Filed 7/21/15 P. v. Tesfa CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065791

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD246933)

MICHAEL TESFA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

         This appeal raises the question of whether the trial court was required to appoint a

psychologist to evaluate the defendant before the court permitted the defendant to
continue to represent himself. On this record we will find the trial court appropriately

evaluated the defendant and properly allowed him to waive his right to counsel.

          Michael Tesfa was charged with forcible rape (Pen. Code,1 § 261, subd. (a)(2);

count 1), kidnap to commit rape (§ 209, subd. (b)(1); count 2), robbery (§ 211; count 3),

and false imprisonment (§§ 236, 237, subd. (a); count 4). It was also alleged that during

the rape the defendant committed aggravated and simple kidnapping (§ 667.61, subds.

(d)(2), (e)(1)). The jury convicted Tesfa of counts 1, 3 and 4. It found Tesfa not guilty of

count 2 and found the allegation of kidnapping not true.

          The court sentenced Tesfa to a determinate term of 11 years eight months in

prison.

          Tesfa appeals contending the trial court erred in granting Tesfa's request to

represent himself. Specifically, Tesfa alleges that the court should have ordered a

psychological examination of Tesfa to determine his mental competence to represent

himself. We will find no error and affirm.

                                   STATEMENT OF FACTS

          Tesfa does not challenge either the admissibility or the sufficiency of the evidence

to support his convictions. Indeed the facts of the offense play no part in the resolution of

the issue on appeal. However, to provide background we will adopt the summary of facts

set forth in the appellant's opening brief.




1         All further statutory references are to the Penal Code unless otherwise specified.
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                                      A. Prosecution Case

       On March 18, 2013, Jessica W. had been talking to a college about financial aid,

and looking at places to live in downtown San Diego. She bought a four pack of little

wine bottles and drank two of them, leaving her "buzzed." She then took the trolley to

Old Town, and walked to Fuller Liquor, where she bought two more little wine bottles.

She left Fuller Liquor at 7:54 p.m.

       Jessica was in the parking lot of Perry's Cafe, drinking some of her wine, when

appellant came up to her and the two exchanged pleasantries. Appellant was "charming,"

and "very, very friendly," and told Jessica she was "beautiful." Jessica was flattered, as

she had suffered injuries to her face in a mountain bike accident, and had gone through

10 facial surgeries.

       Appellant asked Jessica, "Do you party?" He said he had a room at the Ez 8

Motel, and asked her, "Will you go with me back to the room?" Jessica said, "Okay."

She then stated she "never outright told him look I'm not going to the hotel room."

Appellant kissed her. She "reciprocated."

       The two walked towards Perry's Cafe, drinking some wine. Jessica said that

appellant was trying to kiss her neck, and "getting gropey." The two sat on a bench in

front of Perry's Cafe and appellant began getting more aggressive. Jessica said, "No, let

me go, I'm leaving."

       Appellant began pulling Jessica behind the building. She was screaming and

appellant told her to "shut the fuck up," and began hitting her multiple times in the head.

Appellant dragged Jessica into an alcove behind Perry's Cafe.

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       Jessica managed to dial 911 on her telephone, but then appellant forced her face

down into the dirt and her telephone was out of reach. The 911 call was played to the

jury. Appellant ripped off all of the clothing Jessica was wearing below the waist and

penetrated her vagina with his penis. At one point appellant attempted to put his penis

into Jessica's mouth, and touched her breasts. When appellant finished he punched

Jessica in the face, picked up her clothes, backpack, and telephone, and ran off in the

direction of the riverbeds.

       Jessica looked around and found a shirt on the ground. She put her legs through

the arm holes and pulled the shirt up as if it were a pair of pants. She then ran back to the

liquor store where she was given a phone and she called 911. The 911 call was played to

the jury, and Jessica told the 911 operator that she had been raped.

       After the police arrived they took Jessica to view a suspect. She identified

appellant at the scene as her attacker. Jessica also identified her coat and a few of her

other possessions at the scene.

       Jessica was taken for a SART exam. She had bruises, scratches, and cuts on her

body, as well as some chipped teeth.

       Officer Ryan Schultz responded to a call of a sexual assault and drove in the

direction the suspect had been reported to flee. He encountered appellant sitting on a

curb with two transients. Appellant matched the description from dispatch, was sweating

profusely, had his pants up in the front but hanging below his buttocks in the back, and

was wearing a black backpack. Dispatch had indicated the suspect had taken a black

backpack from the victim. Schultz noticed a pink coat on the ground next to appellant.

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Appellant saw Schultz and ran. Schultz caught appellant and held him for a curbside

lineup.

          Edward Childers was one of the two transients sitting next to appellant on the

curb. He said as appellant approached him he was sweating and seemed nervous.

Appellant asked Childers where he could get "white," a slang term for methamphetamine.

A police car showed up and appellant "bolted."

          Officer David Mullins responded to a call of a rape victim. He encountered

Jessica, who had bruising on her cheek, and a red and swollen face. Mullins transported

Jessica to the curbside lineup.

          Faafetai Tupea, a front desk clerk at the Ez 8 Motel, stated that she had seen

appellant in "the crowd" that hung out in the area; he did not have a room there the night

of March 18, 2012.

          Claire Nelli is a forensic nurse that conducted the SART exam on Jessica. She

stated that Jessica had black eyes and bruising to the eyes, as well as various bruises and

abrasions, and glass imbedded in her foot. There were no injuries to the vagina, which

Nelli sees in about one third of all the examinations she conducts.

          Patti Rankle conducted a sexual assault exam on appellant. She noticed scratches

and abrasions on appellant's body.

          Amy Zimmer, a criminalist, stated that appellant had no alcohol in his system

when tested. Jessica had a .02 blood alcohol level. Given the time Jessica stopped

drinking and the time the testing was done, her blood alcohol level could have been as

high as .09 at the time of the assault.

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       Ola Bawardi, a toxicologist, stated that appellant had very low levels of

methamphetamine and marijuana in his system. Jessica had marijuana in her system.

       Brian Lew, a criminalist, stated that he detected the presence of semen in Jessica's

vaginal swabs, and male DNA in her external genital swabs. He detected male DNA in

her mouth swab, as well as the swabs from her left breast and right breast. Jessica

urinated during her SART exam, and toilet paper that she used tested positive for semen

and male DNA.

       Adam Dutra, a criminalist, stated that appellant could be a "minor contributor" to

the DNA in the mouth swab, and the sperm sample DNA matched appellant's DNA.

                                     B. Defense Case

       Appellant denied the charges against him. He stated he was homeless and under

the influence of alcohol, but still clear headed, when he encountered Jessica. He stated he

and Jessica began talking, then began kissing. She pulled out her breast and he sucked on

it, and put his hand on her vagina. The two walked together to the alcove behind Perry's

Café where they "did it." It was only afterwards that Jessica got angry and the two

argued. Appellant elected to leave, picked up "random stuff" on the ground and left. It

was only afterward that appellant realized that he had taken Jessica's backpack, and she

must have taken his backpack. Appellant denied beating Jessica up.

                                       DISCUSSION

       Tesfa contends the trial court erred in granting his request for self-representation

without first appointing a psychologist to evaluate Tesfa's competence. In order to

evaluate this contention we have to first place it in procedural context.

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                                A. Procedural Background

       In May 2013 defense counsel requested the court to order a competence evaluation

of Tesfa pursuant to section 1368. The court suspended criminal proceedings. Thereafter

Tesfa was evaluated by psychiatrist Dr. David Naimak. The doctor concluded Tesfa was

competent to stand trial and found that he was not suffering from any severe mental

disorder.

       On December 16, 2013, Tesfa requested self-representation. The judge then

assigned to the case denied the request finding Tesfa's lack of knowledge of the criminal

trial process made him not competent to represent himself. Tesfa then requested a

hearing to replace counsel. (People v. Marsden (1970) 2 Cal.3d 118.) Because of

scheduling problems the case was transferred to another judge.

       On December 19, 2013, the prosecution advised the court of its concerns about the

validity of the previous denial of Tesfa's motion for self-representation.

       Thereafter, the court gave Tesfa extensive advice about the problems of self-

representation and then inquired about Tesfa's knowledge of the case and his

understanding of the consequences of waiving the right to counsel. Tesfa advised he

wished to represent himself even in the face of the disadvantages. He said he had read

the transcript of the preliminary hearing, went over the discovery, saw the police reports

and understood the charges. The court granted Tesfa's request for self-representation.

       On January 24, 2014, Stuart Dadmun, a representative of the Office of Assigned

Counsel advised the court that he was concerned about Tesfa's competency to represent

himself. Dadmun's principal concerns were that Tesfa had not requested services from

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Dadmun's office.2 Dadmun believed Tesfa had not subpoenaed witnesses, reviewed

discovery or been to the law library. Dadmun did not tell the court how he was aware of

Tesfa's activity or that he had ever met Tesfa. The court met with Dadmun and Tesfa

outside the presence of the prosecution.3 Dadmun continued to express his concerns and

suggested the court have Tesfa evaluated.

        The court held a lengthy discussion with Tesfa. The court informed Tesfa that the

prosecution intended to call 35 witnesses and asked about his preparation. Tesfa advised

he had been to the library and seen some discovery. As to witness preparation, Tesfa

believed the case was a "he says-she says" and that was how he intended to approach the

case.

        The court reviewed Dadmun's assertion that Tesfa was on medication. Tesfa

disputed he had been under psychiatric care but did acknowledge he had been prescribed

medication for paranoia which had been caused by his drug abuse.

        After thorough examination of Tesfa the court referred to People v. Johnson

(2012) 53 Cal.4th 519 (Johnson), which the court interpreted as giving the court the

power to deny self-representation where the defendant suffered from severe mental

problems which would make the defendant unable to engage in self-representation. The



2      While we have some doubts as to Dadmun's standing to challenge Tesfa's right to
self-representation or to request a psychologist be appointed, we appreciate the court's
careful analysis of the issue. Tesfa had already been granted self-representation in
December 2013.

3    The trial court sealed the transcript of the discussion between the court, Tesfa and
Dadmun. We have since issued an order unsealing the transcript.
                                            8
court stated that it did not find Tesfa suffered from any severe mental impairment and

that he was competent to represent himself and denied Dadmun's request to appoint a

psychologist.

                                    B. Legal Principles

       In Faretta v. California (1975) 422 U.S. 806, the court determined that the Sixth

Amendment right to counsel, included the right of a criminal defendant to self-

representation, provided the defendant makes a knowing and intelligent waiver of the

right to counsel. The fact that a trial judge may have doubts as to the defendant's

understanding of the law and the person's ability to conduct a criminal trial does not

permit a court to deny a defendant the constitutional right to self-representation.

       Indiana v. Edwards (2008) 554 U.S. 164, 171, departed somewhat from Faretta's

strict waiver standard and held that where a defendant, although competent to assist

counsel, suffers from mental disability such that the person cannot competently represent

him or herself, the state may deny self-representation.

       The court in Johnson, supra, 53 Cal.4th 519, considered the impact Indiana v.

Edwards, supra, 554 U.S. 164 should have on California courts. The court there upheld a

trial court's decision to deny self-representation to a defendant who was competent to

assist counsel, but who the trial court found lacked the mental competency to handle a

trial. (Johnson, supra, at p. 525.) The court held the trial courts can, in the exercise of

their discretion, deny self representation where "the defendant suffers from a severe

mental illness to the point where he or she cannot carry out the basic tasks needed to

present the defense without the help of counsel." (Id. at p. 530.)

                                              9
       The court cautioned that "[t]rial courts must apply this standard cautiously

. . . defendants still generally have a Sixth Amendment right to represent themselves" that

"may not be denied lightly." (Johnson, supra, 53 Cal.4th at p. 531.)

                                        C. Analysis

       It is important to keep in mind that Tesfa was first granted the right to self-

representation in December 2013. This appeal does not challenge the December

decision. Indeed, it could not because the court carefully admonished Tesfa and carefully

considered his reasons for self-representation and found Tesfa made a knowing and

intelligent waiver.

       It was not until Mr. Dadmun, who had never represented Tesfa, interjected himself

into the case on January 24, 2014, that any doubt was raised as to the propriety of

"allowing" Tesfa to represent himself. Tesfa had never wavered in his resolve to

represent himself, in spite of the obstacles. Nor does the record reflect any strange

behavior by Tesfa between the December date and late January when Dadmun appeared

in court. From our review of the record, Dadmun's concerns were driven primarily by

Tesfa's failure to seek the assistance from Dadmun's office that Dadmun felt he should

have done.

       The trial court seriously considered the concerns raised by Dadmun and again

questioned Tesfa. The court was aware Tesfa had been examined during the section 1368

proceedings and that Tesfa had been found competent to stand trial and, more

importantly, that Tesfa did not suffer from any severe mental illness. The court had

observed Tesfa, understood the standards set out in Johnson, supra, 53 Cal.4th 519 and

                                             10
found Tesfa did not suffer from any severe mental disturbance and that there was no basis

to revoke the grant of self-representation made in the previous December.

       Based upon the trial court's personal observations, the record of the section 1368

review, the court's very careful examination of Tesfa, as well as the court's understanding

of the direction given in Johnson, supra, 53 Cal.4th 519, we are satisfied the trial court

properly allowed Tesfa to exercise his constitutional right of self-representation. The fact

Mr. Dadmun had a different view of how Tesfa should have handled his case is of no

moment on this record.

                                      DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



                  McDONALD, J.



                       AARON, J.




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