APPEAL from a judgment of the Superior Court of San Joaquin County, Bernard J. Garber and Richard Vlavianos, Judges. Affirmed as modified. (Super. Ct. No. SF105311A).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Joseph Weber of unlawful possession of a gun and of ammunition. (Pen. Code, §§ 12021, subd. (c)(1), 12316, subd. (b)(1).) The jury acquitted him of violating a court order and making criminal threats. (Pen. Code, §§ 273.6, 422.) The trial court sentenced defendant to prison for three years, and defendant timely filed his notice of appeal.
On appeal, defendant principally contends the trial court failed to conduct an adequate Faretta*fn1 inquiry, to ensure that defendant was competent to waive the assistance of counsel, actually wanted to waive counsel, and knowingly and voluntarily waived counsel. The record shows that the trial court attempted to provide standard Faretta admonitions on the record, but defendant repeatedly interrupted with frivolous objections to the proceedings, as he did throughout the case. We conclude defendant was trying to inject reversible error into the case by insisting on his right to proceed without counsel, but thwarting the trial court's ability to complete standard Faretta admonitions. Further, the trial court did ascertain on the record that defendant understood he would be held to the same standards as an attorney, that the trial court would not assist him in representing himself, and that another trial judge had recently allowed defendant to represent himself in a criminal case. In these circumstances, we shall conclude the record supports the trial court's finding that defendant knowingly and voluntarily chose to waive counsel.
Defendant also contends that the trial court improperly failed to appoint counsel to represent him at the sentencing hearing, and improperly imposed the upper term. We shall conclude that these contentions, too, lack merit.
Finally, we shall conclude that defendant is entitled to additional custody credits. We shall modify the judgment to award those additional credits, and otherwise affirm.
Daniel Smith testified he married defendant's former wife, and on August 6, 2006, he obtained a restraining order against defendant. Despite this order, defendant repeatedly drove behind Smith's car and repeatedly parked near Smith's workplace, where defendant made rude and threatening gestures, and at one point, while gesturing to an emblem on his back as he sat astride a motorcycle, defendant told Smith, "'We're going to kick your fucking ass.'"
Documents showed defendant was convicted of spousal battery (Pen. Code, § 243, subd. (e)) on July 5, 2000. This conviction prohibited him from possessing firearms or ammunition for 10 years. (Pen. Code, §§ 12021, subd. (c)(1), 12316, subd. (b)(1).) The jury was so instructed.*fn2
Defendant's former wife in part testified that defendant had previously held a knife to her throat.
San Joaquin County Deputy Sheriff Edward Casseday testified that on May 10, 2007, he arrested defendant inside defendant's Stockton house. Deputy Casseday saw a "very old looking revolver" on a table or bookcase in the bedroom and he seized it. Deputy Nelida Stone testified that she and Deputy Matuska searched defendant and found a live round of ammunition in his pants pocket. When Deputy Casseday was recalled, defendant objected to the flag in the courtroom. Deputy Casseday then testified the round was a 7.63 millimeter Mauser round, and it could not be fired from the revolver he had seized. Although Deputy Casseday testified there was also a "live round" in the revolver, the unlawful ammunition count was based on the round discovered in defendant's pocket.
Deputy Carlos Prieto testified that he is the range master and armorer for the San Joaquin County Sheriff's Department, and he has previously testified as a firearms expert. He testified the revolver was a replica of a Western-style cap and ball revolver, and although it had some rust on the finish, it was capable of firing ammunition.
After the People rested, defendant called Betty Ellen Perkins, his mother, and asked her questions designed to show that Smith had lied about defendant's purported violation of court orders and threats due to a custody battle involving defendant's son. She testified the revolver had belonged to defendant's father and when she had last seen it, it was "a rusted old piece of junk." She also testified defendant had served in the U.S. Marine Corps. She identified cigar cutters that had been fashioned from bullets, presumably by defendant, who described such activity in his opening statement.
In the middle of his mother's testimony, after she was prevented from giving her opinion about the significance of the flag, defendant clarified that it was the yellow fringe on the flag that he objected to, because in his view such flags are inappropriate except in military courtrooms. The trial court (Garber, J.) replied, "Well, you were in the Marines, and I was in the Army," and that the yellow fringe on the bottom of the flag probably reflected nothing more than the county had bought the cheapest possible flags.
Defendant called Richard Gallegos, who testified there were no charges pending against defendant as a flesh and blood human being, and when the trial court cut off irrelevant questioning, defendant accused the judge of being biased. Eventually, Gallegos testified he had served as an armorer while in the military in Vietnam, and in his opinion the revolver could not be determined to be a firearm unless it was fired, and he did not think the revolver was the same "firearm" he had seen in defendant's house: "It's very similar to the one that I saw [but] the one that I saw was in [worse] condition than this by far." The gun he saw in defendant's house was not operable because the hammer could not be pulled back and the cylinder would not rotate, but those defects were not present on the revolver he examined in court.
Another defense witness testified defendant had asked him to make cigar cutters out of firearm rounds. The prosecutor elicited that this witness was a "Nomad," a branch of the Hell's Angels.
Defendant testified in a narrative fashion. He admitted the object identified as a revolver was found in his house and the ammunition was in his pocket. He testified the gun was "a memento" but he did not believe it was a firearm because it was not operable. He admitted his former wife, that is, Smith's current wife, was the victim in his prior battery case. He knew he was not supposed to possess a firearm or ammunition.
The jury convicted defendant of unlawful possession of a firearm and ammunition, but acquitted him of charges that he threatened Smith and violated a court order.
Defendant contends the record does not show he knowingly and voluntarily waived counsel. Defendant contends he was not competent to waive counsel, he never actually wanted to waive counsel, and the trial court did not conduct an adequate inquiry to ensure he knew the risks of self-representation. We shall disagree with these contentions.
The complaint was filed on July 30, 2007. Defendant was represented by attorney Douglas Srulowitz through the March 11, 2008, arraignment on the information.
On April 28, 2008, Srulowitz asked to be relieved, and the public defender was appointed to represent defendant. When the trial court (Garber, J.) said that he did not understand defendant's paperwork, defendant replied: "Well, then, sir, I would suggest you get a competent attorney to discuss it with you." After more discussion, the trial court declared a doubt about defendant's competency, (Pen. Code, § 1368) appointed the public defender to represent him, and appointed two psychiatrists to evaluate him.
Both psychiatrists reported that defendant was malingering.
Dr. Gary Cavanaugh's report states defendant "was alert and partially cooperative but intense, very contentious, suspicious, and bombastic. He was evasive at times[.]" Defendant was of normal intelligence, but "he appeared focused on patriots and his constitutional rights" and there was some evidence of "paranoid ideation." "Mr. Weber's intent appears to be to thwart and prevent his prosecution" by using techniques "filed by or championed by organizations that challenge the legitimacy of the court or the United States government." Defendant had a personality disorder, with "Defiant, Narcissistic, and Paranoid Traits[,]" but was "aware of the charges, knows the roles of the legal protagonists, understands that he is involved in an adversarial process, and knows possible outcomes."
Dr. Robert Hart's report states defendant was "cautious, articulate, and exceptionally legalistic." Defendant's intelligence was normal and his "specious, quasi-legal arguments" reflected "intellectual hubris as opposed to mental illness." Defendant probably had a narcissistic personality disorder, but he was "able to know and understand the charges against him and could assist counsel in presenting a rational defense, if he chose to do so[.]"
On June 12, 2008, the attorneys submitted the matter, and Judge Vlavianos found defendant was competent.
By letter dated July 3, 2008, the public defender advised defendant of an upcoming court date. Defendant wrote a rambling and paranoid letter in reply. In part the letter challenged the public defender's right to communicate with defendant and threatened to have any attorneys who tried to represent him arrested unless they presented their "bar card/certificate of admission and their attorneys [sic] license with their oath endorsed on the back[.]"
On July 16, 2008, defendant again appeared before Judge Vlavianos. The public defender stated defendant did not want "public defender representation." When Judge Vlavianos noted that Judge Agbayani had found defendant competent to "represent" himself in a separate case, defendant interjected, "I'm going to defend myself. To represent myself is the wrong term to use."
Although Judge Vlavianos explained that he had to make a record to support a finding that defendant was competent to represent himself, defendant refused to fill out a Faretta waiver form, refused to answer questions about his competency to waive counsel, objected to the flag on display in the courtroom, and moved to dismiss the case "on the basis of a speedy trial." Judge Vlavianos told defendant he had to file a written dismissal motion, relieved the public defender, stated that because defendant had been found competent to waive counsel in the other case, he could do so in this case, and asked defendant to look at the Faretta waiver form.
After a break, defendant asked: "Your Honor, is the Court trying to force me to waive my rights to privacy and the right to defend myself against my will and over my objections?" When Judge Vlavianos began to explain, defendant interrupted as follows: "THE COURT: You have the - you have your constitutional right to -- [¶] THE DEFENDANT: That's not what I asked you, sir. I asked you if you are trying to force me to give up those rights."
Possibly in response to a question on the Faretta form, defendant said he could not be held to the standards of an attorney.*fn3 Judge Vlavianos replied: "You are held to exactly the same standard as an attorney and you will get no breaks and no special treatment because you're representing yourself. You will be held to exactly the same standard as an attorney, which means if you want to file a motion you have to notice the other side, you have to do it in the appropriate amount of time, you have to try it with points and authorities, and you have to give the legal basis for it."
When Judge Vlavianos asked if defendant understood, defendant said:
"Well, I got documentation that shows the Court to notice that I'm not supposed to but that's what you say. Yeah, I can handle it.
[¶] THE COURT: What is it that you see the role of a pro per defending himself?
[¶] THE DEFENDANT: I'm going to defend myself." Judge Vlavianos repeatedly asked what defendant's role would be at trial, and defendant repeatedly replied with variations on "I have the proper documentation and everything I need to defend myself, and that's all I have to say."
When Judge Vlavianos asked how defendant would get witnesses, defendant said that if he needed them, "I'll bring them in. That's all I have to say.
THE COURT: How would you get the witnesses into court?
[¶] THE DEFENDANT: Advice of counsel, I wish to remain silent.
[¶] THE COURT: I understand that. Do you have any idea how you would get the witnesses to come into court? [¶] . . . [¶]
THE DEFENDANT: My advice as counsel, I don't want to answer anymore questions, sir."
Eventually, after defendant again said he did not want to answer questions, the ...