NOT TO BE PUBLISHED IN OFFICIAL REPORTS
An amended information was filed charging Sean Webber with driving under the influence of a drug. (Former Veh. Code, § 23152, subd. (e), now Veh. Code, § 23152, subd. (f).) The information also alleged three or more prior driving under the influence convictions within the prior 10 years (Veh. Code, § 23550, subd. (a)), two prison prior terms (Pen. Code, §§ 667.5, subd. (b), 668)), and a prior strike conviction. (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, 668). The jury found Webber guilty as charged. The trial court found one prior offense was not a qualifying offense, and the case became a misdemeanor. The court denied Webber probation and sentenced him to time served.
Webber appeals. He contends he had a right to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta), and the court erred in terminating his pro per status. We conclude the trial court did not err and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2015, a San Diego Police Department (SDPD) officer conducted a traffic stop of Webber's vehicle. After other officers arrived, the first officer carried out field sobriety tests, suspected Webber was under the influence of a controlled substance, and arrested him. At police headquarters, Webber's blood was drawn and the results reflected methamphetamine.
After Webber was arraigned, defense counsel advised the trial court that he sought to represent himself. The court cautioned Webber about representing himself, noting among other things that "any disruptive behavior wouldn't be tolerated," and granted the request. Webber requested the court continue the preliminary hearing, the prosecutor agreed, and the court granted this request as well.
At the preliminary hearing, Webber expressed concern about the Office of Assigned Counsel's (OAC) service of subpoenas. The court advised Webber he was "not entitled to obtain discovery in a preliminary hearing," and Webber proceeded to address another subpoena he sought. The court stated "I've heard enough, sir. This has nothing to do with the preliminary hearing . . . is this all by way of seeking a continuance . . .?" Webber responded "No," and again addressed subpoenas. The court stated: "All right, Mr. Webber, I note for the record that you made these efforts to get subpoenas issued through [OAC]," and proceeded with the hearing.
The Honorable Kathleen M. Lewis presided over an October 22, 2015 hearing held at Webber's request. Webber reported he sent requests to OAC for "prior case numbers or reports and the test levels of other under-the-influence cases," and did not receive them. The court stated: "It doesn't sound like a proper discovery request." The OAC representative noted it had been explained to Webber that OAC had no access to his prior cases and he had to go through the district attorney. Webber indicated he understood, and then stated: "But at the same time, I'm entitled to the cases anyways. The D.A.'s not going to maybe have these cases." He explained he sought "lab test results of under the influence of alcohol and meth on nine cases." The prosecutor took the position the lab results were not relevant and beyond the scope of discovery. The court asked Webber why he needed them, and he explained his prior cases reflected greater amounts of methamphetamine in his system and thus showed his innocence. He also stated, among other things: "I asked for a video. They won't provide it. He's full of shit and lying." An exchange ensued:
Webber then indicated there were subpoenas that were not served relating to "the three patrol vehicles on the scene, audio and video from the smart cam," and another dialogue took place.
The court stated for the record: "Mr. Webber is disruptive, he won't allow the court or any counsel to talk. He continually interrupts the court." The court then found "he is unable and should not represent himself because of his disruptiveness," and revoked his pro per status.
In November 2015, the trial court suspended proceedings and ordered a mental competency examination. In January 2016, the court found Webber competent to stand trial.
The case went to trial in March 2016. On March 3, Webber again moved to represent himself. The trial court denied the motion, stating: "[D]efendant was previously obstructive in court and he continues to be obstructive. The Court further finds the request untimely and states that the defendant has exhibited mental health deficiencies that impair his ability to represent."
On March 18, defense counsel reported there was a "change of circumstances such that [she could] no longer go forward in [her] representation," and asked for a mistrial, which the court granted. The court noted counsel's request to refrain from offering an explanation on the record, but did state the situation "went way beyond the obscene gesture that apparently was delivered by Mr. Webber to [defense counsel] . . . we know . . . that several of the jurors [saw it], and it was of concern to them. They thought it was certainly very disrespectful, and I agree."
At a March 22 hearing with Judge Lewis presiding, a new public defender was appointed and Webber again moved to represent himself. The court cautioned him, stating "you understand that if you are disruptive at any further court proceedings . . ., then the court has the right to . . . revoke your pro per status; do you understand that?" Webber stated he did. The court elaborated: "You may not continually interrupt the court, you may not flip off people, you may not be disruptive or obstructionist during the trial. . . ." Webber confirmed he was able to do that. The court found: "It appears that you're able to conduct yourself in an appropriate manner today and that you have been at least recently . . . I'm going to grant your request at this time. That's subject though to your request being revoked again if you are disruptive."
At the same hearing, the court asked Webber if he would be ready for trial on April 4. He indicated he was ready and just needed to subpoena witnesses. The court asked the prosecutor if she would be able to subpoena his witnesses because going through OAC would result in delay. She said "[s]ure," and clarified she would have to check with her office. Webber also noted he had subpoenaed his booking photograph, "audio and video in-dash cam and/or clip-ons," and a California Highway Patrol (CHP) video for a prior DUI, and did not have them. The prosecutor reported Webber had been given a copy of the booking photo; Webber stated he wanted color, and the prosecutor indicated they only have black-and-white. The court asked the prosecutor to check for a color copy. As for the recordings, the prosecutor stated "[T]here is no body-worn camera. This happened before body-worn camera was issued to the officers at that division of the [SDPD]. There is no cameras on the cars so there is no video footage." The court noted Webber had requested the recordings and the prosecutor represented as an officer of the court that none existed.
On April 4, with trial set to begin and the Honorable David J. Danielsen presiding, Webber requested a continuance. He explained he lacked adequate time to prepare since his pro per rights were restored and needed time for subpoenas. The court asked Webber to prepare a list of the witnesses he wanted subpoenaed. Webber acquiesced, and stated he also had a formal discovery request. He explained his concerns:
The court stated: "I want to know why it is that you need to continue this matter. And if you are going to tell me that you need time to subpoena witnesses . . ." Webber responded "That's not the reason," and explained the reason was to subpoena the booking photograph, recordings, and CHP video. The court responded "I'm sure that you understand why these things are relevant much better than I do," and Webber stated they were "all relevant." The court replied: "But you need to stop and listen to me and you need to answer my questions." The court asked Webber about the relevance of the booking photo. Webber explained the photograph showed "no dilated eyes, . . . no red eyes, . . . no cotton mouth, . . . no residue in the nose." The court then asked the prosecutor whether there were cameras in the vehicle, and the prosecutor confirmed there were no vehicle or body-worn cameras. The court addressed Webber:
The court confirmed Webber was guilty of the three priors and said, "So that's the end of the issue." Webber stated "there's no way to talk me out of defending myself," and reiterated his request for a continuance. The court indicated he had not "shown . . . good cause" to continue the case.
Webber responded at length, focusing on the subpoenas. He then began discussing certain witnesses, and the court stated "What on earth are you talking about? How is that relevant to the DUI? Webber responded, in part: "The DUI — it has to do with presumption on why I was arrested in the first place to prior reports which are in reports of what they are calling hallucinations, visual hallucinations and threats about family which are throughout the reports and have given presumption to a cop to arrest me, figuring that I would be under the influence of meth, you know. . . . It's my right to . . . examine these people. . . ." The court asked the OAC representative about the subpoenas. She explained Webber had not completed them properly and they were returned to him. Webber stated: "Your Honor, the politics are great. They have no choice but to subpoena these people for me. . . ." The court then revoked Webber's pro per status:
Webber contends the court's revocation of his pro per rights on April 4, 2016, was erroneous because the record does not show he engaged in sufficient misconduct or that he was incompetent to stand trial (which, he suggests, undermines any finding as to his competence to represent himself). We reject Webber's contentions.
I. LEGAL PRINCIPLES
Under the Sixth Amendment, defendants have the right to represent themselves. (Faretta, supra, 422 U.S. at p. 819; People v. Becerra (2016) 63 Cal.4th 511, 517 (Becerra).) "That right is not without limits, however. [Citation.] `"[The] government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer."'" (Becerra, at p. 518; see Faretta, at p. 834, fn. 46 ["The right of self-representation is not a license to abuse the dignity of the courtroom."]; People v. Carson (2005) 35 Cal.4th 1, 8 (Carson) [accord].)
The trial court "may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." (Faretta, supra, 422 U.S. at p. 834, fn. 46; Carson, supra, 35 Cal.4th at p. 10 [accord].) "Whenever `deliberate dilatory or obstructive behavior' threatens to subvert `the core concept of a trial' . . . or to compromise the court's ability to conduct a fair trial . . . the defendant's Faretta rights are subject to forfeiture." (Carson, at p. 10.)"' When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings,' including: (1) "the availability and suitability of alternative sanctions," (2) "whether the defendant has been warned that particular misconduct will result in termination of in propria persona status," and (3) "whether the defendant has `intentionally sought to disrupt and delay his trial.'"'" (Becerra, supra, 63 Cal.4th at p. 518, quoting Carson, supra, 35 Cal.4th at p. 10.)
"On review, we accord `due deference to the trial court's assessment of the defendant's motives and sincerity as well as the nature and context of his misconduct and its impact on the integrity of the trial in determining whether termination of [self-representation] rights is necessary to maintain the fairness of the proceedings.' [Citation.] The court exercises considerable discretion in this regard and `the exercise of that discretion "will not be disturbed in the absence of a strong showing of clear abuse."'" (Becerra, supra, 63 Cal.4th at p. 518.) "[T]he extent of a defendant's disruptive behavior may not be fully evident from the cold record," and we "accord deference to the trial court [because] it is in the best position to judge defendant's demeanor." (People v. Welch (1999) 20 Cal.4th 701, 735 (Welch).)
A trial court may also deny or revoke self-representation due to defendant's mental incompetence. (People v. Johnson (2012) 53 Cal.4th 519, 530 (Johnson).) We again review for abuse of discretion. (Id. at p. 531.)
We conclude the trial court did not abuse its discretion in revoking Webber's pro per status on April 4, 2016. We begin with Webber's primary argument: that he "did not "deliberately engage in serious and obstructionist misconduct that threatened to subvert the core concept of a trial." He does not establish error.
Focusing first on the nature and impact of Webber's conduct, the record reflects that although he occasionally was cooperative, his behavior reasonably could be viewed as obstructive. Webber was disrespectful toward counsel and the court, repeatedly interrupted proceedings, questioned the court's rulings, addressed his own concerns rather than responding to questions, and continued to address evidence that he was advised did not exist. (See Welch, supra, 20 Cal.4th at p. 735 [no abuse of discretion in denying Faretta motion where defendant, among other things, "turned his back on the trial court when addressing it," "interrupted the trial court several times to argue what the court had declared to be a nonmeritorious point" and "refused to allow the court to speak and he refused several times to follow the court's admonishment of silence"].) In addition, although we do not rely on postruling conduct in reaching our conclusions here (People v. Doss (2014) 230 Cal.App.4th 46, 58), we note Webber's obstructive behavior continued during trial. Webber made multiple statements in front of the jury (which the court characterized as "outbursts"), was repeatedly warned by the court not to be disruptive and that he could be removed if he continued, and ultimately was removed.
Webber's arguments to the contrary are unpersuasive. First, he seeks to rely on Becerra, which reversed a revocation of pro per rights. This reliance is misplaced. There, the defendant had been seeking discovery, several continuances had been granted, and the trial court without warning stated he was being dilatory and revoked his pro per rights. (Becerra, supra, 63 Cal.4th at pp. 514-516.) The California Supreme Court reversed, concluding the record did not support this ground and was otherwise inadequate. (Id. at p. 520.) Here, the record does reflect obstruction, the record is sufficient, and as discussed post, Webber had been warned.
Second, Webber suggests the court improperly relied on his lack of legal training, explaining "[i]t is clear [he] did not seem to understand the rules of discovery or what evidence might be relevant" and it "appears the court was frustrated with [his] inability to adequately explain how the discovery he sought bore on any of the issues to be addressed at trial." We note Webber did respond appropriately to certain inquiries, such as the relevance of his booking photograph. Regardless, the record does not reflect the trial court relied on Webber's lack of legal training or ability in finding his behavior obstructive. Indeed, it appears the trial judges made a meaningful effort to understand and facilitate Webber's discovery requests, such as asking the prosecutor to assist with subpoenas.
Third, Webber disputes the court's willful defiance finding, contending his failure to respond could have been due to cognitive impairment and "nothing indicates appellant could demonstrate the relevance of the discovery he sought but deliberately refused to explain it to the court." But he was able to respond to certain questions as to relevance, and mental impairment is itself grounds for denying self-representation. (Johnson, supra, 53 Cal.4th at p. 528.) We also accord no significance to the court's statement that it could not "really make the diagnosis as to whether or not this is willful, obstructive behavior." Viewed in context, we construe the court to mean that Webber's conduct was obstructive, but this could have been due to cognitive impairment — not that the conduct was not obstructive.
Lastly, Webber questions the inclusion of Judge Lewis's March 3 findings in the revocation ruling, citing her restoration of his pro per rights on March 22. We reject any inference of equivocation he is attempting to draw from Judge Lewis's restoration of his pro per rights. The court restored his rights after noting recent appropriate behavior, and warned him he would lose them if he was disruptive again.
Turning to the remaining factors, we disagree with Webber that the "court did not try less drastic alternative[s]" and "could have simply denied [his] motions for discovery and a continuance." The court had tried restoring his pro per rights subject to warnings about being disruptive, and the behavior continued. Denying his motions also would not have resolved the issues here. For example, when Judge Lewis ruled that prior lab results were irrelevant, Webber's response was not to accept the ruling, but to ask whether he was "allowed to have a defense." The warnings provided to Webber also were sufficient, including being advised at the outset about disruptive behavior and receiving guidance on March 22 about problematic conduct (e.g. interruptions). Webber contends he was not warned his "status would be terminated if he did not better explain the relevance of the discovery he sought." The revocation was due to his conduct, not his legal ability. Finally, although it does not appear Webber aimed to disrupt the trial (at least not until after his pro per status was revoked the second time), intent is not required. (Carson, supra, 35 Cal.4th at pp. 10-11 ["[W]e do not hold that an intent to disrupt is a necessary condition."].) Rather, as Webber concedes, "the relevance inheres in the effect of the misconduct" on the trial. (Ibid.) The obstructive conduct in the record here supports the conclusion that he would have disrupted trial as well. (See Welch, supra, 20 Cal.4th at p. 734 ["A constantly disruptive defendant who represents himself . . . would have the capacity to bring his trial to a standstill."].)
We now address Webber's other ground for error. He contends that because there was no finding of incompetence sufficient to render him incompetent to stand trial, mental impairment was not a proper basis for revocation. Although older case law, including Welch, did find error in this context (id., at p. 732 [court erred in determining "higher standard of competence to waive counsel applied"]), Webber's argument does not reflect the current state of the law. (Indiana v. Edwards (2008) 554 U.S. 164, 178 ["the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . . ., but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."]; Johnson, supra, 53 Cal.4th at p. 528 [courts "may deny self-representation in those cases where Edwards permits such denial"].) In addition, Welch affirmed denial of the Faretta motion there, notwithstanding error in the competence analysis, where the trial court also relied on disruptive behavior and the record supported this ground. (Welch, supra, 20 Cal.4th at p. 735.)
Ultimately, we must accord significant discretion to the trial court, which was in the best position to assess Webber's demeanor and its impact. We conclude the court did not err in revoking Webber's pro per status.
The judgment is affirmed.
McCONNELL, P. J. and DATO, J., concurs.