Filed 4/26/13 P. v. Brown CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B236407

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA068285)
         v.

WARREN EARNEST BROWN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Pat Connolly, Judge. Affirmed.
         David Reis Mishook, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 _______________
       Appellant Warren Earnest Brown pled no contest to one count of assault on a
peace officer in violation of Penal Code section 245, subdivision (c),1 in case number
YA068285. The trial court imposed and stayed a four-year prison term, and placed
appellant on formal probation. Two years later, appellant was arrested and charged with
three counts of battery with injury on a peace officer in violation of section 243,
subdivision (c)(2) and three counts of resisting an executive officer in violation of
section 69, in case number TA112635. The trial court found appellant in violation of his
probation in case number YA068285, revoked that probation and imposed the previously
stayed term of four years in state prison. Case number TA112635 was dismissed.
       Appellant appeals from the order revoking probation. (§ 1237, subd. (b).) He
contends that the trial court erred in failing to declare a doubt as to appellant's
competence sua sponte. We affirm the trial court's order.


                     Underlying criminal charges and probation violation
       1. Case number YA068285
       On May 18, 2007, Los Angeles County Sheriff's Deputies observed appellant enter
and leave a residence known for narcotics sales. The deputies learned that appellant had
three outstanding arrest warrants, and approached him to take him into custody. A
struggle ensued. Other deputies came to the scene and used a Taser to subdue appellant.
Appellant was found to have rock cocaine and marijuana. Appellant was charged with
assault on a peace officer or firefighter, battery on a peace officer or firefighter, resisting
an executive officer and possession of a controlled substance. On February 25, 2008,
appellant pled guilty to one count of assault on a peace officer or firefighter. He was
placed on probation.




       1
           All further statutory references are to the Penal Code unless otherwise indicated.

                                               2
       2. Case number TA112635
       On June 3, 2010, Los Angeles Police Officers James Williams and Juan Oliva
were on patrol on West Manchester when they noticed appellant standing in front of a gas
station. Officer Williams had previously arrested appellant for trespassing at the gas
station and had advised him not to return there. The two officers got out of their patrol
car, approached appellant and told him that he was under arrest. Appellant told the
officers that they could not arrest him because he was in the military. More officers came
to the scene. Officer Clinton Harrell tried to arrest appellant, and appellant punched him
in his face. The blow resulted in a cut and a black eye. Officers Williams and Oliva then
attempted to arrest appellant. Appellant struggled, but was subdued. Officer Williams's
hand was scraped and Officer Oliva's neck got an abrasion during the struggle.
       Ultimately, this matter proceeded as a probation violation. Appellant was found in
violation of his probation in case number YA068285. On September 6, 2011, the trial
court sentenced appellant to four years in state prison.


                              Appellant's competency history
       The information in case number YA068285 was filed on July 3, 2007. On July 17,
2007, the trial court granted a defense motion to have a psychiatrist examine appellant.
On October 17, 2007, the trial court declared a doubt as to appellant's mental competence
pursuant to section 1368. In November 2007, both the People's appointed expert (Dr.
Kaushal K. Sharma) and appellant's appointed expert filed reports concluding that
appellant was malingering and was competent to stand trial. On November 27, 2007, the
trial court found appellant competent to stand trial. On February 25, 2008, appellant pled
no contest in this case, and received probation.
       The information in case number TA112635 was filed on June 7, 2010. At that
time, appellant was represented by Russell Griffith, a deputy public defender. That same
day, counsel declared a doubt as to appellant's competency to stand trial. The trial court




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(Judge Joel M. Wallenstein) suspended proceedings and referred appellant to Department
95.2
       The matter became case number ZM016275 in the mental health court. Appellant
was evaluated by Dr. Sharma. In his July 12, 2010 report, Dr. Sharma stated that
appellant's presentation was "consistent with a person who is mentally ill and is
incompetent to stand trial." Dr. Sharma recommended a hospital commitment and
involuntary medication. The mental health court found appellant mentally incompetent,
ordered him committed to Patton State Hospital and authorized involuntary treatment
with medication.
       On December 20, 2010, the mental health court held a hearing and determined that
appellant was mentally competent. Criminal proceedings were reinstated. Appellant was
represented at the hearing by Julia Leeds, a deputy public defender. On December 21,
2010, the trial court (Judge Wallenstein) granted appellant's request for self-
representation.
       At some point between December 21, 2010 and January 5, 2011, appellant sent a
document to the court. The document is not part of the record on appeal. The document
was discussed at the hearing held by the trial court (Judge Gary Hahn) on January 5,
2011. At the beginning of that hearing, the court stated that it had had Albert De Blanc,
the Indigent Criminal Defense Appointments ("ICDA") attorney, talk to appellant. Mr.
De Blanc confirmed to the court that appellant was "still talking about military service,"
and saying that there were "secret records" and that "they" took guns from him. The
court stated, "That's the same thing he says in this document." The court declared a doubt
as to appellant's competency. Mr. De Blanc shared the trial court's doubt. The court
noted, "Reading what [appellant] filed actually, within this, he did ask for a legal attorney
in here." The court appointed ICDA to represent appellant. The matter was certified to
the mental health court in case number ZM017077. Dr. Sharma evaluated appellant and


       2
        The minute order for this date states that the court declared a doubt and defense
counsel concurred.

                                              4
concluded that he was mentally competent. On February 7, 2011, the mental health court
found that appellant was mentally competent. Criminal proceedings were reinstated.
       On February 8, 2011, the trial court granted appellant's motion for self-
representation. On February 16, 2011, the trial court revoked appellant's pro. per. status.
       On March 15, 2011, a hearing on appellant's motion to dismiss was held in case
number TA112635. Appellant was represented at this hearing by Jason K. Feldman. Mr.
Feldman stated that the hearing was being held pursuant to section 1368.1, and the trial
court (Judge Hahn) agreed. That section permits a limited number of proceedings to take
place pending a competency hearing. There is nothing in the record which indicates that
a competency proceeding was pending, and so the reason for invoking section 1368.1 is
not clear. At the conclusion of the hearing, the court stated that the matter was referred to
Department P for arraignment on March 29th.
       On March 29, 2011, appellant was arraigned in the trial court (Judge Pat
Connolly). He was still represented by Mr. Feldman.
       On June 15, 2011, Mr. Feldman filed a motion for appointment of a mental health
expert. In the motion, he wrote: "Based upon police reports provided on or about
June 13, 2011, 'Mr. Brown made spontaneous statements which indicated he was
suffering from a mental illness.' According to these reports, on the date and time in
question, the defendant believed he was an agent of the government working on authority
of the White House overseeing the building of a military base at the location. This calls
into question the defendant's ability to stand trial. This further necessitates a mental
health evaluation to assist the trier of fact in determining whether the defendant possessed
the requisite mental state to commit the alleged crimes."3
       On June 16, 2011, the trial court (Judge Pat Connolly) held a hearing on
appellant's motion for a mental health expert. At the hearing, the court noted that "in the
motion itself, Mr. Feldman has written that based on statements by Mr. Brown at the
time, that Mr. Feldman is relying on an evaluation done by police officers, or peace

       3
           On our own motion, we augment the record with the written motion.

                                              5
officers, which the court finds of dubious quality. But it also states here that this calls
into question the defendant's ability to stand trial. [¶] I completely disagree with you,
Mr. Feldman, as far as that point in this motion. We've had an evaluation done, and
Mr. Brown has been sent back, and he is most definitely competent to stand trial." The
court then continued: "It also says here this further necessitates a further health
evaluation to assist the trier of fact to determine whether or not the defendant possesses
the recognition to commit said crimes." The court agreed that "[a]long those lines, as
well as perhaps their defense, which I think is along those lines, . . . for that purpose, I do
think that this is a well taken motion."
       There were no further competency hearings. The court held a probation violation
hearing on August 26, 2011, and found appellant in violation of his probation.


                                           Discussion
       Appellant contends that "throughout his appearances on the underlying criminal
charges and trailing probationary matter, and both before and after appellant was allowed
to proceed pro per, [he] exhibited bizarre and paranoid beliefs which were substantial
evidence before the trial court of appellant's incompetency to stand trial under Penal
Code section 1367. This behavior required the trial court, sua sponte, to declare a doubt
as to appellant's competency and hold appropriate competency hearings."
       As appellant acknowledges, and is set forth, ante, doubt was declared at least
twice in this matter. Both times, proceedings were suspended until appellant was found
competent. "'When a competency hearing has already been held and defendant has been
found competent to stand trial, . . . a trial court need not suspend proceedings to conduct a
second competency hearing unless it "is presented with a substantial change of
circumstances or with new evidence" casting a serious doubt on the validity of that
finding. [Citations.]'" (People v. Kelly (1992) 1 Cal.4th 495, 542–543; People v. Taylor
(2009) 47 Cal.4th 850, 864.)




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       Appellant was found competent in December 2010 and again in February 2011.
He has not shown a substantial change in circumstances or new evidence that casts a
serious doubt on the validity of the February 2011 competency finding.
       The February competency determination arose from a hearing on January 5, 2011.
The following exchange took place between the trial court and Albert De Blanc, the
ICDA attorney.
       "The Court: [¶] . . . [¶] I had Mr. De Blanc, the ICDA attorney, go back and talk
to [appellant]. He said he is still talking about military service.
       "Mr. De Blanc: There are secret records. They took guns from him.
       "The Court: He is still talking about it. That's the same things he says in this
document. [¶] So I'm going to suspend proceedings. He is incompetent. [¶] Read what he
wrote. Read what he told Mr. De Blanc.
       [¶] . . . [¶]
       "The Court: [¶] . . . [¶] He cannot cooperate with an attorney, doesn't know what
happened. He had no idea. He is not being charged with robbery."
       Mr. De Blanc then asked if appellant was still representing himself.
       "The Court: I will be glad to appoint [an attorney]. [¶] Reading what he filed
actually, within this, he did ask for a legal attorney in here.
       "Mr. De Blanc: I asked him about that. Of course he only wants a lawyer if the
lawyer can get his secret file. [¶] I said, 'What if the lawyer can't get your secret file?' [¶]
He says, 'Then I'm representing myself.'"
       As part of the subsequent competency proceedings, appellant was evaluated by Dr.
Sharma. The record shows that Dr. Sharma had evaluated appellant on at least two prior
occasions, and so was familiar with appellant. He was one of the doctors who found
appellant incompetent in June 2010. In his February 7, 2011 report, Dr. Sharma wrote:
"Under sec. 1372 PC in Dec. 2010, [appellant] was found to have his competency
restored and sent back to Compton court. He was apparently in pro-per. Since Dec. 2010
he is refusing his medication Zyprexa. Today he is not demonstrating psychotic
symptoms. He is aware of his legal predicament. Without medication he may

                                                7
decompensate but at this time he is symptom free and thus must be considered
competent."
       Appellant's statements after this competency finding are the same as those
identified at the January 5 hearing. At the March 15, 2011 hearing on appellant's motion
to dismiss, for example, appellant said, "I'm an active duty military federal agent." In a
March 29, 2011 letter to the court requesting pro. per. status, appellant again described
himself as an active duty federal military agent. In an April 13, 2011 letter to the court
requesting a change of venue, appellant again referred to himself as an active duty federal
military agent, and referred to secret records, United Nations personnel, bloodlines and
being activated for war, among other things. Appellant made similar statements at
hearings held on May 4, June 1 and June 16, 2011. The issue of appellant's competency
was raised by appellant's counsel at the June 16 hearing, but counsel based his concerns
on statements made by appellant more than a year earlier, at the time of his arrest. And,
as the trial court pointed out, there had been a competency hearing in the interval. In fact,
there had been two.
       These statements do not represent a change of circumstances or new evidence
calling the competency finding into question. To the extent that appellant relies on the
passage of time, coupled with Dr. Sharma's February statement that appellant might
decompensate without his medication, to show a changed circumstance, that reliance is
misplaced. Appellant had been refusing his medicine for over two months at the time
Dr. Sharma evaluated him, and was competent at that time. Thus, decompensation was in
no way predictable or inevitable.
       Appellant's mental state was examined in some detail by the trial court at the
July 14, 2011 hearing on appellant's successful Faretta motion. At this hearing, appellant
again asserted that he was a federal agent and again made various related claims. The
court stated that it did "have a concern as to [appellant's] being on active duty and stating
that as his employment experience starting on November 27th of 2009, by a Supreme
Court ruling." The court found, however, that appellant "has answered every question
and he's done so previously. He does understand the nature of the adversarial

                                              8
proceedings that is going to be this criminal trial. He does understand the dangers and
disadvantages of self representation. He was able to answer that these are general intent
crimes, and as to what needs to be proven. As to the legal defenses, his answer is
satisfactory." Although appellant mentioned his federal agent status as a defense during
the hearing, he also maintained: "I was assaulted. I'm notifying the court that I was
assaulted which, you know, I did defend myself." Appellant also mentioned his belief
that he was being framed. Self-defense and being framed are legitimate defense theories
which are often raised in criminal trials. Nothing that occurred at the hearing constituted
new evidence or a change of circumstances calling the competency finding into question.
       At the probation revocation hearing, appellant did refer to his federal agent status
and did argue that his records were sealed as defenses to the probation violation.
However, he also attempted to show that he was attacked by Officer Harrell while
attempting to talk to the arresting officer, and also to show that a number of officers used
excessive force on him. Further, there were two videotapes of the arrest, and appellant
questioned Officer Harrell about the tapes to show that those tapes did not contain images
of appellant hitting Officer Harrell. The facts of appellant's probation violation were
straightforward, and it is difficult to see how any defendant could have mounted an
effective defense to the violation charge.
       Appellant's reliance on People v. Murdoch (2011) 194 Cal.App.4th 230 is
misplaced. In that case, even though the defendant was found competent several months
before trial, the Court of Appeal found that the trial court should have declared a doubt as
to defendant's competency once trial started. "In finding defendant competent to stand
trial, [the psychologist] stated in reference to the charged incident, defendant 'has an
explanation for his behavior that is rational.'" (Id. at p. 238.) Just before opening
statements, the defendant told the court that his defense was that the victim and the
witness were not human. When the court told the defendant that he could ask the two
individuals about their criminal records, defendant replied that "shoulder blades are
symbolic of angelic beings," angels do not have shoulder blades and cannot shrug, and all
defendant needed to do was show that the two individuals could not shrug. (Id. at p.

                                              9
234.) During trial, the only question defendant asked the victim was if he could shrug his
shoulders. The victim shrugged his shoulders. Defendant asked no further questions of
him, and did not ask any questions of the other witness. (Id. at p. 235.) Thus, the
defendant had changed his defense by the time trial started, from a rational to an
irrational one. He did not present a rational defense. Thus, there was a change of
circumstances since the defendant was found competent.
       This case is different in two key respects from Murdoch, supra. First, appellant's
behavior at the probation hearing was comparable to his behavior since being found
competent, and did not represent a change in circumstances. Second, appellant did
present a rational defense to the probation violation charge. Thus, the reasoning of
Murdoch does not assist appellant.
       It is clear that some defendants may be mentally ill but at the same time
understand the nature of the proceedings against them and be able to assist in their own
defense. (People v. Koontz (2002) 27 Cal.4th 1041, 1064.) That was the case here.


                                         Disposition
       The trial court's order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                   ARMSTRONG, J.


We concur:



              TURNER, P. J.                        MOSK, J.




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