Filed 3/21/22 P. v. Brevik CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE, C084931
Plaintiff and Respondent, (Super. Ct. No. 15F6468 )
v.
DONOVAN CHAD BREVIK,
Defendant and Appellant.
Charged with numerous counts of domestic violence, child molestation,
dissuading a witness, and violating a no contact order, defendant Donovan Chad Brevik
had a difficult trial. Based on his inability to assist counsel, defendant was found
incompetent to stand trial early in the proceedings. When the trial resumed after
competency was restored, defendant briefly sought, then withdrew, a request to represent
1
himself. During the course of the proceedings, defendant filed several Marsden1
motions, had one appointed counsel successfully request to be relieved, and engaged in
numerous disruptive outbursts.
A jury found defendant guilty of three counts of spousal abuse (Pen. Code,
§ 273.5, subd. (a)),2 nine counts of dissuading a witness (§ 136.1, subd. (a)(2), two counts
of dissuading a witness (§ 136.1, subd. (b) (1)), two counts of child abuse (§§ 273a, subd.
(a), 273d, subd. (a)), two counts of oral copulation with a child under the age of 10
(§ 288.7, subd. (b)), a single count of lewd and lascivious acts with a child under the age
of 14 (§ 288, subd. (a)), and 32 counts of violating a restraining order (§ 166, subd.
(c)(1)) along with an enhancement for personally inflicting great bodily injury
(§ 12022.7, subd. (e)). The jury found defendant sane for all counts, and the trial court
sentenced him to 36 years eight months plus 30 years to life.
Defendant contends on appeal that: (1) the trial court’s refusal to grant a
continuance denied his right to self-representation; (2) the court erred in failing to hold a
competency hearing after trial resumed; (3) remarks during the prosecutor’s closing
argument violated his right to remain silent; (4) the waiver of his right to testify was
invalid; (5) there is insufficient evidence to support the convictions for violating a
restraining order; (6) trial counsel was ineffective; (7) cumulative error warrants reversal;
and (8) the matter should be remanded for the trial court to consider granting section
1001.36 mental health diversion.
Defendant had a month before trial when he asserted the right to represent himself.
It was within the trial court’s discretion to deny the continuance when defendant did not
specify how long he wanted the trial continued, did not explain why he needed the extra
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2 Undesignated statutory references are to the Penal Code.
2
time, and defendant already had significant time to prepare for trial. While there is some
evidence defendant voluntarily refused to take his medication for a brief time after
competence was restored, there is no evidence that defendant was not provided the proper
medication, and the record does not support our declining to defer to the implicit findings
of the trial court and defense counsel that defendant was competent to be tried. While the
prosecutor erred in referring to defendant’s failure to testify, prejudice was averted by the
trial court’s subsequent admonition. Finding the remaining contentions are lacking, we
shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Guilt Phase
Erika married defendant in 2009. They have two daughters, L.B. (born 2009) and
D.B. (born 2013). 3 The couple had problems due to mutual infidelity and poor
communication. When they lived in Arizona, defendant threatened her with loaded
firearms several times and was physically violent to her as well. He would slap Erika,
punch her in the face, or choke her into unconsciousness.
They moved from Arizona to California in 2014. The family first lived with their
friends Nick Movine and Leeco Thach in Sonora, then moved to a trailer park in Angel’s
Camp after living with their friends soured. Erika worked while defendant stayed home
with the children. The abuse continued after they moved to the trailer; on several
occasions, defendant, who kept questioning her fidelity, would choke Erika. Another
time, he held a knife to her neck.
On August 7 or 8, 2014, defendant choked Erika after he got upset about
something. He next pinned Erika down and repeatedly punched her in the face. Her eye
was swollen shut on the following day. Defendant, who blamed Erika for the domestic
3 Erika testified under an immunity agreement.
3
violence, would not let her leave the trailer. She missed nearly a month of work as a
result of the attack and had to tell her employer she had been in a car accident.
The abuse resumed a few weeks later. Defendant grabbed Erika by the neck and
would not let her leave the trailer. Once again, defendant pinned her down and
repeatedly punched her in the face. Defendant’s attack knocked out Erika’s front teeth.
He blamed Erika for this attack as well.
According to Erika, defendant physically abused L.B. “too many” times to count.
The abuse often took place when Erika was at work; she would return home to find L.B.
with a cut face or a busted lip. Defendant once punched L.B. in the stomach and several
times he pulled her hair and jerked her head towards him. He choked L.B. on several
occasions. Defendant told L.B. to blame her injuries on a little boy at the playground.
L.B. would wear a beanie with her hair pulled forward to hide her injuries.
In one incident, defendant grabbed L.B. around the throat and choked her because
she could not remember the correct order of the days of the week when defendant was
teaching them to her. L.B. was choked to the point of unconsciousness; she gasped for
air after defendant blew into her mouth.
Erika decided to go to the police rather than go home from work on December 31,
2014. After getting several calls from defendant, she was worried that he was in a bad
mood after coming down off of drugs. When she went to the Calaveras Sheriff’s
department, Erika’s front teeth were still missing, she had bruising on her hip from an
assault two weeks before, and L.B. also had bruising on her face and neck. Erika never
before told the authorities because she was afraid of defendant’s response. He once told
Erika that their children would grow up without parents if she went to the authorities.
Erika returned home with a police escort. As defendant was being escorted to the
police car after being arrested, he told L.B. in a threatening manner, “Don’t tell them
anything. You don’t want daddy to get in trouble, do you?”
4
L.B. told officers defendant had hit her before. Asked about her current bruising,
L.B. said a boy on the playground did it, but later admitted defendant told her to say that.
In an interview with a child protective service social worker, L.B., who referred to
penises and vaginas as “china,” said her father licked her “china,” choked her, and had
her lick his “china.” This surprised Erika, who had wondered before if something
happened between L.B. and the former housemate, Nick Movine, when they lived in
Sonora but had not suspected defendant. She also admitted that L.B. might have seen her
and defendant having sex when they lived in the trailer.
L.B. testified that she lived in a trailer in California when she was five years old.
She was eight years old at the time of the trial and had trouble remembering that far back.
Her face was bruised when defendant was arrested; he had hit her in the face. L.B. was
reluctant to get defendant into trouble because of “all of the stuff” he did to her. She did
not want to discuss what defendant did. All L.B. could remember was that he punched
her. L.B. agreed that she had been told not to talk about her injuries. She saw defendant
do mean things to Erika, including punching her.
The results of a sexual assault examination on L.B. were within normal limits.
Defendant’s jail calls with Erika were recorded. He frequently called her in
violation of a restraining order preventing him from contacting Erika. Erika admitted that
defendant, notwithstanding the restraining order, called her from jail and wrote letters to
the children after his arrest. In one call, defendant told Erika to just testify that she lied.
Another call contained a discussion of their using the name “Trinity” to refer to Erika in
order to trick the system and still talk. Defendant also told Erika in one call to talk to
L.B. so she understood the consequences of what she was doing.
A coworker of Erika’s testified that she would miss work for extended periods,
once returning with missing teeth. On December 31, 2014, the coworker overheard Erika
on the phone crying and visibly upset. Erika told her about the domestic violence, and
5
they went to the police and sheriff’s department together. Erika also said that defendant
had threatened to kill her and her girls if she went to the police.
The former housemate Leeco Thach had seen Erika with two black eyes and
missing teeth. L.B. and Erika were both terrified of defendant, who told Thach to mind
her own business.
A video of L.B.’s preliminary hearing testimony was admitted into evidence. In
the video, L.B. testified to defendant being responsible for bruising her face. Defendant
also choked Erika. He had touched L.B.’s private parts or “china,” licked her private
parts and had her lick his private parts.
Called as a defense witness, Erika testified that she used sunglasses to hide the
black eye defendant gave her, but did not wear them at work, where she used makeup to
conceal the injury. L.B. still had trouble remembering details about the incidents and was
reluctant to say what happened.
Sanity Phase
Defendant testified to having a history of mental disorder, including bipolar
disorder, and at times could not tell right from wrong or control his actions. He had
medications for his problems but had trouble staying on them. Defendant had been
institutionalized due to concerns about being both suicidal and homicidal. He admitted to
faking suicidal tendencies just to anger the guards. Defendant had a problem with people
telling him what to do, so most jobs ended poorly for him.
Defendant was off of his medication and using illegal drugs when he lived in
Angel’s Camp. After testifying that his ability to control his actions lessened when he
went off his medication, defendant clarified that his ideas of right and wrong at times do
not align with what other people think. Defendant thought it was okay to hit his wife. He
became more violent when he stopped taking his medication and started taking illicit
drugs.
6
Two psychiatrists examined defendant and concluded he could understand the
difference between right from wrong and understood the nature of his crimes.
DISCUSSION
I
Continuance for Self-Representation
Defendant contends the trial court deprived him of the right to represent himself
by denying his request for a continuance made contemporaneously with his assertion of
his right to self-representation. We disagree.
A. Background
The complaint was filed on January 5, 2015. On February 6, 2015, defense
counsel expressed doubt about defendant’s competency to stand trial. Defendant was
found incompetent to stand trial on March 30, 2015. His competency was restored
following a stay at Napa State Hospital and proceedings were resumed on July 13, 2015.
That same day, defendant filed a Marsden motion and defense counsel filed a motion to
be relieved of the appointment. The motion to relieve counsel was granted and substitute
counsel was appointed the next day. Defendant was given additional time to enter his
plea due to the change in counsel. Following a December 2015 preliminary hearing,
defendant was arraigned on the information on January 4, 2016, with a jury trial set for
May 4, 2016.
On April 5, 2016, defendant filed a petition to represent himself and filed another
Marsden motion. After denying the Marsden motion, the trial court addressed
defendant’s request to represent himself. Defendant’s written motion did not request any
continuance beyond the May 4, 2016, date set for trial. When the trial court discussed
defendant’s request with him and took his Faretta4 waiver, defendant did not mention
4 Faretta v. California (1975) 422 U.S. 806 [42 L.Ed.2d 562] (Faretta).
7
needing any additional time. The court granted the Faretta motion and appointed prior
counsel as standby advisory counsel. Since defendant was now representing himself, the
court ordered the district attorney not to listen to any recordings of calls defendant made
from jail.
The trial court shortly thereafter allowed defendant to have his mother as an
unpaid legal research assistant, and affirmed the May 4, 2016, trial date. Defendant then
asked, “Your Honor, I am going to ask if those dates can get postponed.” The court
declined. When defendant interjected, “So I can do more research,” the court reiterated,
“No.” Defendant replied by asking to withdraw the Faretta motion. The trial court
replied, “Because you even brought that up in your moving papers, that there would not
be a continuance.” The court accepted the withdrawal and withdrew the order prohibiting
the district attorney from listening to defendant’s calls from jail.
The trial court next addressed whether defendant would be entering a plea of not
guilty by reason of insanity. After defendant said he never asked counsel to enter that
plea, but may wish to do so later on, the court informed defendant it would allow an
insanity plea now but not on the day of the trial. When the court reiterated that defendant
had to decide whether to enter the insanity plea, defendant told the court, “[F]uck you.”
B. Analysis
A defendant who represents himself “ ‘is not entitled either to privileges and
indulgences not accorded attorneys or to privileges and indulgences not accorded to
defendants who are represented by counsel.’ [Citation.] But neither is he entitled to less
consideration than such persons. In particular he must be given, if he requires it, as much
time to prepare for trial as an attorney; and if a reasonable continuance is necessary for
this purpose, it must be granted upon timely request.” (People v. Maddox (1967)
67 Cal.2d 647, 653.)
Generally, continuances are disfavored in criminal cases. “[A]ll proceedings in
criminal cases shall be set for trial and heard and determined at the earliest possible time.
8
To this end, the Legislature finds that the criminal courts are becoming increasingly
congested . . . . Excessive continuances contribute substantially to this congestion . . . .”
(§ 1050, subd. (a).) Therefore, trial courts may grant motions to continue based only on a
showing of good cause. (§ 1050, subd. (e).)
“ ‘Trial judges necessarily require a great deal of latitude in scheduling trials. Not
the least of their problems is that of assembling the witnesses, lawyers, and jurors at the
same place at the same time, and this burden counsels against continuances except for
compelling reasons. Consequently, broad discretion must be granted trial courts on
matters of continuances;. . . .’ ” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508.)
The court must consider “ ‘ “not only the benefit which the moving party anticipates but
also the likelihood that such benefit will result, the burden on other witnesses, jurors and
the court and, above all, whether substantial justice will be accomplished or defeated by a
granting of the motion.” ’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
“In determining whether a denial [of a motion to continue] was so arbitrary as to deny
due process, the appellate court looks to the circumstances of each case and to the reasons
presented for the request. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 1012-
1013, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
While a court must grant a reasonable request for a continuance made in
conjunction with a timely Faretta motion (People v. Hill (1983) 148 Cal.App.3d 744,
757; People v. Morgan (1980) 101 Cal.App.3d 523, 531), if the defendant already has
sufficient time to prepare for trial, then a continuance does not have to be granted.
(People v. Clark (1992) 3 Cal.4th 41, 110-111; People v. Jackson (1978) 88 Cal.App.3d
490, 502, disapproved on other grounds in People v. Barnum (2003) 29 Cal.4th 1210,
1221-1222 & fn. 1.)
Jackson provides an example of a continuance being properly denied because the
Faretta defendant already had sufficient time to prepare for a trial. The defendant in
Jackson was given 10 days to prepare for trial after his Faretta motion was granted.
9
(People v. Jackson, supra, 88 Cal.App.3d at p. 502.) “Rather than showing a reasonable
need for a continuance, the record demonstrates that defendant had ample time to prepare
his defense. He had reason to believe that he would be representing himself 73 days prior
to trial and was given 10 days to prepare his defense after his Faretta motion was
formally granted. Further, he had actively participated in his defense prior to that time.”
(Ibid.) The denial of the continuance was not an abuse of discretion. (Ibid.)
Defendant had nearly a month remaining to prepare for trial when he requested the
continuance. The trial had already been considerably delayed and defendant, like the
defendant in Jackson, had actively participated in the defense before requesting the
continuance. At the Marsden hearing just before the Faretta hearing, defendant told the
trial court he had asked trial counsel to file motions to establish a greater coercion
between his wife and daughter at the preliminary hearing. Defendant also complained of
receiving incomplete transcripts and had previously discussed Faretta with counsel. As
the trial court observed following the restoration of defendant’s competency, defendant
felt “very strongly and passionately about the case.” In short, defendant was intimately
involved with his case well before the requested continuance. Given the amount of time
between granting the Faretta motion and the day of trial, defendant’s close involvement
with his case, and the considerable time the case had already taken, it was within the trial
court’s discretion to deny the requested continuance as unreasonable.
We are not persuaded by defendant’s arguments to the contrary. Defendant’s
claim that he needed extra time to research the procedures for and how to plead a dual
plea of not guilty and not guilty by reason of insanity founders on defendant’s equivocal
conduct regarding such a plea at the time he requested the continuance; he did not decide
to change his plea until a subsequent hearing, and he never gave this as a reason for
granting the continuance. Defendant also faults the trial court for not asking why
defendant wanted the continuance and for how long he wanted it. Accepting this
argument would give a self-represented defendant greater privilege than appointed or
10
retained counsel, who both bear the burden of justifying any requested continuance
without waiting for the trial court to ask. The Supreme Court held in Maddox that a self-
represented defendant is not entitled to greater privileges than counsel (see People v.
Maddox, supra, 67 Cal.2d at p. 653), and we are of course bound to follow the Supreme
Court’s directive. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant’s claim is without merit. 5
II
Competency to Stand Trial
Defendant contends the trial court prejudicially erred in failing to hold a
competency hearing at some point after his competency was restored and proceedings
resumed.
A. Background
1. Proceedings up to the Restoration of Competency
On January 7, 2015, the trial court granted defense counsel’s request to be recused
because defendant was involved in fights at jail with people represented by counsel.
Defendant responded by telling the court, he felt like the whole state of California was
picking on him because he was from Arizona. He also said he was supposed to have
open heart surgery, “and they won’t even listen to my heart. They won’t even do a
scope.” Two days later, when appearing with new counsel, defendant brought up again
that a jail doctor had not listened to his heart. When the court told defendant this was not
a matter between defendant and the court, defendant asked for a new and speedy trial.
5 Although the trial court erroneously told defendant his Faretta motion stated that no
continuance was needed, this mistake does not render the denial an abuse of discretion.
The court made this statement after denying the continuance, and neither defendant nor
defense counsel (who now represented defendant after defendant’s request to withdraw
the Faretta waiver was granted) corrected the court. It is not clear the trial court based its
denial on this invalid reason, and the failure to correct the court’s misperception forfeits
any claim of error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
11
On February 6, 2015, defense counsel moved for a section 1368 competency
evaluation, which the trial court granted without objection. The court suspended
proceedings and ordered defendant to be evaluated.
Two psychiatrists evaluated defendant. Dr. Kent Rogerson noted defendant
reported using “all the drugs,” including heroin and methamphetamine, which would
make him a “felon” who wants to “beat up people and hurt people.” His diagnostic
impression of defendant was that he had untreated bipolar disorder with hypomania,
substance use disorder, and antisocial personality disorder. Defendant knew and
understood the charges but was not able to rationally assist counsel in presenting his
defense. His hypomania required treatment with mood-stabilizing medication and
probably an antipsychotic agent. Six to eight weeks of treatment should restore his
competence.
Dr. Gary Cavanaugh reported defendant told him his DNA was contaminated by
his father’s exposure to Agent Orange in Vietnam, his having been treated with Adderall,
Risperdal, Lithium, and other medications as a child, and having been placed in a group
home as a youth due to aggression. He was his father’s “punching bag” and was
attending school “behind barbed wire” starting in the seventh grade. Defendant said he
really wanted to fight people when he drinks alcohol and reported a history of using
methamphetamine, PCP, and marijuana. He also reported having been diagnosed as
“bipolar 1, paranoid disorder, PTSD” and also schizophrenia; defendant had been
prescribed Adderall, Risperidone, and Lithium. Defendant had been in a psychiatric
hospital three times as a child and had been in a “mental home” for a year.
Dr. Cavanaugh diagnosed defendant with Bipolar 1 Disorder, currently manic,
Poly Substance Abuse, previous diagnosis of Conduct Disorder, and ruled out ADHD and
Antisocial Personality Disorder. Defendant knew and understood the nature and purpose
of the proceedings against him, but defendant’s “volatility, loquacious and pressured
speech, thought disorder, significant paranoid ideation, and agitation all combine to
12
render him unable to rationally assist counsel in presenting his defense.” Treatment with
mood-stabilizing and neuroleptic medication should render him competent to rationally
assist counsel.
The trial court found defendant incompetent to stand trial on March 30, 2015. At
the time the court made the finding, defendant, against the advice of counsel, gave a
rambling statement regarding his rights as a “Sovereign citizen” and invoked his natural
rights. Defendant asserted he was competent and “You guys are violating my rights”
before the court ordered him escorted out of the courtroom. Based on defendant’s
behavior, the trial court ruled that defendant would have to make future court
appearances behind security glass.
Finding the administration of antipsychotic medication was necessary to restore
competency, the trial court ordered defendant to Napa State Hospital for treatment.
Napa State Hospital certified defendant as competent to stand trial on June 30,
2015. The accompanying report by forensic psychologist Dr. Julia Patterson noted there
were currently no records supporting defendant’s reported history of psychiatric
treatment. Since his intake interview at the hospital, defendant presented with
intermittent irritability, pressured speech, and aggression, all of which are related to
personality disorder, but no other signs of mental illness. Although defendant was using
Oxycontin, methamphetamine, and marijuana at the time of the charged offenses, it was
unclear the extent that drug use played in prior mental illness symptoms. Since there was
concern defendant malingered mental illness in the past, a diagnosis of substance-induced
psychotic or mood disorder was not warranted at the time.
The possibility that defendant was malingering a mental illness to appear
incompetent to stand trial was strongly considered. Hospital records showed defendant
made numerous statements showing a desire to stay at the hospital. During the test given
at intake, defendant frequently tried to debate the questions and sometimes endorsed a
response, laughed, then changed his answers. Defendant also declined numerous
13
meetings with staff to evaluate him. Lack of cooperation could indicate malingering, and
defendant met the criteria for antisocial personality disorder, another possible indicator of
malingering.
Defendant engaged in manipulative and threatening behavior to get what he
wanted. He reported that his complaints of suicidal ideation at jail were attempts to
manipulate the system. He threatened violence if he was returned to court as competent
before getting a cardiology consultation. Defendant also said that he would attack
somebody to show that he is crazy. Defendant once lay down on the floor when told his
request for pain medication would not be resolved until the next day; after the protest led
to his getting medication, he got up and went outside to play football with his peers,
showing no visible signs of pain or distress. During testing, defendant made multiple
comments indicating he was considering feigning illness or acute problems in order to
appear more distressed than he currently appeared.
Since defendant presented no symptoms and said he was competent at the time of
the evaluation, he was not found to be malingering, although he may have been feigning
or exaggerating symptoms in the past. He was taking one psychotropic medication,
valproic acid, and was compliant with his medication regimen. The treatment time found
defendant’s signs of behavioral instability was the result of a personality disorder,
borderline and antisocial personality disorder, rather than a psychotic or mood disorder.
An evaluator likewise concluded that defendant’s pattern of impulsivity, behavioral
volatility, and poorly controlled anger appeared to be the result of enduring personality
characteristics rather than any acute psychiatric issues.
After personally evaluating defendant, Dr. Patterson found he was not
experiencing any symptoms of mental illness that would preclude him from rationally
assisting his attorney in his defense. While defendant had a very negative opinion of his
attorney, Dr. Patterson believed he had the capacity to work with counsel in a rational
manner. Defendant did not exhibit any signs of mental illness, was able to communicate
14
coherently and effectively, but personality traits related to borderline and antisocial
personality disorders would likely make it difficult for him to work amicably with
counsel. Since he understood his case and the nature of the proceedings, defendant was
competent to stand trial.
2. Proceedings After Competency is Restored
At the July 10, 2015, mental competency hearing, defendant, again behind glass,
told the trial court, “I was court-ordered to take anti-psychotics, they cut me off a week
prior to me coming here,” and that he was “only taking one mood stabilizer right now.”
The court replied that it did not know how to address this other than stating that any
medication defendant was ordered to take, he should still be ordered to take. After
defendant told the court he felt he was working better on the anti-psychotic he was
taking, the trial court ordered that defendant “go back on it or at least follow all
prescribed medication.”
The trial court reinstated proceedings at the continued competency hearing on
July 13, 2015. Asked about his medication by the trial court, defendant said he had not
yet talked to a local doctor. When the court related the discussion regarding medication
at the July 10 proceeding, defense counsel said, “I believe those meds were probably
prescribed because of the competency proceeding. I think they will play a role in his
continued competency.” After further discussion with defense counsel and the
prosecutor, the trial court ordered the jail “to continue meds prescribed by Napa that need
to be continued.” Defense counsel then asked to be relieved, and defendant filed a
written Marsden motion.
At the hearing on the Marsden motion on July 16, 2015, defendant and counsel
agreed there was an irreparable breakdown in their relationship. Defendant brought up
that defense counsel had run for district attorney and had been on the board for
“Domestic Violence Advocates in Arizona.” Defense counsel agreed he had run for
district attorney but denied ever having served on a board for a domestic violence
15
organization in Arizona or having done any work of significance in that state. The trial
court granted the motion.
That same day, the trial court commented that defendant’s behavior the last two
days was “very good,” and it was considering defendant’s request to have the glass
removed. One of three attorneys present, Steven Cilenti, was willing to consider taking
the appointment as defense counsel. Cilenti asked defendant in court, “I understand that
the jail is giving you the Depakote that you got from Napa?” Defendant replied that it
was. When the prosecutor stated, “According to the jail, they were always giving him the
meds,” defendant replied, “Well, I was taking Zyprexa and Haldol, but I am not taking
that currently.” The trial court replied, “if there is something that you were prescribed
that you were supposed to be taking, you need to talk about that” as that was the purpose
of the court’s prior order.
Cilenti told the trial court he accepted representation for defendant at a July 23,
2015, hearing. The trial court also told defendant he had been behaving very well in
court and in jail, and that it did not want to hear about him acting up.
At a September 11, 2015 hearing, defense counsel told the trial court:
“Apparently he had been having difficulty—he has been asking for medications
that were prescribed to him at Napa and he has not received them. He has talked to
medical people.
“And if I understand him correctly, they are telling him he is getting all that he
needs and not giving him what he was prescribed at Napa here.”
Defendant agreed with counsel’s statement, while the prosecutor said that
defendant told his mother he voluntarily refused to take the medication. Defense counsel
responded that while defendant did so in the past, he was now asking for the full
medication he was prescribed at Napa. When the trial court responded it had ordered the
jail to give him the prescribed medication, defendant replied, “That is only one pill” and
he had “an extensive history of mental illness” since he was eight years old. The court
16
said it had ordered defendant receive all prescribed medications. It said that if defendant
was prescribed medication and had a prescription for it, the court was “ordering that the
jail give it to you.” Defendant wondered why he was getting three pills at Napa and was
calmer, but “here they cut me off two days prior to coming into the jail.” Defendant said
his “chemical balance is all off. I am freaking out in here, you know.” When the court
replied there was nothing else it could do, defendant asked if he could see another
psychiatrist for a second opinion. The trial court told defendant it had no control over the
jail other than to order what it already ordered. Defendant said it was a violation of his
rights not to be properly medicated.
At an August 28, 2015 hearing, defendant asked for a new district attorney and
was told by the trial court to consult with counsel. On December 2, 2015, at the
beginning of the preliminary hearing, defense counsel told the court he had a long talk
with defendant about the consequences of behavior not acceptable to the court and that
defendant would like to remain in the courtroom but understands what would happen if
he acted out. The court later reminded defendant he had been disruptive several times
before proceedings were suspended under section 1368, but he had since been very
cooperative, which the court greatly appreciated. While defendant was now appearing in
court rather than behind glass, the court would remove defendant if he was disruptive. It
noted that on multiple occasions defendant tried to communicate with people other than
his attorney in the courtroom by yelling or throwing things. Defendant acknowledged
understanding what the court required of his behavior.
Defendant engaged in periodic outbursts or was in conflict with counsel at various
times throughout the remainder of the trial. Defendant yelled out, “Wrong” during the
second day of the preliminary hearing, but the trial court expressed its appreciation for
defendant’s cooperation at the end of that day. He refused to attend court on March 25,
2016. During the Marsden hearing that immediately preceded the brief Faretta waiver,
counsel informed the court of problems with defendant regarding defendant’s desire to
17
raise inappropriate issues and his persistent disclosure of defenses when making calls to
his wife that were recorded. Counsel also told the court he thought defendant was
frustrated because defendant did not understand why he could not serve his time at Napa
State Hospital, and defendant figured that discharging counsel would allow him to delay
matters by getting someone who could file endless motions. Defendant engaged in a
lengthy, rambling statement bringing up his desire for a speedy trial, counsel’s failure to
request property that would show his wife’s motive, counsel’s failure to give other
information, his disagreement with a change of plea motion, and his desire to know if he
can do his time in Napa State Hospital. He repeatedly interrupted the trial court as it
denied the motion.
As a result of defendant’s outbursts during the Faretta hearing,6 he appeared
behind glass at the next hearing on April 18, 2016. After the trial court admonished
defendant for his “incredibly disrespectful” display at the Faretta hearing, defendant said
he felt the court was violating his rights and his frustration built up and exploded.
Defendant also told the court he had not been on his medication.
After defendant was permitted to change his plea to include not guilty by reason of
insanity, he was evaluated by two psychologists in May 2016. Dr. John Chellsen found
defendant’s “associations were intact, linear, and coherent.” Defendant told him, “[t]hey
won’t give me Zyprexa from Napa State Hospital.” Believing he would do better at Napa
State Hospital than in prison, defendant said he was temporarily insane. A test given to
him could not be scored because he gave both true and false responses on numerous
questions and wrote notes on the front and back of the test forms. Dr. Chellsen diagnosed
defendant with history of poly substance abuse, mixed personality disorder with
6 As recounted in Part I, ante.
18
borderline, antisocial, and paranoid features, and bipolar disorder, and found he was
legally sane at the time of the alleged offenses.
Dr. Philip Trompetter noted defendant’s medical records were consistent with his
reported history of psychiatric hospitalizations. The records showed a lengthy history of
mood instability that could be consistent with bipolar disorder but were better described
for defendant as borderline personality disorder and antisocial personality disorder.
Defendant took little or no responsibility for his actions, tended to act out when he was
tense, seemed to act out with very little guilt or contrition, and was unrestrained by the
restrictions on others. Defendant was not delusional, though he had a “very
nonpsychotic, paranoid outlook in general.”
Defendant failed to appear at a June 7, 2016 hearing. Counsel explained
defendant was not being cooperative and counsel was willing to waive defendant’s
appearance in order to avoid another outburst. Defendant sent a letter to the trial court
that day stating he wanted to attend but was not allowed to and that he wanted to replace
counsel, who was acting like a surrogate prosecutor. A completed Marsden form was
attached to the letter.
Appearing behind glass at the June 22, 2016 Marsden hearing, defendant
reiterated he wanted to attend court on June 6 and 7. Defendant made numerous claims
about subjects dropping off unsealed legal packages at the jail, not filing various motions
defendant wanted, having met the defense investigator only once, and failure to provide
requested documents. Following counsel’s response, defendant wondered if counsel had
dementia and told him, “you are not an agent or a surrogate DA.” After further argument
from defendant, counsel told the trial court if defendant continued doing this, counsel
would have to advise the court there was a breakdown in communications, and it sounded
like defendant was trying to create that situation. The trial court denied the motion and
defendant replied that he would seek a dismissal with prejudice. Back in open court, the
trial court told defendant his behavior was much improved.
19
Defendant, who was still behind glass at a July 15, 2016 hearing, had filed a new
Marsden motion. Counsel told the trial court he was ready to be relieved as there was an
irreconcilable conflict between them and a breakdown in communication that jeopardized
defendant’s representation. Defendant had become aggressive with counsel during their
last communication. While counsel was explaining the prosecution’s plea offer,
defendant “just pushed himself up from the chair, and of course there is a big, thick piece
of glass between the two of us, made a gesture closing that distance very rapidly and
raising his voice.” Counsel considered this a threat of violence. Defendant replied it was
not an act of aggression and complained that counsel kept offering him the same plea
deal every time he talked to defendant. The trial court said it did not have to conduct a
Marsden hearing at this point, and relieved counsel. The court also advised defendant he
could lose his right to counsel through serious misconduct such as threats of violence
towards his appointed attorney. The court then appointed new counsel who had already
agreed to represent defendant.
On August 2, 2016, defendant was charged in a separate matter with possession of
a weapon in a penal institution. After the prosecutor withdrew its plea offer on
October 4, 2016, defendant told the trial court he did not even know what the deal was.
When the prosecutor replied that defendant talked about the plea with his mother often,
defendant responded that he did not know all of the details.
Defendant was no longer behind glass at the March 7, 2017 trial readiness
conference. Defendant, against the advice of counsel made a lengthy, rambling statement
to the trial court in which he asserted, among other things, a First Amendment right,
brought up a lack of communication with counsel regarding his dual plea of not guilty
and not guilty by reason of insanity, counsel’s failure to file various motions, look into
defenses, or seek evidence defendant thought was important, asserted there was a conflict
of interest with counsel, he had not been given discovery, questioned the court’s
judgment, reminded the court of ABA (American Bar Association) standards for
20
competent representation, and asserted the prosecutor prepared false transcripts
implicating him and should be removed. When the prosecutor asked if this was a
Marsden motion, defendant said no, but he was tired of the delays and wanted a fair trial.
Two days later, the trial court granted the prosecution’s request for an order requiring
defendant to attend trial in restraints, based on his behavior in court, with counsel, and
two incidents in jail involving weapons. 7
The only incident during the prosecution’s presentation of evidence was defendant
making a gesture towards a witness to “be quiet or something.” While waiving his right
to testify following the conclusion of the prosecution case, defendant said, “My lawyer
advised me that if I say anything slightly different whatever than we talked about, yeah, I
would have to represent myself for the rest of the trial. So now I’m like confused on the
whole situation, and I’m choosing not to testify for that reason.”8 During jury
deliberations in the sanity phase, defendant asked the trial court if he could submit “a
bunch of documentation” concerning his prescriptions, and a few moments later asked
the court to instruct the jury that an insanity verdict “still has a life attachment to it.”
Another Marsden hearing was held on June 6, 2017, after the sanity verdict. The
trial court had to admonish defendant not to interrupt. In addition to reiterating earlier
complaints about his representation, defendant was upset with the failure to test his wife
for an STD, as the positive test would show he did not molest his daughter since his wife
gave him herpes and his daughter did not have it. He also made a lengthy statement
claiming counsel was not aware of the not guilty by reason of insanity plea, which
counsel disputed. The trial court denied the Marsden motion.
7 At the sentencing, defendant had been involved in 103 incidents at jail, including
cursing at his attorney.
8 Defense counsel clarified that he told defendant if he testified in the narrative, counsel
could not ethically ask him further questions.
21
After the trial court denied defense counsel’s new trial motion following the
Marsden hearing, defendant made a motion for dismissal based on insufficient evidence
due to hearsay, which the court denied. Defendant then asserted on his own that there
were insufficient breaks during the trial without his evidence to convict because the
evidence was hearsay, giving breaks during trial without his consent violated his rights,
and he was never present during jury questions. At sentencing, defendant interrupted the
court and the attorneys numerous times and said he would not register as a sex offender
or comply with the restraining order issued against him.
B. Discussion
Defendant contends the trial court erred in failing to hold a competency hearing
after proceedings were reinstated because there was substantial evidence he lost his
competency to stand trial.
Both the due process clause of the Fourteenth Amendment to the United States
Constitution and state law prohibits the trial of a criminal defendant while he or she is
mentally incompetent. (People v. Ary (2011) 51 Cal.4th 510, 517-518; § 1367, subd. (a).)
“A defendant is deemed competent to stand trial only if he ‘ “has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding” ’and ‘ “has
a rational as well as factual understanding of the proceedings against him.” ’ [Citation.]”
(Ary, at p. 517; see also § 1367, subd. (a) [“A defendant is mentally incompetent for
purposes of this chapter if, as a result of a mental disorder or developmental disability,
the defendant is unable to understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.”].) “When a trial court is
presented with evidence that raises a reasonable doubt about a defendant’s mental
competence to stand trial, federal due process principles [as well as state law] require that
trial proceedings be suspended and a hearing be held to determine the defendant’s
competence. [Citations.] Only upon a determination that the defendant is mentally
22
competent may the matter proceed to trial.” (Ary, at p. 517; see also § 1368, subd. (a).)9
Evidence of incompetence may emanate from several sources, including the defendant’s
demeanor, irrational behavior, and prior mental evaluations. (People v. Rogers (2006)
39 Cal.4th 826, 847 (Rogers).) The court’s duty to conduct a competency hearing may
arise at any time prior to judgment. (Ibid.) A trial court’s decision whether or not to hold
a competency hearing is entitled to deference because the court has the opportunity to
observe the defendant during trial. (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; Drope v. Missouri (1975) 420 U.S. 162, 181 [43 L.Ed.2d 103, 118-119].)
“If, after a competency hearing, the defendant is found competent to stand trial, a
trial court may rely on that finding unless the court ‘ “is presented with a substantial
change of circumstances or with new evidence” casting a serious doubt on the validity of
that finding.’ [Citations.]” (People v. Rodas (2018) 6 Cal.5th 219, 231 (Rodas).) This
rule does not “alter or displace the basic constitutional requirement . . . [that] require[s]
the court to suspend criminal proceedings and conduct a competence hearing upon receipt
of substantial evidence of incompetence even if other information points toward
competence.” (Id. at p. 234.) Rather, it clarifies “that the duty to suspend is not triggered
by information that substantially duplicates evidence already considered at an earlier,
formal inquiry into the defendant’s competence; when faced with evidence of relatively
9 As relevant here, section 1368, subdivision (a), provides: “If, during the pendency of
an action and prior to judgment,. . . 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. If the defendant is not represented by counsel, the court
shall appoint counsel. At the request of the defendant or his or her counsel or upon its
own motion, the court shall recess the proceedings for as long as may be reasonably
necessary to permit counsel to confer with the defendant and to form an opinion as to the
mental competence of the defendant at that point in time.”
23
minor changes in the defendant’s mental state, the court may rely on a prior competency
finding rather than convening a new hearing to cover largely the same ground.” (Id. at
pp. 234-235.) This is a “fact-specific inquiry.” (Id. at p. 235.)
“But when a formerly incompetent defendant has been restored to competence
solely or primarily through administration of medication, evidence that the defendant is
no longer taking his medication and is again exhibiting signs of incompetence will
generally establish such a change in circumstances and will call for additional, formal
investigation before trial may proceed. In the face of such evidence, a trial court’s failure
to suspend proceedings violates the constitutional guarantee of due process in criminal
trials. [Citation.]” (Rodas, supra, 6 Cal.5th at p. 223.) Failure to declare a doubt and to
conduct a competency hearing when there is substantial evidence of incompetence
requires reversal of the judgment. (Rogers, supra, 39 Cal.4th at p. 847.)
Defendant claims his behavior after competency was restored is very substantial
evidence he had become incompetent again, thus requiring the trial court to hold another
competency hearing. According to defendant, when he was found competent and
returned to court, he was not given the antipsychotics that had restored him to
competency. This in turn led defendant to become violent, paranoid, and extremely
impulsive in court, which for a second time rendered him unable to rationally assist
counsel in presenting his defense. He finds this to be substantial evidence that he became
incompetent again without the necessary antipsychotic medications, and the trial court’s
failure to order another competency hearing violated his due process rights.
As we have set forth at some length, defendant’s behavior after competency was
restored was replete with examples of misbehavior, rambling speeches, desire to present
unfounded or untenable defenses, motions, and evidence. He also engaged in threatening
behavior with one of his attorneys since competency was restored, and had significant
behavioral problems in jail, including the possession of weapons. He also had
considerable difficulty cooperating with counsel, filing numerous Marsden motions, a
24
Faretta motion, and going through three attorneys in the proceedings after he was found
competent.
Unpleasant, bizarre, or even threatening behavior does not alone raise sufficient
doubt to require an inquiry into a defendant’s competency to be tried. “[M]ore is
required to raise a doubt than mere bizarre actions [citation] or bizarre statements
[citation] or statements of defense counsel that defendant is incapable of cooperating in
his defense [citation] or psychiatric testimony that defendant is immature, dangerous,
psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to
assist in his own defense [citation].” (People v. Laudermilk (1967) 67 Cal.2d 272, 285.)
While a defendant’s competency to stand trial is evaluated from all the surrounding
circumstances, only evidence related to a defendant’s competency to stand trial, rather
than general evidence of mental illness or inappropriate behavior, will trigger the need for
a competency hearing. (See People v. Ghobrial (2018) 5 Cal.5th 250, 270 [evidence
must go to competency to stand trial rather than merely establishing existence of mental
illness that could influence competency]; Rogers, supra, 39 Cal.4th at p. 847 [same].)
Likewise, an unwillingness, rather than an inability, to assist counsel will not
render a defendant incompetent to stand trial. “If there is testimony from a qualified
expert that, because of a mental disorder, a defendant truly lacks the ability to cooperate
with counsel, a competency hearing is required. [Citation.] Here, however, there was no
substantial evidence that defendant’s lack of cooperation stemmed from inability rather
than unwillingness, and the trial court’s comments suggest that it found defendant’s
problem to be of the latter type rather than the former. In these circumstances, no
competency hearing was required.” (People v. Lewis (2008) 43 Cal.4th 415, 526.)
The two experts at the competency hearing found defendant suffered from mental
illness that rendered him incapable of assisting in his defense and required treatment with
antipsychotics. Defendant’s treatment at Napa State Hospital presented very different
diagnoses and treatment than what would be expected from the experts’ reports. The
25
report from Napa State Hospital found defendant had a personality disorder, but no
mental illness. The evaluators found defendant engaged in manipulative and threatening
behavior to get what he wants. His behavior there led the evaluators to strongly consider
he was malingering in order to be found incompetent to stand trial, but his lack of any
symptoms when he was evaluated as competent prevented such a finding. He was taking
only one drug, valproic acid when he was found competent.
The evidence shows he was taking only one drug, Depakote, following the
restoration of competency. Shortly after competency was restored, defendant told the
trial court he was taking this drug but was not taking two other drugs, Zyprexa and
Haldol, that were administered to him at Napa State Hospital. Depakote is a means of
administering valproic acid to a patient. “Depakote consists of an equimolar mixture of
the [valproic] acid and sodium salt derivatives of its active species, the valproate ion.”
(Abbott Labs. v. Torpharm, Inc. (Fed. Cir. 2002) 300 F.3d 1367, 1370.) Valproic acid is
thus the active ingredient in Depakote. (Abbott Labs. v. Young (D.C. Cir. 1990) 920 F.2d
984, 986.) Depakote is used “for treatment of epilepsy as well as migraine headaches and
bipolar disorder.” (Abbott Labs. v. Torpharm, Inc., supra, 300 F.3d at. p. 1370) While
the report from Napa State Hospital indicated defendant was given Haldol during his
stay, he was not taking it when found competent, and the report did not recommend
prescribing him this medication in order to maintain competency. At the sanity trial,
expert testimony described it as a mood stabilizer often used to help manage difficult
behavioral problems.
In light of the report from Napa State Hospital, defendant’s statement he was not
being given Zyprexa and Haldol was insufficient to trigger an inquiry into his
competence to be tried. The only drug being given to him following the restoration of
competency, administered the same medication as was given to him at Napa State
Hospital when competency was restored. In addition, the trial court ordered the jail on
more than one occasion to administer the drugs Napa State Hospital had prescribed to
26
him. While there is evidence defendant may have refused to take the Depakote at some
point,10 defendant testified at the sanity phase that he was taking the drug. We conclude
defendant was being given the one drug administered to him when found competent.
Rodas presents a notable contrast to the case before us. There, the medical report
certifying defendant’s competency to stand trial recommended the defendant continue
taking his prescribed medication to maintain competence, and the medical director sent a
letter accompanying the certification stating it was “ ‘important that the individual remain
on this medication for his own personal benefit and to enable him to be certified under
Section 1372 of the Penal Code.’ ” (Rodas, supra, 6 Cal.5th at p. 226.) There is no such
finding from the certifying hospital here, and, unlike Rodas, defendant here was being
given the one medication he was getting when competency was restored, and the trial
court ordered that he be given it. (See id. at pp. 226-227 [noting the trial court never
ordered defendant be given the medication after defense counsel suggested it and
defendant said he was not taking the drugs].)
This case does not present the situation found in Rodas and therefore deference to
the trial court’s observation of defendant is appropriate. While defendant misbehaved
numerous times and had considerable difficulty with counsel, his behavior at trial was
much better, he was able to coherently testify at the sanity trial and was able to keep his
fourth and last counsel long enough to adequately prepare for trial and continue through
trial and sentencing. We conclude there was not sufficient evidence or changed
circumstances casting substantial doubt on his competency to be tried.
10Dr. Chellsen testified at the sanity trial that defendant told him on May 6, 2016, he
was not taking his prescribed Depakote because it did not have the metaphoric high he
would get from the Zyprexa he was prescribed at Napa State Hospital.
27
III
Griffin Misconduct
Defendant contends the prosecutor committed misconduct under Griffin v.
California (1965) 380 U.S. 609 [14 L.Ed.2d 106]) through argument on rebuttal that
addressed his failure to testify. Although the prosecutor’s comments were improper, we
find the immediate objection from defense counsel and admonishment from the trial court
removed any prejudice from the comments.
A. Background
The prosecutor argued during his closing argument that in a phone call with Erika
from jail, defendant admitted molesting L.B. when he said, “Well if I did it,” because
“[h]e leaves it open for the possibility . . . .” The prosecutor also told the jury it was up to
them to determine what this sentence meant. Defense counsel argued that in his phone
calls to his wife, defendant “says a lot of things that incriminate himself, but what he does
not say is that he molested that little girl. He never said that.” Counsel also told the jury,
“You can listen to those calls. He said he didn’t do it.”
The prosecutor argued during rebuttal: “So, yesterday we talked a little bit about
how the defendant made that statement about the sexual assault counts against [L.B.]
‘Well, if I did it, right?’ He opened himself up to, yeah, it’s a possibility it could have
happened, and if it did happen it happened in the trailer just like [L.B.] said, but I don’t
remember because I was doing all those drugs, right?
“And then he makes a statement, ‘I’m pretty fuckin sure I—okay.’ Now I told you
I wasn’t going to tell you what that said. The defendant wants you to believe he said
didn’t, okay, but you don’t—you don’t know what he said, because he didn’t get up on
the stand and he didn’t say—.”
Defense counsel immediately objected. The trial court sustained the objection and
defense counsel asked for an instruction from the trial court. The court gave the
following instruction:
28
“The defendant has a right not to testify and can’t be used in any way, including
argument by counsel, the defendant’s lack of testimony. As I have instructed you earlier
in the case, you shall not consider in any issue in this case the fact that the defendant has
chosen not to testify.”11
The prosecutor then argued, “So you have to listen to that, and you have to decide
what it was that was said. That is your decision and your decision only.”
Defendant subsequently moved for a mistrial based on Griffin misconduct. The
trial court said, “I cringed in my chair” when the prosecutor made the remark, but in light
of “all the overwhelming evidence that was offered in this case,” it concluded the jury
followed the admonition and found that the error did not “result in a miscarriage of
justice and that it would and absent the error be more favorable result been to the
defendant” and denied the motion.
B. Analysis
A prosecutor commits misconduct under Griffin if he or she “ ‘comment[s] upon a
defendant’s failure to testify in his or her own behalf.’ ” (People v. Thomas (2012)
54 Cal.4th 908, 945.) Griffin error is evaluated under the harmless beyond a reasonable
doubt standard. (People v. Hovey (1988) 44 Cal.3d 543, 572.)
The comment at issue did not state defendant was guilty due to his silence, but
rather drew an improper inference from his silence. The improper inference that the jury
should conclude defendant’s jail call admitted his guilt because he did not testify
otherwise was Griffin misconduct.
11 The trial court had previously instructed the jury with CALCRIM No. 355 as follows:
“A defendant has an absolute constitutional right not to testify. He or she may rely on the
state of the evidence and argue that the People have failed to prove the charges beyond a
reasonable doubt. Do not consider for any reason at all that the defendant did not testify.
Do not discuss that fact during your deliberations or let it influence your decision in any
way.”
29
Before the improper argument, the jury was instructed with CALCRIM No. 355
that it could not consider defendant’s exercise of his right to silence. Immediately after
the Griffin misconduct, the defense objected, and the trial court instructed the jury not to
consider defendant’s silence and reminded them about the CALCRIM No. 355
instruction. A curative instruction and giving CALCRIM No. 355 can render Griffin
misconduct harmless. (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1274.) We
presume the jury followed the trial court’s instructions. (People v. Sanchez (2001)
26 Cal.4th 834, 852.) In light of the instructions, we are convinced beyond a reasonable
doubt that defendant would not have achieved a more favorable result had the misconduct
not been committed.
IV
Waiver of Right to Testify
Defendant contends that he invalidly waived his right to testify.
A. Background
Just before the defense rested at the guilt phase of the trial, defense counsel told
the trial court: “I’ve advised Mr. Brevik of his right to testify, that it’s 100 percent his
decision, given him an idea generally of what questions would be asked by me, what
questions I would expect the district attorney to ask. And we had a conversation about it
last weekend in private. We had a conversation over the weekend in private. And Mr.
Brevik I believe his decision is not to testify. Is that right?” Defendant replied, “Um,
yeah.”
The trial court then remarked, “The Court also explained to Mr. Brevik this
morning when we had our informal discussions off the record that his testimony—or it is
solely his decision whether he chooses to testify or not. And you chose not to testify,
correct?” Defendant said, “Well, I told you my reasoning earlier.”
After defense counsel invited defendant to “put it on the record now,” defendant
said: “My lawyer advised me that if I say anything slightly different or whatever than we
30
talked about, yeah, I would have to represent myself for the rest of the trial. So now I’m
like confused on the whole situation, and I’m choosing not to testify for that reason.”
Defense counsel replied: “To be clear, your Honor, I’ve always advised him if he
gets up and—essentially I’ve advised him what would happen if—what would cause him
to testify in a narrative, which is something that would prevent me from asking further
questions ethically.” Defendant said, “I don’t understand.” Defense counsel responded,
“And I think we went over it pretty well at the jail what that means.”
The trial court then said the jury would be advised when it returned that the
defense rested, and moved to the next subject, jury instructions.
B. Analysis
A criminal defendant has a constitutional right to testify in his or her own defense.
(Rock v. Arkansas (1987) 483 U.S. 44, 51 [97 L.Ed.2d 37, 46].) A defendant who wants
to testify may even do so over the objection of his attorney. (People v. Robles (1970)
2 Cal.3d 205, 215.) “When the record fails to disclose a timely and adequate demand to
testify, ‘a defendant may not await the outcome of the trial and then seek reversal based
on his claim that despite expressing to counsel his desire to testify, he was deprived of
that opportunity.’ [Citations.]” (People v. Alcala (1992) 4 Cal.4th 742, 805-806.)
Accordingly, “[a] trial court has no duty to give such advice or seek an explicit waiver,
unless a conflict with counsel comes to its attention. [Citations.]” (People v. Enraca
(2012) 53 Cal.4th 735, 762.)
Defendant argues the colloquy shows the waiver of his right to testify was not
knowing and intelligent and therefore invalid. In support of this contention, defendant
cites federal circuit court authority finding a defendant’s right to testify must be
knowingly and intelligently waived. (See United States v. Pennycooke (3rd Cir. 1995) 65
F.3d 9, 11-12; United States v. Hung Thien Ly (11th Cir. 2011) 646 F.3d 1307, 1317;
Ward v. Sternes (7th Cir. 2003) 334 F.3d 696, 705-708.) Those cases do not establish a
broad waiver requirement for the right to testify.
31
Pennycooke affirmed the general rule that an explicit waiver of the right to testify
was not required, but recognized that “in exceptional, narrowly defined circumstances,
judicial interjection through a direct colloquy with the defendant may be required to
ensure that the defendant’s right to testify is protected.” (United States v. Pennycooke,
supra, 65 F.3d at p. 12.) It gave as examples a defendant repeated interrupting the trial
court with expressions of intent to testify, or more generally, “[w]here, in furtherance of
trial strategy, defense counsel nullifies a defendant’s right to testify over the defendant’s
protest . . . .” (Id. at p. 13.) Ly is likewise inapposite as it involved the trial court’s
failure to correct a pro per defendant’s express misunderstanding of his right to testify.
(United States v. Hung Thien Ly, supra, 646 F.3d at p. 1317.) It was also premised on the
extra protections afforded pro se litigants and distinguished circuit court precedent
holding trial courts had no sua sponte duty to colloquy defendants on the right to testify.
(Id. at pp. 1315-1316.) Sternes involved a defendant’s ambiguous ratification of trial
counsel’s decision for him not to testify. (Ward v. Sternes, supra, 334 F.3d at p. 705.)
Defendant clearly affirmed he did not want to testify at the guilt phase, explicitly
agreeing with counsel’s statement that counsel had explained the right to testify, that the
decision to make was defendants, and that defendant was going to decline to testify. The
trial court noted it had informally discussed the matter with defendant that morning, and
when asked by the trial court to put that discussion on record, defendant replied that he
had told the trial court his reasoning. After further prompting from defense counsel,
defendant said he would have to represent himself throughout the rest of his trial if he
testified and was now confused. When counsel then corrected defendant’s statement by
noting he had told defendant of the problems counsel would face if defendant gave
narrative testimony, defendant concluded by stating he did not understand, and counsel
responding that they went over this matter very well in jail.
Defendant’s claim of not understanding was made as a reaction to defense
counsel’s statement regarding his prior explanation to defendant about the problems with
32
his desire to testify narratively. He did not claim a lack of understanding when he agreed
with counsel’s explanation of his rights and the decision not to testify. There was never
any question defendant understood the nature of the proceedings. The experts who
initially found him incompetent to stand trial opined he understood the nature of the
proceedings but was incompetent because he could not cooperate with counsel. Given
the ample evidence defendant engaged in manipulative behavior to get his way
throughout the proceedings and defendant’s express waiver of the right to testify, we
conclude the trial implicitly concluded defendant knowingly and intelligently waived his
right to testify notwithstanding the ambiguous end to the colloquy. We have no cause to
reject that conclusion.
V
Spelling Error and Substantial Evidence
Defendant next claims all 32 convictions for violating a restraining order should
be reversed for insufficient evidence because the one restraining order admitted into
evidence spelled the protected party’s name “Erica,” while the person defendant was
charged with illegally communicating within violation of the order, his wife, spells her
name “Erika.”
Defendant was charged in counts 20 to 52 with violating section 166, subdivision
(c)(1) by contacting his wife Erika via various phone calls from jail and through
numerous letters sent to her. Although there were three restraining orders against
defendant, only one was admitted into evidence. That order, made on January 5, 2015,
restrained defendant pursuant to section 136.2 from attacking a person with the same last
name as defendant’s wife, but whose first name was spelled “Erica.”12 Evidence was
12 A March 3, 2015, restraining order correctly spelling the first name of defendant’s
wife as “Erika” was not admitted into evidence.
33
presented showing defendant contacted his wife numerous times after the order went into
effect.
Section 166 defines and punishes various types of contempt of court. Subdivision
(a) lists multiple forms of contempt which are misdemeanors “[e]xcept as provided in
subdivisions (b), (c), and (d) . . . .” One such contempt is defined in subdivision (a)(4) as,
“Willful disobedience of the terms, as written, of a process or court order or out-of-state
court order, lawfully issued by a court, including orders pending trial.” The provision
defendant was convicted under, subdivision (c)(1), punishes among other things, the
willful and knowing violation of a section 136.2 restraining order “by imprisonment in a
county jail for not more than one year, by a fine of not more than one thousand dollars
($1,000), or by both that imprisonment and fine” notwithstanding subdivision (a)(4).
(§ 166, subd. (c)(1)(A).)
Defendant contends the crime is defined by section 166, subdivision (a)(4), which
requires a violation of the restraining order “as written.” While that term is not present in
the subdivision defendant was convicted under, subdivision (c)(4), defendant asserts
provides for greater penalties for a subset of subdivision (a)(4) violations. Asserting any
ambiguity in a penal statute must be construed in his favor (see People v. Overstreet
(1986) 42 Cal.3d 891, 896 [describing rule of lenity]), defendant claims the unambiguous
provision, subdivision (a)(4), controls. He concludes there is insufficient evidence to
convict defendant because he did not violate the order as written because the person he
contacted spells her name with a “k” rather than a “c.”
California has abolished the presumption of identity of person from identity of
name; the matter is now left to inference and the strength of the inference depends on
whether the name is common or unusual. (People v. Luckett (1969) 1 Cal.App.3d 248,
253.) “ ‘The doctrine of idem sonans is that though a person’s name has been
inaccurately written, the identity of such person will be presumed from the similarity of
sounds between the correct pronunciation and the pronunciation as written. Therefore,
34
absolute accuracy in spelling names is not required in legal proceedings, and if the
pronunciations are practically alike, the rule of idem sonans is applicable.’ [Citations.]
The rule is inapplicable, however, under circumstances ‘where the written name is
material.’ [Citations.]” (Orr v. Byers (1988) 198 Cal.App.3d 666, 669.)
When reviewing a claim of insufficient evidence to support a conviction, we
review the record in the light most favorable to the judgment, to determine whether it
discloses substantial evidence—evidence that is “reasonable, credible and of solid
value—from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) We draw all
available inferences supporting the jury’s verdict. (People v. Olguin (1994)
31 Cal.App.4th 1355, 1382.) “ ‘If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also be
reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.’ ” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
At closing, the prosecutor admitted the misspelling and asserted it did not cause
any possible confusion. Defense counsel also pointed out the misspelling, and the
prosecutor argued on rebuttal that defendant knew he was not supposed to contact his
wife, and any misspelling in the order was immaterial.
The restraining order in question also identified Erika by her last name, which was
sufficiently distinctive to inform defendant that it was his wife whom he was not to
contact. Defendant presents no authority, and we have no reason to conclude, that the
term “as written” in subdivision (a)(4) of section 166 was intended to turn a protective
order into a spelling test for the issuing court. Limiting violations to the order “as
written” protects a person subject to the order from being trapped by an expansive ex post
facto interpretation of the order, and to give the person adequate notice of what the order
prohibits. Those concerns are not present here. There is no reasonable question that
defendant’s wife was the person protected by the order, and that he violated the order by
35
repeatedly contacting her. The jury could reasonably make this inference, and, in light of
the arguments at trial, it did so. Substantial evidence supports the section 166
convictions.
VI
Ineffective Assistance of Counsel
Defendant contends trial counsel was ineffective in failing to inform the trial court
that the report from Napa State Hospital corroborated his claim that he was not being
given antipsychotic medications that returned his competency to stand trial.
Defendant’s claim is based on a faulty premise. While the report states defendant
was being administered a medication, valproic acid, when he was found competent by
Napa State Hospital, the report did not state that this or any other medication was needed
to restore or maintain competence. In addition, as has been discussed in detail, defendant
was administered a medicine containing this drug when proceedings resumed after
competency was restored. “Counsel is not ineffective for failing to make frivolous or
futile motions.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) Such is the case here.
VII
Cumulative Error
Defendant’s final contention is that cumulative error warrants reversal of his
convictions. Since the only error here, the Griffin misconduct, was rendered harmless
beyond a reasonable doubt through instruction, there is no error to accumulate, and his
contention is therefore without merit.
VIII
No Section 1001.36 Remand
Defendant’s final contention is that the matter should be remanded to allow the
trial court to determine whether he should be granted pretrial diversion pursuant to
section 1001.36.
36
“Section 1001.36 authorizes a pretrial diversion program for defendants with
qualifying mental disorders. The statute defines ‘ “pretrial diversion” ’ as ‘the
postponement of prosecution, either temporarily or permanently, at any point in the
judicial process from the point at which the accused is charged until adjudication, to
allow the defendant to undergo mental health treatment . . . .’ (§ 1001.36, subd. (c).) The
stated purpose of the diversion statute ‘is to promote all of the following: [¶]
(a) Increased diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public safety. [¶]
(b) Allowing local discretion and flexibility for counties in the development and
implementation of diversion for individuals with mental disorders across a continuum of
care settings. [¶] (c) Providing diversion that meets the unique mental health treatment
and support needs of individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)
“As originally enacted, section 1001.36 provided that a trial court may grant
pretrial diversion if it finds all of the following: (1) the defendant suffers from a
qualifying mental disorder; (2) the disorder played a significant role in the commission of
the charged offense; (3) the defendant’s symptoms will respond to mental health
treatment; (4) the defendant consents to diversion and waives his or her speedy trial right;
(5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an
unreasonable risk of danger to public safety if treated in the community.” (Former
§ 1001.36, subd. (b)(1)-(6).) Section 1001.36 was subsequently amended by Senate Bill
No. 215 (2017-2018 Reg. Sess.) (Senate Bill 215) to specify that defendants charged with
certain crimes, such as murder and rape, are ineligible for diversion. (§ 1001.36, subd.
(b)(2), as amended by Stats. 2018, ch. 1005, § 1.)
“If the defendant makes a prima facie showing that he or she meets all of the
threshold eligibility requirements and the defendant and the offense are suitable for
diversion, and the trial court is satisfied that the recommended program of mental health
treatment will meet the specialized mental health treatment needs of the defendant, then
37
the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)”
(People v. Frahs (2020) 9 Cal.5th 618, 626-627 (Frahs).)
While section 1001.36 applies retroactively to all nonfinal convictions under the
rule of In re Estrada (1965) 63 Cal.2d 740. (Frahs, supra, 9 Cal.5th at p. 624), the
question remains as to which version of the law applies here.
Defendant could qualify for diversion under the original version of the statute, but
no longer qualifies under the most recent version. Among the charged offenses that
render a defendant ineligible are offenses subject to section 290 registration, section 314,
and “Lewd or lascivious act on a child under 14 years of age.” (§ 1001.36, subd.
(b)(2)(B), (b)(2)(D).) Defendant was charged with (and convicted of) violations of
sections 288.7 and 288, both of which are subject to mandatory registration under section
290 (§ 290, subd. (c)(1)), and the section 288 conviction also disqualifies defendant for
the crime of lewd acts on a child under the age of 14.
Defendant claims application of the statute as amended is improper because
statutes are presumed to apply prospectively (see Frahs, supra, 9 Cal.5th at p. 627) and
conflicts with Frahs’s reasoning that the Legislature “could have regarded the preexisting
criteria as adequate to protect public safety, at least until the new law took effect.” (Id. at
p. 636.) He further asserts application of the statute as amended to him would amount to
a violation of the ex post facto clauses of the state and federal constitutions.
Two cases have addressed and rejected arguments similar to those made by
defendant here. In People v. McShane (2019) 36 Cal.App.5th 245, review dismissed
August 26, 2020, S257018, the defendant asserted: “(1) He is entitled to the benefit of
the new diversion provisions, because they are ameliorative; however, (2) He is not
subject to the even newer murder exclusion, because (a) it is not ameliorative, and (b) as
applied to him, it would have a prohibited ex post facto effect.” (Id. at p. 259.) The
Fourth District Court of Appeal found the ex post facto and retroactivity questions
closely intertwined. (Id. at p. 260.) Since section 1001.36 did not exist when defendant
38
committed his crime, applying to him an amendment rendering him ineligible from its
benefits was not improper. “Here, when defendant committed the crime, he was not
eligible for pretrial diversion, because Penal Code section 1001.36 did not yet exist.
Now, he is not eligible for pretrial diversion, because of the murder exclusion. Thus, the
enactment of the murder exclusion did not change the consequences of his crime as of the
time he committed it. The fact (if it is a fact) that he was briefly eligible for pretrial
diversion under Penal Code section 1001.36, as originally enacted, is irrelevant to the
retroactivity analysis.” (McShane, at p. 260, italics omitted.) The defendant, therefore,
was not entitled to relief because he was ineligible under the amended statute. (Id. at
p. 261.)
People v. Cawkwell (2019) 34 Cal.App.5th 1048, review dismissed August 26,
2020, S256113, likewise involved a defendant who was eligible under section 1001.36 as
originally enacted but was convicted of an offense subjecting him to section 290
registration, rendering him ineligible under the current statute. (Cawkwell at p. 1051.)
The Cawkwell court found, “because all relevant legislative activity occurred years after
Cawkwell committed his offenses, he could not have relied on the prospect of receiving
diversion when he committed his offenses. Thus, the amendment eliminating eligibility
for sex offenders like Cawkwell is not an ex post facto law,” and he was, therefore,
ineligible for relief. (Id. at p. 1051.) In rejecting the defendant’s claim that this result
violated the prohibition against ex post facto laws, the Fourth District Court of Appeal
found that diversion did not exist when the crimes were committed, and “the
Legislature’s amendment of section 1001.36 to eliminate eligibility for defendants
charged with sex offenses did not make an act unlawful that was not formerly unlawful,
nor did it increase the punishment for the offenses with which Cawkwell was charged.
[Citation.]” (Id. at p. 1054.) The defendant was therefore ineligible for diversion. (Ibid.)
We are persuaded by both decisions. “[W]hether a new law is being applied
retrospectively is closely intertwined with the question whether it is an unconstitutional
39
ex post facto law, because a finding that the law is being applied retrospectively is a
threshold requirement for finding it impermissibly ex post facto.” (In re E.J. (2010)
47 Cal.4th 1258, 1276.) Section 1001.36 did not exist when defendant committed his
crimes. Applying the amended version to this case does not increase the punishment in
effect when the crimes were committed and does not render formerly innocent behavior
criminal. Accordingly, application of the current law to defendant does not violate the
state or federal ex post facto prohibitions. Likewise, absent a specific legislative
directive to the contrary, if ameliorative legislation applies retroactively under Estrada,
then it is the most recent version of the legislation that is applied to the case. Since
defendant is not eligible for relief under the current statute, his contention is without
merit.
DISPOSITION
The judgment is affirmed.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
HULL, J.
\s\ ,
DUARTE, J.
40