People v. Burnett

The fountainhead of the right we focus upon in this case is, of course, Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ], in which the Supreme Court held that a defendant in a state criminal proceeding has a federal constitutional right to represent himself when he voluntarily and intelligently elects to do so.

Applying Faretta, the California Supreme Court has stated that “when a motion to proceed pro se is timely interposed, 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. Windham (1977) 19 Cal.3d 121 , 128 [ 137 Cal.Rptr. 8 , 560 P.2d 1187 ], cert. den., 434 U.S. 848 [ 54 L.Ed.2d 116 , 98 S.Ct. 157 ].) The manner in which a trial court should make the necessary ascertainment was first explored in People v. Lopez (1977) 71 Cal.App.3d 568 [ 138 Cal.Rptr. 36 ]. Writing for the court in Lopez, Presiding Justice Gardner divided the judicial enterprise into three general categories. “First, it is necessary, as Faretta says, that the defendant ‘be made aware of the dangers and disadvantages of self-representation. ’ ... Second, ... it would certainly be advisable to make some inquiry into his intellectual capacity to make this so-called ‘intelligent decision.’ [and]... Third, he should definitely be made aware that in spite of his best (or worst) efforts, he cannot afterwards claim inadequacy of representation.” (Id., at pp. 572-574.)

It is the second of these three “categories”—the inquiry into “intellectual capacity”—that most concerns us in the instant case.^[1] With respect to this matter, the opinion in Lopez states, inter alia, as follows: “If there is any question in the court’s mind as to a defendant’s mental capacity it would appear obvious that a rather careful inquiry into that subject should be made —probably by way of a psychiatric examination. It would be a trifle embarrassing to get half way through a trial only to discover that a court has determined that a mentally deficient or seriously mentally ill person has been allowed to make a ‘knowing and intelligent’ decision to represent himself.” (Id., at p. 573.)

People v. Teron (1979) 23 Cal.3d 103 [ 151 Cal.Rptr. 633 , 588 P.2d 773 ] [disapproved on other grounds in People v. Chadd (1981) 28 Cal.3d 739 , 750, fn. 7 ( 170 Cal.Rptr. 798 , 621 P.2d 837 )] was the next important case to address the question whether psychiatric evidence is necessary in order to establish whether a person is mentally competent to represent himself. The defendant in that case argued that the trial court should not have permitted

several standard questions followed by the signing of a standard written waiver of counsel—may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel.” (Id., at pp. 723-724 [92 L.Ed. at p. 321]; accord, Johnson v. Zerbst (1938) 304 U.S. 458 , 464 [ 82 L.Ed. 1461 , 1466, 58 S.Ct. 1019 , 146 A.L.R. 357 ]; Westbrook v. Arizona (1966) 384 U.S. 150 , 151 [ 16 L.Ed.2d 429 , 430, 86 S.Ct. 1320 ]; see also, Pate v. Robinson (1966) 383 U.S. 375 , 385-386 [ 15 L.Ed.2d 815 , 822-823, 86 S.Ct. 836 ].) With this principle in mind we turn to the case before us.

In determining that appellant was mentally competent to waive counsel and represent himself, the trial court considered only the behavior of appellant at several pretrial hearings and the arguments of counsel. The failure of the court to obtain a psychiatric evaluation or any other independent evidence bearing upon appellant’s mental capacity must be deemed to show either that the court never doubted appellant’s mental capacity—which seems to us inexplicable in light of appellant’s behavior—or that it overcame such doubt as it may initially have entertained without the benefit of psychiatric evidence.

Entirely apart from the fact appellant was and for several years had been confined in a state mental facility, the two very brief hearings at which his competence to waive counsel was considered provided ample reason to question his mental competence to waive his Sixth Amendment right to counsel. Appellant’s frequent incoherence, his admission that he wanted to represent himself even though “I know I’m not cap — I—capable [jic],” his statements that he had been working for the United States Department of Justice, that a “Senate Subcommittee” present “right here in this courtroom” had “hooked me up with the mafia,” and his suggestion he was earlier denied restoration to sanity because “[the sheriffs] deputies took out ladies on the jury” all provide a basis upon which to suspect appellant may have lacked the mental competence to waive counsel. Statements of the deputy public defender initially representing appellant independently provide grounds for such doubt. In an attempt to explain what the trial court described as appellant’s “unintelligent sentences,” counsel stated that appellant “has a speech disorder which is a result of the medication and organic brain damage.”^[2]

Counsel also disclosed that in an earlier proceeding at which she represented appellant he wanted to call various public figures, including the governor, because “[h]e seemed interested to use the case as a forum, I believe, a delusional case. [He claimed] [sjomebody implanted something in his brain, transmitting messages and making him do things, et cetera.”

Finally, it must be remembered that the instant proceeding is one in which appellant is seeking the restoration of his sanity. The fact that he was still suffering under a judgment declaring him insane in and of itself provided reason to doubt appellant’s ability to waive counsel voluntarily and intelligently. We are aware that the Penal Code uses the words “insane,” “insanity,” and “mental competence” in different senses, and that “[t]he insanity which demands that a person shall be confined in a state hospital is not necessarily the same insanity which bars the prosecution of that person for the commission of a felony” (People v. Field (1951) 108 Cal.App.2d 496 , 500 [ 238 P.2d 1052 ]) or renders him incompetent to waive counsel. However, since the standard for determining competence to stand trial is lower than the standard for determining competence to waive counsel, the fact that a person has been found mentally competent to stand trial with the assistance of counsel (or, as here, possesses a statutory right to participate in a judicial hearing on the question whether his sanity should be restored), therefore does not necessarily mean he or she is competent to waive the right to counsel and proceed to trial unassisted.^[3] (Westbrook v. Arizona, supra, 384 U.S. 150 ; Evans v. Raines (9th Cir. 1983) 705 F.2d 1479 , 1480; United States ex rel. Konigsberg v. Vincent (2d Cir. 1975) 526 F.2d 131 , 133, cert. den. 426 U.S. 937 [ 49 L.Ed.2d 388 , 96 S.Ct. 2652 ]; Felthous, Competency to Waive Counsel: A Step Beyond Competency to Stand Trial (Winter 1979)

The state and federal cases just briefly assayed lead us to conclude that where a trial court’s doubt about a person’s mental competence to waive counsel is based upon a history of mental illness or irrational behavior directly observed in the courtroom, or any other discernible facts “which would give rise to any doubt respecting defendant’s mental capacity” (Teron, supra, 23 Cal.3d at p. 114, see also Pate v. Robinson, supra, 383 U.S. at p. 385 [15 L.Ed.2d at p. 822]), the court cannot properly determine that such person is competent to exercise the right asserted without first obtaining psychiatric evidence. As has long been recognized by many trial courts (see, e.g., People v. Solomos (1978) 83 Cal.App.3d 945 , 949 [ 148 Cal.Rptr. 248 ]; People v. Salas (1978) 77 Cal.App.3d 600 , 604 [ 143 Cal.Rptr. 755 ]), psychiatric evidence is usually essential to an informed decision whether a person whose mental competence is genuinely in question can knowingly exercise the right of self-representation. This principle is in conformity with the criminal justice standards recently proposed by the Committee on Standards for Criminal Justice of the American Bar Association. The relevant standard provides that: “If, after explaining the availability of a lawyer and making sufficient inquiry of a defendant professing a desire to waive counsel and represent himself or herself, the trial judge has a good faith doubt of the mental competence of the defendant to waive counsel or to represent himself or herself the judge should order a pretrial mental evaluation of the defendant . . . .” (ABA Standing Com. on Assn. Standards for Criminal Justice, Proposed Criminal Justice Mental Health Standards, std. 7-5.3(c) (1984) p. 302.)^[4]

Where, as in the present case, the person whose competence is in question is confined in a mental facility pursuant to judicial decree and the state maintains that such confinement should continue or be extended because that person continues to suffer a mental disability (see Pen. Code, §§ 1026.2 and 1026.5), mental competence to waive counsel is in doubt as a matter of law and such a person cannot be found competent to represent himself or herself without judicial consideration of psychiatric evidence bearing upon the question.

The determination by the court below that appellant was competent to waive counsel, which was made without the benefit of any psychiatric evidence, was therefore error. Moreover, error of this sort “simply does not lend itself to review by any standard short of per se reversal.” (People v. Tyner (1977) 76 Cal.App.3d 352 , 356 [ 143 Cal.Rptr. 52 ]; People v. Freeman

which acknowledged the constitutional right of self-representation out of “ ‘that respect for the individual which is the lifeblood of the law.’ ”^[5] (Faretta, supra, at p. 834 [45 L.Ed.2d at p. 581], quoting Illinois v. Allen (1970) 397 U.S. 337 , 350-351 [ 25 L.Ed.2d 353 , 363, 905 S.Ct. 1057 ], conc. opn. of Brennan, J.) Where, though competent to stand trial, the individual in question is so mentally deficient or physically debilitated that he is unable to defend himself, it cannot show respect to permit him to try. It is demeaning to such a person and makes a mockery of justice for trial judges to countenance the charade that would inevitably arise in some cases if competence to waive counsel were not deemed to include the ability to at least rationally conceive and coherently present a bare bones defense. The long-standing principle that “[a] determination of competency to waive counsel must necessarily embrace an assessment of a defendant’s ability to conduct his own defense” (People v. Powers, supra, 256 Cal.App.2d 904 , 915), though certainly affected by the holding in Faretta, has not been wholly undone by the decision in that case; otherwise the state would be able to prosecute defenseless persons and public confidence that fairness dominates the criminal justice system, which is essential to the maintenance of that system, would be undermined.

In short, the distinction between competence to waive counsel gauged by whether the accused realizes “the probable risks and consequences,” and competence measured by the ability to actually represent oneself cannot be fully maintained, for there is a threshold of competence to present a defense below which one cannot genuinely realize the risk of doing so. (Cf., People v. Powers, supra, 256 Cal.App.2d 904 , 915 [“a distinction ... between the right to waive counsel and competency to conduct a criminal defense ... does exist but the two concepts are nevertheless closely interrelated.”].) If he truly desires to establish his innocence, a person wholly unable to defend himself who nonetheless attempts to do so does not understand the nature and consequences of his act. Realization of the risk of self-representation necessarily involves an element of sober self-examination. A defendant who does not appreciate the extent of his own disability cannot be fully aware of the risk of self-representation where the disability significantly impairs his capacity to function in a courtroom.

State v. Bauer (1976) 310 Minn. 103 [ 245 N.W.2d 848 ], exemplifies the situation in which an accused’s mental condition precludes realistic assessment of the need for assistance and the risk of waiving counsel. The defendant in that case was at trial deemed competent to waive counsel solely on the basis of a psychiatric opinion that he was competent to stand trial. In permitting the waiver, the trial court disregarded the objections of the public defender, who sought to distinguish competence to waive counsel from competence to stand trial. (Id., at p. 859.) The Supreme Court of Minnesota reversed because, among other things, “the defendant’s reason for wishing to dispense with defense counsel was his paranoid distrust of everyone connected with the judicial system” (ibid.), and because the defense he offered “was both irrational and not a legal defense.” (Id., at p. 860.) These measures of competence were proper considerations under Faretta, the court noted, because they “do[] not refer to legal ability but rather the mental ability to make the waiver.” (Id., at p. 859, fn. 13, italics in original.)

The inquiry into competence to waive counsel must, of course, guard against the danger that the accused’s very desire to represent himself—which judges almost universally think exceedingly unwise—is itself treated as an indication that he may be mentally unfit. The unwisdom of a defendant’s decision to represent himself is, as we know, beside the point. (People v. Windham, supra, 19 Cal.3d at p. 128.) Though waiver of a constitutional right by a person with seemingly limited mental ability must be strictly scrutinized (Cooper v. Griffin (5th Cir. 1972) 455 F.2d 1142 , 1145-1146), such a right clearly cannot be conditioned simply on the intelligence level or good judgment of the person who seeks to exercise it. The incompetence that warrants denial of the constitutional right of self-representation must therefore consist of considerably more than unintelligence or foolhardiness and do far more than merely render the accused less effective than counsel.

It must be assumed that a defendant deemed competent to stand trial “ ‘has a rational as well as a factual understanding of the proceedings against him.’ ” (Dusky v. United States (1960) 362 U.S. 402 [ 4 L.Ed.2d 824 , 825, 80 S.Ct. 788 ].)^[6] However, it is one thing to be able “to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner,” which is the legislative definition of competence to

stand trial in this state,^[7] and quite another to participate in such proceedings without the assistance of counsel.^[8] (See Silten & Tullis, Mental Competency in Criminal Proceedings (1977) 28 Hastings L.J. 1053 , 1068; Felthous, Competency to Waive Counsel: A Step Beyond Competency to Stand Trial, supra, J. Psychiatry & L., at p. 474.)

Unfortunately, there is no easy way to establish competence to waive counsel. As Justice Frankfurter has stated, “[t]he task of judging the competence of a particular accused cannot be escaped by announcing delusively simple rules of trial procedure which judges must mechanically follow.” (Adams v. United States ex rel. McCann, supra, 317 U.S. 269 , 277 [87 L.Ed. at p. 274].) In addition to an appreciation of the risks run by any accused person who exercises the right of self-representation, which is the threshold consideration, competence to waive counsel also includes an array of basic cognitive and communicative skills relating to the presentation of a defense to criminal charges. Such skills are present where the accused: (1) possesses a reasonably accurate awareness of his situation, including not simply an appreciation of the charges against him and the range and nature of possible penalties, but also his own physical or mental infirmities, if any; (2) is able to understand and use relevant information rationally in order to fashion a response to the charges; and (3) can coherently communicate that response to the trier of fact.^[9] (See ABA

Standing Com. on Assn. Standards, Proposed Criminal Justice Mental Health Standards, std. 7-5.3(b), supra, p. 302; Gutheil & Applebaum, Clinical Handbook of Psychiatry and the Law, supra, pp. 215-219; Else v. State (Alaska 1976) 555 P.2d 1210 , 1212 [“ ‘In order to prevent a perversion of the judicial process, the trial judge should first ascertain whether a [defendant seeking to waive counsel] is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed pro sel ”]

The foregoing considerations have in practice been taken into account by trial courts in this state following the 1977 decision in People v. Lopez, supra, 71 Cal.App.3d 568 . For example, in People v. Salas, supra, 77 Cal.App.3d 600 , the trial court’s denial of the defendant’s petition to represent himself was affirmed because the record supported the court’s determination “that defendant did not have the mental capacity to make an intelligent decision to represent himself.” (Id., at p. 605.) In support of this conclusion, the Court of Appeal set forth the trial judge’s description of the psychiatric and other evidence he relied upon concerning the accused’s ability to understand and participate in the proceedings. We quote that description in the margin below because it provides a rare illustration of the actual decision process employed by able trial judges.^[10]