# People v. Welch

> California Supreme Court · June 1, 1999 · 85 Cal. Rptr. 2d 203

URL: https://www.frixlaw.com/law-library/cases/9849848

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DAVID ESCO WELCH, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 1, 1999
- **Citations:** 85 Cal. Rptr. 2d 203; 20 Cal. 4th 701; 99 Daily Journal DAR 5242; 976 P.2d 754; 99 Cal. Daily Op. Serv. 4127; 1999 Cal. LEXIS 2976; 1999 WL 344511
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Mosk
- **Cited by:** 546 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by People v. Blakeley, 23 Cal. 4th 82 (2000).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849848

## Opinion text

MOSK, J.
I dissent. The trial court committed federal and state constitutional error, as well as state statutory error, when it failed to declare a doubt about defendant’s competence to stand trial, in spite of its determination that defendant was incompetent to represent himself.
The majority claim that when the trial court ruled defendant incompetent for purposes of self-representation, it was employing a higher or different standard of competence than that used for determining competence to stand trial. The record below belies this position. Rather, the record reveals that the trial court denied defendant’s Faretta 1 motion principally because he was incompetent in the ordinary legal sense: that defendant had a paranoid distrust of his own attorneys and everyone connected with the legal system, *777 a delusion which rendered him incapable of rationally assisting in his own defense. The trial court should have at that point declared a doubt about defendant’s competence to stand trial and held a hearing pursuant to Penal Code section 1368. 2 The failure to do so should lead to a reversal of defendant’s conviction in its entirety. Although the majority may find this conclusion disagreeable in light of the gravity of defendant’s crimes, it is the conclusion that follows from a dispassionate application of established constitutional doctrine to the facts of this case.
Under the due process clause of the Fourteenth Amendment to the United States Constitution, a defendant may not be tried unless he is competent, (Godinez v. Moran (1993) 509 U.S. 389, 396 [ 113 S.Ct. 2680, 2685 , 125 L.Ed.2d 321 ].) As was stated in Dusky v. United States (1960) 362 U.S. 402 [ 80 S.Ct. 788 , 4 L.Ed.2d 824 ], a competent defendant is not simply someone “ ‘oriented to time and place [with] some recollection of events,’ but [also someone who] ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and . . . has a rational as well as factual understanding of the proceedings against him.’ ” (Ibid.) This federal constitutional standard is codified under California law in section 1367, subdivision (a). Under section 1368, subdivision (a), “during the pendency of an action and prior to judgment, [if] a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, defendant is mentally competent.” “At that point, ‘all criminal proceedings must be suspended until a hearing has been conducted to determine whether the defendant is presently mentally competent.’ ” (People v. Davis (1995) 10 Cal.4th 463, 526 [ 41 Cal.Rptr.2d 826 , 896 P.2d 119 ].)
Moreover, the United States Supreme Court in Godinez v. Moran, supra, 509 U.S. 389 , held that a defendant competent to stand trial was also competent to waive his right to representation in a Faretta motion “since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” (Id. at p. 399 [ 113 S.Ct. at p. 2686 ]; see also People v. Hightower (1996) 41 Cal.App.4th 1108, 1114-1116 [ 49 Cal.Rptr.2d 40 ].)
Defendant contends that the evidence presented to the trial court within the context of the Faretta hearing led it to conclude that he was not competent to waive his right to counsel, and that, having reached that conclusion, it had to declare a doubt about his competence to stand trial. He *778 focuses in particular on the following comments made by the trial court at the conclusion of the Faretta hearing: “I find Mr. Welch is a defendant who does not appreciate the extent of his own disability and, therefore, cannot be fully aware of the risk of self-representation. I find the disability of Mr. Welch significantly impairs his capacity to function in a courtroom. fl[] I further find that one of the defendant’s reasons he wishes to dispense with [his] defense attorney is a paranoid distrust of everyone connected with the judicial system. This is further evidence to this court that he lacks the mental capacity to truly waive his right to counsel.” (Italics added.)
In reaching its conclusion, the trial court carefully scrutinized the record for evidence of defendant’s pretrial behavior As the court stated: “The defendant’s mental condition in the Court’s opinion precludes realistic assessment of the need for assistance and risk of waiving counsel. Mr. Welch alleges conspiracy between the parties to the judicial system. In the matter heard before Judge Ballachey, he alleges conspiracy in these proceedings. I’ve listed just a few acts.
“On October 3rd ... [he claimed] the Court, prosecution, and [his] counsel have been acting in collusion with each other.
“October 3rd ... [he claimed] the [Alameda County] Bar Association should be disqualified from representing him, being involved in a conspiracy.
“October 4th . . . there’s an accusation of back-room discussion between counsel.
“October 4th . . . Mr. Welch accuses the defense attorneys [of] acting in collusion with the District Attorney’s Office ....
“November 8th .. . [he] alleges a conspiracy between the judge, the District Attorney, police department, and court-appointed lawyers as well as the Public Defender and the police. . . .
“November 8th .. . he alleges ballistic materials [were] falsified by the sheriff’s department.
“November 8th ... he alleges the jail officials were monitoring the interviews with psychologists by placing listening devices throughout the room.”
*779 The trial court also referred to an incident in which defendant asked to have his attorneys sit in the jury box rather than at the counsel table because “they’re adversal [szc] to my position right in the proceedings right now. Not only they’re adversal [sz'c], they have interests of their own . . . .”
As we have stated: “Pate v. Robinson [(1966) 383 U.S. 375 [ 86 S.Ct. 836 , 15 L.Ed.2d 815 ]] stands for the proposition that an accused has a constitutional right to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense. Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testimony of prosecution witnesses or the court’s own observations of the accused—may be to the contrary.” (People v. Pennington (1967) 66 Cal.2d 508, 518 [ 58 Cal.Rptr. 374 , 426 P.2d 942 ].) “Substantial evidence is evidence that raises a reasonable doubt about the defendant’s competence to stand trial.” (People v. Frye (1998) 18 Cal.4th 894, 952 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ], italics added.)
This doubt as to sanity may arise from delusions a defendant has about his counsel that preclude him from rationally assisting in his own defense. Thus, in People v. Stankewitz (1982) 32 Cal.3d 80 [ 184 Cal.Rptr. 611 , 648 P.2d 578 , 23 A.L.R.4th 476 ], we held that psychiatric testimony of defendant’s paranoid delusions that his counsel, the public defender, was in collusion with the prosecution, was sufficient evidence of incompetence to trigger the trial court’s duty to declare a doubt and hold a hearing as to competence. (Id. at pp. 92-93 (plur. opn. of Bird, C. J.); id. at p. 95 (cone. opn. of Broussard, J.).) We stated that once the trial court denied defendant’s motion for substitution of counsel, the defendant “was left with a counsel whom [he] was unable to rationally assist . . . .” (Id. at p. 92.) As another court has stated: “ ‘If the accused is so delusional or paranoid that he will not trust his counsel or tell him the true facts, then he would be incompetent.’ ” (People v. Valentino (1974) 78 Misc.2d 678 [ 356 N.Y.S.2d 962, 968 ]; see also ABA Standards for Criminal Justice (2d ed. 1980) Mental Health Standards, std. 7-4.1, commentary, p. 7-174 [stating that competency to stand trial should include a determination that a defendant possesses “the capacity to maintain the attorney-client relationship, embracing an ability to discuss the facts of a case with counsel ‘without paranoid distrust’ ”].)
In the present case we have the unusual situation of the trial court itself coming forward with substantial evidence of defendant’s mental incompetence in the context of ruling on a Faretta motion. This evidence, as reviewed above, unmistakably called into question whether defendant, given *780 his paranoid delusions, would be able to rationally assist in his own defense. Indeed, this evidence was sufficiently substantial to be used by the trial court as the primary reason for denying defendant’s Faretta motion. Although in Pennington we referred to the necessity of a section 1368 hearing when a defendant comes forward with substantial evidence of incompetence (People v. Pennington, supra, 66 Cal.2d at p. 518), the fact that in the present case the trial court itself produced the substantial evidence would only make the case for holding a competency hearing more compelling. “Once substantial evidence appears” of a defendant’s mental incompetence, the requirements of a section 1368 hearing are triggered.
Of course, a failure or refusal of a defendant to cooperate with cocounsel is not in itself proof of incompetence. “[T]he test, in a section 1368 proceeding, is competency to cooperate, not cooperation.” (People v. Superior Court (Campbell) (1975) 51 Cal.App.3d 459, 464 [ 124 Cal.Rptr. 158 ].) We assume, however, that the trial court understood this basic distinction. If the trial court had concluded that defendant’s difficulty with his defense counsel was a result of a willful refusal to cooperate, rather than incapacity to understand counsel’s role, then that refusal would have weighed in favor of, not against, defendant’s Faretta motion, because the problem of noncooperation could then be solved by allowing him to represent himself. But the trial court, which spoke of defendant’s “disability,” his “paranoid distrust” of his counsel, and his lack of mental capacity to waive his right, clearly seemed to have concluded that defendant was more than simply unwilling to cooperate with counsel, but rather was in some psychological sense unable to do so. Thus, although the trial court did state summarily in the course of ruling on the Faretta motion that he found defendant competent to stand trial, that unexplained conclusion was inconsistent with the evidence he adduced in denying the Faretta motion.
Moreover, testimony at the penalty phase corroborated the trial court’s own perception of defendant’s disability. (See People v. Clark (1992) 3 Cal.4th 41, 108 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ] [review of penalty phase testimony used to resolve questions of competence].) The defense psychiatrist and psychologist testified at the penalty phase that defendant suffered from “paranoid delusions.” Dr. Benson described their nature as follows: “I think the paranoid delusions that [come] to mind [are] basically what . . . we’ve seen happen here in the courtroom. And that is how when people don’t see a situation as the [defendant] sees it, then that immediately causes a sort of power struggle. ... I believe his perception is that people are against him if they don’t agree with him, and certainly I think it’s been demonstrated here. I think that the Judge, the district attorney, his attorneys, Dr. Pierce, and probably soon myself will be perceived as being against him
*781 Dr. Pierce opined that defendant had “been mentally ill for a long time” and had “a very paranoid delusional stance toward life that operates on false beliefs . . . .” He gave as an example of defendant’s delusional thinking an incident in which defendant “interrupted the court and commented that his attorneys weren’t standing where they usually stand and that he felt one had slid his chair over further than usual. And it was his feeling that they did this so that the bailiffs could attack him.” Dr. Pierce also commented on defendant’s apparent use of legal arguments. “His thinking is tangential. It is hard to follow the logic of what he’s saying. It sounds good, but it doesn’t make any sense.” The prosecution produced no psychiatric expert to contest such testimony.
Evidence of defendant’s irrational conduct, both before the Faretta.motion was made and subsequently at trial, revealed a defendant working at cross-purposes with his counsel, struggling with his counsel over the proper defense to be presented, renewing on numerous occasions his request for either a substitution of counsel or relief from counsel altogether. This conflict was epitomized by defendant and counsel’s pursuit of opposing defense strategies—defendant claiming actual innocence, counsel claiming lack of premeditation and deliberation. When defendant did testify, against counsel’s advise, he did so without any consultation with counsel regarding the nature of his testimony. When counsel asked the court for a recess in which to consult with his client, defendant requested a substitution of counsel “if my counsel is not ready to proceed.” Moreover, defendant made over 150 objections on his own during the course of the trial. The picture of defendant that emerges at trial is consistent with the view of the trial court and the mental health experts that he was uncooperative with counsel because of his belief that they were in collusion with the prosecution and acted adversely to his own interests. 3
The majority point to our statement in People v. Laudermilk (1967) 67 Cal.2d 272, 285 [ 61 Cal.Rptr. 644 , 431 P.2d 228 ), that “more is required to raise a doubt [as to competency] than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense.” In the present case, however, both the trial court’s observations and the psychiatrist’s and psychologist’s conclusions were directly pertinent to defendant’s “ability to assist in his own defense.” Nor was this perceived *782 inability based on defense counsel’s statements, but on independent observations of defendant’s actions.
The majority argue in essence that because the trial court was apparently under the misconception that the standard for determining a defendant’s competence to represent himself was supposedly different from and higher than the standard for determining the competence to stand trial, then what the trial court said about the former type of competence should not necessarily reflect on the latter type. And because the majority claim there are grounds for upholding the denial of the Faretta motion other than competence, both the trial court’s Faretta ruling and its failure to hold a hearing on defendant’s competency to stand trial should be upheld. The problem with this argument is that it finds little if any support in the record. A review of the record reveals that the trial court may have had a certain misconception about the meaning of competence in the context of a Faretta motion— specifically that in addition to being competent to waive the right to counsel, which involves competence in the ordinary legal sense, the defendant must also possess the “minimal ability to present a personal, competent defense.” The United States Supreme Court made clear in Godinez that competence to waive, not competence of self-representation, was the sole competency concern in ruling on a Faretta motion. (See Godinez v. Moran, supra, 509 U.S. at p. 399 [113 S.Ct. at pp. 2686-2687].) But the record, as cited above, also reveals that the main focus of the trial court’s inquiry in ruling on defendant’s Faretta motion was not on his ability to represent himself but rather on his incompetence, in the ordinary legal sense, to waive the right to counsel because of his extreme, paranoid distrust of counsel and his belief that they were in league with the rest of judicial system and against his interests. In other words, the trial court’s apparent misconception regarding Faretta competency was not central to its determination of defendant’s incompetence to waive counsel. Because it appears from the record that the trial court’s determination of defendant’s incompetence to waive his right to counsel was supported by substantial evidence—i.e., evidence raising a reasonable doubt as to his competence—the trial court should have taken the next step of ordering a section 1368 hearing.
The majority also suggest that, although the trial court used the term “incompetence” when denying the Faretta motion, what it really meant was that the defendant lacked not competence per se but rather the ability to make a knowing and voluntary waiver of his right to counsel. This argument is without merit. The Godinez court did indeed make clear that, in addition to a determination of competence, a knowing and intelligent waiver must be given before a motion for self-representation may be validly granted. (Godinez v. Moran, supra, 509 U.S. at p. 400 [ 113 S.Ct. at p. 2687 ].) But the *783 Godinez court clarified the difference between the competency and waiver requirements. “The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. [Citation.] The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. See Faretta v. California, supra, [422 U.S.] at 835 [95 S.Ct. at p. 2541] (defendant waiving counsel must be ‘made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open” ’)...; Boykin v. Alabama [(1989)] 395 U.S. [238,] 244 [ 89 S.Ct. 1709, 1712-1713 , 23 L.Ed.2d 274 ] (defendant pleading guilty must have ‘a full understanding of what the plea connotes and of its consequence’).” (Godinez v. Moran, supra, 509 U.S. at p. 401, fn. 12 [113 S.Ct. at pp. 2687-2688], italics in original.)
As the above remarks and the references to Faretta and Boykin v. Alabama (1989) 395 U.S. 238 [ 89 S.Ct. 1709 , 23 L.Ed.2d 274 ] make clear, the inquiry into whether a waiver is knowing and voluntary is not an inquiry into defendant’s mental capacity, but rather largely into the sufficiency of the trial court’s effort to adequately warn defendant of the consequences of the waiver. (See, e.g., People v. Lopez (1977) 71 Cal.App.3d 568, 573-574 [ 138 Cal.Rptr. 36 ] [warning required, and specific warnings suggested, before granting Faretta motion].) In the present case, the trial court did not attempt to inform defendant of the consequences of waiver, and so there is no question of defendant’s failing to comprehend specific information furnished to him by the trial court. Rather, the trial court’s Faretta ruling was grounded in the judgment that defendant lacked the mental capacity to waive, regardless of the warnings given, owing chiefly to his delusional outlook. It is, in short, clear from the record that the trial court’s denial of the Faretta motion was based on the competency prong, rather than the “knowing and voluntary waiver” prong, of the Faretta inquiry.
I emphasize the narrowness of the holding I propose. I would not hold that any time a court denies a Faretta motion, it must hold a competency hearing. There may be grounds other than competence for denying such a motion. Nor would I hold that a competency hearing is required each time it becomes manifest that a defendant mistrusts and is in conflict with his counsel. Nor, of course, do I conclude that defendant in this case was in fact incompetent to stand trial. All I would hold is that when, as here, evidence of a defendant’s mental incompetence and mental incapacity to cooperate with counsel is sufficiently substantial so as to validly serve as the primary reason for denying a defendant’s Faretta motion, then it is incumbent on the trial *784 court to hold a hearing on the defendant’s competence to stand trial under section 1368.
An error in failing to declare a doubt as to competence is reversible per se. (People v. Stankewitz, supra, 32 Cal.3d at p. 94 .) “ ‘Nor, as the United States Supreme Court specifically held in Pate v. Robinson [(1966) 383 U.S. 375, 387 [ 86 S.Ct. 836, 843 , 15 L.Ed.2d 815 ]] . . . , may the error be cured by a retrospective determination of defendant’s mental competence during his trial.’ ” (Ibid.) Thus, I would reverse the judgment in its entirety.
Kennard, J., concurred.
Appellant’s petition for a rehearing was denied August 18,1999. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
See Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] (Faretta).
All further undesignated statutory citations are to this code.
I further note that defendant has persisted in making a number of motions in this court to replace his current appellant counsel due to what amounts essentially to a lack of trust, despite appellate counsel’s more than competent efforts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849848. Public record. Not legal advice.