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The People v. Patrick Perry

February 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PATRICK PERRY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 05F09540)

P. v. Perry CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sacramento)

----

A jury convicted defendant Patrick Perry of possession for sale of cocaine base, and found true allegations he had two prior felony narcotics convictions and had served three prior prison terms. (Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a); Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to prison for 13 years, and defendant timely appealed.

On appeal, defendant contends the trial court improperly denied his motion to terminate his self-represented status, a so-called "reverse-Faretta" motion (see Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)), and improperly conducted the trial in absentia, without appointing counsel for defendant.

The record shows defendant, who was found with drugs packaged for sale on his person, chose to fight the charges by manipulating the justice system. He was arraigned on October 31, 2005, with retained counsel, and by the time of a trial date on January 15, 2009, after multiple baseless Marsden motions (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)), he had been represented by no fewer than nine retained or appointed attorneys, before choosing to represent himself. On the second day of trial, March 5, 2009, albeit before jury selection began, defendant made his reverse-Faretta motion. The trial court denied the motion, finding defendant had delayed the case for over three years, and the current motion was in furtherance of his efforts to "stall the legal process." During jury selection, defendant did not return to court. The trial court found he voluntarily absented himself from trial, and the trial was completed in absentia.

The record supports the trial court's reason for denying the reverse-Faretta motion, and there was no basis for the trial court to suspend the trial or appoint counsel simply because defendant chose not to return to court. We modify defendant's custody credit award, and otherwise affirm.

FACTS AT TRIAL

Sacramento Police Officer Aurelio Villegas testified that on October 27, 2005, he was working with his partner, Officer John Harshbarger. He saw a white truck parked by a Weinerschnitzel restaurant with three men leaning toward the passenger side of the truck looking at something in someone's hands. As the officers approached, two men walked away, and the third, defendant, got into the truck. Defendant told the officers he had drugs, and the officers found a plastic bag near his waistband, containing just over 22 grams of rock cocaine. Defendant had $253 on his person, but no narcotic smoking paraphernalia. At the jail, defendant said he had more drugs on him, and in his pants pocket the officers found eight individually-wrapped rocks, weighing about two grams, of what seemed to be the same substance they had found in defendant's waistband.

Officer Harshbarger gave corroborating testimony about the drugs found on defendant's person. He also qualified as an expert on rock cocaine sales. He testified the average user dose was one-tenth or one-fifth of a gram, and a heavy user might use a gram per day, and opined that defendant possessed the drugs for sale.

A criminalist testified that the total amount of cocaine weighed nearly 24 grams.

The trial court took judicial notice that in 1994, defendant was twice convicted of possession of cocaine base for sale. The trial court also took judicial notice that "on March 5th, last Thursday when we broke during jury selection for lunch, I advised everyone -- all participants in the courtroom to return here to this courtroom, Department 15 at 1:30. And that the defendant did not appear at 1:30. And there has been no contact by the defendant with the Court."

After the jury convicted defendant, the bifurcated trial on the prior convictions was held. The People introduced certified copies of the two prior narcotics convictions, and defendant's prison records, reflecting his three prior prison terms. (See Pen. Code, § 969b.) The jury found those prior conviction allegations to be true.

DISCUSSION

I

Reverse-Faretta Motion

Defendant was arraigned on October 31, 2005. He was represented by at least nine different attorneys before trial. He made unsuccessful Marsden motions as to at least five attorneys. Sometimes he had appointed counsel, and at other times he retained counsel.

On January 16, 2009, Judge White granted defendant's Faretta motion.

On the first day of trial, Tuesday, March 3, 2009, defendant, who had posted bail the day before, moved for a continuance, claiming he was not prepared because he had been denied pro per resources while in custody. His motion was denied after an in camera hearing at which the ...


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