P. v. Smart

Filed 2/15/08 P. v. Smart CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

In October 2003, a jury found Alvin Smart guilty of three counts of indecent exposure (Pen. Code,  314.1[1]) and one count of falsely identifying himself ( 148.9, subd. (a)). In January 2006, a second jury determined that Smart was sane in December 1996 and October 1997 when he committed the charged offenses. Smart was sentenced to a Three Strikes sentence of 75 years to life in state prison.

On appeal, Smart seeks reversal of the judgment on a variety of grounds including the erroneous denial of several motions, insufficiency of the evidence, instructional error, failure to properly respond to a jury question and ineffective assistance of counsel. Smart also contends that his sentence constitutes cruel and unusual punishment. In a petition for writ of habeas corpus, which we consider along with this appeal, Smart seeks reversal of the judgment on the ground of judicial bias. We will deny the writ petition and affirm the judgment and sentence.

II. PROCEDURAL HISTORY

For context, we briefly summarize the very lengthy history of this case.

On April 21, 1998, an information was filed charging Smart with three counts of indecent exposure and one count of falsely identifying himself to authorities. Smart was also charged with three prior strikes ( 1170.12) and two prior prison term enhancements ( 667.5, subd. (b)).

On January 25, 1999, the superior court suspended proceedings pursuant to section 1367. A competency examination was conducted and, on August 24, 1999, the court made a finding that Smart was not competent to stand trial. Smart was committed to the State Department of Mental Heath for placement at Atascadero State Hospital on September 15, 1999.

An order filed March 21, 2001, directed that Smart be returned to court from the State Hospital. Certification proceedings commenced on March 27, 2001, and, on April 12, 2001, Smart entered a plea of not guilty by reason of insanity. A competency trial was held on September 6, 2001, at the conclusion of which the court found that Smart was competent to stand trial and ordered that criminal proceedings were reinstated.

On February 4, 2002, the date set for commencement of a jury trial, criminal proceedings were suspended again pursuant to section 1367. On February 26, 2002, the court conducted another competency examination at the conclusion of which it found that Smart was not presently competent to stand trial. On April 4, 2002, Smart was committed to the Department of Mental Health for placement at Napa State Hospital.

On April 11, 2003, Smart was returned to court for proceedings to certify that he was competent to stand trial. Another competency examination was conducted on June 10, 2003, at the conclusion of which the court made a determination that Smart was presently competent to stand trial.

In July and August of 2003, Smart filed a series of pro per motions pursuant to which he complained about such matters as ineffective assistance of counsel, being forced to take drugs, and having to remain in the same unit of the State Hospital where the doctors found he was competent. During this period Smart also made pro per requests for a new competency hearing, substitute appointed counsel and a new preliminary hearing. On September 5, 2003, Smart filed a pro per petition for a writ of habeas corpus seeking dismissal of charges and the institution of civil commitment proceedings on the ground that the period during which he had been detained as incompetent exceeded the maximum term of commitment authorized by section 1370, subdivision (c)(1) (section 1370(c)(1)). That petition was denied on September 16, 2003.

Trial commenced before the Honorable Stephen Hall on October 20, 2003. Smarts defense of not guilty by reason of insanity was bifurcated and the presentation of evidence in the guilt phase commenced on October 24, 2003. The jury began deliberating on October 28, and returned a verdict of guilty as to all charges that same day. The jury returned true verdicts as to the prior convictions on November 4 of that year. The jury was dismissed and the sanity phase of the trial was continued after the court determined that neither side was prepared to proceed.

The sanity phase of the trial was continued several times for reasons which did not relate to Smarts competency. On April 22, 2005, Smart filed a motion for substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and on April 26, he filed a motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). Both motions were heard and denied on May 4, 2005, by the Honorable John L. Grandsaert.

The sanity phase of the trial commenced before Judge Hall on January 17, 2006. That day, Smart made a motion for a hearing to determine whether he was competent to proceed with the trial, which was denied. The presentation of evidence began on January 23, 2006. On January 26, 2006, after deliberating for less than one and one-half hours, the jury returned its verdict that Smart was sane when he committed the offenses. On February 24, 2006, the court denied Smarts new trial motion, refused to dismiss his prior strikes and sentenced him to a total term of 75 years to life in prison.

III. STATEMENT OF FACTS

A. Guilt Evidence

1. The Charged Offenses

On December 17, 1996, at approximately 6:15 a.m., Nancy Pangilinan went to the underground garage of her Millbrae condominium complex. She was unlocking her car when she heard a noise in the empty stall next to her parking space. Pangilinan looked over and saw a nude man masturbating. The man was approximately two feet from her car. His face was covered by a red scarf and he was crouching down like a catcher. The mans genitals were completely shaven, and he was stroking his penis which was shiny, like he was lubricated.

Pangilinan was frightened by the man and tried to get in her car and drive away but she was so nervous that the car jumped as she put it into gear. The man walked in front of the car and approached her drivers side window while he continued to masturbate. Pangilinan almost hit the man as she drove away.

On October 12, 1997, at around 2:00 a.m., Katrina Stanley was in her ground floor Burlingame apartment reading a magazine and waiting for her husband to come home. She noticed a man outside standing about a foot away from her window. She went to the window and saw that the mans pants were down around his ankles and that something like a shirt was covering the top of his head. The mans crotch area was completely shaved and his hand was on his shiny, fully erect penis which appeared to have some sort of lubricant on it. He was masturbating with one hand as he motioned with the other for Stanley to come outside. The man stayed outside while Stanley called 911 but fled once she hung up the phone.

On the morning of October 12, 1997, Nancy Pangilinan, the woman who had found a man masturbating in her garage the previous December, was preparing to take a vacation. Nancy and her husband Joel went to their garage at around 7:30 a.m. because Nancy wanted to make sure the car was properly parked while they were away.

Nancy was re-parking the car when she heard Joel shout, what the hell are you doing here? Through her side mirror, Nancy saw the same man who had accosted her in December of 1996. He was nude, crouched down and his face was covered with a red scarf. The man apologized and said he was going to the bathroom. Nancy said: I have seen you before, you were behind my other car in this garage. The man repeatedly said, I am sorry, leave me alone, I will get out of here, I am going to the bathroom, leave me alone.

Although he claimed to be going to the bathroom, Nancy did not observe the man relieving himself. Nor did she observe any urine or feces in the spot where he had been crouching after he walked away. As he walked away from Nancy, the man kept his face covered with the red shirt but did not attempt to cover his genitals which were completely shaven. The mans penis, though not erect, was shiny and appeared to have been lubricated.

Nancys husband Joel followed the man as he retrieved his clothes from behind a car parked several stalls away from where Joel and Nancy had first seen him. The man, who had put his pants on and no longer covered his face, turned toward Joel who got a good look at him. Joel followed the man out of the garage where he encountered Jesse Capilitan who was walking his dog. Joel asked Capilitan to call the police. Joel lost sight of the man but Capilitan got in his car and followed the man while he called the police on his cell phone. The man darted behind a condominium complex into a large grassy field.

2. Police Investigation

When the police arrived at the Pangilinans residence, Jesse Capilitan directed them toward the field where an officer found appellant, Alvin Smart. Smart was lying underneath a large amount of brush and leaves holding still as if trying to avoid detection. Smarts hands were greasy and shiny looking. He falsely reported that his name was Robert Thomas Payne. From close by, officers retrieved a jar of Vaseline and a red T-shirt.[2]

Katrina Stanley was brought to the scene and identified Smart as the man who was outside her window the previous evening. She recognized his shoes, pants and the T-shirt he was wearing. At trial, Stanley testified that she may also have recognized a tattoo on his arm.

After his arrest, Smart was taken to the Burlingame police station where he was interviewed by Officer James Hutchings. Hutchings told Smart that a woman had reported seeking a man the previous evening, standing outside her window and masturbating. Smart acknowledged he knew what masturbating was, but denied any knowledge about the incident and said that he could not even get an erection anyway because of prostate problems. Smart also said the woman could not accuse him of anything because he never did nothing like that. Hutchings told Smart that another woman saw a man pull his pants down outside her apartment which was close by the place where Smart was arrested. Smart stated that the only time his pants were down was when he was taking a crap in the field where police found him. Smart repeatedly stated that he did not pull his pants down in front of women and that he made sure he was hidden from view when he went to the bathroom. Smart also told the officer that he had never been arrested before.

A short time after Hutchings completed his interview, Millbrae police officer Richard Dixon interviewed Smart. Dixon asked whether Smart had exposed himself to a female. Smart again denied that he had done anything. Smart also denied ownership of the jar of Vaseline and the red T-Shirt. He denied that the greasy substance on his hands was Vaseline and said he just had oily skin. Smart told the officer that his genitals were shaved because he had crabs. Smart also said he had absolutely not been incarcerated in the past, that he had not been running from anybody and that he was sleeping in the woods and was just a victim of circumstances.

3. Uncharged Incident

Late on the evening of November 8, 1983, Trudie Mitchang heard a knock and went to the front door of her ground floor apartment in Pacifica. Seeing nothing through the peephole, Mitchang started to return to her bedroom when she heard another knock and realized it was coming from the kitchen window. She saw a man outside the window who was wearing something over his face that resembled a ski mask, with holes for the eyes cut out. The mans pants were unzipped and he was stroking his exposed penis which was slick, shiny or oily looking. Mitchang screamed to her roommate and called 911.

A San Mateo police officer who responded to Mitchangs 911 call apprehended Smart who was found sitting on a motorcycle, with his pants falling down and his buttocks exposed. A T-shirt with eye holes cut into it was in Smarts pocket. Smart also had a jar of Vaseline in his pants pocket. There was Vaseline on his hands and the crotch area of his pants.

An officer walked Mitchang to the location where Smart was apprehended, only a short distance from her home. Mitchang identified Smart as her assailant, although she could not be absolutely sure because his face had been covered. Mitchang said that the clothes Smart was wearing and his general appearance matched exactly.

B. Sanity Evidence

1. The Defense Case

To support his claim that he was insane when the charged offenses were committed, Smart presented testimony by two expert witnesses, Dr. Robert Slater and Dr. Paul Berg.

a. Dr. Robert Slater

Dr. Slater is a board certified psychiatrist who testified on behalf of the defense as an expert in the field of psychiatry. Slater interviewed Smart three times between April 2001 and November 2003, the first two times pursuant to court orders.

Slater interviewed Smart on April 30, 2001, as part of a court ordered psychiatric evaluation to determine if Smart should be found not guilty by reason of insanity. At the time, Smart was disheveled, poorly groomed, and he rocked back and forth, muttered, giggled and was generally incoherent throughout the evaluation. In a May 3, 2001, report to the court, Slater diagnosed Smart as suffering from chronic schizophrenia. Slater based his diagnosis on Smarts medical records which reflected he had been diagnosed as schizophrenic in the past and on Smarts presentation. However, Slater also determined that Smart was sane when the offenses were committed. Although Smart was too incoherent in April 2001 to respond to questions about the incidents, the police reports from that time period indicated that Smart was sane when the crimes were committed, that he knew what he had done and that what he had done was wrong.

Slater interviewed Smart again on February 15, 2002, pursuant to a court order for a determination whether Smart was competent to stand trial. Smart was responsive, more alert and made good eye contact, but he was not coherent and engaged in almost non-stop psychotic ramblings. When Slater interviewed Smart in 2002, he was aware that Smart had previously been identified as a malingerer. However, Slater concluded that [t]he content of his psychotic rambling was very consistent with a genuinely mentally ill person, rather than a sane person trying to fake insanity. Therefore, Slater concluded that Smart was not competent to stand trial in February 2002.

Slater interviewed Smart a third time on November 12, 2003, in order to reconsider his prior conclusion that Smart was sane at the time the offenses were committed. Smarts psychological condition was markedly improved. He was coherent, responsive, and alert, made eye contact and was able to articulate the charges against him. Smart reported that he was pretty much out of it when he was arrested, that God was telling him what to do and he had to obey because he was Gods son Jesus, and that Government people were trying to kill him. Smart said that he could see the agents inside his body when he looked in the mirror and that God told him the only way to get rid of them was to masturbate in front of women to kill the agents. Smart told Slater that he strongly believed what the voices told him at the time, that he still gets confused at times, that he can think more clearly now but it still seems real.

Slater testified at trial that he did not believe Smart was malingering during the November 2003 interview. In Slaters opinion, a successful malingerer would appear to be incoherent all the time, in order to secure a finding of incompetence and avoid trial altogether. Furthermore, Slater characterized Smarts reported delusion as a story told by a crazy person and stated that I dont think there is any sane person that could think this up that quickly off the top of his head, even with a rehearsal, it is too real. Slater testified that Smart comes across as a generally psychotic person, even when he is coherent, he is still psychotic.

When asked for his conclusion as to whether Smart was sane at the time the offenses were committed, Slater testified that I concluded he was legally insane, on the basis of the history that he gave to me.

b. Dr. Paul Berg

Dr. Paul Berg is a psychologist, licensed in California since 1967, who testified as an expert in the field of psychology. Berg was retained by the defense to review Smarts medical records and evaluate him in order to determine whether he was sane at the time the offenses were committed. Berg interviewed Smart on July 22, 2004, and also administered a Mellon Clinical Multi-Axial Inventory (MCMI) test, the purpose of which was to obtain a long-term perspective on the patients mental health status.

During the interview, Smart explained to Berg that exposing himself to women was the only way he could free himself from the government agents that had entered his body. By masturbating in front of women, Smart was able to release the holy liquid and cleanse him[self] and rid him[self] of this poisonous presence in his body. Bergs clinical impression of Smart was that he suffered from a delusional disorder and the he was a schizophrenic.

Berg offered the opinion at trial that Smart was psychotic when Berg interviewed him and was legally insane when the offenses were committed. Berg acknowledged that, in the past, Smart had been variously diagnosed as a schizophrenic and as a malingerer. In Bergs opinion, these two diagnoses were not inconsistent. Furthermore, Berg believed that the results of the MCMI test reinforced his impression that Smart was not trying to fake mental illness.

2. The Prosecution Case

a. Lay witnesses

The People presented testimony from several witnesses who observed Smarts behavior and demeanor during relevant time periods including Mark Stockton, Smarts former parole agent. Stockton testified he saw Smart at least four times a month from December 1995 until his October 1997 arrest, except for periods when Smart was incarcerated for parole violations. Smart never exhibited any delusional thinking during parole visits. He acted appropriate[ly], and he knew what was going on.

Police officers Hutchings and Dixon both testified regarding Smarts behavior on the day of his arrest. Hutchings testified that Smart was cooperative, acted appropriately and did not do anything to suggest he was delusional or crazy. Officer Dixon testified that Smart did not express any delusions or make any bizarre statements to him. Throughout the arrest and interview process, Dixon did not see any sign that Smart was having any mental problems. [3]

Ruthann Flament, a nurse practitioner at the Maguire Correctional Facility at the San Mateo County jail, had observed Smart on several occasions while he was in jail and was also familiar with his medical records at the jail. Flament first examined Smart on October 12, 1997, the day he was arrested, after he reported to authorities that he suffers from asthma. During the examination, Smart complained of lower back pain due to a car accident. He did not make any mental health complaints, and did not engage in any bizarre behavior. Flamant saw Smart again on October 24, 1997, to follow up regarding Smarts back pain. Smart was in no acute distress, was pleasant, and talkative and was advised to exercise. Between October 1997 and September 1999, Smart sought medical attention close to fifty times but never for a mental health issue. Flament testified that Smart first came to the attention of mental health staff in February 1999 when a deputy observed Smart engaging in bizarre behavior and requested a mental health evaluation for him.

Stephanie Arthur, the prosecutor at Smarts October 2003 guilt trial, testified that she took careful notes about what occurred in court during each day of trial. On the afternoon of the first day, Smart appeared wearing a green smock-type robe and sitting in a wheelchair. He was mumbling incoherently and blowing raspberries . . . throughout the proceedings. The next morning, Smart again appeared in the robe and wheelchair but was now talking loudly and claimed to be Jesus Christ. He called his attorney derogatory names but was not mumbling and rocking in his chair as he had done the day before. At some point during the morning session, the trial judge informed Smart that the trial would proceed with or without his cooperation. That afternoon, Smart returned to court dressed in street clothes. He stopped the yelling, the rocking and the mumbling. Smart wore a suit to court the next day, the first day of jury selection. During the remainder of the guilt trial, Smart appeared to be communicating well with counsel and was respectful of the proceedings.

b. Dr. Michael Venard

Dr. Michael Venard, a staff psychologist at Napa State Hospital, was subpoenaed by the prosecution to testify regarding an evaluation of Smart that he conducted in March 2001. Venard was not paid for his testimony and was not asked to formulate an opinion regarding Smarts sanity.

Venard testified that, in March 2001, hospital staff at Smarts housing unit determined that Smart presented differently depending on who he was talking to and requested an assessment of the authenticity of Smarts mental health symptoms to aid them in formulating an appropriate treatment plan. Venard reviewed legal and medical records dating back to 1971, observed Smart informally on several occasions and conducted an interview with him in March 2001.

From his review of Smarts records, Venard learned that Smart had employed several aliases over the years. This fact was significant because it indicated Smart was a sophisticated patient who knew how to protect his identity and present a different identity to medical evaluators. The records also revealed that mental health treatment was never voluntary but always followed some type of legal problem when he was put in jail. Smarts records also suggested that he knew how to control his symptoms so that he could have himself moved from a jail setting to a treatment setting. Whenever Smart was placed in a jail setting, he would almost immediately begin to decompensate and would have to be returned to a hospital setting.

In March 2001, Venard visited the unit where Smart was housed several times a week and had the opportunity to informally observe Smart in that environment. Venard observed that Smart was no more or less impaired than other patients who managed their daily affairs, got to their appointments and ran their lives. When Venard told Smart he was a psychologist who was asked to perform an evaluation, Smarts behavior changed. At first Smart made eye contact and spoke clearly. But, as Venard began to question him about his mental health, Smart became less responsive, and more isolated. After the interview was completed, Smarts behavior changed again as he began to interact with patients and staff in a more normal way.

During the March 2001 interview, Venard asked Smart about the charged offenses. Smart claimed to have no memory of them. When Venard asked what other people had told him about the events, Smart became upset and claimed he never wanted to hurt anybody and was not a violent man. He engaged in an ongoing upset kind of rambling, during which he made the following statement: Its not fair to lock me up for three years for something that I dont remember. Two doctors already told me I was incompetent, and I should not go to jail. During the interview, Smart never told Venard that he had delusions that required him to masturbate in front of women.

Venard attempted to administer two tests, one designed to help clinicians determine whether a patient is exaggerating, manipulating or making up psychiatric symptoms, and the other used to determine whether a patient is engaging in memory malingering, i.e., whether he is faking memory problems. Smart refused to complete both of these tests.

Venard drew several conclusions from his evaluation which he shared at trial. Among other things, Venard found that Smarts overall presentation indicated an intentional exaggeration of his symptoms whenever hes faced with legal consequences for his actions, that he appeared to be self-sufficient on a daily basis, and that he was capable of recalling names and events when he needed that information to support his claim of impairment. Venard also found that Smart did have a true mental illness, but that it was coupled with exaggeration or even intentional manufacturing of problems when he was faced with a legal problem. Venard also testified that [Smart] seemed fully aware of his own history. He seem[ed] aware of the potential consequences of his actions; and, in my opinion, his lack of cooperation with attorneys or mental health professionals was voluntary and goal directed.

Venard concluded that Smart engages in partial malingering. Malingering describes a person who is intentionally producing symptoms in order to get out of something. Partial malingering, by contrast, is when the individual exaggerates very real symptoms, but can control those symptoms and learn[s] how to use them to [his or her] own best benefit. In Venards opinion, Smart is intentionally in control of his mental health symptoms and [is] able to use those symptoms in order to obtain a goal of getting out of jail and moving into a much more comfortable situation, like the state hospital system.[4]

c. Dr. Joel Leifer

Dr. Joel Leifer is a forensic psychologist employed by the State of California to perform psychological evaluations, competency assessments and sanity evaluations on behalf of various counties. Leifer evaluated Smart on three occasions during the course of the lower court proceedings. He was called by the prosecution to testify as an expert in the field of psychology.

On May 2, 2001, Leifer interviewed Smart at the San Mateo County jail in order to determine if he was sane or insane at the time the offenses were committed. In a May 15, 2001 report, Leifer concluded that Smart was sane when the offenses were committed. During the interview Smart appeared profoundly psychiatrically compromised. He was mute. He was nonresponsive, and he rocked incessantly in his chair. However, Smarts presentation at the time of the interview did not answer the legal question whether Smart was sane in October 1997. Leifer concluded that the audio tape of Smarts police interview after his October 1997 arrest indicated that Smart understood the wrongfulness of his conduct because he denied committing the exposures and stated that he wouldnt do something like that because something like that was wrong.

Leifer interviewed Smart again on February 14, 2002, to determine whether Smart was competent to stand trial and concluded that Smart was trial incompetent. Leifers conclusion was based primarily on Smarts catatonic demeanor during his interview. Although there were questions of malingering, Leifer testified that he could not disregard [Smarts] very convincing presentation at that time.

In November 2003, Leifer conducted another competency evaluation. In a report dated November 18, 2003, Leifer concluded that Smart was competent to stand trial. Leifer also opined that Smart was presently sane and noted that Smart had been able to discuss his case coherently and consistently and with relevance. However, Leifer also found that Smart was insane at the time the offenses were committed. During the November 2003 interview, Smart provided a very clear, coherent, rational explanation of what was going on in his mind at the time of the offense. Smart told Leifer that his actions were commands from God, and that he was his son Jesus. God ordered him to masturbate in front of women and he had to obey Gods orders. The clarity and forcefulness with which Smart expressed his delusions led Leifer to change his opinion about Smarts sanity and to conclude that Smart was not sane when the offenses were committed.

In 2004, Leifer changed his opinion again and concluded that Smart was sane at the time of the offenses. Leifer testified at trial that, when he interviewed Smart in November 2003, he had some concern about malingering but ultimately concluded that Smart was a schizophrenic person who also exaggerated his symptoms. However, during the months following that interview, Leifer reviewed, for the first time, Smarts extensive treatment records. Leifer was persuaded by those records and the events documented therein that Smart was a malingerer. Those records showed that Smart had turned his symptoms on and off depending on his goals and the people around him. Leifer also noted that Smart was overheard educating other inmates on how to malinger symptoms so that they can be found to be trial incompetent. Leifer ultimately concluded that the very sophisticated techniques that Smart had employed over the years were not consistent with a diagnosis of schizophrenia.

d. Dr. Ronald Roberts

Dr. Ronald Roberts is a psychologist, licensed since 1984, who testified on behalf of the prosecution as an expert in the field of psychology.

Roberts interviewed Smart on January 14, 2004. During the interview, Smart was very focused, somewhat upbeat in his demeanor, reported that he was being treated poorly by the jail and tried to get Roberts to feel sorry for him. Early in the interview, Smart volunteered that he currently knew that indecent exposure was a crime but claimed that, at the time of the offenses, he did not know his conduct was unlawful because he was being directed by mental delusions.

It appeared to Roberts that Smart had a story he was ready to tell at the January 2004 interview. Smarts very elaborate story was about how he was raped at knife point when he was a child by a federal officer and, since that time, federal agents had been after him and had entered his body. Smart reported that God told him Federal agents were trying to kill him and the only way to protect himself was to kill them by masturbating. Roberts testified that Smart also explained that he was delusional regarding the need to masturbate in front of women for the first two incidents, but not at the time of the third incident when he was just looking for a place to go to the bathroom. Roberts testified that Smart appeared to appreciate that his conduct was wrong because he essentially used the delusions as an excuse for behavior that would otherwise be against the law and deserving of punishment.

Roberts identified several factors which were inconsistent with the conclusion that Smart suffers from schizophrenia. For example, Smarts purported delusions were very concise and clearly explained whereas schizophrenics think in a very jumbled and scattered manner. Also, Smart claimed to have clear visual delusions which would be rare for a schizophrenic to experience. In addition, Smart had been involved in a long-term romantic relationship and Roberts had never known anyone with paranoid schizophrenia to have had that kind of long term romantic relationship.

Roberts acknowledged that sometimes individuals who may be actively psychotic may get put on medications and have the active signs of psychosis subside, but found that this possibility did not apply to Smart. Smarts medical records showed that he was not taking any psychiatric medication during the initial phase of his incarceration after his arrest for the charged offenses, and yet he did not report any psychiatric symptoms. Indeed, Smart did not even make the claim that he was psychotic at the time of the charged offenses until 1999. Roberts testified that these circumstances were not consistent with a diagnosis of schizophrenia. Schizophrenics who are not on medication cannot control their symptoms and Smarts alleged psychotic symptoms could not have gone unnoticed for the lengthy period of time during which he was incarcerated but not taking any medication.

Roberts administered two psychological tests during his interview with Smart, a Structured Interview of Reported Symptoms (SIRS), which is designed to help identify patients who are faking schizophrenic types of disorders and a Rorschach test which is used to identify schizophrenic or psychotic disorders in general. Smarts responses to the Rorschach test gave no indication of schizophrenia or any type of psychotic disorder. The results of the SIRS established a concern about the possibility of malingering, although Roberts could not conclude that there was malingering based upon that one test.

Roberts found additional evidence of malingering in Smarts records. Police reports from the time when the crimes were committed did not contain any report of any type of psychotic symptom whatsoever, or any sign that Smart was suffering from a mental illness. Medical and hospital records showed that Smart came to the attention of mental health professionals only after he was charged with a crime. Roberts also noted that the records showed that Smarts symptoms of schizophrenia surfaced whenever it was time for Smart to appear in court. Roberts also found multiple, multiple notations in the records about malingering.

Ultimately, Roberts concluded: From my perspective in being a psychologist with over 30 years of experience in evaluating individuals that have psychotic problems, I saw absolutely no evidence at any time at the commission of these crimes of any type of significant defect in his mental state that might warrant considering insanity. Roberts also stated that all of the information he considered suggested that Smart knew the difference between right and wrong and knew that the acts that were being committed were wrong.

IV. DISCUSSION

A. Motion for Self-Representation

Smart contends his due process rights were violated when his April 26, 2005, Faretta motion to represent himself during the sanity phase of the trial was denied.

1. Background

As noted above, Smarts April 22 Marsden and April 26 Faretta motions were both heard and denied by Judge Grandsaert on May 4, 2005.[5] At that time, the sanity phase of Smarts trial was scheduled to commence on May 23, 2005, and the prosecution opposed any further continuances.

The Marsden motion was directed at Steven Chase, Smarts fourth attorney during the lower court proceedings, who had represented Smart during the guilt phase of the trial. The transcript of the hearing reflects that Smart had made four prior Marsden motions all of which had been denied. Smart made several complaints about his defense counsel, including that Chase (1) accused him of faking his mental illness, (2) did not attempt to stop the guilt trial on the ground that Smart was incompetent; (3) did not present a defense at the guilt phase; (4) was not adequately prepared for the sanity phase; (5) intended to call only two doctors at the sanity phase; and (5) had failed to obtain relevant medical records and documentation. The trial court denied the Marsden motion, stating that defense counsel was a very experienced, excellent defense attorney who was as good an advocate as any lawyer can be.

After the Marsden motion was denied, the court entertained Smarts Faretta motion. The court asked Smart several questions. It inquired why Smart had filed so many Marsden motions to which Smart replied he had been receiving ineffective assistance of counsel. The court asked whether Smart remembered what happened during the guilt phase. Smart responded: Vaguely, yes I do. And it had to do with the fact--I told you in the Marsden hearing about what--the doctor had found me to be incompetent before I went to trial. [6] The court asked whether Smart was still having delusions. Smart responded that he was competent, and that it had been quite awhile since he had heard voices. He explained that, over the years, he had experienced mental illnesses at various times, that he knows when its coming on, and that at the present time, he was very competent, and was not having any problems. Smart reiterated that he was not competent at the guilt phase because that is what the psychiatrist said. He stated that he goes through a process of hearing voices, being delusional, and that when that happened it could get so bad that he did not know nothing at all.

When the court asked Smart whether he would be ready to proceed with the trial on the scheduled date, Smart replied: I think Im ready to proceed on that date. If not, if I have to look over all the records, I want to get a trial as soon as possible, Your Honor, like I said. A couple weeks longer, maybe, or something, at the most. I want to go to court in trial as soon as possible. Im not trying to put a trial off, Your Honor. Im trying to go to trial and trying to win it.

The court prefaced its ruling by expressing its opinion that Smart was articulate and intelligent, mentally ill but competent to stand trial. The court then shared several concerns including that (1) the case was seven years old, (2) Smarts delusions and resulting problems with historical reality did not render him incompetent but would affect his ability to represent himself, (3) Smarts request was being made mid-trial, after the guilt phase was already completed, (4) it appeared that Smarts real motivation was to get rid of his current counsel and further delay the proceedings, (5) Smart had already made so many Marsden motions, and (6) Smart had been disruptive during the guilt phase of the trial.

With respect to its concern about Smarts prior disruptive behavior, the court gave two examples. It mentioned Smarts behavior during the first few days of the guilt phase when Smart attempted to convince the trial court he was not competent. The court also referred to an incident during the defense closing argument. Smart opened his shirt to show the jury that he did not have a mole or birthmark on his chest after reference was made to the fact that Katrina Stanley had reported to police that she thought she saw a mark on the chest of the man who exposed himself to her.

Ultimately, the court denied the Faretta motion on the following grounds: In light of the fact that this case has been going on for several years. In light of the fact that you acted in a way that disrupted court proceedings at the first phase of this trial, in terms of what you did during closing argument. In light of the fact that you refused to come to court and attempted to disrupt proceedings there. In light of the fact that I dont believe that you would be ready to proceed to trial on May 23rd if I were to grant your motion, because of the kinds of things you said to counsel this morning, about how theres so little time left, and theres not much time left for Mr. Chase to complete the work that needs to be done in your opinion. Im concerned when you say that youre not going to ask for a continuance, that its either unrealistic or untrue with what you intend to do. [] I dont see how you can say to Mr. Chase that hes not going to be able to be ready for trial on May 23rd, and yet say that you would be ready for trial on May 23rd. [] I think, in light of that history, in light of the present setting of the case, in light of the Peoples right to proceed to trial after seven years, in light of your conduct in the first phase of this trial . . . . [] I dont believe that you truly do seek the right to represent yourself as opposed to desire to get rid of youre appointed counsel. I think that your request is being made here for purposes of getting rid of counsel and for the purpose of delaying proceedings. I think you would disrupt proceedings in the second phase of this trial, as you did in the first phase.

2. Analysis

Smart contends he was denied his constitutional right to represent himself and invokes the rule that denial of a timely Faretta motion is reversible error per se. (Citing McKaskle v. Wiggins (1984)465 U.S. 168, 177; People v. Joseph (1983) 34 Cal.3d 936, 945-948.) This argument begs the question whether Smarts Faretta motion was timely.

[A] defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do so. (People v. Windham (1977) 19 Cal.3d 121, 124, citing Faretta, supra, 422 U.S. 806.) [I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. . . . However once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court. (People v. Windham, supra, 19 Cal.3d at pp. 127-128.)

Thus, as a preliminary matter, we must determine whether Smarts Faretta motion was made a reasonable time before the commencement of trial. The objectively verifiable facts support the lower courts conclusion that the motion was made mid-trial. Trial commenced on October 20, 2003, and the verdict that Smart was sane was returned on January 26, 2006. Only the guilt phase of the trial had been completed when Smart made his Faretta motion on April 26, 2005.

In his opening brief, Smart acknowledges, but then disregards, the technical fact that his motion was made mid-trial and then simply proceeds as though the guilt and sanity phases were two separate trials. In his reply brief, Smart argues that this matter should be treated the same as a motion for self representation made before trial . . . . He contends there were no proceedings already in progress when his motion was made, and points out that, by that time, the guilt jury had been dismissed and the trial had been continued several times. Therefore, Smart argues, the proceedings had already been substantially interrupted and delayed, and there was no possibility of any significantly greater disruption of ongoing proceedings.

We are not persuaded by this argument, which is not supported by relevant legal authority. Contrary to Smarts contention, proceedings were in progress when the Faretta motion was made. The trial was only half over and the multiple continuances and delays were a part of that on-going trial. Nor are we persuaded by Smarts apparent belief that the evidence that the trial had already been disrupted and delayed somehow strengthened his hand. To the contrary, it is just these circumstances which the court should be able to consider when ruling on a mid-trial Faretta motion.

After this case was fully briefed, Smart filed a letter directing our attention to People v. Halvorsen (2007) 42 Cal.4th 379 (Halvorsen), a case he characterizes as determinative, and as supporting his contention that his Faretta motion was timely because it was brought before the sanity phase of the trial commenced.

In Halvorsen, the defendant was convicted of two counts of first degree murder and related offenses. During the penalty phase, the jury could not reach agreement as to the penalty for one of the murder counts. (Halvorsen, supra, 42 Cal.4th at p. 384.) After a mistrial was declared and before the penalty re-trial, the defendant made a Faretta motion which was denied on the ground that the defendant, though competent to stand trial, was not competent to represent himself. (Id. at pp. 432-433.) The Halvorsen court held that this stated basis for the denial of the motion was invalid. (Ibid.) The court then proceeded to independently review the record to determine whether the motion could properly have been denied as untimely.

The Halverson court observed that, because the phases of a capital trial are stages of a unitary trial and not distinct trials, motions made after the guilt phase verdict has been returned are not timely. (Halvorsen, supra, 42 Cal.4th at p. 434.) However, the court found this rule did not apply in the case before it because the guilt phase of Halvorsens trial ended in a mistrial and a complete retrial would take place before a different jury. Therefore, the court found that the rationale behind the rule giving the trial court the discretion to deny an untimely Faretta motion, which is to avoid disruption of an ongoing trial, was not implicated in the case before it. (Id. at p. 434.) Under the circumstances, the court found, the Faretta motion was timely and the trial court had no discretion to deny it. (Id. at p. 434.)

The Halverson defendant made a Faretta motion after his first trial was completed, several months prior to the commencement of his second trial. Here, by contrast, there was only one trial, and the Faretta motion was made in the middle of that trial, after Smart had expressly elected to proceed to trial with counsel. Although the guilt and sanity phases were conducted before different juries, they were integrally-related and part of a single unitary trial. In other words, there were not two separate trials in this case as there was in Halverson. Furthermore, in contrast to Halverson, and as more fully discussed below, the circumstances of this case did directly implicate the rationale for the rule giving trial courts discretion to deny untimely Faretta motions, i.e., to avoid further disruption of this already ridiculously long trial.

For all these reasons, we find that Smarts Faretta motion was not made a reasonable time before trial commenced. Therefore, an important premise of Smarts argument, that he had an unconditional constitutional right to represent himself at the sanity phase, is simply erroneous.

A motion that is not made within a reasonable time prior to trial is addressed to the sound discretion of the trial court. [Citations.] In exercising its discretion the trial court should consider such factors as the quality of counsels representation, the defendants prior proclivity to substitute counsel, the reason for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. [Citations.] Additionally, a trial court may deny such a motion if it finds it is made for the purpose of frustrating the orderly administration of justice. [Citation.] (People v. Howze (2001) 85 Cal.App.4th 1380, 1397; see also People v. Rogers (1995) 37 Cal.App.4th 1053, 1056-1057.)

Applying these rules to the present case, we find that the trial court did not abuse its discretion by denying the Faretta motion. Just prior to its ruling, the court had denied Smarts fifth Marsden motion and noted that defense counsel was doing an excellent job. Although Smart stated that he wanted to represent himself, the circumstances supported the trial courts conclusion that the true reason for his motion was to get rid of his defense counsel and to further delay the proceedings. The case had been pending for several years, the motion was made mid-trial, and, contrary to Smarts contention on appeal, there was ample basis for concern that granting the motion would result in future disruption and delay. Indeed, in light of the record presented to us on appeal, we find that the court could well have denied the Faretta motion on the ground that its purpose was to frustrate the orderly administration of justice.

Smart completely fails to acknowledge the courts discretion when ruling on a mid-trial, and therefore untimely, Faretta motion, a failing which undermines his argument on appeal. Smart exacerbates his error with a piecemeal attack of the courts analysis. Under our deferential standard of review, we examine the total circumstances confronting the court when the decision is made. (People v. Howze, supra, 85 Cal.App.4th at p. 1399.) Nevertheless, we briefly address Smarts major complaints.

Smart complains that the court erred by using his history of delusions to find that he was not competent to represent himself. The record shows that, although the superior court expressed concern that Smarts delusions and problems with historical reality would affect his ability to represent himself, it did not make an express or implied finding that Smart was not competent to represent himself. Indeed, the court did not even mention Smarts mental health issues in its long list of reasons for denying the Faretta motion. Furthermore, Smarts claimed delusions and problems with historical reality were relevant to and supported the Faretta ruling notwithstanding that these problems did not render him incompetent to represent himself. Taking Smart at his word, his delusions could affect him at any time, e.g., in the middle of the sanity phase of the trial were it to become clear that he was going to be found sane. Such an occurrence would, of course, have disrupted and delayed the proceedings and, indeed, could have resulted in a mistrial. Therefore, the trial court would not have abused its discretion by considering this possibility when ruling on the Faretta motion.

Smart also contends the court erred by questioning his motivation for bringing the motion. He claims that motivation was irrelevant, even if he was motivated by a desire to rid himself of defense counsel. Smart is simply wrong about that. [I]n order to protect the fundamental constitutional right to counsel, one of the trial courts tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall); see also People v. Barnett (1998) 17 Cal.4th 1044, 1087.) Thus, for example, even a timely motion that is made in passing anger or frustration may properly be denied on the ground that it is an insufficient waiver of the constitutional right to counsel. (Marshall, supra, 15 Cal.4th at p. 23.)[7] The defendants motivation is also properly considered by the court in order to insure that the assertion of the right of self-representation is not being used as a vehicle for manipulation and abuse. (Marshall, supra, 15 Cal.4th at p. 22.) A defendant does not have a right, constitutional or otherwise, to play the Faretta game and subvert the orderly administration of justice by juggling his Faretta rights with his right to counsel interspersed with Marsden motions. (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.)

Under the circumstances presented here, the lower court could reasonably have concluded that Smart lacked the desire and, indeed, the intention to actually represent himself at trial and that he attempted to invoke his Faretta right either (1) in haste and out of frustration because his Marsden motion was denied; or (2) pursuant to a plan to shed himself of counsel, delay the proceedings, and later claim that he needed a new attorney to assist him at the sanity phase of the trial.

Smart denies, as a factual matter, the courts determination that he was disruptive during the guilt phase. In Smarts view, pulling up his shirt during closing argument may have been inappropriate but it was not disruptive. Even if we could be convinced that Smarts conduct during closing argument was not disruptive, that conduct was only one example the court gave at the Faretta hearing. The court also stated: Im concerned about what you did at the outset of the first phase of this trial, by refusing to come to Court. By acting up. And Im relying on the findings of Judge Hall with regard to that. In light of the entire history of this case, rather than the one closing argument incident upon which Smart focuses, there can be no doubt that the court had ample basis for concluding that this motion was yet another attempt by Smart to disrupt, delay and perhaps even prevent completion of his trial.

Smart contends the court committed reversible error by denying his motion on the ground that he was not prepared to proceed on the scheduled trial date when the record shows that he did not seek a continuance of the trial. To support this contention, Smart relies on People v. Nicholson (1994) 24 Cal.App.4th 584 (Nicholson). That case states that, where self-representation is requested for a legitimate reason, where there is no request for a continuance and where there is no reason to believe there would be any delay or disruption, the trial courts denial of a Faretta motion is an abuse of discretion. (Id. at p. 593; see also People v. Rogers, supra, 37 Cal.App.4th at p. 1057 [applying same rule].) This rule has no application here where there was evidence that the Faretta motion was made for an illegitimate reason and where there were many reasons to believe that granting the motion would result in delay and disruption.[8]

To summarize, Smart did not have an unqualified constitutional right to represent himself during the second half of his trial and he has failed to show that the lower court abused its discretion by denying the mid-trial Faretta motion.

B. Motion for Competency Examination

Smart next contends that the trial court committed reversible error by failing to hold a competency examination during the sanity phase of the trial.

1. Background

a. The trial

The sanity phase commenced on January 17, 2006, before Judge Hall, who had also presided over the guilt phase. That same day, the defense made a motion to continue the trial in order to hold a competency examination pursuant to sections 1367 and 1368. The motion was supported by the declaration of defense counsel, Steven Chase. Chase stated that, when he visited Smart on December 1, 2005, Smart was disoriented and had trouble focusing, and he complained that his condition was deteriorating. On January 6, 2006, Chase received an e-mail from a friend of Smart who was concerned about Smarts mental state and competency to stand trial. Chase attempted to meet with Smart on January 10, 2006, but was informed by jail personnel that Jesus refuses to come out of his cell for the visit. In his declaration, Chase stated: Because of his recent actions in refusing to see me, and his claim to the deputy that he is Jesus, I have a question as to his competency and am making a request for his examination under Penal Code  1367-[13]68.

When Chase stated his appearance on the first day of the sanity phase of the trial, he provided the following description of his client: He is barefoot. Hes seated in a wheelchair. His right hand has a pronounced tremor in it. His left hand has a little bit of a tremor, and hes rocking back and forth. This was the same condition that I found him when I went to see him in the holding cell this morning. While sharing his concerns about Smarts mental competency and whether to proceed to trial, Chase stated: I would certainly like to hear from the mental health people in the jail as to his most recent condition because if this is real, he certainly is not competent to assist me during this trial. If hes doing this volitionally, . . . thats another issue. Chase also observed that malingering and mental illness are not mutually exclusive