Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. BLF003752, Richard A. Erwood, Judge. Affirmed.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Except when otherwise noted, all statutory references are to the Penal Code.
Defendant, an immigration lawyer who suffers from mental illness, killed her husband, Henry Sims, and then represented herself at trial. A jury convicted her of first degree murder and also found true the alleged firearm enhancements. (§§ 187, subd. (a); 12022.5, subd. (a); and 12022.53, subd. (d).) The court sentenced defendant to two consecutive sentences of 25 years to life and stayed the sentence for the enhancement under section 12022.5, subdivision (a). (§ 654.)
On appeal, defendant charges the court committed evidentiary, instructional, and sentencing error. She objects to the admission of two prior acts of domestic violence from 1992 and 1995. (Evid. Code, § 1109.) She contends the court should have given sua sponte Judicial Council of California Criminal Jury Instructions (2007-2008), (CALCRIM) No. 627 about hallucinations. She argues the court should have stricken, rather than stayed, the sentence for the second firearm enhancement. In supplemental briefing, she asserts she was not competent to represent herself. We affirm the judgment.
The prosecution seemed to focus unnecessarily on the fact that defendant and Henry had a biracial marriage. We acknowledge Henry was African-American and defendant was not. But we do not regard race as relevant to the issues raised here.
Defendant is a college graduate with a law degree in 1989 from the University of Colorado at Boulder. She practiced law in Colorado and immigration law in California. Defendant was evaluated and determined competent to stand trial. She executed a Faretta waiver and elected to represent herself while being assisted by advisory counsel.
Faretta v. California (1975) 422 U.S. 806.
In her opening statement to the jury, defendant talked about “dioblos [sic],” as being the Greek word for “devil”; the Biblical story of Jezebel, a queen of Israel and a devil-worshipper; and the meaning of slander. She described her 25 years of marriage as “very colorful . . . a lot of joy.” She denied killing her husband and asserted that he was alive when the coroner’s photographs were taken. Instead, she proposed he was brutally beaten and murdered by someone else while she was in police custody. She accused her husband of leading a double life, like Dr. Jekyll and Mr. Hyde. She claimed he was killed by friends and associates he had known for 15 years.
The prosecution commenced with Douglas Hulse, a former Colorado police officer, who testified about an incident in December 1992, when he responded to a 911 call from defendant’s Colorado residence. Defendant had contacted the police earlier in the day about a suspected burglar in the basement or the crawl space of the house. When her husband, Henry, arrived, she had felt threatened by him and assaulted him with a butcher knife although Henry was not injured. She contended Henry had been having a sexual relationship with a prostitute who entered the house between 2:00 and 4:00 a.m. The officer arrested defendant and she was placed on a 72-hour mental health hold.
Deandrea Sims testified that she is the daughter of Henry and defendant. In May 1995, when Deandrea was 14 years old, defendant woke her up in the middle of the night and stabbed her in the chest with a four-inch paring knife. Defendant had been having delusions about the “Second Coming” and a holy war. She explained she had to stab her daughter so Deandrea would immediately go to heaven and not suffer. Defendant also exhorted her daughter to kill her with an ax. After the stabbing, defendant was diagnosed with bipolar disorder.
Defendant, acting as her own attorney, cross-examined her daughter about when the symptoms of defendant’s mental illness began to emerge in 1992. According to Deandrea, defendant exhibited extreme religiosity and directed accusations at Henry. Defendant also believed there was a conspiracy by the gas company. Deandrea recalled an incident in 1992 where there was a shooting at the bar and defendant blamed Henry although he was not involved. Deandrea testified generally about being home-schooled, about the living situation with her parents, and about her mother’s volatility.
Referring to the stabbing incident in 1995, Deandrea described having sustained “two penetrating wounds to the chest and upper abdomen and a minor laceration of the liver.” Defendant was jailed after this incident. Defendant did not want to believe she had hurt Deandrea and blamed it on having been drugged or Deandrea being drugged or hypnotized. Deandrea continued to live with her father and also with defendant before defendant was finally hospitalized for two years. After several more years, defendant was fully released from the hospital and the family moved to California. Defendant was well aware she needed to take medication to remain mentally stable.
In 2003, Deandrea began attending Howard University medical school. In 2005, Deandrea lived at home for the summer. Defendant was not sleeping well. She behaved combatively and secretively and refused to take her medication. When she did not take her medication, she was suspicious of conspiracies against her, fearful Henry was injecting her with drugs while she slept. Deandrea said defendant loved Henry but she threatened to divorce him many times. She yelled at him and accused him of engaging in occult practices and devil worship and of being unfaithful. She also behaved antagonistically toward her clients and her secretary and sometimes she would not make her court appearances.
When Deandrea returned to school in August 2005, defendant had moved out of the family residence and begun living in hotels. Defendant continued to be antagonistic toward Henry while he tried to ignore, placate, or deflect her.
David Lee Beaver, defendant’s son and Henry’s stepson, also testified. He said defendant had stopped taking her medications in December 2004. Defendant’s delusions when she did not take her medications included believing she was God’s daughter “sent to lead his army against evil demons” or “the daughter of an alien . . . fighting some sort of intergalactic war here on Earth.” Her paranoia and suspicions were directed at Henry whom she accused of adultery, theft, and drugging her. Henry responded by urging her to take her medications. He was never violent towards her.
On July 1, 2005, at 4:00 a.m., Beaver witnessed defendant chasing Henry with two carving knifes. Even though Henry was trying to shield himself with a heavy blanket, defendant was screaming for help. When Beaver called 911, the police arrived and removed defendant. Defendant also filed a restraining order against Henry in August 2005 when she tried to buy a car they could not afford and he interfered with her purchase.
Defendant began living in motels. On Wednesday, September 14, 2005, she returned to the family residence because she had lost her car keys. She left without her driver’s license or any cash. The next day Beaver and Henry drove around looking for her and filed a missing person’s report. When defendant finally called the house, she told Beaver she was with “her guardian angel.” After Henry spoke to her on the phone, he met her at a fast food restaurant and gave her a car to drive. On Friday, September 16, Beaver, Henry, and defendant all met for breakfast but defendant was angry and they parted ways. On Saturday, September 17, Henry left at 7:00 a.m. to meet defendant and feed the ducks at Lake Evans in Riverside. At 5:00 p.m., the police detained Beaver and later that night they informed him Henry was dead.
Some bicyclists were at Lake Evans in Fairmount Park in Riverside at 8:30 that Saturday morning. They heard a splash and a woman yelling “Help, help. He’s got a knife.” One of the cyclists saw a man tussling with a woman or throwing her into the lake. Another person called 911 and they all went to the location where defendant was wet and sprawled on the ground with Henry gripping her jacket. Defendant grabbed one bicyclist’s leg and pleaded, “He’s going to kill me. Don’t let him take me.” No one saw a knife. Henry explained that they did not understand what was happening and that defendant was mentally ill. One witness remembered him saying, “You f-ing good samaritans. You don’t know what you’re doing. This is my wife. She’s been missing for two weeks. She’s crazy. I need to get her home. She needs to be on her medication.”
Fairmount Park is misspelled as “Fairmont” throughout the record and the appellate briefs.
After a few minutes, defendant calmed down and Henry helped her up. They sat on a park bench but defendant raised her voice again and then yelled at Henry that he had taken her business, her house, and her life and that he had raped her. Henry began looking for his keys while defendant remained seated. Next they got into a truck and drove away. Defendant’s parting words to the bicyclists were some variation of “May you all go to hell for your judgments of me.”
After this incident, Henry and defendant drove to Blythe. At 4:00 p.m. the same day, defendant called the Blythe Police Department from the Easy Mart convenience store and reported she had shot her husband. The police went to the store and found defendant who was upset, angry, and crying.
Defendant gave two statements to the police. Initially, she told the responding officer she and Henry had been at Fairmount Park when he became upset, punched her in the face, and threw her in the lake. Using a knife, he forced her into the truck, drove out to the desert, and parked the car off-road. He left the car, taking the keys, and walked around to the passenger side. She had locked the door so he walked away but then returned. He told her she did not need to be afraid because she had the rifle in the truck with her. She removed the rifle from the case and told him to back away from the car. Then she opened the car door, stepped out, and fired the rifle at him until it was empty. Defendant tried to drive away but the truck got stuck in the sand. She loaded the rifle with two more bullets and started walking. When she reached a paved road, she hid the rifle in some bushes and waited until two German men gave her a ride.
She offered to take the police to the site of the shooting. Defendant volunteered, “I know I’m not in custody. I know my rights. I’m an immigration lawyer. But it doesn’t matter, I would have waived them anyway. [¶] . . . The situation is a legal quagmire. I shot an unarmed man. I didn’t know I was so close to the road. If I had known the road was so close, I would have shot him in the leg, got help instead of shooting him in the chest.” She acknowledged she had shot and killed Henry.
While defendant waited in the patrol car, the police found the truck and then located Henry’s body and the rifle. The police recovered eight shell casings at the scene. After this evidence was introduced, defendant made a motion to dismiss the case because of fraud and her contention that the police were “involved in the murder, the brutal, brutal, torture murder and death of my husband.” The court denied the motion.
A detective interviewed defendant at the police station. After being given an advisement, she waived her right to counsel. She described meeting her husband at Fairmount Park, being thrown in the lake, and driving out to Blythe. She tried to sleep and he would not let her. When Henry parked in the desert and left the truck, she tried to keep him locked out. She uncased the rifle and pointed it at Henry. He said, “Just shoot me.” She asked him to back away. She said she “had to kill him” not just wound him. She opened the car door and started pulling the trigger. The first shot winged him and she continued to fire. Afterwards, she waited for a while, reloaded the rifle with two bullets and tried to leave in the truck. When it stuck in the sand, she fell asleep for a few hours. Then she walked out, hid the rifle in the bushes, and hitched a ride with the Germans before calling the police.
She told the detective that she was thinking “What am I going to tell the kids? I killed their father a block from the road. They lost their father.” She also said, “I realize I’m a lawyer. I just shot my unarmed husband to death.”
In her cross-examination of the detective, defendant talked about her belief that she had been under illegal surveillance for the last 15 years and she quoted the Bible to him, “stolen water tastes sweet.” She asked him questions about whether the videotapes of her recorded police interview had been altered.
Deandrea knew there was a .22-caliber rifle stored in the family garage and the bullets were kept in Henry’s jewelry box. She thought her father had brought the rifle in the truck for self-defense. Deandrea recounted that defendant had apologized to her for killing Henry but she also claimed Henry had thrown her in a lake and threatened her. Defendant maintained to her daughter that she shot Henry in self-defense. Later, defendant claimed someone else had murdered him.
The forensic pathologist testified that Henry sustained 10 wounds, two of which were fatal, perforating the lung and the liver. Defendant cross-examined the pathologist about his experience with “[s]atanic ritual killings” and torture.
At the end of the prosecution’s case, defendant renewed her motion to dismiss, arguing “the Prosecution’s case is comical. She’s not even proved Mr. Sims is dead. As a matter of fact, there’s as much evidence proving he may not be as there is. [¶] . . . [¶] . . . Her entire case is gossip, gossip, gossip, gossip, and just a lot of gossip on top of a lot of gossip. There’s not a single piece of hard evidence that says there has even been a crime committed.” The court denied the motion. Defendant presented no evidence.
In her closing argument, defendant continued to quote from the Bible and from the Robert Frost poem, “The Road Not Taken,” while calling Henry a “voodoo prince.”
Defendant argues on appeal the court should have excluded the evidence of two incidents of domestic violence: the butcher knife attack on Henry in 1992 and the stabbing of Deandrea in 1995. Evidence Code section 1109 allows the admission of evidence of prior acts of domestic violence with limitations on evidence of acts more than 10 years old: “(a)(1) Except as provided in subdivision (e) . . . in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Subdivision (e) provides: “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”
Defendant asserts it was an abuse of discretion to admit the previous incidents (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124) and, in the alternative, that Evidence Code section 1109 is unconstitutional as applied. We conclude that the subject evidence was substantially more probative than prejudicial (Evid. Code, § 352; People v. Ewoldt (1994) 7 Cal.4th 380, 404) and properly admitted in “the interest of justice.” (Evid. Code, § 1109, subd. (e).)
We reaffirm that Evidence Code section 1109 is constitutional. (See People v. Falsetta (1999) 21 Cal.4th 903, 916-917; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334.) “[S]everal cases from the California Courts of Appeal have applied [Falsetta’s] reasoning to reject claims that admission of prior acts of domestic violence pursuant to section 1109 violates due process.” (People v. Cabrera (2007) 152 Cal.App.4th 695, 704.) Based on the same reasoning as set forth below, we do not find it was unconstitutional as applied here.
Although defendant argues the subject evidence was too prejudicial and too old, we disagree. The evidence established defendant had a history of irrational and violent conduct against her family members, and especially against Henry. As such, the evidence was highly probative in one sense. (People v. Cabrera, supra, 152 Cal.App.4th at p. 706.) The evidence was also properly admitted because its admission did not pose serious danger of undue prejudice, confusing the issues, or misleading the jury. (People v. Lewis (2001) 25 Cal.4th 610, 637.) Concerning the primary issue of prejudice, the subject evidence demonstrated the severity of defendant’s mental illness, especially the horrific stabbing of her daughter that resulted in years of defendant’s hospitalization and medication. Although it is unlikely the evidence was unduly harmful to defendant, it potentially could have helped her. The jury could possibly have used the evidence as grounds to find, as it was instructed, that defendant acted in imperfect self-defense because she actually but unreasonably believed she was in imminent danger and the immediate use of deadly force was necessary to defend against the danger. (CALCRIM No. 571.) The evidence of defendant’s longstanding mental illness—her continuing delusions about Henry and her religious paranoia—might have persuaded the jury to find her guilty of a lesser degree of homicide than first degree.
Notwithstanding the foregoing analysis, we do not agree the court should also have given an instruction sua sponte, based on CALCRIM No. 627, that the jury “may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation.” As the court held in People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1461, “. . . imperfect self-defense cannot be based on delusion alone” and defendant “was not entitled to have jurors instructed to consider evidence of hallucination on the issue of whether appellant killed in the actual but unreasonable belief in the need to defend against imminent peril.” (See People v. Padilla (2002) 103 Cal.App.4th 675.) There was no evidence at the time of the shooting that defendant was experiencing hallucinations. Nor was there any objective evidence of a threat to defendant except what may have arisen from her private delusions. Under these factual circumstances, a sua sponte instruction about hallucinations would not have been proper. (People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Saille (1991) 54 Cal.3d 1103, 1117, 1120.) Furthermore, the issue raised by CALCRIM No. 627 was necessarily decided against defendant by the jury under CALCRIM No. 571, making any error harmless. (People v. Chatman (2006) 38 Cal.4th 344, 392.)
4. Section 12022.5 Enhancement
Defendant contends that the court should have stricken the second firearm enhancement under section 12022.5, subdivision (a), rather than imposing a stayed prison term of 25 years to life. (§ 12022.53, subd. (f); People v. Bracamonte (2003) 106 Cal.App.4th 704.)
We acknowledge this issue is presently under review by the California Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898 and People v. Warner, review granted Nov. 28, 2007, S157246.
The court in Bracamonte held that, where multiple enhancements are applicable under section 12022.53 and under section 12022.5, the court must strike the section 12022.5 enhancement. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 711, 714.) The court in this case stayed but did not strike the section 12022.5 enhancement. The Bracamonte court reasoned:
(1) Section 12022.53, subdivision (f), specifically states that if an enhancement under section 12022.53 is imposed, a section 12022.5 enhancement “shall not be imposed . . . .” (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 712-713) because “[s]uch directive is mandatory.” (Id. at p. 712, fn. 5.)
(2) The trial court “must either impose an enhancement or strike the underlying finding, . . . It is without authority simply to stay the enhancement. [Citations.]” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 711)
(3) Since a section 12022.5 enhancement “shall not be imposed,” and the court “is without authority” to stay the enhancement, the only alternative is to strike the enhancement. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 711-712.)
(4) Although section 12022.53, subdivision (f), says that unused enhancements under section 12022.53, as well as under section 12022.5, “shall not be imposed,” this language cannot be read in isolation. Instead, it must be harmonized with the provision in section 12022.53, subdivision (h), that “[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (See People v. Bracamonte, supra, 106 Cal.App.4th at p. 713.)
The Bracamonte court acknowledged that section 12022.5, subdivision (c), was amended in 2002 to provide, like section 12022.53, subdivision (h), that “‘“[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”’” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 712, fn. 5.) The court also acknowledged that the enabling legislation stated that the amendment was declarative of existing law. (See Stats. 2002, ch. 126, § 3.) However, the court held, without any real explanation, that section 12022.5, subdivision (c), was trumped by section 12022.53, subdivision (f)’s, provision that unused section 12022.5 enhancements “shall not be imposed.” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 713, fn. 5.)
Bracamonte’s holding that section 12022.53, subdivision (f), only requires that unused enhancements under section 12022.53 be stayed, but unused section 12022.5 enhancements must be struck, is illogical. The court’s reliance on the statement in section 12022.53, subdivision (f), that unused section 12022.5 enhancements “shall not be imposed” is not a persuasive reason for distinguishing between unused section 12022.53 and section 12022.5 enhancements. Section 12022.53, subdivision (f), specifically provides that “[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime.” If only one section 12022.53 enhancement “shall be imposed,” then it follows that the remaining section 12022.53 enhancements shall not be imposed, just like an unused section 12022.5 enhancement.
In addition, there is no apparent reason the Legislature would intend that section 12022.53, subdivision (f), trump section 12022.5, subdivision (c), but not section 12022.53, subdivision (h). Section 12022.5, subdivision (c), and section 12022.53, subdivision (h), use exactly the same language: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
“‘To understand the intended meaning of a statutory phrase, we may consider use of the same or similar language in other statutes, because similar words or phrases in statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be given the same interpretation.’ [Citations.]” (In re Do Kyung K. (2001) 88 Cal.App.4th 583, 589.) Accordingly, we can see no basis for concluding that section 12022.53, subdivision (h), overrides section 12022.53, subdivision (f), but the identical language in section 12022.5, subdivision (c), does not.
Finally, the Bracamonte court itself acknowledged that “the word ‘impose’ encompasses both situations where an enhancement is imposed and then executed and imposed and then stayed.” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 711.) That being the case, it is reasonable to conclude that when the Legislature in section 12022.53, subdivision (f), said that unused section 12022.5 enhancements “shall not be imposed,” it meant that such enhancements shall not be executed, but instead may be “imposed and then stayed.”
Indiana v. Edwards (2008) 544 U.S. ____, 128 S.Ct. 2379 (Edwards).
We asked the parties to provide supplemental briefing on the United States Supreme Court case, Indiana v. Edwards, in which the court considered “the relation of the mental competence standard to the right of self-representation.” (Edwards, supra, 544 U.S. ____ [128 S.Ct. at p. 2383].) In Edwards, the court held that a state may apply a different standard for competence to stand trial than for competence to represent oneself: “[T]he Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky [v. United States (1960) 362 U.S. 402] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” (Id., 128 S.Ct. at pp. 2387-2388.)
The intersection between the right of self-representation and the requirement of competence arises in a different context in the present case than it did in Edwards. The question presented there was “whether the Constitution permits a State to limit [a] defendant’s self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” (Edwards, supra, 544 U.S. at p. ____ [128 S.Ct. at pp. 2385-2386].) In this case, of course, the trial court did not deny but granted the right of self-representation. The different contexts raise different issues and concerns. (Id., 128 S.Ct. at 128 S.Ct. at pp. 2385-2388.) As noted in Edwards, Godinez v. Moran (1993) 509 U.S. 389 “involved a State that sought to permit a gray-area defendant to represent himself. Godinez’s constitutional holding is that a State may do so. But that holding simply does not tell a State whether it may deny a gray-area defendant the right to represent himself—the matter at issue here.” (Edwards, supra, 544 U.S. at p. ____ [128 S.Ct. at p. 2385].) Edwards simply does not tell us whether or under what circumstances a trial court must, as opposed to may, apply a heightened test of competence to a defendant’s request for self-representation at trial.
Our review of this aspect of the record causes us to conclude the trial court properly allowed defendant to represent herself. At the request of defense counsel, defendant was given a psychological evaluation by Dr. Michael Kania who reported defendant first received psychological treatment in the early 1990’s. She was hospitalized and diagnosed with schizoaffective disorder, later changed to bipolar disorder. She was treated with anti-psychotic medication which she stopped taking in December 2004. Kania described defendant as delusional and suffering from either schizoaffective or bipolar disorder. He concluded she was mentally competent to stand trial and to assist in her representation. But he cautioned that her condition might deteriorate if she continued to decline medication. Based on Kania’s evaluation, the court found defendant was competent to stand trial.
Subsequently, during pretrial proceedings, defendant sought to represent herself because she objected to her attorney’s motion to exclude her statements to the police, which she denied being a confession. She executed a Faretta waiver. Under questioning by the court, she described her legal background and her experience as an immigration lawyer. The court warned her about the dangers of self-representation. Before granting her request, the court inquired about her understanding of the potential sentence she faced, the difference between specific intent and general intent crimes, the process of jury selection, her decision not to ask for suppression of her statement or confession, and other matters bearing on her self-representation. The court also retained defense counsel in an advisory role for defendant during trial. Defendant immediately withdrew her suppression motion. She also refused the court’s suggestion that she wear street clothes instead of a prison uniform.
Appellate counsel now maintains a new trial is required because defendant was not competent to represent herself at trial. We acknowledge defendant did not offer much of a defense and she conducted and expressed herself bizarrely throughout. At the time of the court’s ruling in August 2006, Edwards had not been decided and the court did not have the benefit of its reasoning. Nevertheless, although Edwards may give a court the authority to deny a defendant the right of self-representation, it does not require the court do so when the court has determined defendant is capable of self-representation. Here the court based its ruling on inquiry and evaluation of defendant’s competence as required by Edwards. (Edwards, supra, 544 U.S. at p. ____ [129 S.Ct. at pp. 2387-2388].)
Furthermore, the record does not show that, either at the time of her Faretta motion or during her trial, defendant was not competent even under a heightened standard. Certainly, we agree with counsel that the record amply demonstrates appellant’s battle with mental illness. But as noted by the court in Edwards, “Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways.” (Edwards, supra, 544 U.S. at p. ____ [128 S.Ct. at p. 2386].)
The trial court repeatedly discussed the perils of self-representation with defendant who made it unequivocally clear that she wanted to represent herself. Defendant has failed to establish that the court abused its discretion in granting her request for self-representation.
6. Disposition
We reject defendant’s arguments based on Evidence Code section 1109, CALCRIM No. 627, and Penal Code section 12022.53, subdivision (f). We affirm the judgment.
We concur: Ramirez, P. J., McKinster, J.