Filed 3/11/15 P. v. Alexander CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057334

v.                                                                       (Super.Ct.No. RIF1201279)

JULIAN JAMAR ALEXANDER,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michele D. Levine and

Michael B. Donner, Judges. Affirmed.

         David L. Kelly, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury found defendant and appellant Julian Jamar Alexander guilty of attempted

first degree robbery (Pen. Code, § 664, 211; count 1);1 assault with a deadly weapon, to

wit, a firearm (§ 245, subd. (a)(2); count 2); felon in possession of ammunition (§ 30305,

subd. (a); count 3); and felon in possession of a firearm (§ 29800, subd. (a)(1); count 4).

The jury also found true that in the commission of count 1, defendant personally and

intentionally discharged a firearm (§ 12022.53, subd. (c)); and that in the commission of

count 2, defendant personally used a firearm (§ 12022.5, subd. (a)). Defendant was

sentenced to a total term of 24 years four months in state prison with credit for time

served. On appeal, defendant makes several claims relating to the trial court’s failure to

conduct a competency hearing pursuant to section 1368. We reject defendant’s claims

and affirm the judgment.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       Peter Ramirez had known defendant for several months. Ramirez and defendant

had used marijuana and methamphetamine together. On February 5, 2012, Ramirez

called defendant around 1:00 a.m. to see if his friend Erika could obtain

methamphetamine from defendant. Defendant responded angrily over the fact that Erika




       1   All future statutory references are to the Penal Code unless otherwise stated.

       2  Because the details of the factual background are not relevant to the limited
issue raised on appeal, we will briefly summarize the details of defendant’s crimes.


                                              2
had called Ramirez rather than calling defendant directly. Ramirez uttered a profanity

and hung up on defendant.

       Later, as Ramirez was sitting in his bedroom, defendant walked through the

sliding glass door, pointed a handgun at Ramirez’s face, and demanded that Ramirez

hand over marijuana and money. When Ramirez tried to move away from the gun,

defendant swung it twice at Ramirez. Ramirez then ran for the bedroom door, while at

the same time defendant ran for the sliding glass door. However, before exiting,

defendant pointed the gun toward Ramirez and fired one time. Defendant and Ramirez

were looking at each other when defendant fired the gun.

       On March 5, 2012, an information was filed charging defendant with attempted

robbery (§§ 664, 211; count 1); assault with a firearm (§ 245, subd. (a)(2); count 2); felon

in possession of ammunition (§ 30305, subd. (a); count 3); and felon in possession of a

firearm (§ 29800, subd. (a)(1); count 4). The information further alleged that in the

commission of count 1, defendant personally and intentionally discharged a firearm

(§ 12022.53, subd. (c)); and that in the commission of count 2, defendant personally used

a firearm (§ 12022.5, subd. (a)). On March 12, 2012, defendant pled not guilty and

denied the allegations.

       On March 26, 2012, defendant made a motion for self-representation. Following

an inquiry by the trial court about defendant’s understanding of his request for self-

representation, the court granted defendant’s motion.




                                             3
       On April 23, 2012, at the trial readiness conference, defendant sought dismissal of

the case under the Sixth Amendment and Penal Code section 1381 (right to a speedy

trial). The court noted that defendant’s time for a speedy trial had not run and that it runs

60 days from the filing of an information. Defendant stated that he understood and

acknowledged the 60th day would be May 11, 2012. Defendant then requested that he be

provided with the preliminary hearing transcript and discovery, and that the court make

an order to allow him to make phone calls. The court denied his phone request but

provided defendant with an investigator. Defendant then reconsidered his decision to

represent himself, but after thinking about it, he decided to continue to represent himself.

The court inquired of defendant several times whether he was sure he wanted to represent

himself. Each time, defendant stated his desire to represent himself. Defendant accepted

appointment of an investigator, maintained his right to a speedy trial, and rejected a

seven-year plea offer by the People.

       On April 30, 2012, defendant discussed with the trial court the discovery he had

received and was missing, and indicated he had met with his investigator and discussed

the discovery. Defendant affirmed his desire to proceed to trial without delay; stated he

had read the police reports several times and knew what had occurred at his interview and

during the preliminary hearing; and acknowledged that any deficiency in his self-

representation would not support a claim for a new trial on appeal. The trial court then

arranged for clothing to be delivered to the jail and ordered defendant to dress-out for




                                              4
trial. The court also ordered the defense investigator to meet with defendant that night

for the purpose of reviewing the audio recordings of witness interviews.

       On May 1, 2012, defendant gave the court clerk several pages of documents with

the cover page stating “ ‘Motions,’ ” and delineated “ ‘995,’ ” “ ‘Bill of particular,’ ” and

“ ‘Motion to dismiss Counts 3 and 4.’ ” The trial court reviewed and returned the

documents to defendant. The court then had the prosecutor state the seven-year plea

offer to defendant again. At that time, the prosecutor also stated her concern about

defendant’s mental capacity to represent himself. The prosecutor stated that defendant’s

mother, who was present, had advised her that defendant had been off his medication

since his incarceration and that his mother did not think he was thinking clearly. The

prosecutor also noted that she had observed defendant having conversations with himself,

and that defendant had refused to talk to her (the prosecutor). After reviewing the record

in the case and confirming defendant had waived his right to counsel, the court concluded

that it was “not seeing anything directly that provides to the Court a basis to have a doubt

in terms of his—his abilities or mental state at this point.” The court then confirmed with

defendant that he understood the plea offer and his exposure. Defendant again rejected

the offer.

       The court thereafter questioned defendant about his medication. Defendant stated

that he had been taking his medication while in jail but that it had ran out two days earlier

pending a psychiatric evaluation. Defendant believed that it was unusual for the

evaluation to not occur before the medication ran out. The court ordered a psychiatric



                                              5
evaluation to be conducted that day and also ordered a report on the status of defendant’s

medication. When the court asked defendant if he was having difficulty understanding

the court proceedings, defendant stated that he “completely” understood. In response to

the court’s query regarding arrangements for his clothing, defendant stated his belief that

his mother had delivered his clothing the prior day.

       After discussing several matters involved in trial and the court’s decision to

trail the trial until May 8, 2012, all of which defendant said he understood, the

court heard from defendant’s mother. Defendant’s mother expressed her concern

regarding defendant’s mental capacity, noting defendant had a history of mental health

issues since 1993. She also stated that just by looking at defendant she could tell

“he’s . . . imbalanced.” The court assured defendant’s mother that her concerns would be

addressed at the next hearing.

       On May 8, 2012, defendant’s investigator reported that defendant had become

agitated during their meeting while listening to the audio recordings of interviews and

looking at photographs, and that defendant had insisted on returning to his jail cell.

Defendant, on the other hand, stated that he had listened to a couple of the audio

recordings, and that the only one he did not listen to was his own interview. Defendant

also maintained that he did not become agitated, but simply ended the meeting when the

investigator implied defendant was guilty. Defendant further stated that he was ready to

proceed to trial.




                                             6
       After the prosecutor reported that defendant’s investigator had a doubt as to

defendant’s mental status, the court placed the matter on second call to review the

medication evaluation report. Following the break, the court noted that it had reviewed a

report from Dr. Christopher Sangdahl, and stated that it had an obligation to appoint

defense counsel pursuant to section 1368, subdivision (a).

       Appointed counsel informed the court that he had spoken with defendant,

reviewed the “medical reports,” and did not have a doubt as to defendant’s competence.

The court, however, continued the matter until the next day to allow time for counsel to

further speak with defendant, review defendant’s medical background, to confer with

defendant’s investigator, and to provide the court with further information as to

defendant’s competence. Defendant stated his understanding of the court’s decision to

trail the trial until May 9, 2012.

       In his report, Dr. Sangdahl noted that his first meeting with defendant was on

February 15, 2012, to address defendant’s symptoms related to bipolar affective disorder;

and that defendant was prescribed two medications. Dr. Sangdahl saw defendant again

on April 4, 2012, and changed one of the medications. Defendant had received a seven-

day supply of the new medication; however, due to an administrative error that was being

investigated, defendant did not receive additional medication until he was seen by

another doctor on May 3, 2012. The report also stated that defendant had drafted a

grievance for failure to receive his medication, but that defendant was now satisfied since

the medication had been resumed.



                                             7
       On May 9, 2012, appointed counsel informed the court that he had spoken with

defendant “a couple of different times” and defendant’s investigator; and that he had

reviewed defendant’s medical records and files from the public defender’s office, and

some of defendant’s jail medical records. Based on his investigation, appointed counsel

advised the court that he did not have a doubt as to defendant’s competence. The court

suspected that the investigator’s difficulty with defendant may have been the result of the

break in defendant’s medication or “it may be [defendant’s] personality.” The court

found that neither defendant’s behavior with his investigator nor anything that had

occurred in court demonstrated a lack of mental competence. The court thereafter

readmonished defendant on his decision for self-representation. Defendant stated, “I do

understand the risk that I’m taking, and I fully understand the procedures, and I

understand that I gotta respect the courtroom procedure and that I am being treated as a

regular lawyer, and I understand the risk that I’m taking, and I do wish to represent

myself without assistant counsel, and I do wish to proceed.” After defendant maintained

his desire to represent himself, the court assigned the case to a trial department.

       The trial commenced on May 10, 2012, with defendant representing himself

during the entire trial. On May 22, 2012, the jury found defendant guilty as charged.

The jury also found true the gun enhancement allegations attached to counts 1 and 2.

       On July 6, 2012, counsel was appointed at defendant’s request.




                                              8
       On October 18, 2012, defendant was sentenced to a total term of 24 years

four months in state prison with credit for time served. Defendant filed a notice of appeal

on that same day.

                                             II

                                       DISCUSSION

       Defendant argues the trial court’s failure to conduct a competency hearing

pursuant to section 1368 nullifies all further proceedings as actions in excess of the

court’s jurisdiction. He relies on several incidents and discussions during trial, recounted

ante, to argue that the trial court should have declared a doubt as to his competence and

conducted a hearing pursuant to section 1368. He also claims he was deprived of his

constitutional rights to due process and a fair trial when substantial evidence showed he

was legally incompetent to be tried.

       Both federal due process and state law prohibit the state from trying or convicting

a criminal defendant while he is mentally incompetent. (People v. Lewis (2008) 43

Cal.4th 415, 524 (Lewis), overruled on other grounds in People v. Black (2014) 58

Cal.4th 912, 919-920.) Under state law, “A defendant is mentally incompetent . . . if, as a

result of 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.” (§ 1367, subd. (a).) Under federal law, competency

“requires sufficient present ability to consult with one’s lawyer with a reasonable degree




                                             9
of rational understanding and a rational and factual understanding of the proceedings

against one. [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 401 (Halvorsen).)

       The trial court must “ ‘suspend trial proceedings and conduct a competency

hearing whenever the court is presented with substantial evidence of incompetence,

that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s

competence to stand trial.’ [Citations.] When the court entertains no doubt about

the defendant’s competence, it is not required to hold a competency hearing.

[Citations.] . . . ‘A trial court’s decision whether or not to hold a competence hearing

is entitled to deference, because the court has the opportunity to observe the defendant

during trial.’ [Citations.]” (People v. Howard (2010) 51 Cal.4th 15, 45.)

       “In resolving the question of whether, as a matter of law, the evidence raised a

reasonable doubt as to defendant’s mental competence, we may consider all the relevant

facts in the record. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1217.) In

Young, the court stated that the substantial evidence test is satisfied “ ‘ “[i]f a psychiatrist

or qualified psychologist [citation], who has had sufficient opportunity to examine the

accused, states under oath with particularity that in his professional opinion the accused

is, because of mental illness, incapable of understanding the purpose or nature of the

criminal proceedings being taken against him or is incapable of assisting in his defense or

cooperating with counsel . . . .” ’ [Citation.]” (Ibid.) No such evidence appears in the

present record.




                                               10
       “When the evidence casting doubt on an accused’s present competence is less than

substantial, the following rules govern the application of section 1368. It is within the

discretion of the trial judge whether to order a competence hearing. When the trial

court’s declaration of a doubt is discretionary, it is clear that ‘more 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].’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 742 (Welch).) “ ‘ “ ‘An

appellate court is in no position to appraise a defendant’s conduct in the trial court as

indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or

sheer temper.’ ” ’ [Citations.]” (People v. Marks (2003) 31 Cal.4th 197, 220 (Marks).)

       Numerous courts have found, under circumstances similar to or even more

extreme than those before us, that there was no substantial evidence of incompetence

requiring suspension of the proceedings. For example, in Halvorsen, the Supreme Court

held that the trial court did not err in failing to hold a competency hearing, despite (1) the

testimony of a psychiatrist that the defendant suffered from bipolar disorder and was

psychotic both at the time he committed the offenses and at trial, and (2) the defendant’s

own testimony that purportedly was “ ‘filled with tangential responses to the questions of

counsel and strange, irrelevant statements, often marked by a seemingly psychosis-

induced preoccupation with a newly embraced religion and an obsession with his own



                                              11
and society’s unworthiness.’ ” (Halvorsen, supra, 42 Cal.4th at p. 402.) The court

nonetheless held there was no substantial evidence of incompetence. (Ibid.)

       In Lewis, defense counsel raised a question as to the defendant’s competence after

the defendant made outbursts during the testimony of a prosecution witness, and a

psychologist submitted a letter stating there was evidence that the defendant had suffered

brain damage. (Lewis, supra, 43 Cal.4th at p. 523.) The Supreme Court nonetheless held

there was no substantial evidence of incompetence requiring the trial court to conduct a

hearing. (Id. at p. 524.)

       In Welch, the defendant had alleged conspiracy in the proceedings; more than once

had claimed the court, his own counsel, and the prosecutor had been acting in collusion;

had claimed the local bar association should be disqualified from representing him;

accused counsel of “back-room discussion”; alleged evidence had been “falsified by the

sheriff’s department”; and alleged “jail officials” had monitored interviews with

psychologists. (Welch, supra, 20 Cal.4th at p. 730, fn. 3.) In addition, the defendant had

“engage[d] in verbal displays and interrupt[ed] and interfere[d] with the conduct of the

courtroom proceedings”; “constantly interrupt[ed] the court and counsel”; and “accused

the bailiff of tampering with his legal papers, asked the court to have his attorneys sit

in the jury box due to a conflict of interest, was reluctant to respond to the court’s

questions while repeating that his civil rights were being abused, and interrupted the

proceedings . . . by requesting that the court and various individuals be served with a civil

complaint in a federal matter.” (Id. at pp. 730-731.) The court held that the



                                              12
circumstances, “while suggesting the trial court could have ordered a hearing on

competence to stand trial, [did] not establish that the trial court abused its discretion in

failing to do so . . . .” (Id. at p. 742.)

       Here, while the record shows defendant suffered from some type of mental illness

that required medication, it does not reflect substantial evidence to establish defendant

was incompetent to stand trial. During the proceedings, the court saw nothing to raise a

doubt about defendant’s competence. Defendant coherently answered the court’s

questions, without demonstrating confusion. Defendant complied with instructions of the

court, allowed the prosecutor to finish her statements and concerns before responding,

and listened closely to the court’s questions and concerns. Defendant attentively listened

while the court discussed the plea offer proposed by the People and the admonishments

regarding self-representation. Defendant knowingly rejected the plea offer and insisted

on going to trial. He also maintained his decision to represent himself, stating that he had

no difficulty understanding the proceedings; that he understood the risk of representing

himself; that he respected the courtroom procedures; and that he understood he would be

treated like a lawyer. He also understood the reason to wear civilian clothing and stated

to the court his understanding that his mother would deliver his clothing for him

consistent with a previous order. Defendant also stated his understanding of the court’s

decision to trail the trial until May 9, 2012, so that appointed counsel could form an

opinion as to defendant’s competence.




                                              13
       Although the prosecutor, defendant’s investigator, and defendant’s mother

expressed some concerns about defendant’s competence, it appears defendant’s agitation

or mental state at that time stemmed from a lapse in his medication. On May 1, 2012,

defendant’s mother noted defendant appeared imbalanced due to defendant being off his

medication. Defendant’s investigator described defendant as being agitated and

unwilling to review discovery during his contact with defendant on May 6, 2012.

Dr. Sangdahl reported that his first meeting with defendant was on February 15, 2012,

to address defendant’s symptoms related to bipolar affective disorder; and that defendant

was prescribed two medications. Dr. Sangdahl saw defendant again on April 4, 2012,

and changed one of the medications. Dr. Sangdahl further noted that defendant had

received a seven-day supply of the new medication; however, due to an administrative

error, defendant did not receive additional medication until he was seen by another doctor

on May 3, 2012. The court reviewed the report from Dr. Sangdahl regarding the

interruption in defendant’s medication and appointed counsel pursuant to section 1368,

subdivision (a).

       Section 1368 provides that, when “a doubt arises in the mind of the judge as to the

mental competence of the defendant, [the judge] shall state that doubt in the record and

inquire of [defense counsel his or her] opinion” as to the defendant’s competence.

(§ 1368, subd. (a).) The court may recess the criminal proceedings to allow defense

counsel to form an opinion. (§ 1368, subd. (a).) If defense counsel informs the court of

a belief that defendant is or may be mentally incompetent, the court “shall” order the



                                            14
question of competence to be determined in a hearing held pursuant to sections 1368.1

and 1369. (§ 1368, subd. (b).) If the court believes the defendant is incompetent, it may

order such a hearing notwithstanding defense counsel’s opinion to the contrary. (§ 1368,

subd. (b).)

       Here, on May 9, 2012, appointed counsel informed the court that he had spoken

with defendant “a couple of different times” and defendant’s investigator; and that he had

reviewed defendant’s medical records and files from the public defender’s office, and

some of defendant’s jail medical records. Based on his investigation, appointed counsel

advised the court that he did not have a doubt as to defendant’s competence. The court

suspected that the investigator’s difficulty with defendant may have been the result of the

break in defendant’s medication or “it may be [defendant’s] personality.” It was

reasonable for the court to attribute defendant’s behavior with his investigator on May 6

to the lapse in defendant’s medication or simply defendant’s personality. The fact that, in

the cold record on appeal, defendant appeared to be agitated, does not necessarily

indicate lack of competence. Rather, we must defer to the trial court, which had the

opportunity to observe defendant’s demeanor during the proceedings. (Marks, supra, 31

Cal.4th at p. 220.) Defendant never had outbursts during the proceedings, and his

responses to the court in fact showed that he understood the nature of the proceedings.

(See Lewis, supra, 43 Cal.4th at pp. 525-526; Marks, supra, at p. 221; see also People v.

Frye (1998) 18 Cal.4th 894, 1005 [“An angry and emotional reaction to a verdict of guilt

does not indicate an inability to understand the nature of the criminal proceedings, or to



                                            15
rationally assist counsel”], disapproved on another ground in People v. Doolin (2009) 45

Cal.4th 390, 421, fn. 22.) Consistent with Halvorsen, Lewis, Marks, and Welch, we

conclude defendant has failed to demonstrate substantial evidence of incompetence, and

the trial court did not err in failing to suspend the proceedings to conduct a competency

hearing.

                                            III

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                       P. J.
We concur:



HOLLENHORST
                          J.



McKINSTER
                          J.




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