Opinion
E081204
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. DAMIAN EZEQUIEL GONZALEZ, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF2101154. Harold W. Hopp, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Damian Ezequiel Gonzalez went to trial on charges of stalking, in violation of Penal Code section 646.9, subdivision (a), and a misdemeanor charge of making harassing telephone calls and other contacts using electronic communication devices, under section 653m, subdivision (b). The charges arose from extended, persistent, and unsolicited communications between defendant and a professor at a local two-year college, with whom defendant was obsessed, even after the issuance of a restraining order. Prior to trial, criminal proceedings were suspended when trial counsel expressed a doubt as to defendant's competence, within the meaning of section 1368 et seq., but defendant was found to be competent to stand trial.
All further statutory references are to the Penal Code unless otherwise indicated.
During his trial, defendant attempted to discharge his court-appointed attorney, making his first request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), which he withdrew after learning he would not be released from custody, and which was followed by a second request to represent himself. The court granted the second request. Following his conviction on the charges, defendant appealed.
On appeal, defendant argues (1) the trial court failed to inquire into defendant's competence to waive his right to counsel, and (2) failed to ensure that defendant's waiver of his right to counsel was made knowingly and intelligently. We affirm.
Background
A. Facts Pertaining to the Charges
In November 2018, a professor of psychology (the victim) who taught at a community college, noticed the defendant sitting in the corner of her class by himself. She asked the defendant if he was enrolled in the class; he said he was not and asked if he could enroll. The victim told the defendant that he could enroll if there was availability, and defendant did so. Defendant emailed the victim during the semester about needing a counselor, but when the victim recommended one for him, he declined.
Defendant emailed the victim repeatedly throughout November and December 2018. In the email dated November 7, 2018, defendant accused the victim of cheating on him, although the victim had never flirted with defendant or discussed dating him, and it made her feel threatened. The victim reported the emails to the college's dean and her supervisor, and they told her they would handle it. Defendant also sent the victim emails that sounded delusional, speaking obliquely in one email about how the victim's class opened his eyes to many things he did not understand before, and indicating that he knew "why things happened the way they did." The victim again reported the emails to the dean and her supervisor.
Defendant was undeterred; in a subsequent email, he told the victim he had lied to her, did not need help and led her to believe there was an experiment, but the victim did not know what he meant by that. He knew the victim was afraid to be alone with him "out of fear for [her] safety." That same day, he sent another email telling the victim he had a crush on her, that he did not blame her tactics, and that he had depression and personal issues. The victim's supervisor and the dean told the victim they had informed defendant that the victim was afraid for her safety and advised him not to contact her. But the defendant continued to contact her, making her anxious, and causing her to file yet another report to her supervisor and the dean.
On December 1, 2018, the victim filed a student report against defendant, after which the college resource officer Deputy Sheriff Ryan Weber escorted the victim around campus and told defendant to leave the victim alone. Despite the defendant being informed that the victim did not want a relationship with him, and defendant being told he could only email the victim about school-related topics, defendant continued to send non-school-related emails to the victim. On December 7, defendant emailed the victim to say that he "chose to walk away yesterday because [he] knew whose help [the victim] preferred, and [he] had to prove to [him]self [he] was letting go," which made the victim feel threatened and scared. The victim felt harassed because defendant would not leave her alone.
On December 21, 2018, defendant emailed the victim to state he tried to let her go but that she was '"just too precious"' to him and indicating he '"was stupid in thinking [he] wanted to forget [the victim]."' He went on to say, '"All I can do now is seek Jesus with a sincere heart in order to replace this emptiness, because I still don't trust in other people, and I especially do not believe in luck. If you really are a woman of faith, I just ask you to pray for me."' The victim felt threatened by this email and believed defendant would physically harm her.
After the semester concluded, defendant emailed the victim on February 5, 2019, telling her "there are many attractive ladies at [the school] but none of them compare[s] to the beautiful psychology professor I cannot seem to forget. I do not deserve you, but I need you, [the victim's name]. You are still the motivation that keeps me going in the IE. I'll stop thinking about suicide and wait for you, even if it means waiting in vain, because you are that special. My love, [defendant]." The victim was very frightened and stressed upon reading this email. Two days later, defendant sent emails indicating he did not intend to harass her but that he missed her. This email made the victim feel really worried.
In May 2019, he emailed the victim stating he had talked to her deceased father. Sometime that same month, defendant casually approached the victim, while she was on campus with her supervisor, to apologize to her. The victim began to think defendant was following her.
Because defendant did not heed the advisals to stop emailing the victim about nonschool related matters, the school held a suspension hearing, which was recorded by deputy Weber, and the recording was played for the jury. Weber had turned on his body-worn camera when defendant described to him a sexual fantasy of his involving the victim, in which he would give the victim a ride home because her car had broken down and defendant would force himself on her to see what her reaction would be. Defendant was suspended, and the school told him not to contact the victim. The victim was scared for her safety. The victim then saw defendant's vehicle parked outside her mother's home and obtained a restraining order.
In July 2019, defendant was served with a temporary restraining order preventing him from contacting the victim. While serving defendant with the restraining order, the detective took a photo of defendant's vehicle. A few months later; however, on November 11, 2019, the defendant emailed the victim with a message referring to a prior incident and indicating he could not resist the urge to reach out to her and wanted to ask her how she was doing and if there was any desire to talk to him.
Three days later, defendant sent another message to the victim professing his love for her, indicating he did not care if he was banned from the college, and apologizing if his email was harassment. Believing defendant was obsessed with her, the victim feared for her safety. A short time later, after unsuccessfully attempting to locate defendant, deputy Weber posed as the victim through her email to ask the defendant if he would meet the victim. The defendant agreed to meet the victim at a coffee shop next to the college. When Weber arrived at the coffee shop, he arrested the defendant for violating the restraining order as defendant was leaving the coffee shop.
In July 2021, deputy Weber again detained and interviewed defendant, who had continued to stalk the victim on her social media accounts as well as by email; in the interview, defendant admitted he knew the victim was afraid, that he looked for her by conducting a search on Google, that he was angry, and that he visited the victim's father's gravesite.
B. Procedural Matters
For context, we describe all the proceedings leading to court order allowing defendant to represent himself. The People filed a second amended information charging defendant with stalking (§ 646.9, subd. (a); count 1) and repeated and annoying electronic communication (§ 653m, subd. (b); count 2). On November 30, 2021, before commencement of defendant's first trial, defense counsel expressed a doubt as to defendant's competence pursuant to section 1368. On December 3,2021, the court granted the request for a referral for an evaluation, suspended criminal proceedings, and appointed two psychologists, Dr. Herberth Valle and Dr. Robert L. Suiter, to conduct evaluations. Dr. Suiter concluded defendant was competent, while Dr. Valle concluded he was not. On March 3, 2022, at defendant's request, a third psychologist was appointed, Dr. William H. Jones and conducted an evaluation, in which the psychologist concluded defendant was competent.
The original information included an additional count, criminal threats, in violation of section 422. This charge was eliminated when the People filed the first and second amended information, eliminating that charge.
On April 7, 2022, the parties stipulated the court could rule on the basis of the competency reports and the court found defendant competent to stand trial and reinstated criminal proceedings. On multiple occasions defendant made Marsden motions to discharge his trial attorney (ref. People v. Marsden (1972) 2 Cal.3d 118).
Defendant's first trial ended in a mistrial after deputy Weber had been observed talking with several jurors in the hallway during a recess. The court made inquiries of deputy Weber, an attorney who observed the encounter, as well as the involved jurors, before taking the issue under submission. The court indicated it would not grant a mistrial but to cure the prejudice, it would exclude certain testimony by the deputy Weber regarding matters requiring the jury to base its decision on Weber's credibility, as opposed to evidence corroborated by video or audio recording. The court again took the issue under submission, but, during the recess, there was an angry outburst by defendant directed at deputy Weber in the hallway, that was observed by several jurors. Based on "all the things that have gone wrong," the court granted a mistrial. On February 9, 2023, defendant was remanded to custody with bail set at $20,000, possibly because defendant had not reported to the probation department.
In addition to deputy Weber's description of matters that transpired before he turned on his body-worn camera during the interview with defendant at his suspension hearing, the People intended to establish the victim's fear by using Weber's testimony about how the victim reacted when the deputy informed her of the defendant's statement about his sexual fantasy with the victim, which was unrecorded. This evidence was crucial to the People's case.
On January 13, 2023, the probation officer had filed a memorandum seeking to revoke defendant's OR (Own Recognizance) status for failing to report since October 11, 2022.
On February 14, 2023, before voir dire commenced in the retrial, the trial court inquired about defendant's oral request to represent himself. After explaining the consequences of self-representation, the court asked defendant if he was prepared to try his case, but defendant indicated he was not, explaining that he could only represent himself if he were released from custody. After more discussion, defendant withdrew that request for self-representation.
On February 21, 2023, defendant appeared for trial in jail clothes, causing the court to inquire, and he again moved to represent himself. The court asked if defendant was ready to proceed in representing himself at trial, and if he understood that being selfrepresented he would be at a significant disadvantage to the career prosecutor who represented the People, informed defendant that he would not be getting a continuance, and that the court would not be releasing defendant from custody due to the change in representation. After defendant indicated his understanding and assent, the court discharged defense counsel. Defendant filled out and signed a form petition to proceed in propria persona, acknowledging that he understood the risks and pitfalls of selfrepresentation and knowingly accepted them, waiving his right to counsel.
On February 24, 2023, the jury found defendant guilty as charged. On March 3, the trial court sentenced defendant to two years in state prison on count 1 and stayed 180 days in county jail on count 2. Because defendant had served in excess of two years in presentence custody, his sentence was deemed served and defendant was referred to the parole authorities. The court also issued a new criminal protective order for the victim.
Defendant filed a timely notice of appeal.
Discussion
Defendant argues his conviction must be reversed because the court failed to conduct an adequate inquiry to determine if defendant was competent to waive his Sixth Amendment right to counsel, pursuant to Faretta, and that it failed to ensure that defendant's waiver was knowingly and intelligently made. We disagree.
A. Whether the Court Failed to Determine if Defendant Was Competent to Waive His Right to Counsel
Defendant argues that structural error occurred when the trial court failed to ensure that defendant was competent to conduct trial proceedings and that he understood the risks and disadvantages of self-representation prior to granting his request to represent himself prior to trial, citing Faretta, supra, 422 U.S. at page 836. We disagree.
Although proceedings were once suspended to determine if defendant was competent to stand trial, and although defendant has a documented and a self-admitted history of mental illness, there is nothing in the record to suggest that defendant was incompetent at the time he sought to exercise his rights under Faretta and to represent himself. Defendant does not claim on appeal that he was incompetent to stand trial at the time of his motion and does not argue that the trial court should have appointed advisory counsel. Instead, he urges that an inquiry into defendant's competence should have been undertaken before granting defendant's request to represent himself.
A defendant has a federal constitutional right to the assistance of counsel during all critical stages of a criminal prosecution. (Faretta, supra, 422 U.S. at p. 807; People v. Mickel (2016) 2 Cal.5th 181, 205 (Mickel).) A defendant may nonetheless waive that right, as long as the waiver is timely and valid. (Mickel, supra, at p. 205; People v. Bloom (1989) 48 Cal.3d 1194, 1219-1220 (Bloom).) "'The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion.'" (People v. Morelos (2022) 13 Cal.5th 722, 735, quoting People v Koontz (2002) 27 Cal.4th 1041, 1069-1070 (Koontz).)
When a motion to proceed pro se is timely made, '"a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be."' (People v. Burnett (1987) 188 Cal.App.3d 1314, 1318, quoting People v. Windham (1977) 19 Cal.3d 121, 128.) The erroneous denial of a proper and timely request is reversible per se. (People v. Boyce (2014) 59 Cal.4th 672, 702, citing McKaskle v. Wiggins (1984) 465 U.S. 168, 177-178, &fn. 8 (McKaskle).)
Here, the court granted the request, and we have found no decisional authority applying a structural error analysis to the granting of a Faretta motion, absent evidence the defendant was incompetent to waive his right to counsel.
In Faretta, supra, 422 U.S. 806, the United States Supreme Court held that a defendant choosing self-representation must do so "competently and intelligently." (Id. at p. 835.) The competence that is required of a defendant is the competence to waive the right, not the competence to represent himself. (Godinez v. Moran (1993) 509 U.S. 389, 399 (Godinez).) "The trial court may not determine a defendant's competency to waive counsel by evaluating his ability to present a defense." (Koontz, supra, 27 Cal.4th at p. 1070, citing Godinez, supra, at pp. 399-400; United States v. Arlt (9th Cir. 1994) 41 F.3d 516, 518.)
Nevertheless, Faretta and other cases have made clear that the right of selfrepresentation is not absolute. (Indiana v. Edwards (2008) 554 U.S. 164, 171 (Indiana), citing Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 163 [no right of self-representation on direct appeal in a criminal case]; McKaskle, supra, 465 U.S. 168, 178-179 [appointment of standby counsel over self-represented defendant's objection is permissible]; Faretta, supra, 422 U.S., at pp. 834-835, &fn. 46 [no right "to abuse the dignity of the courtroom" or to avoid compliance with "relevant rules of procedural and substantive law" or to "engag[e] in serious and obstructionist misconduct"].)
Thus, the Constitution does not forbid a trial court to require a defendant to proceed to trial with counsel, "permit[ting] judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." (Indiana, supra, at pp. 177-178.) In such situations, where there "is reason to doubt a defendant's mental capacity to waive counsel, the court's determination should be made after a careful inquiry into the defendant's competence, including consideration of psychiatric evidence." (Waldon, supra, 14 Cal.5th at pp. 307-308.)
Decisional authorities do not require a finding that "a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights." (Godinez, supra, 509 U.S. at p. 399.) For this reason, the same standard of competence governs both the competency to stand trial, and the competency to waive the right to counsel. (People v. Wycoff (2021)12 Cal.5th 58, 80.)
Further, the court in Godinez reaffirmed that a court is not required to make a competency determination in every case in which a defendant seeks to plead guilty or to waive his right to counsel. (Godinez, supra, 509 U.S. at p. 401, fn. 13.) "As in any criminal case, a competency determination is necessary only when a court has reason to doubt the defendant's competence." (Ibid.) A trial court is not required to '"routinely inquire"' into a defendant's mental competence when evaluating a Faretta motion, unless it has doubts about the defendant's competence. (Mickel, supra, 2 Cal.5th at p. 208.)
The record in the present case does not indicate that defendant was incompetent at the time he made his Faretta motion, and neither the trial court nor defense counsel expressed any doubt as to defendant's competence, although he did have mental illness. Unless that mental illness rendered defendant incompetent to waive his right to counsel, he was entitled to represent himself. We must therefore presume he was competent to both stand trial and to waive his constitutional right to counsel. (§ 1369, subd. (f); People v. Ramos (2004) 34 Cal.4th 494, 507 ["A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence"].)
Given the defendant's mental health history, which was a matter of record in this case, the trial court should have made some inquiry into defendant's competence to stand trial, where this case postdated the decision in Indiana, supra, 554 U.S. 164. But although defendant had made an outburst in the hallway at a recess during his first trial, which had been held before a different judge, his comportment during the retrial, leading up to his Faretta motions, supports the presumption that he understood the nature of the proceedings and that he could conduct a defense in a rational manner.
In other words, while the court did not follow the procedure of inquiry into competence required by Indiana, supra, 554 U.S. 164 and its progeny, there is nothing to suggest that defendant was not competent at the time he made his motion, in a manner that would require the appointment of experts to evaluate him or compel a retrial. In any event, were we to remand for further proceedings relating to the waiver of his right to counsel, there is no possibility of a different result, given the evidence of the numerous harassing emails, and defendant's recorded interview admitting that he wrote and sent the emails, coupled with evidence of his statement regarding the sexual fantasy involving the victim.
B. Whether Defendant Knowingly and Intelligently Waived His Right to Counsel
Having determined there is no record evidence that defendant was incompetent to waive his right to counsel at the time of defendant's request, we must determine whether the record supports the trial court's finding that he knowingly and intelligently waived his right to be represented by counsel. Although the trial court did not recite anew all the admonishments given the previous week, or include all the information contained in the form petition to proceed in propria persona that was filled out and signed by defendant, the court's finding that defendant's waiver was knowing and intelligent is supported by substantial evidence.
In order to make a valid waiver of the right to counsel, a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" (Faretta, supra, 422 U.S. at p. 835.) This is so because the court has a duty to protect the accused's right to counsel and to '"satisfy itself that the waiver of his constitutional rights [was] knowing and voluntary."' (People v. Waldon (2023) 14 Cal.5th 288, 305, quoting Godinez, supra, 509 U.S. at p. 400; see Koontz, supra, 27 Cal.4th at p.1069 ["'the federal Constitution requires assiduous protection of the right to counsel'"].) "This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." (Johnson v. Zerbst (1938) 304 U.S. 458, 465.)
Based on these premises, our Supreme Court held in Waldon, supra, 14 Cal.5th at page 307 "'A two-part inquiry determines whether a defendant may waive the right to counsel: (1) The defendant must be competent to stand trial, and (2) the trial court must 'satisfy itself' that the waiver of 'constitutional rights is knowing and voluntary.'" We have already addressed the first part of the inquiry in section A of the Discussion, ante. We turn now to the second inquiry.
In Godinez, the high court explained that ''[t]he purpose of the 'knowing and voluntary' inquiry ... is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.'' (Godinez, supra, 509 U.S. at p. 401, fn. 12; accord, Koontz, supra, 27 Cal.4th at pp. 1069-1070.)
"No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; 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, citing People v. Stansbury (1993) 4 Cal.4th 1017, 1048, revd. on another point in Stansbury v. California (1994) 511 U.S. 318; see People v. Ruffin (2017) 12 Cal.App.5th 536, 543 (Ruffin) [master calendar judge granted defendant's Faretta motion without inquiring into defendant's competence, after which the assigned judge only relied on the the form petition to proceed in pro per that defendant previously signed].)
We review a Faretta waiver de novo, examining the entire record to determine the validity of a defendant's waiver. (Koontz, supra, 27 Cal.4th at p. 1070.)
In the present case, the defendant had been orally admonished of the pitfalls of self-representation on February 14, 2023, when he first made his request, and then withdrew it. At that time, the court also elicited information about defendant's level of education, his experience with the legal system by serving on jury duty, and his ability to understand English, admonishing him that if he represented himself, he could not posit a claim of ineffective assistance of counsel on appeal. Defendant withdrew this request when he informed the court he was not prepared for trial and was informed he would not be released from custody. A week later, he renewed his motion, resulting in the following colloquy:
"THE COURT: Okay. Are you ready to proceed in representing yourself today at trial?
"THE DEFENDANT: Yes, sir.
"THE COURT: Okay. You understand that being represented by yourself, you are probably at a significant disadvantage to the career prosecutor who represents the People; right?
"THE DEFENDANT: Yes.
"THE COURT: Nevertheless-and you understand that you are not getting a continuance?
"THE DEFENDANT: No.
"THE COURT: And you understand-You do understand?
"THE DEFENDANT: I do understand, yes.
"THE COURT: Okay. And you understand that I'm not going to be releasing you from custody because of the change in representation; right?
"THE DEFENDANT: I understand.
"THE COURT: Okay. [Counsel], you are discharged.
"[COUNSEL]? Thank you, Your Honor.
"THE COURT? If you can leave your file for [defendant]."
After granting defendant's motion, the court had defendant execute a form "Petition to Proceed in Propria Persona," initialing boxes to indicate he understood he had a right to be represented by counsel, that the court had recommended that he accept the appointment of counsel, that he would be responsible for following the technical rules of substantive law, criminal procedure and evidence, that the People would be represented by an experienced attorney, that he would receive no special consideration by the court, that he would be responsible for conducting all aspects of the trial, and that he would not be able to raise ineffective assistance of counsel on appeal in the event of a conviction, and that he understood and gave up his right to counsel.
The record does not show that the court advised defendant of the maximum penalty for a conviction on the charges for which he was tried (see Ruffin, supra, 12 Cal.App.5th at p. 544), but there is no express requirement for such an admonishment. (People v. Bush (2017) 7 Cal.App.5th 457, 473.) Even if the court gave incomplete advisals, any error is not reversible per se, but instead its prejudicial effect is analyzed under the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, applicable to most state law errors. (Cal. Const., art. VI, § 13; People v. Crayton (2002) 28 Cal.4th 346, 349-350.)
Defendant asserts the error in granting the motion to represent himself is structural error. However, that standard of prejudice applies only to the denial of a motion to proceed in pro. per. Unless the defendant demonstrates incompetence, the granting of the motion is reviewed under Watson.
As a whole, the record demonstrates defendant understood the charges he was facing as well as the disadvantages of self-representation. After examining the entire record and, considering defendant's numerous attempts to discharge his attorney before making the motions for self-representation, we conclude the trial court's finding that defendant made a knowing and intelligent waiver of his Sixth Amendment right to representation by counsel is supported by substantial evidence.
Disposition
The judgment is affirmed.
We concur: McKINSTER J. CODRINGTON J.