Filed 12/21/20 P. v. Sumler CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ELAJAH SUMLER,

Defendant and Appellant.

 B304018

 (Los Angeles County 

 Super. Ct. No. BA459155)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Mark S. Arnold, Judge. Affirmed. 

Michelle T. LiVecchi-Raufi, under appointment by the 

Court of Appeal, for Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Wyatt E. Bloomfield and Michael C. Keller, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

A jury found defendant and appellant Elajah Sumler guilty 

of damaging jail property and found true the allegation the 

damage was in excess of $950. Defendant does not challenge the 

evidence in support of his conviction or raise any trial errors. 

Rather, he challenges only two pretrial rulings from 

September 27, 2019: the trial court’s order finding him 

competent to stand trial and the court’s order revoking his right 

to represent himself. 

We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

While in custody at the Twin Towers Correctional Facility, 

defendant yelled at a deputy from inside his cell and threatened 

to “gas” him (throw feces, urine or other bodily fluid). When the 

deputy began to tape plastic up on the cell door to prevent fluids 

from passing through, defendant repeatedly kicked the lower 

glass panel in the door, cracking it. The glass used to repair the 

window was a type of shatter-resistant glass specially approved 

by the California Department of Corrections and Rehabilitation 

for use in custodial facilities and the total cost of repair was in 

excess of $1,700. Defendant denied threatening to gas the deputy 

or having any intent to break the window, although he admitted 

kicking it several times. 

Defendant was charged with one felony count of damaging 

jail property in violation of Penal Code section 4600, 

subdivision (a). It was alleged the damage was in excess of $950. 

It was also alleged defendant had suffered three prison priors 

(§ 667.5. subd. (b)). The prison priors were subsequently 

dismissed.

At the preliminary hearing, defendant’s request to 

represent himself was granted.
3

At the next hearing, the court told defendant it appeared 

advisable for standby counsel to be appointed. Defendant said if 

that was to occur, he would want his attorney in two other 

pending cases, Deputy Alternate Public Defender Alissa Sterling,

to be appointed in that capacity. Defendant also complained to 

the court he was not being provided with necessary materials in 

custody to represent himself. The court said the fact he was in 

the high observation housing unit was complicating the process. 

No appointment of standby counsel was made at that time. 

On June 21, 2019, defendant reiterated his complaint about 

not having access to what he needed to represent himself and 

that the deputies at the jail were using his “mental health status” 

against him. Defendant said he had been prescribed Seroquel (an 

antipsychotic medication) but was refusing to take it. He told the 

court, “You hear I am talking I am cognitive. [¶] I am not 

hallucinating. They are trying to make it seem like I am not 

eating as much as we are going to take away your rights and try 

to make me incompetent. Whatever they are trying to do.” The 

court addressed several other medical requests by defendant, 

including that the jail provide him with vegan meals. 

On July 8, 2019, defendant again said he was not able to 

get the resources he needed in jail to represent himself, that he 

still was not being provided a vegan diet and that he needed help 

subpoenaing his medical records for trial. The court explained 

that defendant was responsible for sending his own subpoena. At 

defendant’s request, the case was continued to August. 

In August 2019, defendant reported to the court that his 

two other cases might be resolved. Defendant agreed to waive 

time again and the case was put over for another 30 days. 
4

On September 10, 2019, Attorney Sterling, who 

represented defendant in his two other cases, appeared at the 

hearing with defendant. The court asked defendant about his

refusal to come to court earlier in the day. Defendant denied 

refusing and said the deputies told him the appearance had been 

canceled and would not transport him. Defendant then listed 

various complaints about his custody status and various medical 

issues, including a claim that he had been pepper-sprayed in the 

face.

The court made reference to some sort of homemade glasses 

defendant was wearing in court. Defendant responded, “I walk 

by faith and not by sight, so these glasses are not deterring my 

view in the slightest. My view is only deterred basically because 

I got pepper sprayed directly in my eyes. I could see out of these 

glasses, that’s why I made them. I have crafted them specifically 

to be seen out of.” 

The court noted defendant’s “bizarre[]” manner of clothing. 

Defendant first indicated it was for his religion and then later

said, “I do fashion, so then, like, you know, like, let’s say I wanted 

to create my defense—part of my defense, just make my own 

style, you know, because we use civilian clothes during trial. So 

it’s like instead of wearing civilian clothes, this is kind of the 

epitome of me correlating everything I’ve seen and learned since 

I’ve been in jail all together, based upon the style I had input on. 

It’s called infinite style.” 

The court asked defendant to allow Ms. Sterling to be 

appointed to represent him. Defendant made a somewhat

rambling statement and said he no longer wanted her to 

represent him in any of his cases, apparently because she had 

declared a doubt as to his competency in those cases. Defendant 
5

said he wanted a hearing pursuant to People v. Marsden (1970) 

2 Cal.3d 118.

Defendant said, in part, that the “specific things that I 

want to be conveyed because proof of my innocence with every, 

you know, piece of evidence. I wanted to suppress all evidence 

because she didn’t want to testify about certain stuff and make 

them testify and provide documents to prove certain stuff that I 

wanted to compel. And then if they were to leave out anything, I 

was going to file a motion to dismiss the case based upon 

destruction of evidence because I feel like every piece of 

testimony, everything that they say in that police report they 

have to testify and provide proof—everything that you’re saying. 

But they’re not—and she didn’t want to do that in trial.” 

Ms. Sterling advised the court that a doubt had been 

declared as to defendant’s competence in his other cases and that 

a psychiatrist familiar with defendant from previous evaluations 

(Dr. Chen) had been appointed to evaluate defendant again. She 

also said that proceedings had been suspended all of last year in 

those cases for mental health reasons. 

The court agreed to entertain defendant’s request for a 

Marsden hearing and cleared the courtroom. Defendant again 

made various rambling statements. The court interjected and 

said defendant was not making any sense, “You’re 

incomprehensible.” The court repeated its concern about 

defendant’s competence based on his rambling, rapid speech and 

his tendency to jump from subject to subject without completing a 

coherent thought. The court told defendant he had not identified 

anything that “impinge[d] on Ms. Sterling’s ability to effectively 

represent [him].” The court said it wanted to know what the 
6

psychiatrist had to say before it would revoke defendant’s in 

propria persona status. 

Once back on the record, the court ordered the criminal 

proceedings suspended pending the completion of Dr. Chen’s 

report. Defendant asked if he was being evaluated again for his 

competence and the court said yes. Defendant responded, “Oh, 

okay. I appreciate that. I sometimes—I don’t feel like I’m all 

that competent as well. Sometimes.” 

The parties returned on September 27, 2019. Ms. Sterling

appeared with defendant and confirmed with the court that 

Dr. Chen, the appointed psychiatrist, had evaluated defendant 

and stated her opinion that he was competent to stand trial. The 

court reinstated criminal proceedings. Ms. Sterling told the court 

that defendant wanted the case set for trial.

The court appointed Ms. Sterling as counsel for defendant 

in the present case. Defendant interrupted and said “[y]ou’re 

revoking my pro per status?” The court said it was and explained 

that a finding of competence to stand trial is different than 

competence to represent oneself at trial. Defendant responded, 

“All right. Well, that’s fine.” 

When the parties returned for pretrial on October 31, 2019, 

the court said it wanted to clarify for the record the grounds for 

denying defendant’s in propria persona status. The court 

explained, “I reviewed the court file in its entirety, including a 

report from Dr. Chen, C-H-E-N. The defendant has serious, 

major mental illness, specifically bipolar disorder. He was found 

incompetent on July the 1st of 2017. He was hospitalized on 

July 23rd for being gravely disabled and a danger to himself. He 

thought the FBI and the L.A. County Sheriff’s Department were 

out to get him. [¶] He was incompetent for the periods of 
7

November 13, 2017 through December 12, 2017; April 23, 2018 

through June the 4th, 2018; September 18th, 2018 through 

December 24th of 2018. [¶] As of August the 13th of 2019, 

[defendant] has been diagnosed with anti-social personality 

disorder, unspecified impulse control disorder, and unspecified 

mood disorder. [¶] Also, my experiences with him, he just 

rambles from subject to subject.” The court also noted that 

defendant had refused to come to court and was present in a 

restraint chair. The court said that because of defendant’s 

mental health status and the way he behaves, it did not believe 

defendant was competent to represent himself even though he 

was competent to stand trial.

Defendant again denied he had refused to come to court 

and that he was not in a restraint chair but just a regular 

wheelchair because of a problem with his leg.

The court asked about whether there was an offer by the 

prosecution. Ms. Sterling said the prosecution offered to resolve 

all three cases if defendant pled to a violation of Penal Code

section 69 and did ODR but defendant refused. Ms. Sterling said 

she did not make a counteroffer because there was no offer she 

could propose that would have been better than what the 

prosecution offered. 

The case was tried to a jury in December 2019. The jury 

found defendant guilty as charged. The court sentenced 

defendant to the midterm of two years in county jail. Defendant 

was given credit for 730 days of presentence custody credits and 

ordered released for time served. The court ordered restitution in 

the amount of $1,692.63. 

This appeal followed.
8

DISCUSSION

Defendant contends the trial court erred both in finding

him competent to stand trial and in revoking his right to 

represent himself. 

A defendant is presumed competent to stand trial, unless 

the contrary is established by a preponderance of the evidence. 

(People v. Campbell (1976) 63 Cal.App.3d 599, 608; see also Pen. 

Code, § 1369, subd. (f).) “A defendant is deemed incompetent to 

stand trial if he lacks ‘ “ ‘sufficient present ability to consult with 

his lawyer with a reasonable degree of rational understanding . . . 

[or] a rational as well as factual understanding of the proceedings 

against him [or her].’ ” ’ ” (People v. Lightsey (2012) 54 Cal.4th 

668, 690, second brackets added; accord, People v. Mickel (2016) 

2 Cal.5th 181, 194–195; see also § 1367, subd. (a).)

In reviewing a finding of competency, we are governed by 

the substantial evidence test. (People v. Marshall (1997) 

15 Cal.4th 1, 31 (Marshall).) Viewing the evidence in the light 

most favorable to the court’s ruling, we conclude there is 

substantial evidence supporting the competency finding. 

At the hearing on September 27, 2019, defense counsel 

confirmed with the court that a report had been prepared by 

Dr. Chen and submitted to the court. Ms. Sterling said the 

doctor’s opinion “is that at this time [defendant] is competent to 

proceed forth with trial.” The court reinstated criminal 

proceedings and asked how defendant wished to proceed. 

Defendant indicated a desire to immediately proceed with setting 

a trial date. The court and counsel then discussed setting dates 

in all three of defendant’s pending cases. The court’s minute 

order for that date states that “[t]he court finds that the 

defendant is presently mentally competent to stand trial within 
9

the meaning of Penal Code section 1368 . . . . Criminal 

proceedings resumed.” 

The Supreme Court in People v. Marks (1988) 45 Cal.3d 

1335, 1343 explained that “no ‘magic words’ are required of the 

trial court” in making a competency finding and resuming 

proceedings. But, a trial court must “expressly and unmistakably 

state on the record, either orally or in writing, its determination 

as to whether the defendant is mentally competent to stand 

trial.” (Ibid., italics omitted.) Defendant contends the trial court 

did not review and evaluate the expert’s report before declaring 

him competent but instead relied on defense counsel’s 

representation concerning the expert’s conclusion that defendant 

was competent.

We agree with defendant the record of proceedings on 

September 27, 2019, suggests the court had not read the expert’s 

report but simply received it from defense counsel that day. 

Defense counsel said, “Dr. Chen has written a report. I provided 

a copy to the court to be placed in an envelope under seal.” We 

also recognize that in a busy criminal courtroom where the same 

counsel frequently appear before the same judge, many 

preliminary proceedings are not reported on the record; and after 

going on the record, counsel and the court may use familiar 

“shorthand” language to summarize the informal proceedings 

held just before going on the record. Since defense counsel gave 

the unsealed report to the court, it may be the case that the court 

reviewed it before going on the record. 

Even if the court did not read the report before going on the 

record on September 27, 2019, substantial evidence supports the 

court’s finding that defendant was competent to stand trial. The 

court had observed defendant at several hearings dating back 
10

several months to early July 2019 that raised the court’s concerns 

about his competency. Upon being advised that a psychiatrist 

had already been appointed in defendant’s other pending 

criminal cases to render an opinion on competency, the court 

suspended proceedings and prudently awaited the expert’s report 

before concluding it was reasonable and appropriate to reinstate 

criminal proceedings. Additional support for the court’s decision 

was provided by the court’s clarifying statement made at the 

subsequent hearing on October 31, 2019, at which the court 

stated it had read Dr. Chen’s report and reviewed the entire file, 

after which the court made a long and full record of why it had 

revoked defendant’s in propria persona status. The court’s 

October 31, 2019 findings also support its competency finding. 

The record also supports the trial court’s ruling revoking 

defendant’s in propria persona status. 

In Indiana v. Edwards (2008) 554 U.S. 164, 177–178 

(Edwards), the high court held the “Constitution permits judges 

to take realistic account of the particular defendant’s mental 

capacities by asking whether a defendant who seeks to conduct 

his own defense at trial is mentally competent to do so. That is to 

say, the Constitution permits States to insist upon representation 

by counsel for those competent enough to stand trial under Dusky

[v. United States (1960) 362 U.S. 402] but who still suffer from 

severe mental illness to the point where they are not competent 

to conduct trial proceedings by themselves.” 

Subsequently, in People v. Johnson (2012) 53 Cal.4th 519, 

528 (Johnson), our Supreme Court held that “trial courts may 

deny self-representation in those cases where Edwards permits 

such denial.” 
11

Johnson instructs that the standard trial courts should 

employ when considering whether to deny or revoke selfrepresentation “is simply whether the defendant suffers from a 

severe mental illness to the point where he or she cannot carry 

out the basic tasks needed to present the defense without the 

help of counsel.” (Johnson, supra, 53 Cal.4th at p. 530.) In 

resolving this question, trial courts may, but are not required to, 

“order a psychological or psychiatric examination to inquire into 

that question.” (Ibid.) Johnson advised trial courts to be 

cautious about denying self-representation without the benefit of 

an expert evaluation, but explained that a judge’s “ ‘own 

observations of the defendant’s in-court behavior will also provide 

key support for an incompetence finding and should be expressly 

placed on the record.’ ” (Id. at pp. 530–531.) 

In this regard, substantial deference is appropriately 

shown to a trial judge’s decision to revoke a defendant’s in 

propria persona status especially “when, as here, the same judge 

has observed the defendant on numerous occasions.” (Johnson, 

supra, 53 Cal.4th at p. 531.) A trial judge “ ‘will often prove best 

able to make more fine-tuned mental capacity decisions, tailored 

to the individualized circumstances of a particular defendant.’ ” 

(Id. at p. 532, quoting Edwards, supra, 554 U.S. at p. 177.)

Here, the court had observed defendant’s behavior at 

numerous hearings and repeatedly expressed concern about his 

incoherent statements, rapid speech, disorganized thoughts, 

bizarre behavior (such as wearing peculiar clothing, singing as he 

arrived in court and again as he left court)—concerns supported 

by our review of the record. While the court did not appoint an 

expert to render an opinion specifically on defendant’s ability to 

represent himself, the court nonetheless waited for the report 
12

from Dr. Chen before making the decision to resume criminal 

proceedings and revoke defendant’s in propria persona status 

before trial began. 

We do not believe the trial court was dismissive of 

defendant’s Sixth Amendment right to represent himself. 

Rather, given the court’s stated concerns about defendant’s 

mental status, the court’s decision to revoke was in accord with 

the concerns expressed in Edwards: “[A] right of selfrepresentation at trial will not ‘affirm the dignity’ of a defendant 

who lacks the mental capacity to conduct his defense without the 

assistance of counsel. [Citation.] To the contrary, given that 

defendant’s uncertain mental state, the spectacle that could well 

result from his self-representation at trial is at least as likely to 

prove humiliating as ennobling. Moreover, insofar as a 

defendant’s lack of capacity threatens an improper conviction or 

sentence, self-representation in that exceptional context 

undercuts the most basic of the Constitution’s criminal law 

objectives, providing a fair trial.” (Edwards, supra, 554 U.S. at 

pp. 176–177.)

DISPOSITION

The judgment of conviction is affirmed. 

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

STRATTON, J.