(HC) Daniels v. Fox

• Court: District Court, E.D. California
• Decided: October 7, 2020
• Docket: 2:18-cv-02409
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANDRY DANIELS, No. 2:18-cv-2409 MCE KJN P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 ROBERT W. FOX, Warden, 15 Respondent. 16 17 I. Introduction 18 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2013 conviction for 20 obstructing or resisting an executive officer, with threats or violence, in the performance of duties 21 (Cal. Pen. Code, § 69 [two counts]). Petitioner was sentenced to a total of twenty-seven years in 22 state prison. More particularly, petitioner asserts three claims: (1) without considering less 23 severe measures, the trial court violated the Fifth, Sixth and Fourteenth Amendments by forcing 24 petitioner to choose between the right to be present at trial and his right to testify; (2) the trial 25 court abused its discretion in denying petitioner’s fourth Marsden1 motion because an 26 irreconcilable conflict regarding the exercise of a fundamental right compromises the right to 27 28 1 People v. Marsden, 2 Cal.3d 118 (1970). 1 effective representation; and (3) the trial court violated petitioner’s due process rights by not 2 ordering a competency hearing where there was substantial evidence that petitioner was unable to 3 rationally assist defense counsel. (ECF No. 1.)2 4 II. Procedural History 5 Petitioner was charged with two counts of obstructing or resisting an executive officer, 6 with threats or violence, in the performance of duties (Cal. Pen. Code,3 § 69); it was further 7 alleged that petitioner had previously been convicted of serious or violent felonies in 1987 and 8 2008 and had served prior prison terms. (§§ 667(d)&(e)(2), 667.5(b)&(c), 1192.7(c)). (LD 1 at 9 52-55; see also LD 1 at 102-07, 111-16.) Following a jury trial in August 2013, when the jury 10 indicated it was unable to reach verdicts, a mistrial was declared. (LD 1 at 178, 180-81.) 11 Thereafter, following a second trial held in October 2013, the jury found petitioner guilty of both 12 counts. (LD 1 at 220, 223-24, 243-45.) In a bifurcated proceeding, the trial court found the prior 13 enhancements alleged against petitioner to be true. (LD 1 at 221-22.) On November 14, 2013, 14 petitioner was sentenced to an indeterminate term of twenty-five years to life, and an additional 15 determinate two-year term, in state prison. (LD 2 at 24-25, 47-48.) 16 Petitioner appealed the conviction to the California Court of Appeal, Third Appellate 17 District. (LD 13 & 15.) The Court of Appeal affirmed the conviction in its entirety. (LD 16.) 18 Thereafter, petitioner filed a petition for review in the California Supreme Court, which 19 was denied on May 9, 2018. (LD 17-18.) 20 Petitioner filed the instant petition on August 7, 2018, in the United States District Court 21 for the Northern District of California. (ECF No. 1.) The case was transferred to this court on 22 August 28, 2018. (ECF No. 5.) 23 Respondent filed an answer to the petition on January 23, 2019. (ECF No. 20.) 24 //

25 2 “ECF” followed by a numbered entry corresponds with the court’s electronic docket or case filing system. “LD” refers to the documents lodged by respondent on January 24, 2019. All 26 specific page number references are to the numbers assigned by the CM/ECF system. 27 3 All further statutory references are to the California Penal Code unless otherwise indicated. 28 1 III. Facts 2 In its unpublished memorandum and opinion affirming petitioner’s judgment of 3 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the 4 following factual summary: 5 On May 17, 2013, defendant, in custody on an unrelated case, refused to cooperate in getting ready to go to court, first ignoring officers and 6 staying in his bunk and then pulling and kicking at the officers when they began to remove him from his cell. As a result of this resistance, 7 he was transported in a T-shirt and boxer underwear. 8 At the courthouse, defendant was placed in a holding cell so that he could change into a jumpsuit for his court appearance. He complied 9 when ordered to face the wall and his leg shackles were removed. But, after one hand was freed from the handcuffs, defendant raised 10 his arm aggressively, shouted, “motherfuckers,” and turned to face Deputy Garcia, cocking his arm like he was going to punch Garcia. 11 Garcia grabbed defendant's T-shirt, which tore as defendant lunged at Garcia. Simultaneously, Deputy Torres tried to restrain defendant 12 by placing his arm around defendant's neck and pulling him to the ground. Defendant continued to kick violently, and Garcia tried to 13 hold defendant's legs down. A third deputy came into the cell and successfully restrained defendant's legs. Defendant then said he was 14 “done fighting.” 15 As a result of the fight, Torres had a bleeding four-inch cut on his left forearm and an inch and a half puncture wound at the end of that cut. 16 Torres could not say how he was injured. He was left with a permanent scar on his forearm. 17 18 (People v. Daniels, 2018 WL 1163043 at *1 (Mar. 6, 2018); see also LD 16.) 19 IV. Standards for a Writ of Habeas Corpus 20 An application for a writ of habeas corpus by a person in custody under a judgment of a 21 state court can be granted only for violations of the Constitution or laws of the United States. 28 22 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 23 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 24 U.S. 62, 67-68 (1991). 25 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 26 corpus relief: 27 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 28 with respect to any claim that was adjudicated on the merits in State 1 court proceedings unless the adjudication of the claim - 2 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 3 determined by the Supreme Court of the United States; or 4 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 5 State court proceeding. 6 28 U.S.C. § 2254(d). 7 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 8 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 9 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 10 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. 11 Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining 12 what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 13 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit 14 precedent may not be “used to refine or sharpen a general principle of Supreme Court 15 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall 16 v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per 17 curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted 18 among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as 19 correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it 20 cannot be said that there is “clearly established Federal law” governing that issue. Carey v. 21 Musladin, 549 U.S. 70, 77 (2006). 22 A state court decision is “contrary to” clearly established federal law if it applies a rule 23 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 24 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 25 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the 26 writ if the state court identifies the correct governing legal principle from the Supreme Court’s 27 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 4 Lockyer v.

28 4 Under § 2254(d)(2), a state court decision based on a factual determination is not to be 1 Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 2 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply 3 because that court concludes in its independent judgment that the relevant state-court decision 4 applied clearly established federal law erroneously or incorrectly. Rather, that application must 5 also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550 6 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its 7 ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state court 8 was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes federal 9 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 10 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 11 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal 12 court, a state prisoner must show that the state court’s ruling on the claim being presented in 13 federal court was so lacking in justification that there was an error well understood and 14 comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter, 15 562 U.S. at 103. 16 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 17 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 18 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) 19 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of 20 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by 21 considering de novo the constitutional issues raised.”). 22 The court looks to the last reasoned state court decision as the basis for the state court 23 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 24 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a 25 previous state court decision, this court may consider both decisions to ascertain the reasoning of 26

27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 28 384 F.3d 628, 638 (9th Cir. 2004)). 1 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a 2 federal claim has been presented to a state court and the state court has denied relief, it may be 3 presumed that the state court adjudicated the claim on the merits in the absence of any indication 4 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption 5 may be overcome by a showing “there is reason to think some other explanation for the state 6 court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 7 (1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but 8 does not expressly address a federal claim, a federal habeas court must presume, subject to 9 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 10 298 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the 11 petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith, 12 539 U.S. 510, 534 (2003). 13 Where the state court reaches a decision on the merits but provides no reasoning to 14 support its conclusion, a federal habeas court independently reviews the record to determine 15 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 16 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 17 review of the constitutional issue, but rather, the only method by which we can determine whether 18 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 19 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 20 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. 21 A summary denial is presumed to be a denial on the merits of the petitioner’s claims. 22 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze 23 just what the state court did when it issued a summary denial, the federal court must review the 24 state court record to determine whether there was any “reasonable basis for the state court to deny 25 relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could 26 have supported the state court’s decision; and then it must ask whether it is possible fairminded 27 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior 28 decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate 1 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 2 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). 3 When it is clear, however, that a state court has not reached the merits of a petitioner’s 4 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 5 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 6 F.3d 1099, 1109 (9th Cir. 2006). 7 V. Petitioner’s Claims 8 The Choice Between the Right to be Present at Trial and the Right to Testify 9 Petitioner claims that without considering less severe measures, the trial court violated the 10 Fifth, Sixth and Fourteenth Amendments by forcing petitioner to choose between the right to be 11 present at trial and his right to testify. (ECF No. 1 at 4, 14-23.) Respondent maintains that the 12 state court’s determination was reasonable, thus precluding relief in this court. (ECF No. 20 at 13 11-13.) 14 The last reasoned rejection of petitioner’s claim is the decision of the California Court of 15 Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed 16 this claim as follows: 17 The Court Did Not Force Defendant to Forego His Constitutional Rights 18 Defendant argues that the trial court violated the Fifth, Sixth, and 19 Fourteenth Amendments to the United States Constitution by forcing defendant to choose between his right to be present at trial and his 20 right to testify. 21 A review of the record demonstrates the trial court did not force defendant to choose between constitutional rights; it merely required 22 him to answer the trial court's question of whether he wished to testify on his own behalf when, during trial, he made a request to 23 leave the courtroom for the balance of the trial. 24 Midway through the People's case in chief and after a Marsden hearing wherein the court refused defendant's request for new 25 counsel, defendant requested to be absent for the remainder of his trial. The trial court granted that request. 26 Before defendant left the courtroom, his attorney noted they were 27 nearing time for the defense case in chief, and in response, the trial court asked defendant whether he wished to testify. The following 28 1 exchange between the defendant and the court then took place: 2 “THE DEFENDANT: Thank you, your Honor. I will be at the holding—I'll be at the jail. 3 “THE COURT: So you are giving up your right to testify? 4 “THE DEFENDANT: Thank you, your Honor. I'll be at the jail. 5 “THE COURT: You're going to have to answer my question. 6 “THE DEFENDANT: Your Honor, I said I'll be at the jail waiting 7 for whatever decision's [sic ] made after this Court's finished doing— 8 “THE COURT: If you don't want to waive your right to testify— 9 “THE DEFENDANT: Your Honor— 10 “THE COURT: Sir, Sir— 11 “THE DEFENDANT: Your Honor, your Honor, your Honor, your Honor, your Honor. 12 “THE COURT: Would you like to be in court with a gag? I can 13 accommodate that if you want to act this way. 14 “THE DEFENDANT: Like I said— 15 “THE COURT: Do you give up your right to testify? 16 “THE DEFENDANT: You can send me back now. 17 “THE COURT: I'm not sending you back until you answer my question. 18 “THE DEFENDANT: What did I say the first time? 19 “THE COURT: I didn't understand what you said because you've 20 been saying a lot of things. I want to make sure the record is clear. If you're— 21 “THE DEFENDANT: The record was clear the first time. I said you 22 could send me back. Yes, I waive my right. Is there a problem with your hearing? 23 “THE COURT: You waive your right to testify as well as your right 24 to be present; is that correct? 25 “THE DEFENDANT: That's correct. 26 “THE COURT: I'm not sending you back until you answer me. 27 “THE DEFENDANT: I said that's correct.” (Italics added.) 28 As can plainly be seen from this exchange between defendant and 1 the court, defendant was not required to choose between testifying and absenting himself from the trial proceedings. The court did not 2 say or imply that defendant could only testify if he stayed in the courtroom for the other proceedings or that if he left the courtroom 3 he could not return and testify on his own behalf. Defendant made a request to leave the courtroom but before he left he was asked if he 4 wanted to testify which right he, eventually, waived. We have no doubt that the trial court, had defendant refused to waive his right to 5 testify, would have allowed him to return to the courtroom to do so or would have allowed him to return to the courtroom whenever, if 6 ever, he wished to do so. 7 Defendant's authorities are inapposite, including Simmons v. United States (1968) 390 U.S. 377 [19 L.Ed.2d 1247] [defendant's testimony 8 in support of fourth amendment motion cannot be used against defendant in violation of the fifth amendment right against self- 9 incrimination] and People v. Collins (2001) 26 Cal.4th 297 [impermissible offer of unspecified benefit if defendant waived a 10 jury trial] are inapposite. 11 There was no error. 12 (People v. Daniels, 2018 WL 1163043 at *2-3; LD 16.) 13 Applicable Legal Standards 14 “[I]t cannot be doubted that a defendant in a criminal case has the right to take the witness 15 stand and to testify in his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49 (1987). “The 16 right to testify on one's own behalf at a criminal trial has sources in several provisions of the 17 Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary 18 process.’” Id. at 51 (quoting Faretta v. California, 422 U.S. 806, 819, n. 15 (1975)). “The 19 necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of 20 liberty without due process of law include a right to be heard and to offer testimony....” Id. 21 (citing In re Oliver, 333 U.S. 257, 273 (1948), and Ferguson v. Georgia, 365 U.S. 570, 602 22 (1961) (Clark, J., concurring) (noting that the Fourteenth Amendment secures the “right of a 23 criminal defendant to choose between silence and testifying in his own behalf”)). And, “[o]ne of 24 the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be 25 present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970). 26 In Simmons v. United States, 390 U.S. 377 (1968), Simmons challenged the 27 constitutionality of the trial court's admission of his motion-to-suppress testimony on the issue of 28 his guilt. Id. at 389. The Court held that “when a defendant testifies in support of a motion to 1 suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted 2 against him at trial on the issue of guilt unless he makes no objection.” Id. at 394. The Court 3 reasoned that, given the defendant's situation, the defendant “was obliged either to give up what 4 he believed, with the advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, 5 to waive his Fifth Amendment privilege against self-incrimination.” Id. The Court noted that 6 “[i]n these circumstances, we find it intolerable that one constitutional right should have to be 7 surrendered in order to assert another.” Id. 8 Analysis 9 The undersigned has carefully reviewed the relevant record as it pertains to this claim. 10 On October 8, 2013, following a discussion concerning jury instructions held outside the 11 jury’s presence, the trial court inquired of counsel whether there were any issues other than 12 petitioner’s Marsden motion that counsel wished to bring to the court’s attention; there were not. 13 (LD 5 at 187.) The court then asked to clear the courtroom of persons other than petitioner, 14 petitioner’s counsel and court staff. (LD 5 at 187.) Thereafter, the trial court considered 15 petitioner’s latest Marsden motion in a confidential proceeding. (LD 12 at 2-9.) After the trial 16 court explained its reasons for denying petitioner’s motion to substitute counsel (LD 12 at 9), 17 petitioner stated the following: 18 DEFENDANT: Well, your Honor, if that’s the case, you know, I’m - - I’m - - I’m told that - - more than once that I do not have to sit up 19 and accept Mr. Muller as my attorney. I’ve been told more than once that if we have issues, more than once, that - - me and Mr. Muller 20 have had issues in the past, and not just in the past, but in the present as well, and Mr. Muller is, like I said, representing me on three cases. 21 And being that he is representing me on three different cases - - I feel 22 that it’s uncomfortable for him to represent me on all three cases. And for him to take all three cases and to run them how he feels 23 instead of with any input from me, I don’t feel comfortable with that. 24 So with that being said, if he’s going to - - if you’re going to continue, continue to deny me a new counsel, I don’t want to accept new 25 counsel. So I’m going to have to waive my appearance as like you said yesterday and let things happen the way they should, or with you 26 and Mr. Muller dealing with this situation, since you seem more fit to examine Mr. Muller’s opinion on how he feels he wants to do 27 things and respect his wishes or his pleasure as you so desire. 28 So you can send me back to the county holding facility and I’ll just 1 sit back there and wait. 2 THE COURT: So you wish to give up the right to be present at the rest of your trial? Is that what you’re saying? 3 THE DEFENDANT: With Mr. Muller as my attorney, yes, your 4 Honor. 5 THE COURT: All right. If you - - 6 THE DEFENDANT: With Mr. Muller as my attorney. Thank you. 7 THE COURT: Well, you have a right to be present for your trial. I understand your request is saying you don’t want to be here since 8 Mr. Muller is still your lawyer, and I’ll respect that wish as long as that’s what you want. 9 THE DEFENDANT: Thank you, your Honor. 10 THE COURT: All right. Take him back to the holding cell. 11 MR. MULLER: There is one other issue, your Honor, though. If Mr. 12 Daniels is going to be absent from these proceedings, as soon as the district attorney finishes, then it will be an opportunity for the 13 defense to put on its case as it so chooses. 14 THE COURT: That’s a good point. Mr. Muller - - excuse me - - Mr. Daniels, do you wish to testify in this case or do you wish to give up 15 your right to testify? 16 THE DEFENDANT: No, I don’t give up my right to testify, your Honor, but it seems that Mr. Muller is refusing to accommodate me 17 on some of my wishes that I’m trying to establish a line of communication right now. So it doesn’t matter what I want. Mr. 18 Muller is going to do what he wants. So we have an issue with that right here. 19 THE COURT: You have an absolute right to testify, if you wish. 20 That’s one tactical decision your attorney cannot make. And if you want to testify, you get to testify even if your attorney doesn’t think 21 it’s a good idea. 22 THE DEFENDANT: All right. Thank you. 23 THE COURT: Similarly, even if you don’t want to testify, no one can force you to testify. 24 THE DEFENDANT: Thank you, your Honor. I will be at the holding 25 - - I’ll be at the jail. 26 THE COURT: You’re going to have to answer my question. 27 THE DEFENDANT: Your Honor, I said I’d be at the jail waiting for whatever decision’s made after this Court’s finished doing - - 28 1 THE COURT: If you don’t want to waive your right to testify - - 2 THE DEFENDANT: Your Honor - - 3 THE COURT: Sir, sir - - 4 THE DEFENDANT: Your Honor, your Honor, your Honor, your Honor, your Honor. 5 THE COURT: Would you like to be in court with a gag? I can 6 accommodate that if you want to act this way. 7 THE DEFENDANT: Like I said - - 8 THE COURT: Do you give up your right to testify? 9 THE DEFENDANT: You can send me back now. 10 THE COURT: I’m not sending you back until you answer my question. 11 THE DEFENDANT: What did I say the first time? 12 THE COURT: I didn’t understand what you said because you’ve 13 been saying a lot of things. I want to make sure the record is clear. If you’re - - 14 THE DEFENDANT: The record was clear the first time. I said you 15 could send me back. Yes, I waive my right. Is there a problem with your hearing? 16 THE COURT: You waive your right to testify as well as your right 17 to be present; is that correct? 18 THE DEFENDANT: That’s correct. 19 THE COURT: I’m not sending you back until you answer me. 20 THE DEFENDANT: I said that’s correct. 21 THE COURT: Thank you. Was that hard? 22 THE DEFENDANT: I think it was harder for you than for me, so. . . 23 THE COURT: I have to be concerned that the court reporter takes down a clean record, and when you are disruptive as you are, it’s 24 difficult to have a clear record. I’m sorry if I put you out. 25 THE DEFENDANT: Well, it’s more difficult when you’re being the way you are, trying not to accommodate me instead of trying to push 26 your opinion in different ways. So thank you. Have a nice day. 27 MR. MULLER: I think we need another jury instruction. 28 THE COURT: Well, I would - - let’s bring in [the prosecutor]. 1 (LD 12 at 9-12.) Once the confidential hearing concluded and the trial court confirmed it had 2 accommodated petitioner’s request not to be present (LD 5 at 189), the parties agreed upon 3 language regarding an admonishment to the jury concerning petitioner’s absence and the 4 proceedings resumed (LD 5 at 189). 5 Given this record, the undersigned finds the state appellate court’s determination that 6 petitioner was not forced to choose between his right to be present (or absent from, as was the 7 case here) at trial and his right to testify at trial to be reasonable. Further, the state appellate 8 court’s determination of the facts was reasonable. 28 U.S.C. § 2254(d). 9 Petitioner was not forced to choose between two constitutional rights. Rather, the record 10 reveals petitioner chose to absent himself from the trial proceedings, responding to the trial 11 court’s denial of his request to substitute counsel, and that the trial court only sought to ensure 12 petitioner understood his absolute right to testify before obtaining petitioner’s response to its 13 repeated inquiry as to whether petitioner was choosing to waive that right. 14 In any event, “‘fairminded jurists could disagree’ on the correctness of the state court’s 15 decision.” Harrington v. Richter, 562 U.S. at 101. Petitioner has failed to show that the state 16 court’s determination “was so lacking in justification that there was an error well understood and 17 comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter, 18 562 U.S. at 103. 19 In sum, the state appellate court’s determination was neither contrary to, nor an 20 unreasonable application of, federal precedent, nor did it involve an unreasonable determination 21 of the facts. 28 U.S.C. § 2254(d). Therefore, the undersigned recommends petitioner’s claim as 22 expressed in ground one of his petition be denied. 23 The Trial Court’s Denial of Petitioner’s Fourth Marsden Motion 24 In ground two of his petition, petitioner contends the trial court abused its discretion in 25 denying his fourth Marsden motion, citing an irreconcilable conflict due to a breakdown in 26 communication, hostility, and a lack of trust, leading to a conflict compromising petitioner’s right 27 to be present at trial and right to testify. (ECF No. 1 at 4, 23-36.) Respondent answers that 28 petitioner’s claim does not state a federal claim, rather it presents only a state law claim of error, 1 barring relief in these proceedings. Further, respondent argues that to the degree petitioner’s 2 claim asserts a violation of the Sixth Amendment, the state appellate court’s determination does 3 not offend federal Supreme Court precedent, precluding relief. (ECF No. 20 at 13-19.) 4 The last reasoned rejection of petitioner’s second claim is the decision of the California 5 Court of Appeal for the Third Appellate District on petitioner’s direct appeal. The state court 6 addressed this claim as follows: 7 The Court Did Not Abuse Its Discretion in Denying Defendant's Fourth Marsden Motion 8 Defendant argues the trial court abused its discretion in denying his 9 fourth motion made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) “because an irreconcilable conflict between 10 [defendant] and his appointed attorney violated [defendant's] Sixth Amendment right to the effective assistance of counsel.” 11 Here, defendant points to four signs of an irreconcilable conflict: (1) 12 a complete breakdown in communication; (2) a breakdown in trust leading to a breakdown in the attorney-client relationship; (3) the 13 conflict between defendant and his counsel grew toxic; and (4) the conflict gutted his constitutional rights. A review of the complaints 14 underlying the asserted conflicts show the trial court's denial was well within its discretion. 15 The U.S. Constitution recognizes criminal defendants are entitled to 16 court-appointed counsel if they are unable to employ private counsel. (People v. Williams (1970) 2 Cal.3d 894, 904.) However, this is not 17 an unlimited right. The trial court retains discretion whether to allow a defendant to substitute appointed counsel, which need only be 18 granted if “the record clearly shows that the first appointed counsel is not adequately representing the accused.” (Ibid.) These motions 19 are referred to as Marsden motions and will only be overturned on appeal if the defendant shows the trial court abused its discretion 20 because the “‘failure to replace counsel would substantially impair the defendant's right to assistance of counsel.’” (People v. Streeter 21 (2012) 54 Cal.4th 205, 230.) “Substantial impairment of the right to counsel can occur when the appointed counsel is providing 22 inadequate representation or when ‘the defendant and attorney have become embroiled in such an irreconcilable conflict that ineffective 23 representation is likely to result.’” (People v. Clark (2011) 52 Cal.4th 856, 912 (Clark) [citations omitted].) 24 Notably, dissatisfaction arising from defense counsel's tactical 25 decisions, including investigation and case strategy, does not necessarily require substitution. (See People v. Dickey (2005) 35 26 Cal.4th 884, 922; People v. Williams, supra, 2 Cal.3d at pp. 903–906 [disagreement over whether to call certain witnesses did not require 27 appointment of different counsel]; People v. Robles (1970) 2 Cal.3d 205, 215 [disagreement over whether defendant should testify was a 28 factor for consideration in the Marsden motion].) Nor is substitution 1 required because of conflict arising from defendant's own behavior or unfounded beliefs regarding counsel's competency. (Clark, supra, 2 52 Cal.4th at p. 918 [defendant cannot refuse to cooperate with otherwise competent counsel and demand substitution]; People v. 3 Smith (2003) 30 Cal.4th 581, 606 [acknowledged breakdown caused by defendant's refusal to follow advice or cooperate with counsel]; 4 People v. Smith (1993) 6 Cal.4th 684, 688–689, 696–697 [lack of confidence in counsel and not relating to counsel did not warrant 5 substitution].) This is true even where defendant's apparent paranoia has led to impaired communication between client and counsel. 6 (Clark, at pp. 913–914 [there is no rule requiring substitution where defendant's paranoia concerning defense counsel has impaired 7 communication].) To the extent there is a credibility determination between defendant's complaints and counsel's statements or 8 explanations at a Marsden hearing, the court is entitled to accept defense counsel's explanation. (People v. Jones (2003) 29 Cal.4th 9 1229, 1245; People v. Webster (1991) 54 Cal.3d 411, 436.) 10 Here, defendant requested Marsden substitutions on four separate occasions. As noted above, defendant has attacked the trial court's 11 denial of the last Marsden motion only, but does so on the basis that review of all four Marsden hearings shows “an ongoing and 12 irreconcilable conflict between [defendant] and his appointed attorney.” Review of the factual bases for defendant's complaints in 13 all four hearings is necessary to our decision because of the overlap found therein, but we limit our abuse of discretion determination to 14 the trial court's denial of the fourth motion. 15 A. Defendant's First Marsden Motion 16 During the first Marsden hearing held on June 20, 2013, defendant identified the following complaints about his counsel: (1) the lack of 17 communication with counsel; (2) the lack of trust in and by counsel who wanted him to take a deal and would only visit him with a glass 18 barrier between them; (3) defendant's inability to get along with counsel; (4) that counsel was representing him on a number of cases; 19 (5) that counsel had failed to contact potential witnesses; (6) that counsel was working with the DA; and (7) counsel's refusal to 20 request a bail reduction or move for the recusal of a judge in another case. 21 The trial court asked defendant's attorney about defendant's stated 22 concerns after which defense counsel explained he had extensive criminal experience and had been practicing for over 20 years, that 23 he met with defendant and provided him the written discovery in his cases, that there was no legal basis to seek the recusal of the other 24 judge, that any bail reduction motion would have been frivolous, that defendant had threatened defense counsel causing defense counsel to 25 conduct his visits with defendant on the other side of protective glass, that defense counsel had sent defendant numerous letters in addition 26 to visiting him, that he had refused some of defendant's requests because they would violate ethical duties and/or the law such as 27 providing contact information of potential witnesses, that he had followed up with one of defendant's proposed witnesses and had 28 previously reported the outcome of those investigatory efforts, that 1 he had interviewed another of defendant's proposed witnesses but was not calling her due to problems with her credibility and her lack 2 of importance to the trial, and that he had issued other subpoenas requested by defendant for medical records and police video. 3 Defense counsel also stated his belief that he had “been more than 4 adequately representing [defendant] in both of his matters, and [was] doing so with the most utmost professionalism.” Defendant 5 continued to complain that he did not believe his counsel would fight adequately for him because he had advised defendant to take any 6 deals that were better than life in prison. He also complained that his counsel yelled at him. 7 Ultimately, the trial court denied the motion, finding that the Court's 8 observation had been that defense counsel competently represented defendant, that any conflict between them appeared to be caused by 9 defendant's own attitude towards his counsel, and that there was good reason to have visits separated by safety glass. Defense counsel's 10 “representation is competent. He's an experienced lawyer, he's a respected lawyer in the Yolo County Courts, and it is clear to me he 11 has and he will continue to competently represent” defendant. 12 B. Defendant's Second Marsden Motion 13 Defendant's second Marsden hearing occurred on August 14, 2013. Defendant complained that: (1) counsel was communicating through 14 letters and not communicating daily; (2) he disagreed with counsel's tactics, including whether he should testify; (3) counsel was 15 representing him in more than one matter and had too many cases; (4) counsel failed to keep his family informed of case and medical 16 developments; (5) defense counsel talked to the DA; (6) counsel failed to assist him with his medical issues; and (7) counsel failed to 17 further investigate all the witnesses to the incident giving rise to the charges in the case currently being tried. 18 In response, defense counsel explained that the conflict arose from 19 defendant's belief that counsel should do exactly what defendant requested, as opposed to defense counsel's duty to do everything he 20 could to represent defendant's best interests. Counsel further stated that the conflict was one-sided and being created by defendant's 21 behavior such as threatening counsel, knocking papers on the floor, etc. Defense counsel swore he had been properly advising defendant, 22 including the risks associated with defendant's desire to testify. He confirmed that he had been working to obtain an offer from the DA 23 that did not involve a life term, but had been unsuccessful and that these efforts had upset defendant. 24 Counsel also said he was working on defendant's behalf with regard 25 to his medical issues and that defendant's medication had been stopped because it was not needed and the jail believed he was either 26 selling the drugs or giving them away to other inmates. Finally, counsel attested to working diligently and after hours in the 27 preparation of defendant's case, which included the preparation of a brief concerning lesser included offenses in an effort to avoid 28 application of the Three Strikes Law. 1 In denying the second motion, the court found defense counsel's manner of communication reasonable given the circumstances, it 2 reiterated that defense counsel had the right to make tactical decisions, that it was not counsel's job to communicate with 3 defendant's family, and that the court had observed defense counsel advocating for something less than a life sentence, but that these 4 efforts were unsuccessful and the case was headed for trial. The court found defendant had not shown “an irremediable breakdown of the 5 relationship[,]” and defense counsel was competently representing him, by, in part, filing motions in limine and jury instructions. 6 C. Defendant's Third Marsden Motion 7 The court held defendant's third Marsden hearing on October 7, 8 2013. Defendant complained that counsel (1) was holding himself out as a qualified psychologist and (2) had allowed him to urinate on 9 himself during the first trial. The trial court explained that defense counsel answered the court's question about whether counsel had a 10 doubt about defendant's competency, which was not counsel acting as a psychologist, but was relevant to whether a competency hearing 11 should be held. Defendant then repeated his previous concern that counsel was representing him on more than one case, which the court 12 explained was normal. Further, defendant complained that he did not like defense counsel and did not know that his attorney would do his 13 best in representing him. 14 In response, the court noted that it had been unaware of the urgency of defendant's need to immediately use the restroom and that efforts 15 would be made in the future to prevent that from occurring again. The court continued that counsel had done an excellent job 16 representing defendant in the first trial and the preliminary hearing for the second. Defense counsel reiterated that he had been 17 competently representing defendant. 18 In denying the motion, the court noted “feeling uncomfortable” or believing an attorney was not “acting in his best interest” were not 19 grounds to grant a Marsden motion. It went on noting, “I've observed [defense counsel's] performance in his cases and he has competently 20 represented [defendant].” 21 D. Defendant's Fourth Marsden Motion 22 The court held defendant's final Marsden hearing on October 8, 2013, wherein defendant complained that he was uncomfortable with 23 his attorney who continued to refuse to abide by his wishes regarding witnesses, giving the example of his refusal to call a witness who had 24 blocked defendant's escape from the holding cell, and but for his blocking the way, the incident with the officers would not have 25 occurred. Defendant again said: “my attorney wishes to use his own tactics and feels that mine are irrelevant at this time.” Defense 26 counsel explained that even if the witness testified along the lines explained by defendant, that testimony would hurt, not help the case. 27 Counsel testified defendant was receiving “probably the best representation he could possibly ever receive.” 28 1 In denying the motion, the court reiterated that defense counsel has the right to make tactical decisions and any other grounds raised are 2 duplicative to the previous Marsden motions. 3 It is clear on this record that the trial court acted within its discretion in denying defendant's fourth Marsden motion. The trial court made 4 numerous well supported findings that defendant had received competent representation. Any conflicts arising from defendant's 5 own behavior, including his distrust of counsel and dislike of counsel's tactical decisions did not support an irreconcilable conflict. 6 (See, e.g., Clark, supra, 52 Cal.4th at pp. 913–914 [no rule requiring substitution where defendant's paranoia concerning defense counsel 7 has impaired the representation].) 8 Moreover, we note, defendant's fourth Marsden motion was, at its essence, duplicative of his first three and we note he does not 9 challenge here the trial court's rulings on his first three motions. 10 There was no error. 11 (People v. Daniels, 2018 WL 1163043 at *3-6; LD 16.) 12 Analysis 13 To any extent the state appellate court rejected petitioner’s claim solely on state law 14 grounds based on petitioner’s claim that the trial court abused its discretion, this court is unable to 15 review a state court decision on issues of state law. As noted above, a writ of habeas corpus is 16 not available for alleged errors in the interpretation or application of state law. Estelle, 502 U.S. 17 at 67-68. Thus, the opinion of the Third District Court of Appeal that no violation of state law 18 occurred when the trial court denied petitioner’s fourth motion for substitute counsel may not be 19 set aside in this proceeding. 20 With regard to federal constitutional violations, the Sixth Amendment provides that “[i]n 21 all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel 22 for his defense.” U.S. Const. amend. VI. The Court of Appeals for the Ninth Circuit has held 23 that denial of a motion pursuant to Marsden may implicate the Sixth Amendment right to counsel. 24 Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc); Hudson v. Rushen, 686 F.2d 826, 25 828-29 (9th Cir. 1982). But the Sixth Amendment is not implicated by every conflict between a 26 defendant and counsel. See Daniels v. Woodford, 428 F.3d 1181, 1196-97 (9th Cir. 2005), cert. 27 denied, 550 U.S. 968 (2007) (the nature and extent of the conflict must be such as to “depriv[e] 28 //// 1 the defendant of representation guaranteed by the Sixth Amendment.”).5 The Supreme Court has 2 recognized that a defendant is entitled to counsel who “function[s] in the active role of an 3 advocate.” Entsminger v. Iowa, 386 U.S. 748, 751 (1967). A defendant is entitled to competent 4 counsel. United States v. Cronic, 466 U.S. 648, 655 (1984). 5 The Sixth Amendment right to counsel also includes a qualified right to retain counsel of 6 choice. See Schell, 218 F.3d at 1025 (citations omitted). However, an indigent defendant, while 7 entitled to appointed counsel, is not constitutionally entitled to appointed counsel of choice. 8 Hendricks v. Zenon, 993 F.2d 664, 671 (9th Cir. 1993). When a criminal defendant requests a 9 substitution of appointed counsel, the trial court is constitutionally required to inquire about the 10 defendant’s reasons for wanting a new attorney. Schell, 218 F.3d at 1025 (“[I]t is well 11 established and clear that the Sixth Amendment requires on the record an appropriate inquiry into 12 the grounds for such a motion, and that the matter be resolved on the merits before the case goes 13 forward.”). However, the Supreme Court has “reject[ed] the claim that the Sixth Amendment 14 guarantees a ‘meaningful relationship’ between an accused and his counsel.” Morris v. Slappy, 15 461 U.S. 1, 13-14 (1983). The Ninth Circuit has found that a trial court’s refusal to allow 16 substitution of counsel can violate a defendant’s Sixth Amendment right to counsel if the 17 defendant and his attorney have an “irreconcilable conflict.” Stenson v. Lambert, 504 F.3d 873, 18 886 (9th Cir. 2007), cert. denied, 555 U.S. 908 (2008). This level of conflict exists only if 19 communication has so broken down that it prevents the effective assistance of counsel. Id. at 20 886; Schell, 218 F.3d at 1026. To determine whether such conflict is “irreconcilable,” a court 21 evaluates three factors: “(1) the extent of the conflict; (2) the adequacy of the inquiry by the trial 22 court; and (3) the timeliness of the motion for substitution of counsel.” See Stenson, 504 F.3d at 23 886; Daniels, 428 F.3d at 1197-98. 24 In this case, as borne out by the record (see LD 9-12) and the state appellate court’s 25 accurate recitation thereof, petitioner’s constitutional rights were not infringed. Petitioner was 26

27 5 Daniels is a pre-AEDPA case where the appellate court reviewed the state court conclusions de novo. Daniels, 428 F.3d at 1196 & n.24. In the instant case, this court is required to give 28 deference to the state court findings and conclusions under 28 U.S.C. § 2254(d)(1) and (2). 1 entitled to appointed counsel, not appointed counsel of his choice. Hendricks v. Zenon, 993 F.2d 2 at 671. On each occasion of petitioner’s request pursuant to Marsden, the trial court held a 3 hearing as required, inquiring into petitioner’s reasons for wanting a new attorney. Schell, 218 4 F.3d at 1025. The trial court considered petitioner’s most recent reasons for wishing to replace 5 defense counsel, including the fact petitioner was “very uncomfortable” with defense counsel and 6 “question[ed] his tactics.” (LD 12 at 2; see also LD 12 at 5.) Those efforts were careful and 7 probing. (See, e.g., LD 12 at 2 [“What information would you like to give me?”], 3 [“What 8 details did you provide him that you don’t believe he’s considering?”], 4 [“What did Officer 9 Frisco do that would be important?”], 5 [“When did you tell Mr. Muller about what you’ve just 10 told me about Officer Frisco?” & “Other than Officer Frisco, are there other witnesses that were - 11 - that participated in this incident?”], 8 [“is there anything else you’d like to tell me that you have 12 not already told me?”].) See United States v. Prime, 431 F.3d 1147, 1155 (9th Cir. 2005) (finding 13 inquiry adequate where defendant “was given the opportunity to express whatever concerns he 14 had, and the court inquired as to [defense counsel’s] commitment to the case and his perspective 15 on the degree of communication”). Further, defense counsel addressed the court’s questions and 16 petitioner’s concerns, including the issue of Officer Frisco and counsel’s tactics. (LD 12 at 7-8.) 17 In sum, the trial court thoroughly discussed with petitioner and trial counsel the grounds for his 18 motion to substitute counsel. (LD 12 at 2-9.) 19 An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is 20 a complete breakdown in communication between the attorney and client, and the breakdown 21 prevents effective assistance of counsel. Schell, 218 F.3d at 1026. But disagreements over 22 strategical or tactical decisions do not rise to the level of a complete breakdown in 23 communication. Id.; see also United States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003) 24 (holding that dispute over trial tactics “is not a sufficient conflict to warrant substitution of 25 counsel”). While the record here does reflect a dispute over tactics, it does not reflect a complete 26 breakdown in petitioner’s relationship with defense counsel Muller. Further, petitioner is not 27 entitled to a “’meaningful relationship’” with defense counsel and the record does not establish an 28 irreconcilable conflict despite petitioner’s take on the matter. Morris v. Slappy, 461 U.S. at 13- 1 14. Petitioner’s counsel was competent and actively advocated on his behalf. Entsminger, 386 2 U.S. at 751; Cronic, 466 U.S. at 655. 3 It at least can be said that “‘fairminded jurists could disagree’ on the correctness of the 4 state court’s decision.” Harrington v. Richter, 562 U.S. at 101. Petitioner has failed to show that 5 the state court’s determination “was so lacking in justification that there was an error well 6 understood and comprehended in existing law beyond any possibility for fair-minded 7 disagreement.” Richter, 562 U.S. at 103. 8 To conclude, the undersigned finds the state appellate court’s determination that no error 9 surrounded the denial of petitioner’s fourth Marsden motion was a reasonable one. It was not 10 contrary to Supreme Court precedent. Further, the state appellate court’s determination of the 11 facts was reasonable. 28 U.S.C. § 2254(d). Hence, the undersigned recommends petitioner’s 12 claim as asserted in ground two of the petition be denied. 13 The Question of a Competency Proceeding 14 In ground three of his petition, petitioner contends his federal due process rights were 15 violated by the trial court’s failure to hold a competency hearing pursuant to section 1368 despite 16 substantial evidence he was unable to rationally assist counsel. (ECF No. 1 at 5, 31-42.) 17 Respondent contends that to the extent petitioner’s claim asserts the trial court failed to follow 18 state procedural law, the claim cannot be heard, and further maintains that the state appellate 19 court’s determination was reasonable, precluding the requested relief. (ECF No. 20 at 19-22.) 20 The last reasoned rejection of petitioner’s final claim is the decision of the California 21 Court of Appeal for the Third Appellate District on petitioner’s direct appeal. The state court 22 addressed this claim as follows: 23 The Court Did Not Abuse its Discretion in Refusing to Order a Competency Hearing 24 Defendant asserts the trial court erred when it did not order a 25 competency hearing pursuant to section 1368. 26 Penal Code section 1367, subdivision (a) states in pertinent part: 27 “A person cannot be tried or adjudged to punishment ... while that person is mentally incompetent. A defendant is mentally incompetent 28 for purposes of this chapter if, as a result of [a] mental disorder or 1 developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct 2 of a defense in a rational manner.” 3 Section 1368 recognizes that if the court doubts the defendant's mental competence, it shall ask defense counsel's opinion on 4 defendant's competency. (§ 1368, subd. (a).) 5 In the absence of an “expert opinion from a qualified and informed mental health expert, stating under oath and with particularity that 6 the defendant is incompetent ... counsel[, if he doubts defendant's competency,] must make some other substantial showing of 7 incompetence that supplements and supports counsel's own opinion” of incompetency. (People v. Sattiewhite (2014) 59 Cal.4th 446, 465 8 (Sattiewhite).) Only upon such a showing “does the trial court have a nondiscretionary obligation to suspend proceedings and hold a 9 competency trial. [Citation.] Otherwise, we give great deference to the trial court's decision not to hold a competency trial.” (Ibid.) 10 Notwithstanding counsel's view of the matter, if the court has a doubt 11 about defendant's competency, proceedings are suspended until a determination of competency is made. (§ 1368, subds. (b)–(c).) But, 12 whatever the trial court's view on the question of defendant's competence to stand trial may be, once a defendant has shown 13 “substantial evidence of incompetence to stand trial, due process requires that a full competency hearing be held.” (People v. 14 Stankewitz (1982) 32 Cal.3d 80, 92 [citing Pate v. Robinson (1966) 383 U.S. 375 [15 L.Ed.2d 815] ].) “‘Evidence of incompetence may 15 emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations.’” (Sattiewhite, 16 supra, 59 Cal.4th at p. 464.) “‘But to be entitled to “a competency hearing, a defendant must exhibit more than bizarre ... behavior, 17 strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his 18 defense counsel.”’” (Id. at pp. 464–465 [citations omitted].) 19 Here, although defendant had been taken off his medication, was depressed, and unable to focus, the People, in order to protect the 20 record, asked whether the court or defense counsel had any questions about defendant's competency. Defense counsel stated his belief that 21 defendant was competent, and the Court concurred based upon its discussions with defendant. Neither the court nor defense counsel 22 had any doubt as to defendant's competency. Defendant's refusal to work with his attorney, whom he had not been allowed to replace, 23 does not change this analysis. Unlike the Stankewitz case, here defense counsel believed defendant was competent and there was no 24 determination by a qualified mental health expert, offered under oath that defendant was not competent. As such, defendant has failed to 25 show substantial evidence of incompetence, and the trial court was within its discretion not to order a competency hearing. 26 27 (People v. Daniels, 2018 WL 1163043 at *6-7; LD 16.) 28 // 1 Applicable Legal Standards 2 “It has long been accepted that a person whose mental condition is such that he lacks the 3 capacity to understand the nature and object of the proceedings against him, to consult with 4 counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 5 420 U.S. 162, 171 (1975). In some instances, there comes a time where a defendant’s behavior 6 displays such marked indicia of incompetence that the trial court violates due process by not sua 7 sponte suspending proceedings and conducting a hearing into the defendant’s competency to 8 stand trial. See, e.g., Drope, 420 U.S. at 180; Pate v. Robinson, 383 U.S. 375, 385 (1966); de 9 Kaplany v. Enomoto, 540 F.2d 975, 979-81 (9th Cir. 1976). “[E]vidence of a defendant’s 10 irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand 11 trial are all relevant in determining whether further inquiry is required, but that even one of those 12 factors standing alone may, in some circumstances, be sufficient.” Drope, 420 U.S. at 180. 13 The trial or conviction of a person who is legally incompetent is a substantive due process 14 violation. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); see also Maxwell v. Roe, 606 F.3d 15 561, 568 (9th Cir. 2010) (quoting Robinson, 383 U.S. at 378) (“It is undisputed that ‘the 16 conviction of an accused person while he is legally incompetent violates due process’”). 17 “[D]efense counsel will often have the best-informed view of the defendant’s ability to participate 18 in his defense.” Medina v. California, 505 U.S. 437, 450 (1992). 19 Analysis 20 A review of the record reveals there has been no due process violation, that the state court 21 determination was a reasonable application of clearly established federal law, and further, that its 22 decision was based on a reasonable determination of the facts. 28 U.S.C. § 2254(d). 23 On October 7, 2013, petitioner expressed a desire to not be present for jury selection, 24 waiving various rights as explained by the trial court, and expressing his reasons for wishing to be 25 absent from the proceeding. (LD 5 at 65-68.) The trial court granted petitioner’s request. (LD 5 26 at 69.) Following a discussion at the bench, the prosecutor noted for the record his concern as to 27 petitioner’s competency. (LD 5 at 69.) The following exchange then occurred: 28 THE COURT: Mr. Muller, do you have any comments on that issue? 1 MR. MULLER: No, your Honor, other than I do not believe that Mr. Daniels is 1368 at this point in time. That’s based on materials that 2 I obtained during the course of my representation of Mr. Daniels that I cannot disclose at this time. 3 [PROSECUTOR]: Okay. 4 THE COURT: I’m satisfied with my discussion with [petitioner] that 5 the Court is not declaring a doubt either. 6 [PROSECUTOR]: I just want to make sure this is all on the record. 7 (LD 5 at 69-70.) Then, as the court was pausing proceedings for a fifteen-minute recess, 8 petitioner made his fourth Marsden motion; the court indicated it would hear the motion after the 9 break. (LD 5 at 71.) Upon return, the confidential hearing was held in accordance with 10 petitioner’s request. (LD 11.) 11 More particularly, when the trial court asked petitioner to “tell [the court] what your 12 complaints are today” (LD 11 at 2), petitioner complained that his defense attorney was “not a 13 psychologist,” was not “acting within [his] best interest,” and “fails to realize” or “accommodate” 14 his issues, referring to his physical health. (LD 11 at 2-3.) When the trial court inquired of 15 petitioner whether he was referring to Mr. Muller’s “statement to the Court about whether he 16 thought you were - - had a doubt about your competence” (LD 11 at 3), petitioner stated: “that’s 17 not his decision to make,” and that it was a decision for a doctor. (LD 11 at 3.) The court 18 thereafter explained the process associated with section 1368, including the following exchange: 19 THE COURT: So I asked Mr. Muller [whether he had a doubt as to competency], and he stated his opinion that he - - his opinion was he 20 did not have a doubt. He did not believe you should be evaluated for your competence. And my conclusion was the same based upon 21 talking with you this morning. 22 I’m not a psychologist, I don’t claim to be a psychologist, but - - and it’s not that common where the Court exercises that right to declare 23 doubt if they think there is a doubt. But that’s how the process works. 24 You may view - - you asked some questions about how he can represent you on three cases. Can you tell me a little bit more about 25 - - are you - - I’m not sure what you mean by that, because usually - - 26 DEFENDANT: Hold up. Don’t - - go back. Go back, go back, go 27 back. Stop right there. 28 THE COURT: Okay. 1 DEFENDANT: Go back. This doubt thing, I’m lost real quick. What did he have a doubt for? 2 THE COURT: He was not declaring a doubt. He’s not asking the 3 Court to have you evaluated to see if you’re competent or not. 4 DEFENDANT: What does that mean again? Tell me, because I told you I’m having issues. Explain it slowly. 5 THE COURT: Okay. If a person is not mentally competent, their 6 criminal case stops and they get mental health treatment. 7 DEFENDANT: So that was what he had the doubt for? 8 THE COURT: He didn’t - - he said he didn’t have - - he said he did not have a doubt. 9 DEFENDANT: Okay. So when he does not have a doubt, that 10 means he’s not recommending? 11 THE COURT: Correct. He’s not requesting that you be evaluated to determine whether you are competent or not. He is not asking the 12 Court to have you evaluated as to your competence to participate in this case at this time. [¶] You follow me? 13 DEFENDANT: So you’re saying that the case that I’m on right now 14 - - 15 THE COURT: Right. 16 DEFENDANT: - - the one I’m on trial for - - 17 THE COURT: Right. 18 DEFENDANT: - - he doesn’t have a doubt of my competency for this part? 19 THE COURT: Correct. By not declaring a doubt, he believes you 20 understand what’s going on - - what the charges are, you understand that you’re here for a trial, you understand you have certain rights 21 that go along with the trial, that you can participate. He believes you understand those things by not declaring a doubt. 22 DEFENDANT: Okay. And that’s - - this - - what about the other 23 two cases? 24 THE COURT: Well, we’re not here on those cases. 25 DEFENDANT: Okay. Well, this one case - - all right. Okay. Now I’m up to date. 26 27 (LD 11 at 5-7.) 28 // 1 Following a further exchange wherein petitioner used profanity in the courtroom as the 2 trial court considered his latest motion (LD 11 at 8-12), defense counsel Muller commented as 3 follows: 4 MR. MULLER: Only that I have, during the course of my representation, obtained Mr. Daniels’ medical as well as 5 psychological records while he’s been incarcerated at the Yolo County Jail. It is true that his psychiatric medication terminated in I 6 believe December of 2012. 7 The reason for the discontinuance is that there was a report Mr. Daniels was selling or providing his medication to other inmates. 8 And further, the psychologist, upon reviewing these reports, indicated that it appears Mr. Daniels suffers from a what’s called 9 Access 2B Cluster personality disorder where medication will not have any effect on Mr. Daniels. 10 This has to deal solely with the personality disorder and not one that’s 11 considered a chemical imbalance which medications would be - - have any efficacy. 12 13 (LD 11 at 12.) Thereafter, the court denied petitioner’s motion. (LD 11 at 13.) 14 In short, the record reveals the state appellate court’s determination that there was not 15 substantial evidence of incompetence was neither contrary to, nor an unreasonable application of, 16 federal precedent. 17 The trial court considered the relevant information. Drope, 420 U.S. at 180. And Mr. 18 Muller’s views, particularly in conjunction with petitioner’s comments, questions and actions on 19 record, amount to the best informed view of petitioner’s ability to participate in his defense. 20 Medina, 505 U.S. at 450. Simply put, the undersigned’s review of the record finds ample support 21 for the state appellate court’s decision. Further, “‘fairminded jurists could disagree’ on the 22 correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. at 101. Petitioner has 23 failed to show that the state court’s determination “was so lacking in justification that there was 24 an error well understood and comprehended in existing law beyond any possibility for fair- 25 minded disagreement.” Richter, 562 U.S. at 103. Accordingly, the undersigned recommends the 26 claim be denied. 27 // 28 // 6 LO UVEITIS IVINS LING IN RAVI Co POC AI er Yt eo ee

1 VI. Conclusion 2 Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of 3 | habeas corpus be denied. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 9 | he shall also address whether a certificate of appealability should issue and, if so, why and as to 10 | which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 11 | applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 12 § 2253(c)(). Any response to the objections shall be filed and served within fourteen days after 13 | service of the objections. The parties are advised that failure to file objections within the 14 | specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 15 } F.2d 1153, 1156 (9th Cir. 1991). 16 || Dated: October 6, 2020 " Aectl Aharon 18 KENDALL J. NE dani2409.157 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 27