Filed 5/13/15
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


THE PEOPLE,                                      B256806

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. LA075380)
                  v.

DAVID MIRANDA,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County.
Martin L. Herscovitz, Judge. Affirmed.

        Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
and Appellant.

        Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J.
Baker-Guillemet, for Plaintiff and Respondent.


                               _______________________
       David Miranda appeals from his convictions for making criminal threats and
resisting arrest, contending that the trial court erred by granting his pretrial motion to
represent himself and by not later reversing that order after his mental health issues
became apparent during the trial. We affirm because the record shows that his waiver of
the right to counsel was knowing and voluntary, and there was no showing that he was
unable to perform the basic tasks needed to represent himself without the help of counsel.

                        FACTS AND PROCEDURAL HISTORY

       At around 4:00 p.m. on September 23, 2013, Ana Miranda called 911 to report that
her son David Miranda, 25, had a gun and was going to kill her or others.1 By the time
the police arrived, however, Miranda had left the scene. At around 10:00 p.m. that night,
Miranda approached Ruth Reyes, who lived in an adjacent apartment building, and
threatened to get his gun and kill her and “kill you all.” Reyes called 911, prompting Los
Angeles Police Officers Smith and Franco to come to the scene.
       As the officers interviewed Reyes they heard Miranda screaming, “Fuck you” and
“What the fuck you looking at?” Miranda was more than six feet, six inches tall and
weighed more than 300 pounds. He walked quickly toward the officers, saying, “Fuck
you cops. You can both suck my dick.” Officer Smith knew Miranda from previous
encounters and was aware that Miranda had a history of violence. The officers ordered
Miranda to stop and put his hands up. Miranda instead continued to advance on the
officers, began flailing his hands, and flung open the apartment building’s gate. When
the officers ordered Miranda to get down on the ground, he said, “Fuck you. I’ll kill you
both.” Officer Franco tasered Miranda after Miranda reached into his waistband. A
search revealed that Miranda had not been armed.
       Miranda was charged with one count of making criminal threats to Reyes (Pen.
Code, § 422) and two counts of resisting arrest (Pen. Code, § 69). At a December 2013
hearing Miranda’s public defender said she was not yet ready for trial and that Miranda

1
       We will refer to David Miranda by his last name and to Ana Miranda as mother.

                                               2
wanted to go to trial right away. When the trial court told the public defender that she
was in charge of the timetable Miranda asked to represent himself. The trial court
granted that request.2
         Reyes and the two police officers testified at trial. Independent eyewitness Juan
Diaz corroborated the officers’ version of events. Mother testified that Miranda was
bipolar and schizophrenic and lost control when he was not taking his medication. He
had tried to commit suicide. When she called 911 she lied about Miranda having a gun in
order to make sure the police responded. Mother also testified that Reyes had a grudge
against Miranda.
         Miranda testified that he argued with his mother on September 23 because she
forgot to wish him a happy birthday, leading him to break her cable television box. He
did not threaten his mother, and claimed she called 911 out of frustration. Miranda then
went to a park to play basketball because his psychiatrist told him to cope with stress by
exercising. He felt sad and if he had had a gun would have killed himself.
         On his way home from the park he stopped at a friend’s house, where he drank
three shots of tequila. As he approached his mother’s apartment building, it was dark and
he could not see the police. Miranda heard someone say, “Hey, come here.” He thought
it might be members of Reyes’s family, who were angry at him and wanted to beat him
up. He reached into his waistband to get his keys so he could open the gate, when he saw
a gun pointed at him. He said, “What the fuck?” and then was tasered. The police
roughed him up and “tortured” him. Miranda and his family had had run-ins with the
police before and he believed the police had a grudge against him. He never threatened
Reyes.
         Miranda’s mental health issues were mentioned several times during the trial. His
mother testified that he tried to kill himself several times, and that he was bipolar and
schizophrenic and was out of control when not medicated. His sister testified that he

2     We discuss the facts concerning the grant of Miranda’s self-representation request
in more detail in section 2 of our DISCUSSION.

                                              3
needed his medications. During a discussion with the trial court about whether his
brother should testify, Miranda said he used to attend special education classes and had
trouble explaining himself. Miranda testified that he had “mental disabilities,” and that
he had mental health issues that were “not like retardation; but, like, I’m kind of
slow . . . .” During his rebuttal argument the prosecutor told the jury, “The defendant has
mental problems. That’s clear.”
       The jury convicted Miranda of all three counts. Shortly after the jury began
deliberating the trial court said: “. . . I wanted to state for the record that I didn’t know
anything about the defendant’s mental history before the first witness testified. That
never was brought to my attention at the time the defendant went pro per [sic] or during
the pretrial stages of this case. That was news to me when his mother testified as the first
witness. Not that my decision would have been any different, because I think he handled
himself fairly well during the trial.”
       When it came time to set a sentencing hearing, the trial court reminded Miranda
that stand-by counsel had been present throughout most of the trial and suggested that
counsel could be helpful in addressing Miranda’s mental health issues for sentencing
purposes. The trial court asked if Miranda wanted to let stand-by counsel represent him
from that point on and Miranda agreed. When the trial court told Miranda that his lawyer
would explain how his criminal threats conviction qualified as a strike under the Three
Strikes law, Miranda said, “I didn’t even never understand nothing because due to my
disabilities.”
       At the next hearing the trial court ordered a psychiatric examination of Miranda to
assess his “history, prognosis, and dangerousness.” The trial court wanted that
information “[b]ecause I don’t know if he was in treatment, how long he’d been in
treatment, who was treating him, what drugs were prescribed. I didn’t know any of that,
and all of that would bear on the sentencing in this case.” At the next hearing Miranda
said the only medication he was receiving in jail was for pain. At defense counsel’s
request the trial court ordered a medical evaluation to resolve the medication issue. At a
hearing a few weeks later defense counsel asked whether Miranda should be housed in

                                               4
the jail’s mental health unit because he had been taking Cymbalta, an anti-depression and
anti-anxiety medication. The trial court ordered that Miranda be evaluated for that
purpose.
       When the sentencing hearing finally took place the trial court noted that it had
received a report from a psychologist who examined Miranda. The report is not in the
record, however, and its contents were not described. The trial court imposed a
combined state prison sentence of three years and eight months, but suspended that
sentence and placed Miranda on probation subject to numerous conditions, including his
enrollment in an intensive program of mental health services. Before doing so, the trial
court said: “This is how I see the case. [Had] the defendant not represented himself at
this trial and pretrial, there’s no question in my mind that had the defendant retained or
had appointed competent counsel a disposition like the one that I intend to go forward
could have been negotiated for this defendant. He was his own worst enemy by
attempting to represent himself specifically with his mental health history of [sic] and the
court has been totally unaware throughout the entire pretrial and trial. I did not know
about the defendant’s history of mental counseling and drug intervention psychotropic
drug intervention until the middle of the trial in this case. No one told me, the prosecutor
never told me. Mr. Miranda never told me. I was totally unaware of it until when I
looked at the defendant’s records of mostly juvenile misdemeanor matters and a single
felony vandalism matter which I assume was some sort of graffiti.”
       Miranda contends that the trial court erred by: (1) initially granting his request to
represent himself without determining whether his mental health issues prevented him
from making a knowing and intelligent waiver of his right to counsel; and (2) by failing
to inquire into the matter once his mental health issues were brought to the court’s
attention during the trial.




                                             5
                                          DISCUSSION

1.     The Law Regarding a Defendant’s Right to Self-Representation

       The Sixth Amendment to the United States Constitution gives criminal defendants
the right to represent themselves. (Faretta v. California (1975) 422 U.S. 806 (Faretta).)
       A knowing and intelligent waiver of the right to counsel is required before a
criminal defendant is allowed to represent himself. (People v. Noriega (1997)
59 Cal.App.4th 311, 319.) The defendant should be made aware of the dangers and
disadvantages of self-representation so the record shows he is making an informed choice
with his eyes wide open. (Ibid.) The purpose of this requirement is to determine whether
the defendant in fact understands the significance and consequences of his decision and
whether that decision is voluntary. (Ibid.) On appeal the test is not whether specific
warnings or advisements were given. Instead, we examine the record as a whole to
determine whether the defendant understood the disadvantages of self-representation,
including the risks and complexities of his case. (Ibid.) Our examination of the record is
de novo. (People v. Koontz (2002) 27 Cal.4th 1041, 1070.)
       The right of self-representation was not recognized in California when Faretta
was decided. (People v. Johnson (2012) 53 Cal.4th 519, 526 (Johnson).) After Faretta,
California courts tended to view this right as absolute so long as the defendant validly
waived his right to counsel. (Ibid.) In Indiana v. Edwards (2008) 554 U.S. 164
(Edwards) the high court recognized the existence of “gray-area defendants”: those who
are mentally competent to stand trial but who suffer from severe mental illness that
renders them incompetent to conduct trial proceedings by themselves. (Id. at pp. 174,
177-178.) In such cases the United States Constitution gives states the option of insisting
upon representation by counsel. (Id. at pp. 177-178.)
       Edwards did not hold that due process requires a higher standard of mental
competence for self-representation than for trial with counsel; it only allows states to
impose a higher standard without violating Faretta. (People v. Taylor (2009) 47 Cal.4th
850, 877-878 (Taylor).) In Johnson, supra, 53 Cal.4th 519, the California Supreme Court

                                              6
accepted Edwards’s invitation and held that our trial courts have discretion to deny a
defendant’s Faretta motion consistent with the holding in Edwards. (Id. at p. 528.)
Declining to adopt a specific standard, Johnson held that trial courts may exercise their
discretion to deny self-representation if 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.)

2.     The Facts From Miranda’s Faretta Hearing

       At the December 2013 hearing where Miranda’s public defender said she needed
more time to prepare for trial Miranda said: “I’m willing to represent myself if my
attorney is not – will not be able to be ready because I asked for my rights as a speedy
trial. . . . So I’ll be prepared myself to represent myself in a court of law, sir.” The trial
court said it would grant the request if it were knowing and intelligent, but cautioned
Miranda that the request could not be contingent. “You either want to represent yourself
or you want an attorney. There’s no ‘if’ involved. It’s one or the other.” Miranda
replied, “I want to represent myself, sir.” The trial court then provided Miranda with a
Faretta waiver form and sent him back to lockup to read it.
       The form asked Miranda to initial boxes next to statements that described his
constitutional rights, including the rights to an attorney, a speedy trial, to subpoena
witnesses and records, to confront and cross-examine witnesses, and the right against
self-incrimination. The form also included a comprehensive list of the dangers and
disadvantages of self-representation, as well as advice from the court that he not represent
himself. Miranda initialed all those boxes, including one that said he understood all that
he had read and been told and still wanted to represent himself. He signed and dated the
form underneath a statement that he had read, understood, and considered all the
warnings and freely and voluntarily chose to represent himself.
       Miranda gave his proper age and year of birth on the form. He checked a box
stating he was a high school graduate, but when asked “High School Attended” wrote in
the number twelve. He listed no employment experience, and, under “Legal Education,”

                                               7
wrote “Immigration.” Miranda wrote on the form that he had previously and successfully
represented himself in federal court in 2011, an apparent reference to his grant of asylum
in the United States. In the section captioned “CHARGES AND CONSEQUENCES”
Miranda checked the “no” box in response to questions concerning whether he knew:
(1) if the crimes charged were specific or general intent crimes; (2) the facts that had to
be proved in order to find him guilty; and (3) the legal defenses to the crimes he was
charged with.
       When Miranda returned to the courtroom with the signed waiver form, the trial
court asked whether he had read the form. Miranda answered yes. He answered yes
when asked if he wanted to represent himself and whether the initials in the boxes on the
form were in fact his. Miranda answered yes when asked whether, by initialing and
signing the form, he was telling the court that he understood he had the constitutional
right to an attorney and whether he understood the dangers and disadvantages of
representing himself. The court then asked: “And knowing all of those consequences
and what can happen to you, and the fact that you will not be given any special
consideration, and I personally advise you not to represent yourself, you still want to
represent yourself?” Miranda answered yes and the trial court granted his Faretta
motion.

3.     The Trial Court Did Not Err by Granting the Faretta Motion

       Miranda contends the trial court erred by granting his Faretta motion because it
did not know about his mental health problems, relied primarily on the waiver form he
signed, and engaged in only perfunctory questioning before finding that his waiver was
knowing, intelligent, and voluntary. In connection with this he contends the trial court
erred by leaving him to read and fill out the form himself without the assistance of his
public defender. Finally, he contends that certain omissions from or answers to the form
should have raised doubts about the validity of his waiver.
       While it is preferable to question a defendant about his responses to a written
waiver form, the failure to do so does not necessarily invalidate a waiver where there is

                                             8
no indication the defendant did not understand what he was reading and signing. (People
v. Blair (2005) 36 Cal.4th 686, 709, overruled on other grounds in People v. Black (2014)
58 Cal.4th 912, 919-920.)3
       This was not a case where the trial court relied solely on the waiver form. After
Miranda signed the form the trial court asked him whether by signing and initialing the
form he had in fact read and understood it. Miranda answered yes. The court also asked
Miranda whether he still wanted to represent himself despite his knowledge, including
the loss of his right to counsel and the court’s advice that he not represent himself.
Miranda again answered yes. His statements to the court were clear and direct and
showed a strong desire to represent himself.
       Miranda’s answers to the form were also consistent with a voluntary and
intelligent waiver. He signed the waiver form after initialing all the boxes concerning the
rights he was giving up and the risks he assumed by choosing to represent himself. His
initials, handwriting, and signature appear clear and legible. He dated the form correctly,
said he was a high school graduate, and correctly gave his age and year of birth.
       Miranda complains that the contents of his waiver form should have alerted the
trial court that there was a problem. He points to the following: (1) his failure to initial
the boxes in the section dealing with the dangers of self-representation; (2) his answers
that he did not know the elements of the charged offenses or his potential defenses;
(3) his answer of “12” to the question “High School Attended”; and (4) his answers that
he had represented himself successfully in federal court on an immigration matter. We
disagree.



3       Miranda cites In re Ibarra (1983) 34 Cal.3d 277 for the proposition a waiver is
valid based solely on the defendant having signed a waiver form only if defense counsel
first advised the defendant of his rights. Ibarra, which was overruled on other grounds in
People v. Mosby (2004) 33 Cal.4th 353, 360-361, concerns a defendant’s waiver of rights
in connection with entering a guilty plea and is therefore inapplicable. He also relies on
People v. Lopez (1977) 71 Cal.App.3d 568, which merely suggested areas of inquiry by
the trial court when considering a Faretta motion. Lopez pre-dates Blair and as Noriega,
supra, 59 Cal.App.4th at page 319 notes, no particular form of advisement is required.
                                               9
       First, the waiver form in fact shows Miranda’s initials next to the boxes
concerning his knowledge of the risks of self-representation. Second, his supposed
ignorance of the charges and defenses was belied by his defense at trial, which was based
on his assertion that he threatened nobody and had instead been targeted for retaliation by
the police. Third, the answer “12” to the question “high school attended” seems to be
nothing more than a simple misunderstanding, apparently referring to highest grade
completed rather than the name of the school. Fourth, the same appears true of
Miranda’s response to the question about prior self-representation in criminal matters. A
layperson might not understand that an immigration proceeding is civil and, in any event,
it showed that he had acted on his own behalf before in proceedings that carried serious
consequences. Fifth, while consultation with his public defender before signing the
waiver form might have been preferable, Miranda’s failure to do so does not by itself
undermine the factors that show his waiver was knowing and voluntary. Finally, nothing
in the record indicates that at the time of Miranda’s Faretta motion he manifested a
mental illness, much less a severe one, that prevented him from carrying out the basic
tasks of self-representation without the assistance of counsel.4
       In short, our independent examination of the record convinces us that Miranda’s
waiver was knowing, intelligent, and voluntary. (People v. Koontz, supra, 27 Cal.4th at
p. 1070.) We therefore hold that the trial court did not err by granting the Faretta
motion.

4.     The Trial Court Did Not Err by Not Making Further Inquiry During Trial And
       Reversing Its Faretta Order

       As the trial court said, it had no indication before the trial started that Miranda had
mental health problems. However, those became apparent shortly after the trial began.
At various points throughout the trial, the court heard that Miranda had bipolar disorder

4      As Miranda points out, a parole report dated two months before the Faretta
motion stated that he was bipolar and schizophrenic and had been placed on 72-hour
mental health holds. However nothing in the record shows that the trial court had seen
the report at that time.
                                             10
and schizophrenia that had to be controlled by medication, that he had attempted suicide,
and that in Miranda’s own words, he was “kind of slow.” Miranda contends that once the
trial court learned about his mental health condition it was required to conduct an inquiry
into his competence to represent himself and should then have terminated his right to do
so.
       Neither Johnson, supra, 53 Cal.4th 519, nor Edwards, supra, 554 U.S. 164,
support this contention. “ ‘. . . Edwards did not alter the principle that the federal
constitution is not violated when a trial court permits a mentally ill defendant to represent
himself at trial, even if he lacks the mental capacity to conduct the trial proceedings
himself, if he is competent to stand trial and his waiver of counsel is voluntary, knowing
and intelligent.’ ” (Taylor, supra, 47 Cal.4th at p. 878, quoting State v. Connor (2009)
292 Con. 483 [973 A.2d 627, 650].) As a result, no constitutional error occurs when a
mentally ill defendant’s request to represent himself is granted. (Taylor, at p. 891.)
       Moreover, a “trial court need not routinely inquire into the mental competence of a
defendant seeking self-representation. It needs to do so only if it is considering denying
self-representation due to doubts about the defendant’s mental competence.” (Johnson,
supra, 53 Cal.4th at p. 530.) When such doubts arise, the trial court may order a
psychological examination on that issue. (Ibid.) Even though the court’s own
observations play a key role in the process, in order to minimize the risk of improperly
denying self-representation to a competent defendant, the trial courts should avoid
making an incompetence finding without an expert’s evaluation. (Id. at pp. 530-531.)
       Because criminal defendants still generally have a Sixth Amendment right to
represent themselves, trial courts must exercise their discretion cautiously. (Johnson,
supra, 53 Cal.4th at p. 531.) A valid invocation of the right of self-representation
“remains the norm and may not be denied lightly. A court may not deny self-
representation merely because it believes the matter could be tried more efficiently, or
even more fairly, with attorneys on both sides. Rather, it may deny self-representation
only in those situations where Edwards permits it.” (Ibid.)


                                              11
       Although Edwards and Johnson expressly grant trial courts the discretion to deny
self-representation under certain circumstances, those courts did not address when, or
even whether, trial courts may revoke that right after it has been granted. Assuming that
a defendant has a “right” to have the court revoke his pro per status if the court becomes
aware of defendant’s serious mental disability, we therefore have no guidance as to the
appropriate standard of review. We need not address this issue, however, because under
any possible standard of review the record shows that Miranda was capable of
performing the basic tasks of self-representation without the assistance of counsel.
       We recognize that Miranda was sometimes inarticulate and ineffective. Of course
that is no doubt the norm in many self-represented cases, not the exception. Those are
the risks assumed by any defendant who chooses to represent himself. (Taylor, supra,
47 Cal.4th at p. 866 [the likelihood or actuality of a poor performance does not defeat the
right of self-representation].) Both the trial court and standby defense counsel concluded
that Miranda did a reasonable job of defending himself. The record bears this out.
       He made an opening statement which, although brief and inelegant still conveyed
the essence of his defense: that the witnesses against him were lying and that he had
been the victim of discrimination and a false arrest. He objected, albeit unsuccessfully,
that the prosecutor was leading a witness. He objected successfully to the courtroom
presence of a possible witness. He asked that the entire recording of his mother’s 911
call be played for the jury. He cross-examined his mother about Reyes having a grudge
against him. He cross-examined Reyes in detail about the incident, including the timing
and her precise whereabouts, what she was able to see, what he was wearing, what she
recalled about his argument with mother earlier in the day, and that there were video
cameras outside the building that would have captured at least parts of the incident.
Miranda cross-examined Officer Smith about the timing and details of the incident and
also asked about past encounters with Miranda and his family in an effort to show that
Smith was biased against him. He objected successfully to the prosecutor’s mid-trial
request to amend the information to allege a Three Strikes conviction, arguing that it was


                                            12
not “fair because he should have told me at the beginning.” Miranda also successfully
objected to a prosecution rebuttal witness.
       The only wayward example of his conduct that Miranda points to is his decision to
wear a jailhouse jumpsuit on the day he testified instead of the civilian clothes he wore
every other day of the trial. Miranda told the jury that he chose to wear his jail clothes
that day in order to show them that he was being prosecuted for the way he lived and was
in jail every day. As respondent points out, this is sometimes considered a reasonable
tactical decision by defense counsel in order to gain the jury’s sympathy. (Estelle v.
Williams (1976) 425 U.S. 501, 508; People v. Scott (1997) 15 Cal.4th 1188, 1214-1215;
People v. Williams (1991) 228 Cal.App.3d 146, 151.) While we might disagree with
Miranda’s decision, it falls within the range of reasonable trial tactics. Based on the
record, it appears beyond a reasonable doubt that Miranda performed the basic tasks of
defending himself without assistance of counsel. We therefore conclude that the trial
court did not err by failing to conduct an inquiry into Miranda’s mental state and
concomitantly revoking his Faretta waiver.

5.     Failure to Instruct Jury to View Admissions With Caution

       CALCRIM No. 358 instructs the jury to view with caution any out-of-court oral
admissions made by a defendant. Where a defendant’s out-of court admissions are at
issue, the trial court has a sua sponte duty to give the instruction. (People v. Diaz
___ Cal.4th ___, (2015 WL 1514586, slip opn. at p. 6, (April 6, 2015)(Diaz).) Miranda
did not request that instruction, but contends the trial court was required to give the
instruction on its own.
       The court in People v. Zichko (2004) 118 Cal.App.4th 1055 (Zichko) considered
whether that instruction was required as to evidence of the verbal threats made by a
defendant on trial for making criminal threats. The Zichko court held that the instruction
was not required, differentiating between admissions made in a criminal case generally,
which were concessions of guilt, and statements that constituted the crime itself. (Id. at
pp. 1059-1060.) Our Supreme Court overruled Zichko after this matter was submitted.

                                              13
(Diaz, supra, 2015 WL 1514586), and we asked the parties to submit supplemental briefs
concerning the effect of the new decision.
       The Diaz court held that CALCRIM No. 358 was a proper instruction in cases
involving criminal threats (Diaz, supra, 2015 WL 1514586, slip opn. at pp. 4-5), but held
that there was no longer a sua sponte duty to give it in any case where the issue arose.
(Id. at pp. 6-7.) However, the Diaz court declined to decide whether its elimination of the
sua sponte rule for CALCRIM No. 358 was retroactive. (Id. at p. 11.) The Diaz court
concluded that the trial court’s failure to give the instruction was harmless because it was
not reasonably probable the jury would have reached a more favorable result had it been
given. (Id. at pp. 11-12.)
       Respondent’s supplemental brief contends that the elimination of the sua sponte
rule in Diaz should be retroactive. Miranda of course contends otherwise. We need not
reach this issue, however, because even if the trial court erred, its error was harmless.
(People v. Stankewitz (1990) 51 Cal.3d 72, 94.) We examine the record to see whether
there was a conflict in the evidence about the exact words used, their meaning, or
whether the admissions were repeated accurately. (People v. Dickey (2005) 35 Cal.4th
884, 905.) Where there is no such conflict in the evidence, but simply a denial by the
defendant that he made the statements attributed to him, the failure to give the cautionary
instruction is harmless. (Id. at p. 906.)
       There is no conflict about the statements attributed to Miranda by Reyes and the
two police officers. Instead, Miranda denied making any threats. Therefore the error is
harmless.

                                       DISPOSITION

       The judgment is affirmed.

                                                  RUBIN, J.
WE CONCUR:

              BIGELOW, P. J.                                            GRIMES, J.

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