so. Neither attorney ever declared a doubt as to Williams's competency to stand trial and neither had Williams psychologically evaluated in light of his apparent refusal or inability to assist them. In addition, Williams's attempts to remove these attorneys with Marsden motions on the eve of trial strongly suggest he was unwilling to assist them, rather than unable to do so by reason of mental incompetence. (See Lewis, supra, 43 Cal.4th at p. 526 [a defendant's failure to cooperate only triggers a section 1368 hearing if substantial evidence indicates "the defendant's lack of cooperation stemmed from inability rather than unwillingness"].)
Williams also contends that it was counterproductive, "irrational," and "self-destructive" of him to turn down the People's pretrial offer of 16 months to plead to a lesser charge given the case against him. The record does not support Williams's contention. Certain documents filed under seal indicate that Williams had an unwise and perhaps unreasonably optimistic, but nevertheless rational, theory of the case that led him to reject the People's 16-month offer. The specific details of Williams's theory of the case also imply that he had a rational understanding of the criminal proceedings against him. (Lewis, supra, 43 Cal.4th at p. 524; see also § 1367.) We, therefore, do not question the trial court's finding that Williams's rejection of the pretrial offer was not substantial evidence of incompetence.
In sum, the record does not contain substantial evidence of Williams's incompetence. The trial court was, therefore, under no obligation to order a section 1368 hearing.
The judgment is affirmed.
We concur: Haerle, J. Richman, J.