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People v. Gardner

California Court of Appeals, First District, Fourth Division

November 21, 2014

THE PEOPLE, Plaintiff and Respondent,
ROBERT GARDNER, Defendant and Appellant.


Contra Costa County Superior Court No. 51006220. Hon. Lewis A. Davis Trial Judge

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[Copyrighted Material Omitted]

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Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.


Reardon, J.

A jury convicted defendant Robert Gardner of first degree murder (Pen. Code, [1] § 187), torture (§ 206), first degree burglary (§§ 459, 460, subd. (a)), and grand theft (§ 487). The trial court further found true the allegations that defendant had served two prior prison terms (Veh. Code, § 10851; Pen. Code, § 667.5). The trial court sentenced defendant to 29 years to life for the first degree murder count, a consecutive 16-month term for the burglary count, and a consecutive eight-month term for the grand theft count. Additionally, the court imposed a life term for the torture count, but stayed punishment under section 654.

On appeal, defendant claims Faretta[2] error and a prejudicial delay in arraignment require reversal. He further argues that his eight-month sentence

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for grand theft must be stayed pursuant to section 654; the Attorney General concedes this error. Finding no reversible error, we affirm the judgment. A limited remand is required, however, to correct the conceded sentencing error.


A. Residential Burglary, Gun Theft, and Murder

Jimmy Bean, Jr., testified that in November 2009 he suspected his son, Eric Bean, was taking drugs. On December 17, 2009, Bean discovered that someone had broken in to his gun safe and had taken three shotguns and a Ruger pistol. Bean’s gun safe had been pried open. The responding police officer noted that the front and back doors of Bean’s residence showed no signs of forced entry. The officer also observed tool marks on a gun safe and took latent print samples from the front of the safe.

Four days later, on the morning of December 21, 2009, Eric Bean’s body was discovered by a bicyclist along McEwen Road in Contra Costa County. His body was in rigor mortis, indicating that he had been dead for several hours. It appeared that Eric had been tied and beaten; his wrists, ankles, and neck bore ligature marks and there were many lacerations, abrasions, and contusions about his face and head. His T-shirt was blood stained, though no blood was found on the ground, suggesting that Eric had been murdered at another location. It was later determined that Eric had been murdered at 100 Carolina Drive in Benicia, the known residence of defendant’s confederate Timothy Delosreyes, Jr. (“Big Tim”).

B. Forensic Evidence

Crime lab analyst Catherine Currier testified that she observed a “large cut” on Eric’s head, a wound on the chin, and bruises to the right elbow and foot. Currier observed ligature marks to the victim’s wrists and ankles. Currier observed a shoe print on the victim’s left buttock. Currier opined that the victim died at another location due to the lack of blood pooling, spatter, or shoe prints around the body. On March 9, 2010, Currier tested defendant’s white pickup truck for blood evidence. An area under the bed liner and the frame under the tailgate tested positive for blood. Currier found yellow rope in the truck bed.

Crime lab analyst Richard Bowden found 0.02 micrograms per milliliter of amphetamine and 0.07 micrograms per milliliter of methamphetamine in Eric’s blood.

Criminalist Donald Finley found three blue fibers on Eric’s boxers, a yellow fiber on the body’s right leg, and various fibers on an outer T-shirt.

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Pathologist Arnold Josselson found numerous abrasions on the body’s right ankle, right shoulder, penis, right elbow, lower right abdominal wall, right thigh, left forearm, upper abdomen, left hip, right ear, both cheeks, forehead, nose, and upper lip. There were bruises on the feet, right back, upper left arm, right knee, left hip, eyelids, nose, left knee, and left shoulder. There were lacerations to the left eyebrow, on the chin, right ear, lower lip, and on the right corner of the mouth. There was a ligature abrasion across the lower neck, several smaller ligature impressions on the front of the neck, and ligature marks on the left ankle and each wrist. One tooth was chipped. There was hemorrhaging on the surface of the brain, blood inside the brain, on the left side of the neck, on the soft tissue of the voice box and the larynx, and on the soft tissue overlying the spinal column in the neck. Josselson opined that Eric died from strangulation and from blunt force injury to the head. Josselson noted that Eric had blood in his stomach and airway.

Criminalist Alex Taflya examined the residence at 100 Carolina Drive in Benicia. The northeast bedroom showed signs of sloppy application of wall paint. Two stains on the north wall were presumptively positive for blood.

Latent print analyst Stephanie Souza examined the latent prints taken from the gun safe and found that one print was from defendant’s right thumb and another from defendant’s right middle finger. Eric’s left thumb made two latent prints on the safe.

Criminalist Kim Willey examined blood samples taken from the northeast bedroom of 100 Carolina Drive. The DNA profile of that blood sample matched Eric’s DNA profile.

C. Defendant’s Statements to Police

1. December 30, 2009

Deputy Sheriff Michael Meth first questioned defendant on December 30, 2009. Defendant said that on December 20 and December 21, he was working at a construction project in San Francisco. Defendant said he was in San Francisco with “Little Tim” Delosreyes (Timothy Delosreyes III, also called “Timmy”). When told that his cell phone records did not corroborate his presence in San Francisco, defendant had no explanation. Defendant denied knowing about Eric’s whereabouts or death. Defendant said that Big Tim and Little Tim Delosreyes were his longtime friends. Defendant last saw Eric during the week of December 14, 2009.

2. March 6, 2010

Sheriff’s Sergeant Garrett Schiro testified that on March 6, 2010, he obtained arrest warrants for defendant, Big Tim, Timmy, and defendant’s

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wife, Melody Rives. That same day, defendant led investigators on a tour through the residence at 100 Carolina Drive in Benicia. The jury was shown a video depicting defendant’s tour.[3] Defendant told Deputy Meth that he believed he was being helpful or positive in advising Timmy on how not to get caught. He described the rope used to tie up Eric as “ ‘half inch yellow rope.’ ” Defendant reported that Eric had been gagged while being held captive in the bedroom. He acknowledged that he could have saved Eric’s life.

Defendant said that on Saturday, December 19, 2009, he and Big Tim spent the night in Vallejo. Then, on Sunday morning about 8:30 a.m., defendant received a telephone call from his wife, followed by another call from Timmy. Defendant left Vallejo and drove to 100 Carolina Drive in Benicia. Eric was in a bedroom, beaten and hog-tied.

Defendant estimated that Eric died about 10:30 to 11:00 a.m. that Sunday. Defendant said that Eric and Timmy had stolen some guns. Melody told defendant that Eric was going to “squeal.” Defendant said that Eric was tied up with half-inch yellow rope. Defendant saw Big Tim throw a drinking glass at Eric, and heard Eric moan after being struck. After Eric’s death, Big Tim left the house and went to drug rehab.

Defendant said that he and Timmy carried the body to defendant’s truck bed for disposal. Defendant and Timmy wrapped the body in a blanket that was later discarded at the Nob Hill grocery store dumpster. Defendant wore latex gloves during the disposal of the body. Defendant estimated that the dead body was in the Benicia residence for about seven and a half hours.

Defendant said Timmy cleaned the house with bleach for nine hours. Defendant inspected the work and told Timmy he had more spots to clean.

3. March 10, 2010

On March 10, 2010, Sergeant Schiro interviewed defendant at the Martinez Detention Facility. That interview was videotaped and a redacted portion of the recording was played for the jury.[4] Defendant said he helped Eric and Timmy retrieve the guns from the gun safe about a week before Eric’s death. Defendant explained that on Saturday, December 19, 2009, he was with Big

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Tim in Vallejo, getting high at someone’s residence. By phone contact the next morning, Timmy said he needed help and asked defendant to come back to the house in Benicia. On arriving at the Benicia residence, Melody told defendant that Eric was going to “snitch” to his father about the stolen guns.

Defendant said that when he arrived at the Benicia residence, Eric was hog-tied but not beaten. Timmy told Eric to shut up and pushed a homemade “metal sticker” in the areas under Eric’s chin. Melody told defendant that Eric was “going to dip” or “leave.” Defendant left the residence to buy lunch for everyone. He denied punching, kicking, or spitting on Eric. Defendant instructed Timmy that Eric’s bindings had loosened during the assault. He told Timmy, “[O]nce somebody’s hog-tied, you can’t let them go.” Defendant said he wanted Eric to die “smoothly” and not suffer.

Defendant saw Timmy grab a 24-inch sword, place it in Eric’s mouth, and move it horizontally in Eric’s mouth. Defendant said the stolen guns were already in “third or fourth hands by now.” Defendant allowed Timmy to live at his residence for two weeks after Eric’s death. Defendant said he drove the body in his truck and pulled off the side of the roadway. Timmy went to the back of the truck and rolled the body out of the truck bed and down the hill.

D. Defense Case

Melody Rives testified that she married defendant on September 12, 2009. In October 2009, Big Tim resided at Carolina Drive in Benicia. In December 2009, Melody began using methamphetamine. On December 15, 2009, at 1:00 or 2:00 a.m., Timmy called Melody from the Martinez Amtrak station and asked her to give him and Eric a ride. Melody estimated defendant was drunk four to five times a week and was not available to drive Timmy or Eric. Melody picked up Eric, who appeared “high” on drugs. She saw Timmy using a handmade weapon with a sharp point. The weapon had a handle wrapped in tape.

On December 17, 2009, Melody saw defendant leave about 5:00 a.m. Defendant returned to the Carolina Drive house with Timmy, who was carrying a blanket with three shotguns and a.22 revolver. Big Tim was away from the residence from December 16 through December 18.

On December 19, 2009, about 6:00 p.m., Melody was at the Carolina Drive residence with defendant, Eric, Big Tim, and Timmy. At 11:00 p.m., defendant and Big Tim left the residence. At 1:00 a.m., Timmy and Eric were inside Timmy’s bedroom smoking methamphetamine. Later that morning, Timmy woke Melody and asked her to come into the bedroom to talk to Eric. Eric was “zip-tied” on the bed, covered by a blanket. The next morning, defendant came back to the residence with Big Tim.

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At 3:00 p.m., Melody became concerned for Eric, having last seen him six or seven hours prior. She slightly opened the bedroom door, but Timmy pulled the door shut “real fast.” Melody never saw defendant enter that bedroom. At 3:30 or 4:00 p.m., Melody was sitting on the couch and heard “scuffling noises, banging noises” coming from the bedroom. She saw Big Tim enter the bedroom. She saw Big Tim throw a glass into the bedroom and heard the glass break. Big Tim left the residence thereafter. Defendant escorted her outside. Outside, Melody heard “heavy noises” coming from inside the residence. After five minutes, there were no more noises. At one point, Melody saw Timmy carrying rope.

At 5:00 or 5:30 p.m., Melody returned to the residence and saw defendant “extremely upset” and sitting in the dining room, and noted that Timmy was taking a shower. In the late afternoon, Melody was “scared to death, ” having learned Eric was dead.[5] At 6:00 p.m., Big Tim returned to the residence with cleaning supplies. Melody cleaned up a latent fingerprint on the bedroom door and a “few spots” on the mattress and put wet clothing into the dryer. Bloody clothes had been placed into bags and put inside the garage. Timmy was moving the bags around in the garage and painting the bedroom wall. In the morning hours of December 21, Melody saw defendant and Timmy drive away from the Carolina Drive residence.

E. Rebuttal

On December 29, 2009, Sheriff’s Sergeant Tiffany Van Hook contacted Melody at her residence in Benicia. Melody said she last saw Eric and Timmy on Friday, December 18, 2009. She gave both men a ride to a park in Martinez. She said she next saw Timmy at the candlelight vigil for Eric.

On March 6, 2010, Sergeant Van Hook contacted Melody. Melody said that on Saturday, December 19, she was at the Carolina Drive residence with defendant, Timmy, and Big Tim. Melody said that Eric was not at the house. She said that Timmy disposed of the body. Melody later said defendant and Timmy disposed of the body. She did not know the motive for the killing. Eric feared that Timmy believed that he would snitch about the stolen guns.

On March 10, 2010, Sergeant Van Hook again spoke with Melody. In that conversation, Melody said she burned a phone book inside a “pot belly stove.” Melody said that Eric was present at the Carolina Drive residence with Timmy and herself. Eric told her he was not going to snitch on anyone.

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After the killing, Melody saw defendant and Timmy cleaning up. On Sunday, Melody told Big Tim that Timmy feared Eric was going to snitch on them all. Melody feared Eric would implicate defendant in the gun theft. Melody saw that the shotguns were now sawed off, making them shorter in length. Defendant delivered the shotguns to someone named “Butters” in Concord. Melody saw defendant tighten the restraints used on Eric. Big Tim told defendant to tighten the restraints because Timmy did not know what he was doing.


A. Self-Representation

Defendant contends the trial court committed reversible error when it denied his request for self-representation. Citing People v. Johnson (2012) 53 Cal.4th 519 [136 Cal.Rptr.3d 54, 267 P.3d 1125] (Johnson), defendant argues that the trial court’s justifications for denying his Faretta motion did not constitute substantial evidence of defendant’s incompetence. Therefore, defendant argues, the error is reversible per se, and the judgment must be reversed. We disagree.

1. Background

The trial court heard defendant’s motion to discharge appointed counsel and to represent himself on May 4, 2011, 10 months before trial commenced on March 12, 2012. Defense counsel informed the court that she had doubts about defendant’s competence to stand trial. The trial court immediately suspended the criminal proceedings and appointed Jessica Ferranti, M.D., to evaluate defendant’s competence to stand trial and to represent himself.

Two months later, the parties waived a trial on competence and submitted the issues to the court based on Dr. Ferranti’s written report. In her July 18, 2011, report, Dr. Ferranti stated that she conducted a psychiatric exam on defendant, including a two-and-three-quarter-hour interview, two quantitative tests, and a review of relevant records. Dr. Ferranti stated that defendant’s “current diagnosis is Alcohol Abuse, Amphetamine Dependence, Antisocial Personality Disorder and Expressive Language Disorder.” She opined that appellant was competent to stand trial. Dr. Ferranti considered several factors, including that defendant (1) “demonstrated excellent knowledge of legal terms” but “was impaired in his ability to string them together articulately in an effective and articulate presentation”; (2) “had an adequate understanding of the roles of various courtroom participants and the role of his attorney”; (3) “exhibited a fair understanding of the nature of the proceedings against him”; (4) “demonstrated awareness of evidence against him although he

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maintained that said evidence should be ‘inadmissible’ because of what he perceives as police protocol violations”; (5) “expressed his general understanding of his charges”; and (6) “performed very well on a formal assessment instrument, ” scoring 92 out of 100 points on a test designed to assess an accused's competence to stand trial.

Based on the enumerated factors, Dr. Ferranti opined, with reasonable medical certainty, “that [defendant]... ha[d] the ability[ ] to assist counsel in a rational manner, should he choose to do so” (italics omitted). In support of this conclusion, Dr. Ferranti noted that defendant did “not have any thought process impairments or psychotic symptoms that would prevent him from engaging rationally with an attorney.” She further noted that although defendant “struggled with expressing himself, ” he “ultimately was able” to do so with her “clarifications.” Dr. Ferranti also reported that defendant “was able to provide a cogent and consistent account of the events on the day of his arrest, ” and he “demonstrated the ability to engage in strategizing and future-planning.”

Dr. Ferranti, however, opined “with reasonable medical certainty” that defendant was not competent to represent himself. She based her opinion on various factors, including defendant’s expressive language disorder, which prevented him from being able to “communicate coherently enough to make presentation[s] to the Court.” She further opined that defendant would “not be able to communicate with the Court or a jury with sufficient clarity to make himself understood in real time during trial.” As a result, she found it likely that defendant “would be significantly disadvantaged due to his mental impairment.”

Dr. Ferranti further opined that “due to the significant amount of time required for [defendant] to express himself and for his audience to get clarification on his remarks that the essential principles of fairness to the defendant and efficiency for the State of California in trying him for serious crimes, would both be at risk by allowing this defendant to represent himself.” Accordingly, she concluded that defendant was “mentally impaired to the extent that the basic integrity of the proceeding would be... jeopardized by going forward with adjudication with him as pro per.”

In reaching this conclusion, Dr. Ferranti explained as follows: “Communication in court requires that decisions be made quickly and sometimes under pressure. Decisions facing defendants representing themselves include all the basic strategic and tactical choices of trial, such as what motions to make, what witnesses to call, and what arguments to make to the jury. [Defendant] clearly lacks the ability to communicate clearly. In addition, [defendant] demonstrates a lack of ability to incorporate new ideas (learn) and adapt

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strategically.... Lack of ability to foresee possible outcomes and shift one’s basic defensive strategy is an important basic competency for the pro per defendant. [Defendant] lacks this ability.”

Dr. Ferranti further explained that although she thought defendant “is competent to waive his right to counsel and understand the potential risks and benefits of doing so, he does not demonstrate the higher cognitive abilities necessary to litigate his case in court. Although [defendant] does not meet criteria for mental retardation or borderline intellectual functioning, his intelligence is limited. He does not exhibit the ability for abstract thinking, higher level problem solving or cognitive flexibility. His ability to be educable and process information is limited.”

Based on Dr. Ferranti’s report, the trial court found defendant competent to stand trial on July 20, 2011. Defense counsel noted her agreement with Dr. Ferranti’s conclusion that defendant was competent to stand trial but not competent to represent himself. Defense counsel also advised the court that defendant would like to substitute counsel. After holding a Marsden[6] hearing, the court denied defendant’s request for substitute counsel. The court did not expressly rule on defendant’s Faretta motion.

On January 19, 2012, two months before trial began, the court heard a defense motion to continue the trial. At this hearing, defense counsel informed the court that defendant would like to represent himself. After agreeing to waive time for trial, defendant stated that he “would like to go Faretta.” The following colloquy occurred: “THE COURT: It’s my understanding from your attorney that you have been evaluated and the doctor felt that you had difficulty understanding the complexity of putting on a trial, as to whether or not you were competent to represent yourself. [¶] This doctor, Dr. Ferante [sic], made the assessment that you would not be able to litigate your case in court because of the cognitive disabilities you have—meaning higher processes—not that you can’t understand what is going on, but it’s more complicated. Do you understand? [¶] THE DEFENDANT: I feel I can do it now because this case is two years old; and I’ve been preparing, doing my own litigating within my cell and stuff like that. I got a couple of motions that I already prepared, already ready to go out. And I don’t see why it’s an issue. [¶] THE COURT: Well I did re-read Dr. Ferante’s [sic] evaluation; and based on my assessment of that and [defense counsel’s] interaction with you, I am finding that your mental state is about the same as when Dr. Ferante [sic] evaluated you. So I am denying your Faretta.”

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2. Applicable Law

A trial court must allow a defendant to represent himself if he knowingly and intelligently makes an unequivocal and timely request. (Faretta, supra, 422 U.S. at pp. 835–836; People v. Valdez (2004) 32 Cal.4th 73, 97-98 [8 Cal.Rptr.3d 271, 82 P.3d 296].) The right of self-representation, however, is not absolute. (Indiana v. Edwards (2008) 554 U.S. 164, 171 [171 L.Ed.2d 345, 128 S.Ct. 2379] (Edwards).) Indeed, in Edwards the United States Supreme Court held that courts may limit a defendant’s self-representation right by insisting upon representation by counsel at trial on the ground that the defendant lacks the mental capacity to conduct his defense unless represented. (Edwards, supra, 554 U.S. at p. 178.) “That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” (Ibid.) “Edwards described competence to represent oneself at trial as the ability ‘to carry out the basic tasks needed to present [one’s] own defense without the help of counsel.’ ” (Johnson, supra, 53 Cal.4th 519, 530 [136 Cal.Rptr.3d 54, 267 P.3d 1125], quoting Edwards, supra, 554 U.S. at pp. 175–176.)

Before Edwards, California courts held that a defendant who was competent to stand trial was competent to represent himself under Faretta. (See Johnson, supra, 53 Cal.4th at p. 527.) In Johnson, the California Supreme Court adopted the limitation on self-representation authorized by Edwards, but declined to adopt a more specific standard. (Id. at p. 530.) In so holding, Johnson explained that the appropriate standard for trial courts to use in deciding whether to exercise their discretion to deny self-representation “is simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel.” (Ibid.)

In other words, California courts have discretion to deny self-representation to so called gray-area defendants—those who are mentally competent to stand trial if represented by counsel but not mentally competent to conduct the trial themselves—“in those cases where Edwards permits such denial.” (Johnson, supra, 53 Cal.4th at p. 528; see Edwards, supra, 554 U.S. at pp. 172–174 [discussing gray-area defendants].) Nevertheless, our Supreme Court has cautioned that “[s]elf-representation by defendants who wish it and validly waive counsel remains the norm and may not be denied lightly.” (Johnson, at p. 531.)

“As with other determinations regarding self-representation, we must defer largely to the trial court’s discretion.” (Johnson, supra, 53 Cal.4th at p. 531.)

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The trial court’s ruling regarding a defendant’s competence will be upheld if supported by substantial evidence. (Ibid.) “Faretta error is reversible per se.” (People v. Valdez, supra, 32 Cal.4th at p. 98.)

3. No Abuse of Discretion

We believe that the trial court correctly applied Edwards to the circumstances of defendant’s case, and there was no abuse of discretion. Johnson, which was decided after defendant’s self-representation request, serves to bolster our conclusion that the trial court properly denied defendant’s Faretta motion. Defendant relies heavily on the fact that he was not delusional or psychotic, that he achieved top scores on tests designed to assess his competence to stand trial, and that he was believed to be of average intelligence. Because the rationale of Edwards is at the heart of the issue in this case, we believe further analysis of Edwards and Johnson is required.

In Edwards, the United States Supreme Court stated that its precedents did not answer the question whether the federal Constitution prohibits a state from insisting that a defendant proceed to trial with counsel (and denying the defendant the right to represent himself) when the state court finds the defendant mentally competent to stand trial if represented, but not mentally competent to conduct the trial himself. (Edwards, supra, 554 U.S. at pp. 167, 169.) The court explained that the chief precedents on the standard for mental competence (Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824, 80 S.Ct. 788] (Dusky) and Drope v. Missouri (1975) 420 U.S. 162 [43 L.Ed.2d 103, 95 S.Ct. 896]) did not consider the relation of the mental competence standard to the right of self-representation. (Edwards, supra, 554 U.S. at pp. 169–170.) Faretta also did not answer the question both because it did not consider the problem of mental competence, and because Faretta itself and later cases made clear that the right of self-representation is not absolute. (Edwards, at pp. 170–171.) Similarly, Godinez v. Moran (1993) 509 U.S. 389 [125 L.Ed.2d 321, 113 S.Ct. 2680] (Godinez) did not answer the question. (Edwards, at p. 173.) The court recognized that its emphasis in Godinez on the need to consider only the defendant’s “ ‘competence to waive the right’ ” and the absence of the need to consider the defendant’s “ ‘technical legal knowledge’ ” about how to conduct a trial stemmed from the fact that the Godinez defendant sought only to change his pleas to guilty, not to conduct trial proceedings. (Ibid.) Moreover, Godinez held only that a state may permit a gray-area defendant to represent himself. It did not tell a state whether it might deny the same type of defendant the right to represent himself, which was at issue in Edwards. (Ibid.)

The consideration of various factors, taken together, led the Edwards court to hold that “the Constitution permits States to insist upon representation by

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counsel for those competent enough to stand trial... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” (Edwards, supra, 554 U.S. at p. 178.)

In explaining its rationale, Edwards first observed that the court’s “ ‘mental competency’ ” cases focused upon a defendant’s ability to consult with his attorney and assumed representation by counsel, which suggested that, when such a defendant sought to forgo counsel, it called for a different standard. (Edwards, supra, 554 U.S. at pp. 174–175.) The court pointed out that Faretta itself “rested its conclusion in part upon pre-existing state law set forth in cases all of which are consistent with, and at least two of which expressly adopt, a competency limitation on the self-representation right.” (Id. at p. 175.)

Second, the complex nature of mental illness and mental competence, with its tendency to vary in degree and over time as well as in its effect on the individual, cautions against employing the same standard for determining whether a represented defendant can stand trial and whether a defendant must be allowed to represent himself at trial. (Edwards, supra, 554 U.S. at p. 175.)

Third, allowing a defendant with an uncertain mental state to represent himself would not affirm the dignity and autonomy of the individual, which are the underpinnings of the right to represent oneself. (Edwards, supra, 554 U.S. at p. 176.)

The Edwards court also observed that self-representation by a defendant who lacked the capacity to do so would “undercut[ ] the most basic of the Constitution’s criminal law objectives, providing a fair trial.” (Edwards, supra, 554 U.S. at pp. 176–177.) Moreover, the trial must not only be fair, its fairness must be apparent to all. (Id. at p. 177.) The Edwards court determined that there was little reason to believe that application of Dusky’s basic mental competence standard was sufficient. (Ibid.) The court believed that the trial judge “will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.” (Ibid.) Consequently, the court concluded that “the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.” (Id. at pp. 177-178, italics added).) In reaching this conclusion, the Edwards court cited with approval the amicus curiae brief by the American Psychiatric Association (APA), which stated that “ ‘[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illness can impair the defendant’s ability to play

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the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.’ ” (Id. at p. 176.)

In Johnson, the California Supreme Court decided that California courts may “accept [the] invitation” extended by Edwards and “apply a higher standard of mental competence for self-representation than for competency to stand trial.” (Johnson, supra, 53 Cal.4th at p. 523.) The court stated that, “[b]ecause California law—which, of course, is subject to the United States Constitution—has long been that criminal defendants have no right of self-representation, ... California courts may deny self-representation when the United States Constitution permits such denial. (Ibid.) The standard trial courts should apply when deciding whether to exercise their discretion to deny self-representation is “whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel.” (Id. at p. 530.) Trial courts may order a psychological or psychiatric examination to inquire into the issue of doubts about the defendant’s mental competence for self-representation. (Ibid.) In addition, the judge’s own observations will also provide support for an incompetence finding. (Id. at p. 531.)

In the instant case, unlike in Edwards and Johnson, we do not have a defendant who wrote and presented the court with “bizarre” documents. (See Edwards, supra, 554 U.S. at pp. 176, 179; Johnson, supra, 53 Cal.4th at pp. 532–533 & fn. 2.) We do not have a record of bizarre or disruptive behavior in the courtroom. (See Johnson, at p. 525.) Nor do we have the convenience of a finding by the instant trial court like the one made by the trial court in Johnson, which employs nearly the exact wording of the amicus curiae brief by the APA quoted in Edwards.[7]

We nevertheless have sufficient substantial evidence to uphold the trial court’s denial of defendant’s Faretta motion, although the evidence differs from that of Edwards and Johnson. Substantial evidence is “evidence that is reasonable, credible, and of solid value.... [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor

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reevaluates a witness’s credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 60 [119 Cal.Rptr.3d 415, 244 P.3d 1062].)

Here, the trial court considered Dr. Ferranti’s report, which determined with “reasonable medical certainty” that defendant was incompetent to represent himself at trial. In her report, Dr. Ferranti echoed the sentiments of the APA amicus curiae brief, noting that defendant suffered from an “Expressive Language Disorder” that prevented him from coherently communicating with the court or a jury. Dr. Ferranti also reported that defendant did not demonstrate “the higher cognitive abilities necessary to litigate his case in court.” In other words, defendant did not have the “ ‘ability to play the significantly expanded role required for self-representation even if he [could] play the lesser role of represented defendant.’ ” (Edwards, supra, 554 U.S. at p. 176.)

On this record, allowing defendant to represent himself would have undercut “the most basic of the Constitution’s criminal law objectives, ” that is, the providing of a fair trial. Edwards, supra, 554 U.S. at pp. 176–177.) As its comments indicated, the trial court clearly believed that defendant, due to his mental illness, was not capable of carrying out the basic tasks required to present a defense—tasks such as organizing a defense, making motions, and questioning witnesses. (See Edwards, at p. 176; Johnson, supra, 53 Cal.4th at p. 530.) Because defendant was not obstreperous in court and otherwise lucid in his demeanor, the trial court’s decision here was of necessity more finely tuned. (See Edwards, at p. 177.) There is absolutely no indication that the trial court denied defendant’s Faretta motion for reasons of efficiency or merely to level the playing field. (See Johnson, at p. 531.) The trial court obtained expert evaluation, as urged by Johnson (id. at p. 530), and relied on that evaluation, as well as considered defense counsel’s concerns. We will not second-guess that decision. (See Edwards, at p. 177 [a “trial judge... will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant”].) We conclude that the trial court did not abuse its discretion in denying defendant’s motion to represent himself.

B., C.[*]


The judgment is modified to reflect that the sentence on count four is stayed pursuant to section 654. The trial court is ordered to issue an amended

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abstract of judgment reflecting this modification, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

Ruvolo, P. J., and Humes, J.,[*] concurred.

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