Super. Ct. No. 2005002781, 2008030495, 2008052740 Ventura County
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
A criminal defendant has a hard enough time defending the underlying charge. He should not "pick a new fight" with the prosecutor and yet another fight with his court appointed counsel, i. e. he should not threaten to kill them thereby creating two new cases to defend. Here, appellant is charged with having done exactly that. He created two new felony cases against himself by threatening both the prosecutor and his own lawyer. These threats created, at the least, potential conflicts of interest which led the trial court to remove the district attorney (and appoint the Attorney General) and the public defender (and appoint new defense counsel). As we shall explain, removal of the public defender was within the trial court's discretion and was a safe and rational way to proceed.*fn1 The trial court was trying to protect appellant's right to conflict-free counsel and the irony is that it is now faulted for doing so.
Daniel Avila appeals from the trial court's orders, entered in three separate criminal cases after a single hearing, declaring him mentally incompetent to stand trial and committing him to the Metropolitan State Hospital. He contends the trial court deprived him of a fair hearing on the issue of his mental competence and interfered with his right to be represented by counsel of his choice. We affirm.
Facts and Procedural History
Three separate criminal cases are pending against appellant:
Case No. 2005002781: In 2005, appellant was charged, inter alia, with one count of computer fraud (Pen. Code, § 502, subd. (c)(1))*fn2 and one count of identity theft. (§ 530.5, subd. (a).) The prosecution alleged that, during his November 2004 campaign for a seat on the Thousand Oaks City Council, appellant generated harassing text messages that were made to look as if they had been sent by a rival candidate. Appellant lost the election and so did the rival candidate.
Appellant elected to represent himself. While in custody, appellant used telephone calls to his mother and his court-appointed investigator to make "three-way" calls to third persons. This practice violates jail regulations. Appellant was ordered by the trial court to stop making three-way calls. He ignored the court's order. Appellant used the three-way call device to telephone an attorney in the county counsel's office for Ventura County. He called an assistant district attorney at the attorney's home. Appellant also used the three-way calling scheme to telephone the office of an Assistant Attorney General.
On July 21, 2008, the prosecutor brought this misconduct to the attention of the trial court, requesting that the court determine whether appellant was competent within the meaning of Indiana v. Edwards (2008) 554 U.S. 165. The trial court appointed two psychologists to evaluate appellant. It also agreed to consider a psychological evaluation of appellant that had been prepared at an earlier stage of the proceedings.
At an evidentiary hearing in September 2008, a clinical psychologist who had examined appellant testified that he suffers from a severe mental illness marked by "grandiose expansiveness, hostile belligerence, and . . . paranoid projections." Although she acknowledged that appellant is very intelligent, she opined that his mental illness would preclude him from "being able to rationally assist an attorney in his own defense." She described appellant as an individual who is not "able to recognize or appreciate limits to his ability to be his own [worst] enemy."
At the conclusion of the hearing, the trial court terminated appellant's right of self-representation. It found that, "because of your willful misconduct in violating the Court's order on three-way phone calls, the fact that you would not abide by any court order that would be entered that would order you not to continue doing that kind of thing, that the effect of your misconduct there goes to the core integrity of the trial process, all of which is colored by your ongoing mental health issues that self-representation rights are appropriately terminated in the case and the public defender is appointed at this time."
Case No. 2008030495: On July 23, 2008, two days after the prosecutor in case number 2005002781 requested that appellant's right of self-representation be terminated, appellant made a telephone call from the Ventura County jail to his mother. The call was recorded by jail authorities. Appellant began by stating that the conversation was subject to the attorney-client privilege because he was acting as "the attorney of record" and was communicating with a third person "to further the interest of the defense in an agent capacity." Appellant said he was going to "test" the privilege by making this statement: "Umm, if [the prosecuting attorney] Marc Leventhal, Marc S. Leventhal, who should be within the encapsulated tunnel right now, if Marc S. Leventhal, umm, umm, in my substantive capacity I am saying, shielded by my remedial capacity, umm, who has the protection of Evidence Code 965.5, if Marc Leventhal keeps harassing my mother and keeps subpoenaing her, when I get out, I will, key word, will, I will attempt to murder him at his house, and I do know where he lives. Okay so let's see if that goes -- I'm just testing system. I will murder him. This is a threat with the specific intent that it be taken as such, in my substantive capacity shielded by my remedial capacity. Alright, Mom, are you there?"
On July 25, 2008, two days after this telephone call, appellant was charged in a separate felony complaint with making a criminal threat and with threatening a prosecutor. (§§ 422, 76 (a).) That same day, the public defender was appointed to represent him. The trial court removed the district attorney as prosecutor and the Attorney General took over the prosecution.
Case No. 2008052740: On December 15, 2008, a letter addressed to appellant's public defender was retrieved from the door of his cell at the Ventura County Jail. On the envelope, in addition to the intended recipient's address, appellant had written, "Death Threat, Via U.S. Mail, Title 18 U.S.C. Crime." He also wrote on the outside of the envelope that, if he was not sent to a "trial judge" by a certain date, "when I get out, I 'will find you' and I 'will murder you' with a shotgun at point-blank." Appellant wrote that it was his "specific intent" that the letter be taken as a death threat. He wanted to ...