Filed 12/18/19 P. v. Daniels CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

REBECCA DANIELS,

Defendant and Appellant.

A153261

(Sonoma County

Super. Ct. No. SCR694326)

Defendant appeals from a judgment after a jury trial convicting her of one count of felony use of tear gas or a tear gas weapon (Pen. Code, § 22810, subd. (g)(1) ) and one count of misdemeanor battery (§ 242). The trial court reduced the felony conviction to a misdemeanor and sentenced defendant to an aggregate of 24 months of informal probation on both convictions.

Defendant argues several errors require reversal and a new trial. She contends the trial court (1) improperly found her competent to stand trial; (2) improperly allowed her to represent herself at trial without advisory counsel; and (3) erroneously allowed the admission of evidence of prior offenses committed by defendant (“prior offenses evidence”) and failed to give a limiting instruction concerning such evidence. We conclude defendant’s claims of error, whether considered individually or cumulatively, do not warrant relief and affirm.

FACTS

In this section we present a summary of the evidence admitted at the jury trial held over the course of three days in December 2017. Additional facts necessary to resolve defendant’s appellate contentions are set forth in our discussion.

In its opening remarks to the jurors, the trial court informed them that defendant had a right to an attorney at trial, but she had chosen to exercise her constitutional right to act as her own attorney, and defendant’s decision was not to affect their verdict. The jurors were also informed that the court would apply the rules of evidence and procedure to defendant in the same way as applied to any other attorney. Following the introductory instructions, both the prosecutor and defendant presented opening statements, which were not transcribed.

A. People’s Case

The victim C.M. testified that at noon on September 14, 2016, he was riding his bicycle when he decided to get off and walk on the sidewalk. Thirty minutes later, as the victim stood on the sidewalk, a woman ran across the street and confronted him. At trial, the victim described his assailant as a woman in her thirties or forties, with long, possibly brown, hair, and wearing “[a] red jacket of some kind, a sweatshirt.” The woman assailant screamed something to the effect that the victim better watch where his “eyes are going,” and then she reached into her bag and grabbed a pepper sprayer. The victim responded, “stop attacking me, stop attacking me.” The woman assailant put the sprayer right up to the victim’s face and sprayed his eye. The victim felt a burning sensation and his eye was teary but he had no permanent injury. The victim walked away towards a nearby police substation and the woman assailant walked in the opposite direction. The victim immediately called the police to report the assault. In his 911 call to the police, the victim described his assailant as a white woman, with dark brown hair, wearing a red shirt and blue jeans. After the police detained defendant, the victim made an “infield” identification of defendant as his assailant based on the sweatshirt she was wearing. At trial, 16 months later, the victim was unable to positively identify defendant as his attacker. He testified that before the incident he never had any contact with his assailant whom he claimed was a complete stranger to him.

On cross-examination, the victim testified that defendant looked familiar to him, admitting he did volunteer work and had lived at a place “a number of years ago” where defendant had also lived “a number of years ago,” but he denied knowing defendant or having ever spoken to her, and he could not affirmatively identify her as his assailant. At an earlier preliminary hearing he had testified that while under attack he had the impression his assailant might have been someone he met at a club where he attended AA meetings and he might have offended her in some way. However, at trial he explained that it seemed rather odd that a perfect stranger would attack him with pepper spray and his earlier explanation for the attack was his “best guess” at what could have caused the incident but he really had no idea why he was attacked. The victim could not recall whether or not he had ever met the defendant at the club where the victim attended AA meetings.

Detective Walter Spiller testified that he responded to the victim’s 911 call. The victim described his assailant as a white female adult, dark brown hair, red shirt, blue jeans, who was on foot walking towards a cemetery. The detective found and detained defendant because she matched the description given by the victim. Defendant was “verbally agitated,” “questioning” why the detective was contacting her. The detective told defendant that she matched the description of a suspected assailant. The detective performed a cursory pat search of defendant for weapons and found a container of pepper spray in her right front pants pocket; the officer removed the pepper sprayer from defendant’s possession. At trial the detective identified defendant as the person he had detained. The detective also identified a video taken from a body camera of a police officer who had assisted in defendant’s arrest. The portion of the video shown to the jury depicted the detective’s interaction with defendant after she had been detained, the detective’s cursory pat down search of defendant for weapons, and the discovery and removal of the pepper sprayer from defendant’s possession. The detective did not recall if he had ascertained whether the pepper sprayer had been used in any way.

Police Officer John Antonio also responded to the victim’s 911 call and met the victim near to the scene of the incident. The victim stated he had been pepper-sprayed in the eye by a woman assailant whom he did not know. He appeared very nervous and upset, his face was red, and there was redness in his eye. The victim agreed to an “infield showup” procedure, and was taken a distance of approximately 500 to 800 yards to where defendant had been detained by Detective Spiller. After being informed that the detained person might or might not be the assailant, the victim identified defendant as his assailant and again stated he did not know her. Antonio also questioned defendant, who explained that “she felt” the victim had been following her, and “there was some prior contacts with her. So she was upset.” However, the victim had told the officer that he had been on the opposite side of the street from his assailant before the attack. When Antonio questioned defendant about the fact that the victim had been pepper sprayed, defendant replied she “would pepper spray whoever she wants,” but she did not say she had pepper sprayed the victim that day. Antonio took possession of the recovered pepper sprayer, which was admitted into evidence over defendant’s objection. When asked if there was any way to tell if the canister in the pepper sprayer had been used, the officer said, “[a]t the time it was given to me, probably not. Just maybe the weight. And we obviously didn’t weigh it.” On cross-examination, Antonio confirmed that the street on which the incident took place was a “relatively busy street in the middle of the day,” but the police had not found any third-party witnesses to the incident.

Police Officer Robert Hawkins testified he had assisted the other officers with defendant’s detention and arrest. The distance between the place of the incident and defendant’s detention was approximately “two-tenths of a mile. Not very far.” When Hawkins first contacted defendant he did not see any signs of intoxication, and a breath test revealed a .03 percent blood-alcohol level, below the legal limit for driving while intoxicated. When asked if she had pepper sprayed anyone that day, defendant replied she did not remember because she had been drinking alcohol. On cross-examination, Hawkins could not recall how many hours passed between defendant’s detention and the administration of the breathalyzer test. Hawkins also confirmed that the area where the incident took place was “a reasonably busy area” during the time of day of the incident but he did not know if the police had investigated whether or not defendant was the person who was actually in the area.

During the People’s case in chief, the prosecutor presented testimony of three witnesses concerning prior offenses committed by defendant.

Police Officer Michael Paetzold testified that, on September 2, 2010, he investigated an incident concerning defendant, who had been reported as an unruly patient at a hospital. The officer tried to calm defendant and eventually told her she could leave the hospital. When Paetzold attempted to walk defendant out of the hospital, defendant pulled away from him and screamed at him and hospital staff. Paetzold detained defendant and, when they arrived at the jail, defendant continued to be noncompliant and yelled at the officer.

N.T. testified that, on September 30, 2010, defendant struck her with a marble statue while screaming she was going to kill N.T. N.T. called 911 for assistance while defendant continued to hit N.T., inflicting serious injuries. Defendant left before the police arrived at the scene.

Police Officer Jaime Espinoza testified that, on December 9, 2014, he and his partner were twice dispatched to investigate a disturbance at a hospital where defendant was on a 72-hour hold under Welfare and Institutions Code section 5150. The first time, defendant was in the emergency room and she informed the police that she did not want them there. The police left but later returned in response to a second call that defendant had verbally attacked and pushed an emergency room nurse when hospital staff tried to stop defendant from leaving the hospital. Espinoza did not see any injuries on the nurse that reported the pushing incident. The police pursued defendant, who had left the hospital and would not stop at their request. Defendant eventually stopped and was detained by the police. After being read her Miranda rights, defendant said she pushed the nurse after medical staff had first pushed her, and she ran away from the police because she was scared of the hospital staff.

B. Defendant’s Case

Defendant presented three witnesses to attest to her character of nonviolence. Police Officer Garrett Glaviano testified he had two previous contacts with defendant and was not aware of her being violent. Glaviano knew defendant carried pepper spray, but he did know she had used it.

Defendant’s ex-husband, who had known her since 2004, testified he did not know her to be dangerous. When asked if his opinion of defendant’s character for violence would change if he knew about defendant’s prior history of pushing a nurse, verbally assaulting hospital staff, pulling away from a police officer, or spraying a stranger with pepper spray, the witness replied, “No. In fact, I find those allegations difficult to believe.”

L.S., a licensed therapist, clinical counselor, and defendant’s friend, who had known defendant for 18 months, testified she had visited defendant in jail, and allowed defendant to live with her for five days after defendant was released from jail. L.S. had never seen defendant act violently and, because L.S. did not believe defendant was a violent person, she had introduced defendant to her children. L.S. hired defendant to work part-time as an administrative assistant and described her as an “excellent employee.” L.S.’s opinion of defendant’s character for violence was not changed based on defendant’s “criminal past,” which the witness was aware of based on conversations with defendant and reading police reports provided by defendant. L.S. testified that defendant had said she had never hit N.T. and she had never pepper sprayed anyone. If N.T. had sustained the injuries as the witness had testified at trial, then that knowledge would give L.S. “pause” to change her opinion about what had occurred on that occasion.

C. Closing Arguments, Jury Instructions, and Verdict

During the jury instruction conference, the court informed the parties that although it did not have a “so-called sua sponte duty to instruct on” defendant’s character for nonviolence, it would be appropriate in this case given the nature of the defense evidence. Thus, in addition to the instructions offered by the prosecution concerning defendant’s right not to testify (CALCRIM No. 355) and limited consideration of the evidence of defendant’s out of court statements (CALCRIM Nos. 358, 359), the court also advised the jurors regarding consideration of the evidence of defendant’s character for nonviolence and any evidence of her bad character for that trait (CALCRIM No. 350). Neither party objected to the CALCRIM No. 350 instruction. Additionally, the trial court rejected the prosecution’s request to instruct the jury that defendant did not act in self-defense. Instead, the court accepted defendant’s proposed self-defense instruction to the extent that the jury was advised, in pertinent part, that to find defendant guilty of using tear gas or a tear gas weapon the jury had to find she acted willfully and not in self-defense; similarly, to find defendant guilty of battery, the jury had to find she acted willfully and not in self-defense. Neither party asked the court for an instruction regarding the prior offenses evidence, and the court did not sua sponte instruct the jury as to how to consider the prior offenses evidence (CALCRIM No. 375).

During her brief initial closing remarks, the prosecutor urged the jury to convict based on the evidence demonstrating defendant’s commission of the charged offenses, as well as her flight from the incident and her statements to the police; the prosecutor did not refer to the prior offenses evidence. In her closing, defendant urged the jurors to reject the prosecution’s evidence, specifically asking them to discount the prior offenses evidence as not supporting the prosecution’s theory that she was a person who committed violent acts of a spontaneous nature against strangers. In rebuttal, the prosecutor explained the prior offenses evidence was admitted to show that defendant had acted pursuant to “a common plan” or a “common pattern of behavior,” and “to show an escalating pattern of violence. . . . [I]nitially, it’s a push, then it’s an assault [on N.T.] that causes her to get medical attention. It’s a verbal assault on the ER staff . . . . And here, it’s a use of pepper spray and a battery against [the victim], a complete stranger.” The prosecutor also argued that the jury should consider that the defense witnesses who discussed defendant’s “character” for nonviolence, had only heard about the previous offenses through defendant, and not from talking to the witnesses or based on the evidence heard by the jurors.

The jurors deliberated for one hour and did not ask for a read back of testimony or ask any questions. Defendant was convicted of both offenses and the polling of the jurors confirmed the verdicts.

DISCUSSION

I. Trial Court Properly Found Defendant Competent to Stand Trial and Represent Herself At Trial Without Advisory Counsel

A. Relevant Facts

1. Background

On September 16, 2016, the Sonoma County District Attorney filed a felony complaint charging defendant with felony use of tear gas or a tear gas weapon. Defendant was present in court, was advised of the charges against her, and declined appointment of the public defender as counsel. The matter was continued to September 21 for a report on defendant’s mental health. On September 21, the court appointed the public defender to represent defendant, the matter was continued to October 12 for a report on defendant’s competency to stand trial, and the proceedings were suspended.

On October 12, the court found defendant incompetent to stand trial and the proceedings remained suspended. Dr. Robbin Broadman, the court-appointed psychiatrist, filed a report stating that defendant had symptoms consistent with a number of disorders, including “Bipolar, Schizophrenia and Schizoaffective Disorder,” but he opined she most likely suffered from “bipolar disorder and would benefit from antipsychotic medication.” He further indicated defendant was unable to accept her diagnosis and would not take medication. On November 15, the court filed its order committing defendant to the Napa State Hospital with a reported diagnosis of “schizophrenia,” hospital staff was granted permission to involuntarily medicate defendant if she did not consent, and the proceedings remained suspended.

On February 9, 2017, defendant was admitted to Napa State Hospital. Three months later, on May 22, the court found defendant competent to stand trial and reinstated the proceedings based on an April 27 report prepared by Dr. Corey Hahn, PSYD, senior psychologist (and administratively reviewed by Patricia Taylor, M.D. or her designee as Medical Director), and a May 5 certification of mental competency from Napa State Hospital. Defendant entered a plea of not guilty to the felony complaint and the matter was continued to June 6 for a preliminary hearing.

At the June 6 preliminary hearing, defendant was present and represented by appointed counsel. The court heard testimony from the victim and Police Officer John Antonio. Following the preliminary hearing, defendant was held to answer for one count of felony use of tear gas or a tear gas weapon. On June 14, the Sonoma County District Attorney filed an information, which, in pertinent part, charged defendant with one count of felony use of tear gas or a tear gas weapon. The information was later amended to include one count of misdemeanor battery.

On June 16, defendant’s appointed counsel declared a doubt as to defendant’s competency to stand trial and the court again suspended the proceedings and appointed a new psychiatrist to examine defendant. Defendant vigorously objected to submitting to another psychiatric examination because, among other things, she had been found competent just one month previously in May, she was taking her medication, the previous day the jail psychiatrist had seen her for the “contracted amount of time” and said defendant was “stable on medications,” and while there were different opinions as to her mental health diagnoses, no one who had previously evaluated her had agreed with the schizophrenia diagnosis that had been proffered by Dr. Broadman. She further informed the court she had been in custody since September 14 and had given “more than enough participation” to psychiatric evaluations. The court responded that, while it did not discount defendant’s concerns, it did not have much choice but to appoint another psychiatrist. When defendant asked what would happen if she did not speak to the new psychiatrist, the court stated it would make a determination as to defendant’s competency and her need to return to the hospital for further treatment based on the information previously received by the court. However, the court urged defendant to speak with the newly appointed psychiatrist. Defendant was willing to submit to an examination by the court as to her understanding of the proceedings, but she did not want to participate in another entire psychological or psychiatric evaluation. The court appointed Dr. Laura Doty to evaluate defendant. Subsequently, Dr. Doty informed the court she was unable to give her opinion on defendant’s competency because defendant had refused to participate in the court-ordered evaluation. On July 6, the public defender’s office declared a conflict and, the next day, the court appointed new conflict counsel to represent defendant.

On July 17, defendant and her newly-appointed counsel appeared in court. Based on Dr. Hahn’s April 27 report from Napa State Hospital, and with both defense counsel and the prosecutor agreeing that neither had a doubt as to defendant’s competency, the court again found defendant competent to stand trial and reinstated the proceedings.

Several weeks later, at an August 10 hearing, the court again suspended the proceedings and scheduled a hearing for August 23. As the record contains no reporter’s transcript of the August 10 hearing, it is unclear whether counsel or the trial court had declared a doubt regarding defendant’s competency and the basis for any doubt. Also, based on later proceedings, discussed infra, it appears that at the August 10 hearing defendant made a request to discharge her appointed counsel.

2. August 23, 2017 Marsden Proceeding

At the August 23 hearing, scheduled to determine defendant’s competency, defendant’s counsel asked the court to start with a Marsden hearing. Defendant interrupted, asking “Why are we doing a Marsden? I never requested a Marsden. I never requested a Marsden. From the time that I was last here, Your Honor, I haven’t spoken with my attorney at all.” In response, the court reminded defendant that what she “did say when you were here last was that you wanted to fire [your appointed counsel],” to which defendant said, “That is correct.” The court then explained that defendant’s request to “fire” her attorney “essentially triggers” a Marsden hearing to be held in a closed courtroom at which time the court would consider defendant’s reasons for wanting to discharge her appointed counsel.

After closing the courtroom, the court conducted a Marsden hearing to address defendant’s concerns about her appointed counsel. Defendant began by explaining that it was her understanding that her constitutional right to counsel allowed that she did not have to be represented by counsel. She noted that at the beginning of the case she had specifically told the court she did not want to be represented by appointed counsel because of her “phenomenally egregiously poor” experience with the public defender’s office on a past criminal matter. However, she was ultimately “forced” into accepting an appointment of counsel in this case, which led to postponements, delays, and, embroiled her in proceedings regarding her competency based on a misdiagnosis of her mental health, as none of the psychiatrists and psychologists who had seen defendant had agreed with the Sonoma County psychiatrist’s diagnosis; according to defendant, there was “no schizophrenia, there[ ] [was] no borderline, there[ ] [was] nothing.” She informed the court that a previously appointed attorney had asked her if she wanted to argue the case herself, and while she “could argue the case” herself as she had forensic experience and school experience, she did not have the resources or ability to research or to “cite law, West Law.” She further stated “it’s not illegal for me to carry pepper spray, but I don’t want to argue the case.” She then returned to her problems with her current counsel’s representation thus far, complaining that he wanted her to enter either a plea of not guilty or a “NGI” [not guilty by reason of insanity] plea, however, she believed neither plea, standing alone, was appropriate in her case, and that the only appropriate plea in her case “because of the situation and circumstances is a dual plea [ ] and yet he won’t let me do that.” She also did not believe her current counsel was adequately familiar with representing a defendant with mental health diagnoses, and he had failed to allow her to see all the psychological reports, and pursue arguments that her rights had been violated by the court proceedings thus far.

Defense counsel responded he had been practicing law since 1994 and been on the panel for assignment since 2010. He had face-to-face meetings with defendant on two occasions while she was in custody and they had “long conversations” about her case. He had given her a copy of Dr. Broadman’s report and had never tried to coerce her regarding her plea. He believed he had pursued all relevant, legal, and factual means of defense.

The court found there was no irreconcilable conflict requiring the removal of appointed counsel, who was ordered to continue to represent defendant “at least through the proceedings regarding competency,” for which defendant was required to have counsel. Thereafter, the court would consider “possibly resolving the case” with or without appointed counsel depending on defendant’s choice at that time.

3. August 23, 2017 Competency Proceeding

Following the Marsden hearing, the court reconvened the proceeding in open court to consider the matter of defendant’s competency. Defense counsel informed the court he could “short circuit this,” by stipulating to the court’s consideration of Dr. Hahn’s April 27, 2017 report. Counsel then argued the report was “largely irrelevant as we approach September,” and urged the court to appoint a “primary” psychologist to evaluate defendant and submit an “updated” report. The prosecutor reported she had talked with Dr. Hahn about conversations that the prosecutor had had with defendant “while [defendant] had been in custody here in the courtroom,” and Dr. Hahn indicated there “may be a change” in defendant’s status and given the “age of the report, there’s a possibility that could happen, but at this point” he could not say because he had not examined defendant.

Dr. Hahn testified that, based on his review of defendant’s medical reports and his evaluation in April 2017, defendant met the DSM-5 criteria for bipolar 1 disorder, manic with psychotic features, and “unspecified personality disorder,” which meant she showed some traits of different personality disorders but did not meet the criteria for any particular disorder. When defendant was committed to Napa State Hospital in February 2017, she was experiencing symptoms of her bipolar disorder, including “an elevated mood, pressured speech” where she would not stop talking and was not able to be interrupted, and “some delusional beliefs” about being a member of a board of directors and an investigative journalist, which the staff psychiatrist considered “grandiose,” and “also what were described as paranoid delusions that members of the legal system, her family were more or less out to get her,” and she also had “a recorded history of auditory hallucinations.” Defendant was also experiencing symptoms of her unspecified personality disorder, including “[r]apidly shifting emotions, shallow affect, ability, [and] instrumental use of her emotions for secondary gain, what we call splitting which is a symptom of borderline personality disorder,” and “[a]lso suicidal threats.”

By the time of his April 2017 evaluation, however, Dr. Hahn found defendant’s described symptoms were “more or less stabilized. There were some symptoms that continued to be evident to a lesser degree. So, attenuated, well-controlled after about 80 days at the State Hospital when she had been prescribed medications. There [was] some residual pressured speech,” but it was controlled and they were able to “have a two-way or bilateral discussion at that time.” Dr. Hahn had not investigated, and therefore, had no information regarding the truth of defendant’s “delusional” beliefs, for example being a member of a board of directors, as reported in her medical records. Thus, Dr. Hahn opined it “certainty could be possible” that defendant was “an extraordinary person who has been on the board of three different [companies] and has worked as an investigative journalist and so forth.” At the time of Dr. Hahn’s evaluation, defendant did not “report” any specific delusional beliefs and any “delusions weren’t present and didn’t impair her thinking about her legal strategy.” Dr. Hahn had not been provided with any records indicating defendant had sustained any kind of toxic ingestion in her medical past.

Dr. Hahn’s April 27 opinion defendant was competent to stand trial was based in part on the absence of defendant’s symptoms of delusions and her bipolar, unspecified personality disorders. When he spoke to defendant on April 27, he found that she “absolutely” understood the nature of the trial process and the reasons she was at Napa State Hospital. Dr. Hahn opined defendant was “a pretty bright person” and, therefore, “a factual understanding of the nature of the proceedings” was not an issue “and she was able to provide very clear and concise and accurate responses to questions.” The “greater” and “most concerning” issue was whether she had the ability to assist counsel. When asked if, as he sat in court, he saw any issue regarding defendant’s ability to assist counsel, Dr. Hahn replied, that “without having more specific examples, it’s difficult because I don’t know what they’re communicating about or what [defendant] is saying. . . . But as I sit here . . ., [defendant] is very calm and she’s listening to me. That doesn’t necessarily mean that her reasoning is intact because I don’t have examples to make a determination one way or the other about what she might be thinking or what she’s writing on her notepad . . . .”

Dr. Hahn further testified if defendant had decompensated since the time of his evaluation, he would expect to see a return of her symptoms. For example, if defendant were expressing doubt in her attorney to the point that she and only she could represent herself, that “kind of a symptom, certainly could represent psychiatric decompensation.” Similarly, if defendant were more boisterous and forward, presenting elements of a case for herself rather than through her attorney, that “symptom” would be potentially a symptom of pressured speech different from when he evaluated her, but it also could be “grandiosity, an exaggerated sense of her own abilities.” Also, if defendant could only see the court, her attorney, or the district attorney, as against her, such a “symptom” would be in line with a symptom of a “splitting” personality disorder. Nonetheless, Dr. Hahn declined to give an opinion as to defendant’s current competency: “[I]n my opinion it wouldn’t be fair to offer this kind of opinion without formally evaluating her. But information to [be] consider[ed by] an evaluator would be . . . whether or not she’s taking psychiatric medications, examples of her behavior in the jail[,] . . . her thought processes, her ideas about her attorney and the legal system and information in the police report, and, . . . whether or not she has any delusional beliefs about the case or members of the legal system that would be interfering with her judgment or her decisional capacity.”

The prosecutor argued the trial court should find defendant competent based on Dr. Hahn’s April 2017 report, and that while defendant had exhibited in the courtroom “some traits that may be symptoms of her bipolar or unspecified personality disorder, without more, there’s nothing for us to show that she is not competent per the report from Dr. Hahn.” The prosecutor noted that “it seems most important that there be a second evaluation. It seems that our evaluation of competency may not be the most accurate, but as [defendant] sits here, she’s able to communicate with her attorney. And without any other specific examples of not taking medications or treatment in the jail or having to be moved in the jail, I don’t think that there’s any evidence to show that she isn’t competent at this point.”

Defense counsel argued the proceedings should remain suspended and the court should order defendant to submit to another psychiatric evaluation as counsel did not think “the evidence before us is adequate,” there was a need for “an evaluation that’s timely,” and counsel could not present any evidence as to defendant’s ability to assist him “without an attempt at [an] evaluation by a new alienist.”

“[H]aving heard from Dr. Hahn, having also had the opportunity to speak directly and observe [defendant’s] behavior . . . and the Court’s own powers under Section 1368 of the Penal Code in terms of making its own observations, declaring its own doubts or lack thereof and now having heard the evidence that’s been presented, [and] the arguments of counsel . . .,” the court found defendant competent and reinstated the proceedings.

4. August 23, 2017 Faretta Proceeding

Immediately following its competency finding and reinstatement of the proceedings, the court informed the parties: “So that leaves us in the position of having this matter set for trial or disposition.” Defense counsel asked the court “to explore a Faretta motion with [defendant] given her previous statements.” The court asked defendant if she wished to represent herself or would agree to have appointed counsel continue to represent her. In response, defendant explained that she was concerned that, by having counsel, she would not be able to ask questions during a trial. She then gave the court an example of a problem that occurred during the competency hearing when she was restricted by the court’s procedure requiring her to be quiet and pass notes to counsel, rather than being allowed to question the witness herself. After the completion of her explanation of her concern regarding the limitation on her ability to question a witness at the competency proceeding, the following colloquy occurred:

“Court: Let me stop you there . . . . I’m going to go back to the original question.

“Defendant: Right. Right.

“Court: Do you wish to represent yourself –

“Defendant: Okay. Sure.

“Court: — or be represented by counsel?

“Defendant: Yeah, I’ll argue the case.

“Court: You wish to represent yourself?

“Defendant: I’ll represent myself.”

Defendant was then given a Faretta “document,” which the court asked her to read and fill out carefully. In response, defendant informed the court that she did not have her glasses because they were with her property that had been transferred to another jail. The court then had defendant sworn and she verbally responded to the questions on the Faretta document as read to her by the court.

The court began by asking defendant if she was asking the court to allow her to represent herself without the assistance of an attorney. Defendant replied, “Can I have the attorney here by my side and allow myself to argue? No, it doesn’t work that way? The court replied, “It doesn’t work that way.” To which defendant replied, “Okay. So, yes I am. Well, I have to ask, right? . . . I have to ask so that I can be clear if I have a question.” To which the court replied, “That’s totally fine, but at this stage I do need for you to have a full understanding of what it means to waive your right to counsel and that includes the fact that if you do represent yourself you won’t have an attorney assisting you or helping you to answer questions or anything like that, you will be on your own.” To which defendant responded, “Okay.”

The court then asked defendant to respond to questions concerning her understanding of her right to counsel and other trial rights. Defendant responded that she understood she had the right to an attorney at all stages, the right to a speedy trial now that criminal proceedings had been reinstated, the right to subpoena witnesses and records that she might need in her defense, to confront and cross-examine witnesses, the right against self-incrimination, and the right to testify at trial but she could not be compelled to testify. The court asked, “You understand that you also have the right to represent yourself and you can waive your right to counsel and that if you are permitted to represent yourself, you will have to conduct your own defense without the assistance of a lawyer? Defendant asked the court to repeat the question because it “was an awfully long sentence.” “The Court: Yes. [¶] You understand that if you do represent yourself – “The Defendant: Uh-huh.” “The Court: — you will have to conduct your own defense without the assistance of a lawyer?” “The Defendant: Yes.”

The court then questioned defendant to ascertain her ability to represent herself. Defendant stated she could read and write in English, had a master’s degree in clinical psychology, had attended medical school for one year, and had taken courses in family and business law. Defendant held various jobs as a journalist and writer, was currently employed as an office manager, had her own corporation and was also on the board of directors of a nonprofit global organization and president of a school board.

In response to the court’s questions concerning her understanding of the charges against her and trial proceedings, defendant affirmatively stated that the prosecution must prove she committed a crime and there must be either a police officer who witnessed the crime or another witness or evidence showing that she in fact committed the crime. Defendant also stated: “according to the charges that I have right now, I’m charged with illegal use and possession of tear gas and tear gas weapon. There is no such thing found upon me, around me, or in evidence. They then stated that the same statute, felony statute applied to tear gas which is a little confusing to me because it’s not illegal to carry tear gas. I mean – excuse me, pepper spray. And I did have pepper spray on my person. So what they also need to prove is that I used it upon this person; [the victim] and they have no witnesses, no camera footages and it is on a main thoroughfare . . . . So the District Attorney has to prove their case. I’m not the one that has to prove my innocence as much as they have to prove their defense. They have to prove that I did it. So the onus is on them is my understanding.” The court then asked if defendant knew what defenses she could pursue in response to the prosecution, “[i]n other words, that you didn’t do it or they can’t prove it, you already mentioned some of those, or that there is some self-defense or some other basis upon which you could raise a defense. Are you aware of those things?,” to which defendant replied, “Yeah.” She also affirmatively stated that the maximum possible punishment she could receive was three years, she had served basically two years in custody, and a possible consequence of the trial could be that a conviction “potentially could damage [her] MFT licensure.”

In response to the court’s questions as to whether her ability to represent herself would be impaired by any mental illness or disability or any drugs, medicine, or alcohol, defendant replied: “Okay. So, in my thinking I do have a mental illness. I have three. I know what the formal diagnosis is, Asperger’s, depression, it’s called dysthymia which is long term depression, and I have post[-]traumatic stress disorder, extreme. I also have heavy metal toxicity diagnosed by UCSF, extreme. So, can they impair? Yes, they can. Are they impairing me? No, they’re not impairing me right at the moment. I am taking some medication, but my depression has been untreated since I left . . . Napa [State Hospital] because the jail has not given me any antidepressants. So . . . I’m constantly writing grievances . . . . That’s not going to get resolved. . . . [¶] So, do I have diagnoses? [¶] Yeah, I heavily [sic] submit that I do. I’m not in denial about that. [¶] . . . I’m not saying I have forensic abilities to navigate a courtroom as well as some of the attorneys I have seen have done it. I am not delusional about that. I am saying there are questions and issues that I have that can prove my case that are not being asked or answered and I think they are germane and that is why I want to represent myself. [¶] I don’t know how to answer that. The answer is yes, I have something that can interfere. Is it interfering right now? I don’t think so, no.”

The court cautioned defendant about the dangers of self-representation, first asking if defendant understood that counsel would be able to investigate her case and advise her of her options. Defendant responded that the problem was that her case was not being investigated, and that she had asked for a specific attorney but had been given other counsel appointed by the court. The court informed defendant that she was “way off topic here,” and that the court was merely asking if she was aware that, if she had an attorney, the attorney would be able to investigate the case and advise her of her options, to which she replied, “Yes.” In response to the court’s question as to whether defendant also knew she would be required to present her own defense without the advice of counsel, and would have to do her own research and conduct her own investigation, she replied, “Now I do. I didn’t know that before.” She also understood that she would be required to follow the same rules and procedure and evidence as a lawyer and she would not get special treatment from the court even if she did not fully understand what she was doing. When asked if she understood that her opponent may be an experienced, thoroughly prepared attorney and she would be at an extreme disadvantage and could lose the case, she replied, “I would expect nothing less.” When the court informed her that if she were convicted she would not be able to appeal on the ground she did not have an attorney, defendant asked if she could appeal on other grounds, to which the court replied that she could but not “just because” she did not have counsel.

Following the court’s reading of the questions in the Faretta document, the following colloquy took place:

“Court: I’m prepared to declare under penalty of perjury, under the laws of the State of California that you heard me read this entire form and you understand the warnings and that you still wish to represent yourself in this matter and that you freely and voluntarily waive and give up your right to be represented by a lawyer or to have the assistance of a lawyer for your defense and that you choose to represent and defend yourself without a lawyer.

“Defendant: Can I take that back if I choose to? [¶] Can I then – can I have – if I can get representation between now and the trial time, can I – can I – is this revocable? That’s what I want to know.

“Court: It is if you do decide to retain another attorney. I don’t know that the court would be in a position to appoint another attorney for you, but if you were to retain an attorney, that is certainty a possibility. So it’s not irrevocable in that sense.

“Defendant: So I just write a letter to the court[] and we have a hearing about that again?

“Court: Yes.

“Defendant: So, yes, I’m more than happy to sign that. Yes, I will sign that under penalty of perjury that representing myself I will be at a distinct advantage [sic] and that you’ve heard [and] you read everything on the – on the page.

“Court: Based on this conversation and the court’s review of the Faretta form, the Court finds that [defendant] has the mental capacity to make a lawful waiver of her right to counsel, she’s been advised of the constitutional and statutory rights, she understands those rights, she has made an express, explicit, voluntary and willing and knowing and intelligent decision for self-representation and the Court will now allow [her] to appear in propria persona.”

B. Analysis

1. August 23, 2017 Ruling on Defendant’s Competency

Defendant argues the trial court committed prejudicial error by allowing her case to proceed to trial without resolving her competency to stand trial. It is her contention that at the conclusion of the August 23 hearing, the court should have continued to suspend the proceedings and appoint a new psychiatrist to evaluate her competency at that time. However, as we now explain, defendant’s contention is unavailing.

“When the judge’s attention is called to the issue of incompetency, or he suspects the possibility (Pen. Code, § 1368, subd. (a)), the trial judge has a duty to determine whether or not there is substantial evidence to require a full hearing. If the judge determines that a full hearing is required, he is then obligated to conduct such a proceeding.” (People v. Stewart (1979) 89 Cal.App.3d 992, 996.) However, “[w]hen a competency hearing has already been held and defendant has been found competent to stand trial, . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding.” (People v. Jones (1991) 53 Cal.3d 1115, 1153 (Jones), citing People v. Zatko (1978) 80 Cal.App.3d 534, 548, People v. Melissakis (1976) 56 Cal.App.3d 52, 62.)

The record shows at the August 23 hearing there was no evidence of a “substantial change of circumstances” or “new evidence” casting serious doubt on the earlier competency findings (made in May 2017 and July 2017) based on Dr. Hahn’s April 2017 report that required the trial court to hold a new competency hearing. Defense counsel suggested that a new hearing was required because of the staleness of Dr. Hahn’s April 2017 report, but no evidence was offered to show that defendant had lost the ability to understand the nature of the criminal proceedings or assist in her defense at the time of the August 23 hearing. While the prosecutor mentioned her observations and interaction with defendant in the courtroom, she also offered no specific examples of defendant’s conduct indicating defendant had again become incompetent to stand trial.

In challenging the trial court’s refusal to order a new competency hearing on appeal, defendant questions “the ability of any jurist to make” the determination defendant had not become incompetent “when a forensic expert . . . was incapable of doing so without an opportunity to evaluate her present mental condition in order to render an opinion as to her competency.” However, the issue before us is not whether the trial court could make a determination of competency in light of Dr. Hahn’s testimony at the August 23 hearing, as defendant suggests by her argument. Instead, we are here faced with the more limited issue of whether defendant met her burden at the August 23 hearing of submitting substantial evidence that called into question the court’s earlier competency findings. She did not.

As explained by our Supreme Court, a trial court may find a defendant has submitted substantial evidence to call competency into question “ ‘ “[i]f a psychiatrist . . . who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, . . . incapable of assisting in his defense or cooperating with counsel.” ’ ” (Jones, supra, 53 Cal.3d at p. 1154, quoting People v. Stankewitz (1982) 32 Cal.3d 80, 92, quoting People v. Pennington (1967) 66 Cal.2d 508, 519; italics added by the Jones court.) Here, Dr. Hahn had not had an opportunity to reexamine defendant and he had not been given specific examples of defendant’s conduct that demonstrated defendant had become incompetent since his last examination. Consequently, the trial court could rationally find Dr. Hahn’s testimony did not “demonstrate ‘a substantial change of circumstances’ that would require a renewed inquiry into defendant’s competence to stand trial.” (Jones, supra, at p. 1154; see People v. Medina (1995) 11 Cal.4th 694, 733–734 (Medina) [where defendant sought to challenge a 10-month-old competency finding and defense counsel informed the court “defendant had ‘no evidence’ to present at the hearing, because defendant had refused to talk to ‘the psychiatrist’ appointed to [re-]examine him,” the trial court properly concluded that, under such circumstances, no point would be served in holding a formal hearing, as no change in circumstance had been shown since the date of the last competency hearing].)

We find similarly unpersuasive defendant’s assertion the trial court failed to give adequate consideration to the history of the previous competency proceedings. Defendant contends she was entitled to a new competency hearing because on three separate occasions her appointed counsel expressed doubts regarding her competency; her first evaluating psychiatrist found her occasionally delusional, incompetent and in need of forced anti-psychotic medication; the admitting psychiatrist at Napa State Hospital found she had expressed delusional beliefs and was incompetent; she was taught competency skills at Napa State Hospital over the course of two months; and doubts of competency were again declared and the proceedings suspended on two subsequent occasions since the May 2017 competency finding.

However, to meet her burden of submitting substantial evidence calling into question her competency so as to warrant a new competency hearing, defendant was required to produce more than the fact of a four-month lapse between the May 2017 competency finding and the August 23 hearing, coupled with counsel’s “ ‘unparticularized assertion that defendant’s condition had deteriorated, with no explanation of how it had done so.’ ” (People v. Buenrostro (2018) 6 Cal.5th 367, 410, quoting People v. Dunkle (2005) 36 Cal.4th 861, 904; see People v. Laudermilk (1967) 67 Cal.2d 272, 287 [“[t]he statement of defendant’s counsel, . . ., made to the court on the day of trial, while of some significance, in our view cannot raise the requisite doubt and, even if considered in combination with other evidence . . . is of limited probative value;” “[a]lthough [counsel] asserted that defendant ‘is not capable . . . of assisting in his own defense,’ the record reveals this as the lawyer’s conclusion from an experience with an uncooperative client”].) At the August 23 hearing, neither defense counsel nor the prosecutor informed the court of any examples of defendant’s conduct indicating a recurrence or which rendered her unable to understand the proceedings or assist counsel in her defense. Additionally, prior to the July 17 competency finding, defendant made it quite clear she was unwilling to submit to another psychiatric evaluation. Therefore, her failure to submit to another evaluation before the August 23 hearing “did not, under the circumstances, constitute substantial evidence of a change in circumstances necessitating a new hearing.” (Medina, supra, 11 Cal.4th at p. 734.)

While the trial court suspended the proceedings on August 10, 2017, presumably to assess defendant’s current competency by ordering another psychiatric evaluation and holding a full competency hearing, that decision was not irrevocable. Defendant cites no authority suggesting the court lacked authority to reconsider its decision once it heard the testimony of Dr. Hahn and defense counsel announced that defendant had no further evidence to offer on the issue of her competency. (Id. at p. 754.) Because defendant had the burden at the August 23 hearing of producing evidence casting doubt on the prior competency findings (see Medina v. California (1992) 505 U.S. 437, 452–453; People v. Ary (2011) 51 Cal.4th 510, 518), and she failed to meet that burden, the court “properly could conclude that holding another competency hearing would be pointless.” (Medina, supra, 11 Cal.4th at p. 735.)

We are not persuaded by defendant’s reliance on the factual circumstances in People v. Rodas (2018) 6 Cal.5th 219. In Rodas, the Supreme Court concluded the trial court erred in failing to suspend the proceedings and initiate a second competency hearing at the time counsel declared a doubt as to her client’s competency where the formerly incompetent defendant had been restored to competency solely or primarily through the administration of medication, and there was evidence the defendant was no longer taking medication and was again exhibiting signs of incompetency. (Id. at p. 223.) While recent cases have followed Rodas, we conclude those cases similarly are inapposite. (See People v. Tejeda (2019) 40 Cal.App.5th 785, 787, 795–796 (Tejeda) [where earlier competency finding was based on defendant’s ability to compartmentalize any lingering delusion (“that his actions were controlled by a ‘mind control project’ run by the federal government”), trial court erred in failing to declare a doubt as to defendant’s competency when “confronted with circumstances” demonstrating that defendant’s delusion had recurred during the trial, when defendant “took the stand against his counsel’s wishes, admitted guilt for [a] murder and robbery, and explained that “ ‘the project’ controlled his actions”]; People v. Easter (2019) 34 Cal.App.5th 226, 243, 245–246, 248–249 (Easter) [trial court erred in failing to suspend trial and appoint new medical professional to evaluate defendant’s competency when defense counsel raised doubt as to defendant’s competency 13 months after expert evaluations were performed based on “unequivocal specifics about recent changes in defendant’s mental health, changes that in [counsel’s] opinion as an experienced deputy public defender rendered defendant incapable of aiding in his defense,” and counsel’s “description of defendant’s new ‘word salad’ symptom—especially in the context of defendant’s lengthy history of psychiatric issues, the amount of time that had passed since his initial evaluations, and an apparently recent change in his medications that could have accounted for his new psychiatric issues”].)

Unlike the situations in Rodas, Tejeda, and Easter, at the August 23 hearing here defense counsel presented no evidence or even argument that defendant was no longer taking her prescribed medication, and neither defense counsel nor the prosecutor offered any specific facts supporting their conclusory opinions that defendant had again become incompetent. Nor was Dr. Hahn able to offer an opinion that defendant had become incompetent since he last examined her. The trial court had the opportunity to observe defendant’s behavior and demeanor and had spoken to her at length during the Marsden hearing that immediately preceded the hearing on competency. We see nothing in this record that calls into question the court’s assessment of defendant’s competency. (See People v. Lewis (2008) 43 Cal.4th 415, 526 (Lewis) [court upheld trial court’s refusal to hold competency proceeding, noting, among other things, that the court “had opportunity to observe defendant’s behavior and demeanor at trial,” and “observed that defendant was ‘perceptive’ and able to cooperate with counsel”].)

In sum, we conclude the evidence at the August 23 hearing was not of such a nature as to either demonstrate a “substantial” change of circumstances or cast a “serious doubt” on defendant’s competency so as to require the court to continue the suspension of proceedings and appoint a new psychiatrist to evaluate defendant. Accordingly, defendant’s claim of error on this ground fails.

2. Self-Representation and Appointment of Advisory Counsel

Defendant also contends the trial court committed prejudicial error by permitting her to represent herself at trial and failing to consider her request for the appointment of advisory counsel. We see no merit to defendant’s contentions.

a. Self-Representation

The law governing a defendant’s right to self-representation is well settled: While “[a] defendant has a federal constitutional right to the assistance of counsel during all critical stages of a criminal prosecution,” he “may also waive this right and personally represent him[self] . . ., so long as the defendant’s waiver of the right to counsel is valid. A valid waiver requires that the defendant possess the mental capacity to comprehend the nature and object of the proceedings against him or her, and that the defendant waive the right knowingly and voluntarily. [Citation.] If a defendant has validly waived the right to counsel, a trial court must grant a defendant’s request for self-representation. [Citation.]” (People v. Mickel (2016) 2 Cal.5th 181, 205 (Mickel).) However, “[t]here is no dispute that the right of self-representation is not absolute. [(Indiana v. Edwards (2008) 554 U.S. 164, 171 (Edwards).)] The autonomy and dignity interests underlying our willingness to recognize the right of self-representation may be outweighed, on occasion, by countervailing considerations of justice and the state’s interest in efficiency. [Citations.] . . . [But, the courts have] rejected claims that the fact or likelihood that an unskilled, self-represented defendant will perform poorly in conducting his or her own defense must defeat the Faretta right.” (Mickel, supra, 2 Cal.5th at p. 206.)

In reviewing a defendant’s challenge to a Faretta waiver on appeal, “we examine de novo the whole record – not merely the transcript of the hearing on the Faretta motion itself – to determine the validity of the defendant’s waiver of the right to counsel.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz); see Mickel, supra, 2 Cal.5th at p. 205 [accord].) Based on our independent examination of the record, we can confidently conclude the trial court did not commit prejudicial error by acceding to defendant’s request to represent herself at trial.

Defendant initially complains the idea of self-representation was suggested by defense counsel with further input by the trial court. However, the record clearly shows the impetus for the court’s Faretta inquiry was prompted at least in part by defendant’s statements during the Marsden hearing that she had a constitutional right to represent herself and regarding her ability to represent herself.

Defendant also asserts the trial court should have denied her request to represent herself based on her mental health issues. In support of her argument, she contends her ability to represent herself was called into question by the following circumstances: she was unable to read the Faretta form because she did not have her glasses “and wasn’t sure where they were,” the court was familiar with the prior competency proceedings, she readily admitted to the court she had mental health problems, she frequently got off subject and talked about her concerns about her current counsel, that until the court informed her she did not know that if she represented herself she would have to do her own research and conduct her own investigation, at the end of the court’s advisements she asked if her decision was revocable, and she indicated she was prepared to sign the Faretta document under penalty of perjury that representing herself “would be a distinct advantage [sic],” and she had heard and read everything on the page. However, as we now explain, defendant’s contentions did not require the trial court to deny her request to represent herself.

Recognizing defendant had mental health issues and having just presiding over a Marsden hearing and a competency hearing, the court made an extensive inquiry as to defendant’s desire to represent herself. In eliciting defendant’s Faretta waiver, the court was not required to use any “particular form of words . . .; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (Koontz, supra, 27 Cal.4th at p. 1070.) Moreover, defendant’s failure to have her glasses in court, for which she gave a rational explanation, and her “tendency to digress in argument . . . does not necessarily mean [she] . . . [lacked]” the competency to represent herself. (Koontz, supra, at p. 1073, citing to Dusky v. United States (1960) 362 U.S. 402, 402.) A fair reading of the Faretta colloquy indicates defendant explicitly understood the consequences of representing herself. Defendant’s questions posed to the court were rational and logical queries for which defendant was provided with accurate answers before making her decision to represent herself. Her questions, as well as her responses to certain of the court’s questions, do not demonstrate, as she now contends, that she neither heard nor understood what the court explained to her about self-representation.

In determining whether a defendant’s request for self-representation should be denied due to mental health issues, our Supreme Court has adopted the standard set by the United States Supreme Court in Edwards, supra, 554 U.S. 164: “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.” (People v. Johnson (2012) 53 Cal.4th 519, 530 (Johnson).) The Johnson court further admonished that, “[t]rial courts must apply [the Edwards] standard cautiously [as] [t]he Edwards court specifically declined to overrule Faretta, supra, 422 U.S. 806. (Edwards, supra, 554 U.S. at p. 178.) Criminal defendants still generally have a Sixth Amendment right to represent themselves. Self-representation by defendants who wish it and validly waive counsel remains the norm and may not be denied lightly. A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides. Rather, it may deny self-representation only in those situations where Edwards permits it.” (Johnson, supra, at p. 531.) “As with other determinations regarding self-representation, we must defer largely to the trial court’s discretion. [Citation.] The trial court’s determination regarding a defendant’s competence must be upheld if supported by substantial evidence. [Citation.] Such deference is especially appropriate when, as here, the same judge has observed the defendant on numerous occasions.” (Ibid.)

We conclude the trial court did not abuse its discretion by allowing defendant to represent herself despite her admitted mental health issues. When questioned about her mental health in the Faretta colloquy, defendant represented that her mental health issues were controlled by medication and that she was capable of representing herself despite her lack of formal legal training. Additionally, a review of the trial record shows defendant was quite capable and ably performed many basic trial tasks, including giving opening and closing statements, cross-examining witnesses, and presenting three defense witnesses to counter the prosecution’s theory that she was a violent person. The record also shows that defendant understood the pertinent facts and legal issues in this three-day trial. For example, through her cross-examination of witnesses, defendant called into question the credibility of the victim’s ability to identify defendant as his assailant, as well as the victim’s claim that he had actually been attacked with pepper spray on a busy street in broad daylight in the middle of the day for which the People were not able to produce any third-party witnesses. During her closing statement defendant asked the jury to focus on the most pertinent legal issue, the prosecution’s burden to prove she had committed the charged offenses, and she gave a cogent argument, accurately outlining the evidence and explaining why such evidence was insufficient to meet the People’s burden. Admittedly, defendant’s representation also demonstrates she was unfamiliar with certain rules of evidence, but she makes no attempt in her briefs to identify any statement or behavior at the trial that demonstrates “ ‘[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, [or] other common symptoms of severe mental illnesses.’ ” (Edwards, supra, 554 U.S. at p. 176; cf. Johnson, supra, 53 Cal.4th at p. 532 [no abuse of discretion found in trial court’s revocation of defendant’s self-representation status where he filed numerous “ ‘nonsensical motions’ ” and conducted himself during proceedings in “ ‘a bizarre and disruptive manner’ ”]; People v. Kirvin (2014) 231 Cal.App.4th 1507, 1515–1517 [no abuse of discretion found in trial court’s revocation of defendant’s self-representation status where he occasionally refused to come to court or leave his jail cell as ordered, which threatened the core integrity of the trial].)

In sum, “we fail to perceive in this record evidence, ‘overwhelming’ or otherwise, undermining [defendant’s] stated assent to self-representation after due admonition. That defendant later took missteps in [her] self-representation or occasionally expressed some perplexity at courtroom procedure appears to reflect [her] lack of legal knowledge, not necessarily mental illness or incompetency.” (Koontz, supra, 27 Cal.4th at p. 1070.) Accordingly, defendant’s claim of error on this ground fails.

b. Appointment of Advisory Counsel

We also see reason to reverse based on defendant’s contention that the trial court abused its discretion by failing to adequately respond to her request for advisory counsel. According to defendant, the court thought it had no discretion to provide defendant with advisory counsel, or it failed to exercise its discretion had it known otherwise. Her proof of this claim is that, at the beginning of the Faretta inquiry, she asked the court if she could have counsel at her side while she argued and the court responded that it did not work that way.

We agree with the People that this issue is not properly before us. As the court explained in People v. Garcia (2000) 78 Cal.App.4th 1422, 1430–1431:

The trial court’s discretionary authority to appoint advisory counsel for a self-represented defendant does not transform “into the right of defendants who have elected to represent themselves to nevertheless have advisory . . . counsel in certain circumstances. This [would have] the effect of [a] holding that a court can abuse its discretion or otherwise commit reversible error in not appointing advisory counsel. However, a defendant who elects to represent himself or herself has no constitutional right to advisory . . . counsel . . . . [(McKaskle v. Wiggins (1984) 465 U.S. 168, 183 (McKaskle); People v. Bloom (1989) 48 Cal.3d 1194, 1218.)] . . .

“The Supreme Court in McKaskle and Faretta also made clear that a defendant who exercises his right to represent himself cannot later complain that the quality of his defense amounted to a denial of the effective assistance of counsel. [(McKaskle, supra, 465 U.S. at p. 177, fn. 8; Faretta, supra, 422 U.S. at pp. 834–835, fn. 46.)] This rule [would be] entirely eviscerated [if] a defendant is allowed to challenge a verdict on the ground that he or she was not provided with advisory . . . counsel. To permit such a challenge is to allow a defendant to complain that because of the poor quality of his self-representation, he was improperly denied effective assistance of counsel in the form of a hybrid representation. . . . We submit that such a challenge is not permitted under McKaskle and Faretta. . . .

“In reality, the concept of advisory counsel for the Faretta defendant is disingenuous. Faretta gives the pro se defendant the right to control the presentation of his case, and a defendant who represents himself does so voluntarily and knowingly, and only after being warned of the risks, responsibilities and consequences of his decision and expressly relinquishing the benefits associated with being represented by counsel. [(Faretta, supra, 422 U.S. at pp. 834–835; see also McKaskle, supra, 465 U.S. at p. 178.)]

“It would seem that if a defendant who waives the assistance of counsel is competent to represent himself, he should do so, by himself; if he is not able to defend himself without the assistance of advisory counsel, then he is not competent to represent himself. This is not to say that we oppose the right of trial courts to appoint advisory counsel . . . as part of their inherent power to control the proceedings. However, where a court does not exercise this right, a defendant who has competently elected to represent himself should not be heard to complain that he was denied the assistance of advisory . . . counsel.”

Moreover, even if defendant’s appellate claim were properly before us, it would not provide an automatic basis for reversal. Our Supreme Court has held that where a refusal to grant the request for advisory counsel “would not have been an abuse of discretion, a rule of per se reversal is unnecessary and unwarranted. [Citation.] No federal constitutional right being implicated, the consequences of the error are properly assessed by employing the Watson harmless error standard.” (People v. Crandell (1988) 46 Cal.3d 833, 864–865 (Crandell), citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Here, defendant has failed to meet her burden of demonstrating Watson error.

In arguing she was prejudiced by the court’s failure to adequately address her request for advisory counsel, defendant asserts, in the most conclusory fashion, that, “[a]s can be seen from the record, [her] ability to represent herself at trial would have been best served had she been allowed to proceed with advisory counsel, starting with trial preparation, the procurement of relevant witnesses, assistance with jury instructions and motions in limine, and assistance at trial. [¶] Had the Court recognized that [it] had the discretion to appoint advisory counsel, [defendant’s] right to a fair trial would have been better protected. Without such assistance, [she] was left to proceed to trial in an unfairly and unnecessarily disadvantaged manner. With the assistance of advisory counsel, many of the issues raised here may not have occurred.”

However, a review of the record shows no abuse of discretion. The trial on the charged offenses did not concern complex factual or legal matters, and the transcript of the trial shows defendant had an excellent grasp of the facts and inadequacies in the People’s evidence. Her appellate assertions that she might have been successful had she had advisory counsel merely “implicate the effectiveness of [her] own representation. All of the problems [defendant mentions] are the type of problems about which defendants wishing to represent themselves are forewarned. [Defendant] chose to represent [herself] despite having been warned of the potential negative consequences of doing so. [She] waived [her] right to assert ineffective assistance of counsel claims when [she] agreed to represent herself . . . . [¶] Even assuming advisory counsel would have been able to prevent [defendant] from making some . . . mistakes . . ., it is still not reasonably probable that the jury would have reached a different result.” (People v. Goodwillie (2007) 147 Cal.App.4th 695, 717–718.) This is not a case where self-representation without advisory counsel created a trial that “could rightly be described as a ‘ “farce or a sham.” ’ ” (People v. Bigelow (1984) 37 Cal.3d 731, 745.)

III. Admission of Prior Offenses Evidence Without a Limiting Instruction

A. Relevant Facts

The prosecutor filed a pre-trial motion in limine under Evidence Code section 1101, subdivision (b), seeking to admit evidence of “prior crimes for which [d]efendant has been arrested and convicted to show absence of mistake or accident, common plan or scheme and motive.” Specifically, the prosecutor sought to admit evidence of three incidents : (1) a 2010 incident in Rohnert Park for which defendant pleaded guilty to assault, with an enhancement for great bodily injury, which conviction was later reduced to a misdemeanor and expunged from her record; (2) a 2010 incident in Santa Rosa, resulting in a misdemeanor charge of interfering with a business, which was later dismissed; and (3) a 2014 incident in Petaluma, for which there was no indication that any criminal charges were filed.

It was the prosecutor’s contention that defendant “engages in a common scheme wherein she participates in violent behavior, flees the area, and then casts blame upon the victim for causing the injury to themselves. Defendant’s violent acts often involve some type of weapon, in this case tear gas, in previous cases a marble statute and her fist, and screaming as she attacks her victim. Defendant’s common plan then is to flee the area and act as if she had been at the second location the entire time. Defendant’s continued actions of attacking individuals [and] then fleeing the area show[s] she is aware of the nature of her actions and the consequences of those actions. This is pertinent in this case, as [d]efendant again denies any wrong doing, claiming that she was in fact the victim. As her history shows however, [d]efendant is not the victim but the aggressor in these situations. Admission of her prior acts is relevant and probative of her conduct in this case that she engaged in an attack in a same or similar manner to previous attacks and acted in the same manner once completing the attack. As such the People request that her prior acts from 2010 and 2014 be admitted to show the common scheme [d]efendant engages in when attacking [an] individual and to show her intent or motive to engage in such violent actions.”

At the hearing on the motion in limine, defendant sought to exclude evidence of the three incidents. She specifically argued that she had never been arrested before 2010 and had no history of violence, charges against her regarding the three incidents were either dismissed or the conviction was expunged, and the jury would be inappropriately “inundated” with “a huge amount of allegations and hearsay.” Following defendant’s argument, the court granted the People’s motion in limine to admit the prior offenses evidence, without comment. During the People’s case in chief, the prosecution presented evidence of the three incidents as set forth in the Facts section, ante.

B. Analysis

Defendant contends her constitutional right to a fair trial was prejudiced by the admission of the prior offenses evidence and the court’s failure to instruct, sua sponte using the language in CALCRIM No. 375 regarding the limited purpose for which the prior offenses evidence was admitted. Even assuming merit to these arguments, reversal is not required as defendant has failed to demonstrate prejudice under either state law error (Watson, supra, 46 Cal.2d at p. 836) or federal constitutional error (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)).

It is well settled under state law that “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection to the jury, or of the improper admission . . . of evidence, . . . unless, after an examination of the entire cause, including the evidence,” we are “of the opinion that [the] error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when” we find “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) As to the claim of federal constitutional error, it is well settled that the high court in Chapman, supra, 386 U.S. 18, “rejected the argument that errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman [the high court] . . . ‘[has] repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt,’ ” in that it was not “reasonably possible” that the error contributed to the verdict. (Rose v. Clark (1986) 478 U.S. 570, 576.)

We conclude it is neither reasonably probable (Watson, supra, 46 Cal.2d at p. 846), nor reasonably possible (Chapman, supra, 386 U.S. at p. 24) that an outcome more favorable to defendant would have resulted had the prior offenses evidence not been admitted or had the court given a limiting instruction. The challenged evidence informed the jury of defendant’s aggressive or violent conduct on three very disparate occasions in 2010 and 2014. The very fact that the evidence concerned conduct that was distant in time and disparate from the charged offenses, “suggests that the jury ignored” the evidence “and passed on to the tangible issues in the case,” namely, defendant’s criminal liability for the pepper spray attack on the victim. (Wilkinson v. Southern Pacific Co. (1964) 224 Cal.App.2d 478, 490.) Because the prior offenses evidence was not “ ‘closely and openly connected’ with the evidence and [the] fate of the defendant” as to the charged offenses, the evidence was not deserving of “unsolicited recognition and instruction by the trial court” sua sponte. (People v. Collie (1981) 30 Cal.3d 43, 63–64.) In addition, the prior offenses evidence, “while adverse to [defendant], was not of such overwhelming force that it would have caused a reasonable juror to abandon the trial court’s instructions and presume defendant’s guilt” of the charged offenses. (People v. Quartermain (1997) 16 Cal.4th 600, 627 (Quatermain).)

Excluding the prior offenses evidence, the remaining evidence overwhelmingly demonstrated defendant’s guilt of the charged offenses. The victim described an unprovoked battery by an assailant who sprayed pepper in his eye. Almost immediately after the incident, the victim described his assailant to the police and made an in-field identification. The victim’s inability to make an in-court identification of defendant almost a year and a half after the incident is easily explained by the fact that defendant was a complete stranger and the incident occurred in a matter of minutes. Additionally, the jury was shown a video of defendant’s encounter with the police. When the police detained defendant she was in possession of a pepper sprayer and sought to explain her conduct toward the victim. While the jury was not instructed as to the limited nature for which the prior offenses evidence had been admitted, the jury was instructed as to the specific elements of the charged offenses (CALCRIM No. 242 Special Jury Instruction No. 1); that convictions required proof beyond a reasonable doubt (CALCRIM No. 103); and for each offense a guilty verdict required “proof of the union, or joint operation of act and wrongful intent” (CALCRIM No. 250). Given this evidence and the instructions, there is no reasonable doubt the jury found defendant had acted willfully and not in self-defense. “No reasonable juror would believe those requirements could be satisfied solely by proof of” defendant’s commission of the prior offenses evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1013–1014.)

In sum, because the admission of the prior offenses evidence “did not render the trial fundamentally unfair in violation of due process” (Quartermain, supra, 16 Cal.4th at p. 627) as it was nowhere close to determinative of the outcome, and the failure to give a limiting instruction concerning such evidence “was not essential to the jury’s understanding of the case” (People v. Haylock (1980) 113 Cal.App.3d 146, 150), we conclude the complained-of errors were harmless under either the Chapman or Watson standard of review.

IV. Cumulative Error Contentions

Defendant argues we must reverse because the cumulative effect of multiple errors should be considered to determine prejudice in close cases. She also contends that where constitutional error mixes with nonconstitutional error, reversal is mandated unless the error is harmless beyond a reasonable doubt and did not contribute to the conviction. However, despite defendant’s contention to the contrary, this was not a close case as the evidence was overwhelming that defendant’s attack on the victim was willful and not in self-defense, once the jurors rejected her explanations for her conduct as testified to by the victim and the police. Additionally, even if we consider both the purported constitutional and nonconstitutional errors collectively under the Chapman standard of review, we find the errors are harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

 

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Petrou, J.

WE CONCUR:

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Fujisaki, Acting P.J.

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Goode, J.*

A153261/People v. Daniels