Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA701587. Stephan G. Saleson, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Terence Dion Brown appeals from his conviction of the second degree murders of April McCulloch and her fetus (Pen. Code, § 187, subd. (a) – counts 1 and 2) and the true finding on the allegation that he had used a knife in the commission of count 1 (§ 12022, subd. (b)(1)). He contends: (1) the evidence of his mental illness was sufficient to require a hearing on his competency under section 1368; (2) the trial court erred in denying his Marsden request (People v. Marsden (1970) 2 Cal.3d 118) for a new attorney; (3) the trial court abused its discretion by failing to provide a full and fair Marsden hearing; and (4) the trial court erred in admitting irrelevant and prejudicial photographs of the fetus.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
McCulloch lived in an apartment in Bloomington; she had three children, and she was 14 weeks pregnant. Defendant was her boyfriend and the father of one of her children and her unborn child. Her friend and neighbor, Hysyaa Melton, testified that defendant frequently shoved McCulloch, threw things around, and accused her of infidelity.
On September 23, 2007, defendant visited McCulloch’s apartment and argued with her about her activities and who had been at her apartment. Defendant had to go to work, and Melton, who was visiting McCulloch, offered to drive him to his car, but he insisted that McCulloch take him. The three eventually left together in McCulloch’s car to go to defendant’s car. Defendant continued arguing with McCulloch.
When they arrived at defendant’s car, defendant and McCulloch got out, and defendant began to chase her around the car. Melton heard McCulloch say, “Terence, just leave me alone. You already stabbed me once.” Defendant caught up to McCulloch and began to hit her. Melton tried unsuccessfully to stop him.
McCulloch was down on the ground, yelling and crying, and defendant went to his car. He returned with a 10-inch knife, with which he stabbed McCulloch multiple times. Defendant then got into his car and drove away. Melton could not remember how to dial her cell phone, and a boy called 911 for her.
When the ambulance arrived, McCulloch had no pulse and was not breathing. She was transported to the hospital, where she was pronounced dead. An autopsy revealed approximately 21 stab wounds; the wounds to her chest caused her death within minutes.
McCulloch’s 10-year-old son, I.A., testified that defendant had hit his mother on the arm with his fist when they were arguing. Another time, I.A. had seen McCulloch lying on the floor holding her eye, which had a big bump, just before defendant left the apartment. Two or three times, I.A. had heard defendant threaten to “cap” or shoot McCulloch. Defendant had told I.A. not to tell anyone that defendant had hit McCulloch, or defendant would hit him.
McCulloch’s 12-year-old son, L.A., testified that defendant frequently accused McCulloch of cheating on him. Defendant once hit McCulloch in the face and gave her two black eyes. Another time, defendant hit McCulloch with his fist and burned her with a cigarette. A third time, defendant hit her on the back of the head with his closed hand. Defendant told the children not to say anything, or he would hurt them.
McCulloch’s mother testified that defendant had told her three days before the stabbing he was going to kill McCulloch. Defendant knew McCulloch was pregnant because he knew she had had an ultrasound. McCulloch’s cousin testified defendant had told her three days before the stabbing that he wanted to kill McCulloch because he had found paperwork indicating she had AIDS.
The jury found defendant guilty of the second degree murders of McCulloch and the fetus (§ 187, subd. (a) – counts 1 and 2) and found true the allegation as to count 1 that he had used a knife (§ 12022, subd. (b)(1)). The trial court found true the allegations that defendant had suffered prior serious or violent convictions under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
The trial court sentenced defendant to 45 years to life for count 1, with a consecutive term of one year for the knife use. The court sentenced defendant to a consecutive term of 45 years to life for count 2.
Additional facts are set forth as relevant in the discussion of the issues.
III. DISCUSSION
A. Defendant’s Competency
Defendant contends the evidence of his mental illness was sufficient, as a matter of law, to require a hearing on his competency under section 1368.
1. Additional Factual Background
On the morning of the second day of testimony, defendant interjected, “Hey; I ain’t no n-----, man. I’m not guilty. I’m innocent, man.” The trial court attempted to get his attention, and he repeated, “I’m not no n-----. I’m innocent. I’m innocent. I’m not no n----. I’m a man of God.” The trial court declared a recess and asked the jury to ignore the outburst as best it could. Defendant continued, “They’ve set me up. I’m innocent, ” and “I’m not no n-----. I’m innocent.”
After the courtroom was cleared, the following dialogue occurred:
“THE COURT: [¶]... [¶] Mr. Brown, can you hear me? [¶] Mr. Brown?
“THE DEFENDANT: Yes, sir.
“THE COURT: You have been before me many times.
“THE DEFENDANT: Good [sic] bless you.
“THE COURT: And we are going to have a quick little chat, you and I. [¶] I want to explain something to you and you tell me whether or not you understand. [¶] You have a right to be present during your trial, but you don’t have a right to be present in the state you are in right now, which is crying, saying things outloud without being asked anything; and just kind of acting out, if you will.”
“THE DEFENDANT: I am not acting out.”
The court told defendant he would be excused if he could not control himself, and defendant responded that he understood. Defendant accused his defense counsel of calling him a racial slur. The court stated it did not believe defendant. The court asked defendant if he could behave himself as he had always done in the past. Defendant did not reply, and the court noted defendant was crying. Defendant informed the court he had not taken his medication “for the voices.” The trial court excused defendant from the proceedings and stated it was trying to determine whether defendant was taking medication.
Defendant returned for the afternoon session. Out of the presence of the jury, he told the court he had not taken his medication for two days. When the court began to question defendant, he stated, “Shut the fuck up, shut up, shut up. Shhhh.” Defendant then said he had been on medication for 11 years, he had not taken his medication for a few days, and he was hearing voices saying they were trying to destroy him. The court observed that defendant’s conduct had been appropriate up to that point. Defendant kept repeating he needed his medications, he was hearing voices, and that devils were trying to destroy him. The trial court found that defendant was being disruptive and excluded him from the proceedings for the rest of the day.
The next morning, defendant was present in court but did not reply when the court greeted him. The court noted that defendant appeared to be awake but was not responding. The court asked him if he had taken his medications, but again, he failed to respond. The court stated, “I will indicate that I heard from reliable sources through the Sheriff’s Office... that you were given all of your meds; that you haven’t missed any medications. They were administered and you took them.” Defendant again asserted that his counsel had called him a racial slur. The trial court stated, “Mr. Brown, can you hear me, sir; are you having issues? [¶] A minute ago you made an outburst suddenly and apparently, you seemed coherent to me. [¶] And there’s no proof whatsoever that anyone called you any such name, especially your lawyer, ... The court stated, “Let the record reflect that [defendant] does not seem to wish to talk to me. [¶] I have treated [defendant] with respect every time he has been in front of me. And apparently this morning, he doesn’t wish to be communicative, other than to make an outburst in an inappropriate way; for what reason, the Court can only presume is to create some problem for some later use. The Court doesn’t believe it’s real; doesn’t believe it’s genuine; believes that the defendant is in effect faking and malingering.” When defendant again refused to respond, the court ordered him removed from the courtroom.
The prosecutor asked to put information on the record concerning defendant’s condition. Detective Johnson represented to the court that he had communicated with a sergeant at the jail, who reported having monitored defendant’s activity: “He was talking to the person in the next cell to him during the evening, sitting on his bunk reading. He placed his mail out on the ledge this morning when they went to dress him out. [H]e asked for clean white clothing to go to court. He specifically asked for a 3X size. They told him 3X was not available and he was satisfied with a 2X. He then asked for a clean orange jumpsuit to go to court. [¶] At about 4:40, 4:45, they searched him to go to court. Asked him where [his] legal papers were. He said, ‘they took them.’ They said there was no unusual or out of the normal behavior from what he has displayed in the past.”
The court proceeded with the morning session in defendant’s absence. When the court reconvened for the afternoon session, defendant was present. The court asked if he was prepared to speak with the court. Defendant shook his head “no” to some of the court’s questions, but made no verbal responses. The court excused defendant from the afternoon session.
The next morning, defendant stated he felt better and wanted to “speak on certain issues.” Defendant stated he felt the trial was unfair, and that the trial court should not have heard the trial because it had conducted the preliminary hearing and had heard his then-defense counsel say she believed a witness’s testimony. Defendant also complained that one of the jurors knew a worker in the deputy district attorney’s office “[a]nd that she went home that night and came back the next morning. Ain’t no telling what she told the jury.” The trial court responded that the issue had already been taken care of. Defendant then stated he had a conflict of interest with his attorney, and the trial court conducted a Marsden hearing, discussed in more detail below.
On the morning of the second day of testimony, the prosecutor reported that the Victim Witness Advocate, Sonja Gonzales, who had appeared with one of the witnesses the day before, had just learned that one of the jurors was her good friend from college. The court questioned Gonzales, who reported she had not noticed the juror when she was in court the previous day, and she had exchanged brief greetings with the juror that morning. Defense counsel requested a mistrial, and the court decided to remove the juror in question “simply out of an abundance of caution.”
After the trial court denied the Marsden motion, the court asked defendant if he would be able to stay in court without being disruptive. Defendant denied being disruptive. Following further discussion in which defendant complained the court was biased and he was not getting a fair trial, defendant elected not to be present.
The following Monday when court reconvened, defendant was present. He stated he had discussed testifying with his counsel’s investigator, and he would not be testifying. He still believed the proceedings were unfair and the court was biased, so he declined to be present. He requested that his counsel return a transcript.
Defendant thereafter elected to be present in court for the reading of the verdicts.
2. Analysis
Section 1368 provides that if, “during the pendency of an action, ” “a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent....” (§ 1368, subd. (a).) Thus, “[i]f a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue. [Citations.] In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant’s ability to stand trial. [Citation.] The substantiality of the evidence is determined when the competence issue arises at any point in the proceedings. [Citation.] The court’s decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. [Citations.]” (People v. Ramos (2004) 34 Cal.4th 494, 507.)
The defendant has the burden to present substantial evidence that raises a reasonable doubt as to competence. (People v. Welch (1999) 20 Cal.4th 701, 738; People v. Howard (1992) 1 Cal.4th 1132, 1163.) “[M]ore is required to raise a doubt of competence than the defendant’s mere bizarre actions or statements, with little reference to his ability to assist in his own defense.” (People v. Medina (1995) 11 Cal.4th 694, 735.) As one court has explained, “‘An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.’ [Citations.]” (People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) “Although a court may not rely solely on its observations of a defendant in the courtroom if there is substantial evidence of incompetence, the court’s observations and objective opinion do become important when no substantial evidence exists that the defendant is less than competent to plead guilty or stand trial. [Citation.]” (People v. Ramos, supra, 34 Cal.4th at p. 509.) ‘“Substantial evidence is evidence that raises a reasonable doubt about the defendant’s competence to stand trial.’ [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1281.)
In People v. Ramirez (2006) 39 Cal.4th 398, the defendant contended the trial court erred in failing to hold a competency hearing when, during the penalty phase of a capital trial, the defendant made threats to disrupt and actually did disrupt the proceedings, leading to the trial court’s permitting him to listen to the proceedings in a holding cell. The defendant also made a bizarre and rambling statement just before sentencing. (Id. at pp. 466-467.) The California Supreme Court rejected the defendant’s contention, holding that the defendant’s behavior “did not raise a question as to his ability to understand the nature of the proceedings or assist counsel in his defense.” (Id. at p. 467.)
Here, as noted, the trial court explicitly found that defendant was not credible: “[T]he Court can only presume [defendant’s behavior] is to create some problem for some later use. The Court doesn’t believe it’s real; doesn’t believe it’s genuine; believes that the defendant is in effect faking and malingering.” On appeal, we defer to that determination of credibility. (People v. Richardson (2008) 43 Cal.4th 959, 1030.) Moreover, the trial court conducted an inquiry into whether defendant was on medication and whether he had been taking his medication, and learned that defendant had not in fact missed taking any of his medication. The trial court heard a report from a detective that jail personnel had monitored defendant’s behavior and that he had been acting normally at the jail.
The record clearly indicates defendant possessed the ability to understand and participate in his own defense: Defendant’s statements and conversations with the trial court indicated he understood the proceedings and could assist counsel. For example, he made a Marsden request for replacement of counsel and set forth specific reasons for the request. At the Marsden hearing, defendant complained that “1101 and 1109 shouldn’t have been granted” because he “never got convicted of a domestic violence case.” He expressed his concern about the fact that the Victim Witness Advocate was a good friend of one of the jurors. Defendant stated to the court that he had discussed with a defense investigator whether he (defendant) should testify in his own behalf, and he would not be testifying.. At the jail, he requested appropriate clothing for his court appearance. We conclude the trial court did not abuse its discretion in declining to initiate proceedings under section 1368.
B. Marsden Proceedings
Defendant contends the trial court erred in denying his Marsden request for a new attorney. In a closely related argument, he contends the trial court abused its discretion by failing to conduct a full and fair Marsden hearing.
1. Additional Factual Background
On May 7, 2009, defendant made a request for new counsel. In the hearing on the request, defendant stated he wanted to replace his counsel because his counsel would not bring his mental disorder to the court’s attention, and he “had no evaluation”; his counsel had called him a racial slur; his counsel had said the trial court was biased against defendant; and his counsel failed to bring appropriate pretrial motions or make an opening statement.
The trial court asked counsel to respond. Counsel stated he had been practicing law for 30 years and had done over 200 felony trials, including many murder trials.
Counsel denied ever calling defendant a racial slur.
The trial court asked counsel whether he had ever said the court was biased against defendant. Counsel responded that defendant had expressed an opinion that the court was biased, and counsel had told him the court was not there to be his friend. Counsel stated that was when defendant’s outburst had occurred.
The trial court asked why counsel was not pursuing a mental defense, and counsel responded that such evidence was not relevant because defendant insisted on a defense that he had not been there. Defendant confirmed that his position was that he was not guilty because he had not been there.
The trial court inquired about the failure to bring pretrial motions. Counsel responded that the prosecutor had turned over the discovery, and there were no motions to make; however, counsel had opposed the prosecutor’s motions to admit evidence under Evidence Code sections 1101 and 1109.
The trial court found that counsel had properly represented defendant and had not caused any deterioration in the attorney-client relationship. Rather, the court found defendant had caused that deterioration by his false claim that counsel had called him a racial slur. The trial court found no deficiencies in counsel’s representation and denied defendant’s Marsden motion.
2. Analysis
When a criminal defendant seeks to discharge appointed counsel because of inadequate representation, the trial court must permit the defendant to explain the basis of his contention and relate specific instances of counsel’s alleged inadequacy. (People v. Cole (2004) 33 Cal.4th 1158, 1190.) The trial court must conduct an inquiry sufficient to determine whether counsel is in fact providing inadequate representation. (People v. Abilez (2007) 41 Cal.4th 472, 487-488.) If there is an issue of credibility, the trial court has the discretion to resolve it by accepting defense counsel’s explanation. (People v. Jones (2003) 29 Cal.4th 1229, 1245.)
a. Adequacy of hearing
Defendant contends the Marsden hearing was inadequate because one of the bases for his motion was that his counsel had not assisted him in seeking an evaluation and had failed to file motions on his behalf, but the trial court failed to inquire into counsel’s reasons for not supporting defendant’s request.
With respect to motions, defendant asserted, “Also, there was no motions filed on my behalf in pre-trial motions.” The trial court inquired, “Okay. What about... pre-trial motions? Apparently [defendant] says you didn’t have any. [¶] Of course, I heard you argue against the motions by the People and you moved to exclude witnesses.” Defense counsel responded, “The significant pre-trial determinations were [Evidence Code sections] 1101 and 1109; and it is the People’s burden to bring it in. [¶] Other than that, [the prosecutor] has been completely candid and dutiful in providing all discovery, including discovery of other crimes in the area that might have related; so we didn’t have a discovery fight.” The trial court observed that defense counsel had argued against the admission of certain evidence.
With respect to an evaluation of defendant, the following dialogue took place:
“THE COURT: What about this business of the mental condition that you knew about and haven’t done something about; what’s the story about that?
“[DEFENSE COUNSEL]: It is just not relevant when the defense that is insisted upon is, ‘I was not there.’” The court inquired of defendant and confirmed that defendant insisted he was innocent. During that discussion, defendant stated, “I had no evaluation, ” and later stated, “But certain stuff I don’t understand what’s going on in court.” He explained, “Like certain stuff-certain stuff that I agreed on, some I might have said, yeah, or due to my medication that I take, I would be drowsy.” He stated, “I was drowsy from my medication, I don’t-I really don’t understand. I was told to say, ‘yeah, ’” and “I think it was like on a day with motions or something.” The court replied, “No. That was a day you were here and you were very alert and wide awake, but I don’t believe I asked you anything. I wouldn’t, except if it was something like this.”
We conclude the trial court allowed defendant to state his complaints and conducted a proper inquiry, and defense counsel responded point by point. (People v. Smith (1993) 6 Cal.4th 684, 696.)
Indeed, as the record demonstrates, not only did the trial court conduct a thorough Marsden inquiry, but it also exhibited remarkable patience and respect toward defendant throughout the proceedings.
Defendant asserts that defense counsel’s explanation was inadequate with respect to his failure to pursue a competency hearing. As discussed above, the only evidence of defendant’s incompetency came from defendant himself, and the trial court found that evidence not credible. Thus, we reject defendant’s argument that the trial court was required to make further inquiry of defense counsel on that issue.
b. Denial of motion
Defendant contends the trial court erred in denying his Marsden request because the record showed counsel’s failure to file a motion for a mental competency hearing was prejudicially deficient.
As we have discussed above, the trial court determined, based on its own observations and on information it received from jail personnel, that defendant was malingering. As also discussed above, defendant exhibited a continuing ability to understand and participate in the proceedings. Defense counsel had no obligation to assist defendant in his malingering. “The right to assistance of counsel does not encompass the right to pursue frivolous or vexatious issues. [Citation.]” (People v. Hodges (2009) 174 Cal.App.4th 1096, 1107.)
The trial court determined, moreover, that defense counsel had not caused any deterioration in the attorney-client relationship, but rather that defendant had created the deterioration by falsely alleging that defense counsel had called him a racial slur. A defendant cannot force the substitution of counsel by feigning incompetency, malingering, manufacturing allegations against his counsel, and disrupting the proceedings. (People v. Smith, supra, 6 Cal.4th at p. 696.)
C. Admission of Photographs
Defendant contends the trial court erred in admitting irrelevant and prejudicial photographs of the fetus.
1. Additional Factual Background
During direct examination of the pathologist, the prosecutor introduced three photographs of the fetus for the purpose of helping prove the fetus’s age and structures. No defense objection was then raised.
Later, during a discussion of exhibits, defense counsel objected to the photographs of the fetus as inflammatory “given the lack of dispute on the age of the fetus....” The trial court overruled the objection because the jury had already seen the photographs. Moreover, the court stated that the photographs illustrated the testimony of the pathologist and provided information that would not necessarily have been “within the jury’s knowledge, understanding, or comprehension.” The court determined that the probative value of the photographs outweighed their prejudicial effect.
2. Forfeiture
The People contend that any issue concerning the admissibility of the photographs was forfeited because defendant failed to raise a timely objection at trial. (Evid. Code, § 353; see also People v. Martinez (2010) 47 Cal.4th 911, 961 [the capital defendant’s claims that testimony was irrelevant and violated the Eighth Amendment and his rights to due process and a fair trial were forfeited on appeal because at trial his counsel had objected only on Evidence Code section 352 grounds].) We agree that defendant has forfeited his challenge to the photographs.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J. MILLER J.