Filed 3/2/16 P. v. Fields CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C076786

                   Plaintiff and Respondent,                                (Super. Ct. No. 11F05754)

         v.

DEVONTE SHAWN FIELDS,

                   Defendant and Appellant.




         Defendant Devonte Shawn Fields appeals from his criminal conviction. He
contends the trial court improperly denied him his right to represent himself at
postverdict proceedings, namely sentencing and any potential motion for new trial,
entitling him to automatic reversal. Concluding the trial court did not abuse its discretion
in denying defendant’s motion, we will affirm the judgment.


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                  FACTUAL AND PROCEDURAL BACKGROUND

       In light of the issues raised on appeal, a full recitation of the facts is unnecessary.
Rather, in addition to a procedural history of the case, we summarize those facts relevant
to the trial court’s determination that defendant was not competent to represent himself.

       Prior to trial, defendant made multiple requests to have his attorney replaced.
During the hearing on one of defendant’s Marsden1 motions, he acknowledged that, due
to his learning disability, if someone speaks “a little bit too fast,” he may not immediately
comprehend and would have to think about it later to understand the conversation. At
another hearing, he acknowledged that because of his learning disability, he needs things
written down to understand them. During the course of another hearing on a Marsden
motion, defendant indicated that if the trial court would not remove his attorney (who
was removed from the case by the public defender’s office prior to trial for unrelated
reasons), he would like to represent himself pursuant to Faretta v. California (1975)
422 U.S. 806 [45 L.Ed.2d 562] (Faretta).

       Following his request to represent himself, the trial court ordered an evaluation by
psychologist Janice Nakagawa, Ph.D., to determine whether defendant was competent to
do so because there had been an earlier dispute as to his competency to stand trial.
Dr. Nakagawa prepared a report following her examination of defendant. In her report,
Dr. Nakagawa described defendant as a man with a lengthy history of psychiatric
problems exacerbated by his limited cognitive abilities, who has problems processing
information in a thoughtful, coherent way, and who has “extremely limited intellectual
resources with respect to being able to monitor and track information” as a result of his
limitations. She further noted that due to his “profound limitations” it would be difficult
if not impossible for defendant to represent himself, and that he has very little insight



1 People v. Marsden (1970) 2 Cal.3d 118.



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with respect to how intellectually and developmentally impaired he is. Thus, she opined
“it would be foolhardy, if not disastrous” to permit defendant to represent himself. In
reliance on Dr. Nakagawa’s evaluation, and acknowledging that previous competency
assessments deemed defendant would be competent to stand trial with counsel,2 the trial
court (Judge John P. Winn) denied defendant’s Faretta motion, stating that “it would be
an injustice” to permit defendant to represent himself, and that he was not competent to
do so.

         Ultimately, the case went to trial, at the conclusion of which, a jury convicted
defendant of assault with a deadly weapon and possession of a firearm by a convicted
felon. The jury also sustained the allegation that defendant had personally used a firearm
in the commission of the assault but did not decide whether he had personally and
intentionally discharged the firearm. And, following a bifurcated trial on defendant’s
insanity defense, the jury found defendant was legally sane at the time he committed the
crimes for which he was convicted.

         At the completion of the initial bifurcated trial, the People elected to retry
defendant on the enhancement allegation that defendant had personally and intentionally


2 Even those doctors who assessed defendant’s competency to stand trial included in
their reports that defendant had been excluded from multiple schools because of his angry
outbursts, demonstrated disrespect towards staff, and an inability to obey instructions.
They also noted that defendant had limited basic academic skills—testing indicated his
basic skills were at a second grade level—and was mildly retarded, with an IQ of 60.
Defendant also had multiple past diagnoses including attention-deficit/hyperactivity
disorder, bipolar disorder, intermittent explosive disorder, learning disorder not otherwise
specified, oppositional defiant disorder, receptive-expressive language disorder, conduct
disorder, disruptive behavior disorder not otherwise specified, borderline intellectual
functioning, and Klinefelter syndrome. The examining doctors also noted defendant was
difficult to understand at times, had difficulty sitting still or paying attention, often had to
have questions and instructions repeated and simplified, was “quite delayed in terms of
his intellectual and reasoning skills,” and his insight, judgment, and reasoning were all
significantly impaired.


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discharged a firearm in the assault. (Pen. Code, § 12022.53, subd. (c).) Prior to retrial,
defendant again moved to act as his own counsel. The trial court (Judge Laurie M. Earl,
a different judge than had heard the prior Faretta motion) denied the motion after
reviewing the report Dr. Nakagawa had prepared relative to defendant’s prior motion to
represent himself. In denying the motion, the trial court found as follows:

       “I do note that in Dr. Nakagawa’s report she did interview [defendant] and some
of the information she also reviewed was records from the jail Psychiatric Service’s [sic]
Center for both [defendant’s] incarceration in both 2011 and 2012. She did determine
through conversation with [defendant] that his education level he did not complete the
10th grade. That he is a client of the Alta, California regional center with a diagnosis of
mild to moderate retardation. In 2011 and in 2012 he was diagnosed with depressive
disorder not otherwise specified and psychotic disorder not otherwise specified.

       “I have also had the opportunity to observe [defendant] during the course of our
hearings and trial and while I don’t have any doubt that [defendant] is competent to stand
trial, I believe he understands the nature of the charges against him, I believe that he
could if he chose to assist his attorney in preparing for his defense, I don’t believe that
he’s sufficiently competent enough because of the factors that I just mentioned to conduct
trial proceedings by himself.”

       At the conclusion of the retrial, the jury found the allegation that defendant had
personally and intentionally discharged a firearm to be not true. The trial court sentenced
defendant to 19 years eight months in state prison and awarded him 1,033 days of
presentence custody credit.3




3 In his opening brief, defendant also raised the contention that he was entitled to
additional presentence custody credit. However, he withdrew that contention as moot in
his reply brief in light of the trial court’s subsequent modification of its judgment to

                                              4
                                      DISCUSSION

       Defendant contends the trial court committed reversible error when it denied his
second request for self-representation.4 He claims the matter should be reversed and
remanded so that defendant can act as his own counsel in sentencing proceedings and in
any potential motion for new trial because there was not sufficient evidence that
defendant suffers from a severe mental illness to prevent self-representation. We
disagree.

       The Sixth Amendment to the United States Constitution provides criminal
defendants with the right to self-representation. (Faretta, supra, 422 U.S. at pp. 818, 821
[45 L.Ed.2d at pp. 572, 574].) However, where a defendant has a mental incapacity,
though he or she may be competent to stand trial, a state may permit a trial court, within
its discretion, to deny self-representation in some circumstances. (Indiana v. Edwards
(2008) 554 U.S. 164, 174 [171 L.Ed.2d 345, 355].) Edwards identified those defendants
who are deemed competent to stand trial but not to represent themselves as “gray-area
defendants.” (Id. at p. 173 [171 L.Ed.2d at p. 355].) In California, gray-area defendants
may have their right to self-representation abridged 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.” (People v. Johnson (2012) 53 Cal.4th
519, 530 (Johnson).)

       A trial court that doubts a defendant’s mental competence for self-representation,
may seek a psychological or psychiatric examination of the defendant in that regard, and
“ ‘should be cautious about making an incompetence finding without benefit of an expert


award him a total of 1,202 days of credit (1,046 days of actual time and 156 days of
conduct credit).
4 Defendant does not challenge the trial court’s denial of his initial Faretta motion,
noting it was premised on removal of his attorney, and thus became moot when the
attorney was removed prior to trial.


                                             5
evaluation, though the judge’s own observations of the defendant’s in-court behavior will
also provide key support for an incompetence finding and should be expressly placed on
the record.’ ” (Johnson, supra, 53 Cal.4th. at pp. 530-531 & fn. 1.) In reviewing a trial
court’s determination that a defendant is not competent to represent himself, we defer to
the trial court’s discretion, upholding that determination where it is supported by
substantial evidence. (Id. at p. 531.) Under this standard, “ ‘[i]f the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.’ ” (People v. Gardner (2014) 231 Cal.App.4th 945, 959 (Gardner).)

       Here, Dr. Nakagawa’s report revealed defendant’s lengthy history of psychiatric
problems as well as his limited cognitive abilities. Additionally, as the trial court noted,
Dr. Nakagawa’s report and other reports also revealed defendant was diagnosed with
mild to moderate retardation, depressive disorder and psychotic disorders. Dr. Nakagawa
assessed that defendant has problems processing information in a thoughtful, coherent
way. Defendant too admitted during the course of Marsden hearings that he was not able
to comprehend questions or information presented orally, and instead required
information to be presented to him in writing so that he could consider it. Finally,
Dr. Nakagawa opined that due to defendant’s “profound limitations” it would be difficult
if not impossible for him to represent himself, and “it would be foolhardy, if not
disastrous” to permit him to do so. This is substantial evidence to support the trial court’s
finding that defendant was not competent to represent himself.

       Thus, contrary to defendant’s assertion, whether there is other evidence in the
record to indicate defendant may have been competent to represent himself, is not
determinative. The trial court weighed the expert evaluation of Dr. Nakagawa and
considered its own observations of defendant in determining that defendant was not
competent to represent himself through retrial on the firearm enhancement and thereafter,


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which may include presentation of evidence, examination of witnesses, instruction of and
argument to the jury, and sentencing proceedings. “We will not second-guess that
decision.” (Gardner, supra, 231 Cal.App.4th at p. 960.)

                                    DISPOSITION

      The judgment is affirmed.




                                                     BUTZ                 , J.



We concur:



      NICHOLSON            , Acting P. J.



      HULL                 , J.




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