IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
February 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
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 pro per coordinator explained what assistance had been given to defendant.
On the second day of trial, Thursday, March 5, 2009, before jury selection, defendant asked for counsel, stating that although he had had concerns about the competence of Jon Lippsmeyer, his last attorney, Mr. Lippsmeyer was familiar with the case and there was no reason he "wouldn't be able to go forward Monday. Mr. Lippsmeyer had this case for more than two years." Defendant later reiterated his view that "Monday is still an option of us being able to go forward with Mr. Lippsmeyer."
The prosecutor opposed the motion, stating in part that defendant had been thoroughly warned by Judge White about the dangers of self-representation, and in the face of such warnings, defendant "flat out said I am ready to go pro per and that was in January. [¶] We are now in March[, 2009] and this is a 2005 case. It's one count. And it is the People's position [defendant] is simply just trying to drag this process out. And now that he's out of custody, this is one more thing that he wants to essentially use to stay out of custody and keep this case going. [¶] We are ready to go to trial. We do have a right to trial." She also stated that defendant had made "numerous" Marsden motions and "[h]e knows what's going on. And this is a stall tactic and we're ready to go."
Defendant contended he had only recently been released and had not had time to prepare, he was not familiar with the new CALCRIM jury instructions, and he lacked trial skills he would need to oppose the prosecutor and insure the laws were properly upheld. Defendant conceded he had represented himself in two criminal cases before.
In denying defendant's motion, the trial court summarized the history of this case, including defendant's filing of numerous unsuccessful Marsden motions, defendant repeatedly retaining counsel and then receiving appointed counsel, the fact that many different attorneys had represented defendant before he exercised his Faretta rights, the fact that all of the continuances in the case had been at defendant's request, "[a]nd every single one was because you had some problem with another lawyer," and the fact that defendant had represented himself in two criminal cases before.
The trial court concluded granting the motion would cause "substantial and very prejudicial" "disruption or delay" to the People, and "[i]t seems to me that you have step-by-step for three and a half years been trying to manipulate the legal system to your advantage by getting lawyers kicked off your case and new lawyers brought in. [¶] . . . And it seems to me you are trying to stall the legal process."
After trial, but before sentencing, the trial court placed on the record the fact that, before denying defendant's reverse-Faretta motion, the court checked to see if Mr. Lippsmeyer would be available, but learned he had been in a "significant three strikes case next door," in which his client was a prisoner accused of assaulting a guard. "So even if I had wanted to appoint Mr. Lippsmeyer at the time, I could not do that because he was involved in that trial. So . . . that would not have been an option for us at any time."
On appeal, defendant contends the trial court abused its discretion by denying his reverse-Faretta motion.
The California Supreme Court, in People v. Lawrence (2009) 46 Cal.4th 186, recently discussed the factors to consider in reviewing a trial court's ruling on a reverse-Faretta motion as follows:
"In People v. Windham (1977) 19 Cal.3d 121, 128, we explained that while a timely, unequivocal Faretta motion invoked the non-discretionary right to self-representation, a midtrial motion was 'addressed to the sound discretion of the court.' In People v. Elliott (1977) 70 Cal.App.3d 984 (Elliott), the Court of Appeal concluded the same was true of a midtrial request to revoke in propria persona status and have counsel appointed. (Id. at p. 993.) Adapting the nonexclusive list of factors to consider mentioned in Windham, the Elliott court opined that a trial court should consider, along with any other relevant circumstances, '(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.' (Elliott, at pp. 993-994.)
"This court cited Elliott's discretion framework favorably in People v. Gallego [(1990)] 52 Cal.3d  at pages 163-164, adding, however, that ultimately the trial court's discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors. Quoting People v. Smith (1980) 109 Cal.App.3d 476, 484, we explained: '"While the consideration of these criteria [listed in Elliott] is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial."' (Gallego, at p. 164.) We found no abuse of discretion in the trial court's denial of the Faretta revocation request, in light of the defendant's history of counsel change requests, the advanced stage of trial (late in the guilt phase of a capital trial), and the trial court's inability to find an attorney who would take over at that stage without the need to declare a mistrial. [Citations.]" (People v. Lawrence, supra, 46 Cal.4th at pp. 191-192, original italics, fn. omitted.)
Defendant emphasizes that jury selection had not begun when he asked for counsel, and the prosecutor had not articulated any particular prejudice, such as "witness production" problems, and therefore the trial court abused its discretion.
In this case, the trial court made a thorough record of defendant's clever, sustained stalling process for three years in this, his single-count drug possession for sale case, by repeatedly bringing Marsden motions and repeatedly retaining counsel after being appointed counsel, causing the case to be delayed repeatedly for no objectively supportable reasons, as each of nine attorneys assumed and then relinquished the case. Eventually, over a month before trial began, defendant exercised his Faretta rights, and there is no contention on appeal that he was misadvised about the dangers of self-representation, after all, this was his third criminal case in which he represented himself. Yet, virtually all of defendant's stated reasons for terminating his self-representation related to factors he had been warned about when he made his Faretta motion, such as his lack of trial skills and claimed inability to prepare for trial. His reverse-Faretta motion followed closely on the trial court's denial of his motion for a continuance, further supporting the trial court's view that it was another effort to delay justice.
Further, the trial court ascertained that Mr. Lippsmeyer, the attorney most knowledgeable about the case, and the one suggested by defendant, was not available, because he was in the middle of a serious felony trial in another courtroom. In his reply brief defendant states "[t]he court made no inquiry about whether Mr. Lippsmeyer would need a continuance. There is no record that Mr. Lippsmeyer was contacted about whether he would need any continuance." Even if Mr. Lippsmeyer was not personally asked if he would need a continuance, the fact that he was in the middle of a serious felony trial showed that he was not able to begin defendant's trial without a continuance.
On this record, the trial court's explicit finding that defendant was trying to delay justice in this case is well-supported.
That jury selection had not yet begun does not mean, as defendant suggests, that this case is not subject to the Lawrence factors because it was not a "midtrial" motion. It is true that in a jury trial, the trial is deemed to begin for some purposes when the jury or prospective jury is sworn. (See Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780 [for statutory speedy trial purposes, trial begins when the trial court has "committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn"]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 117, p. 462 [attachment of jeopardy begins when jury is selected and sworn].) But those rules do not change the common understanding of the commencement of trial, for purposes of scheduling by trial court judges and attorneys. Indeed, a case cited by defendant on another ground refers to a point in that case where "[t]rial proceedings had already commenced although a jury had not yet been selected." (People v. Hill (1983) 148 Cal.App.3d 744, 759 (Hill).) In this case, the trial was scheduled to begin on March 3, over a month after defendant's Faretta motion had been granted, the People were ready for trial and presumably had their witnesses ready, and the jury commissioner evidently had summoned prospective jurors. Although the stage of the proceeding is relevant, we see no reason not to apply the Lawrence factors, whether or not the reverse-Faretta motion is deemed a "midtrial" motion or a "day of trial" motion or an "eve of trial" motion. However characterized, the motion was untimely and was brought for the purpose of delay. (Cf. People v. Fulton (1979) 92 Cal.App.3d 972, 976 [trial court has discretion to deny "eve of trial" Faretta motion]; People v. Morgan (1980) 101 Cal.App.3d 523, 531 [Faretta motion "was clearly not timely, since it was being made at a time when the jury was to be selected"].)
Defendant states this case is "strikingly similar" to two cases cited in Lawrence. We do not agree.
In one case, Elliott, supra, 70 Cal.App.3d 984, there is no indication of an effort to stymie the judicial system, as in the instant case. In Elliott, after jury selection but before opening statements, the information was amended to allege two prior felony convictions, and the prosecutor announced he would seek to use uncharged conduct evidence. The court reserved making a ruling on the latter issue, and the trial adjourned. (Id. at pp. 991-992, 994.) The next day, Elliott moved for appointment of counsel, and his prior attorney stated he wanted a mistrial so he could help select a new jury, and represented that he would be available in 10 days, but the trial court denied Elliott's motion. (Id. at pp. 994-995.)
Elliott in part stated: "The prosecutor's proposal to call witnesses to establish that defendant had committed an uncharged similar offense introduced into the case a new factor which had not been considered by the defendant. When the deputy public defender, who was familiar with the case and was prepared to try it initially, indicated that he would want a 10-day continuance, no objection was stated by the prosecutor in terms of problems in the production of witnesses or with respect to any other matter that might prove prejudicial to the prosecution. [¶] From the trial court's statements, it is obvious that the trial judge only would consider granting defendant's request if the deputy public defender was prepared to proceed at once, and with the jury that had been selected to try the case. It also is apparent that the trial court failed to consider the matter of the likelihood of defendant being effective in defending against the charges in light of the new factor which the prosecutor had mentioned -- of offering evidence that defendant had committed an offense other than the two for which he was being tried." (Elliott, supra, 70 Cal.App.3d at pp. 995-996.)
On those facts, Elliott held: "We conclude that the record in the case at bench demonstrates an abuse of discretion on the part of the trial court in refusing to grant defendant's request for a change from a constitutional right of self-representation to that of counsel-representation. The reason given by defendant for his request was a valid one. The request came at an early stage of the trial, as contrasted with the late stage in the Windham situation. The trial was not a lengthy one. No showing was made that the 10-day delay in trial requested by the deputy public defender would cause a disruption in the calendar of the court or that it would be unfair to the prosecution or contrary to the interest of justice." (Elliott, supra, 70 Cal.App.3d at pp. at pp. 997-998.)
Here, the finding that the motion was made for purposes of delay shows that it would have been contrary to the interest of justice to grant the motion. (See People v. Ngaue (1991) 229 Cal.App.3d 1115, 1126 ["clearly, a finding that the request was made for an improper purpose such as delay would militate against granting the request"].) Further, key points mentioned in Elliott were that the charges had been amended and a new category of evidence was in the offing, but those factors are not present in this case. Therefore, Elliott is not "strikingly similar" to this case, as defendant asserts.
In Hill, supra, 148 Cal.App.3d 744, the second case heavily relied on by defendant, there was a concatenation of errors surrounding Hill's right to counsel. The appellate court found the trial court mishandled Hill's Marsden motion, which induced Hill to make a Faretta motion, and the trial court then failed to grant Hill an adequate continuance. (Hill, supra, at pp. 753-758.) After those errors, the trial court reinstated counsel and granted a five-day continuance, then Hill made another Faretta motion, stating he did not think trial counsel had had enough time to prepare. (Hill, supra, at p. 751.) The trial court granted the motion on the condition that there be no continuance, kept counsel on as advisory counsel, and later denied defendant's motion to reinstate counsel, who had "indicated he had reservations about proceeding immediately to jury selection." (Id. at pp. 751, 752, 758.) "On the basis of [advisory counsel's] unwillingness to proceed immediately with jury selection and [Hill's] previous vacillations on the questions of representation, the court denied" the reverse-Faretta motion. (Id. at p. 752.)
Hill considered factors from Elliott, supra, 70 Cal.App.3d 984 and other cases, and concluded Hill's "vacillations" regarding counsel were attributable to judicial errors, not his effort to manipulate the system, the trial court had not asked advisory counsel how long he needed to quell his reservations about starting jury selection immediately, and there was no showing that a continuance would be disruptive. (Hill, supra, 148 Cal.App.3d at p. 761.) "In light of the previous errors pertaining to [Hill's] pro. per. representation, the numerous Elliott/Cruz factors supporting reinstatement of counsel and the court's improper reliance on [advisory counsel's] desire for a continuance, we conclude the court abused its discretion in denying reinstatement of counsel." (Hill, supra, at p. 761.)
Unlike in Hill, in this case the "vacillations" regarding counsel are directly attributable to defendant, and caused a three-year delay in the case. Also, the trial court determined that Mr. Lippsmeyer was unavailable, because he was in the middle of a serious felony trial. Further, the prosecutor represented without dispute that defendant had stated "flat out" that he would be ready when he was granted self-represented status more than a month before trial, and she insisted on the People's right to bring the case to trial. We do not find Hill "strikingly similar," as defendant suggests.
We conclude the trial court considered the appropriate factors and acted well within its discretion in denying defendant's reverse-Faretta motion.
Trial in Absentia
Defendant contends the trial court should not have conducted the trial in absentia without appointing counsel to represent him. We disagree.
Defendant participated in jury selection in the morning on March 5, 2009, after his reverse-Faretta motion was denied, but he did not appear in court that afternoon, or at any other time before the trial ended.
The trial court found defendant willfully absented himself from trial, and proceeded in his absence.
Defendant fails to discuss a pertinent statute. Penal Code section 1043, subdivision (b), relied on by the trial court, provides in part: "The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] . . . [¶] (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent."
This statute "was designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself. A crucial question must always be, 'Why is the defendant absent?' . . . It is the totality of the record that must be reviewed in determining whether the absence was voluntary." (People v. Connolly (1973) 36 Cal.App.3d 379, 384-385.)
The trial court here found, factually, that defendant was voluntarily absent within the meaning of this statute, and that factual finding is not challenged on appeal. Instead, defendant asserts it was unfair to complete the trial without appointing counsel to represent his interests.
Defendant relies on cases where trial courts removed obstreperous self-represented defendants from the courtroom. (See People v. Soukomlane (2008) 162 Cal.App.4th 214, 233-235; People v. El (2002) 102 Cal.App.4th 1047, 1050; People v. Carroll (1983) 140 Cal.App.3d 135, 141-142.) These cases are distinguishable because in this case, defendant chose to leave the trial. Precedent holds that once a trial court finds a defendant has voluntarily absented himself from trial, the court is free to continue with the trial. (People v. Concepcion (2008) 45 Cal.4th 77, 83; People v. Gutierrez (2003) 29 Cal.4th 1196, 1206-1209.)
Defendant's self-represented status does not change this rule. (People v. Parento (1991) 235 Cal.App.3d 1378, 1381-1382 ["a defendant who has exercised his right of self-representation by absenting himself from the proceedings, may not later claim error resulting from that exercise"].) When defendant made his Faretta motion he chose to defend himself. After jury selection began, defendant chose to leave the courtroom, flee, and not defend himself. As former Presiding Justice Robert K. Puglia stated in a Faretta case, "Respect for the dignity and autonomy of the individual is a value universally celebrated in free societies and uniformly repressed in totalitarian and authoritarian societies. Out of fidelity to that value defendant's choice must be honored even if he opts foolishly to go to hell in a handbasket. At least, if the worst happens, he can descend to the netherworld with his head held high. It's called, 'Doing It My Way.'" (People v. Nauton (1994) 29 Cal.App.4th 976, 981.)
Defendant's way, in effect, was to default by walking out of the trial. Defendant cannot now fault the trial court for honoring his voluntary choices about self-representation.
The trial court awarded defendant 409 days of actual presentence custody credit and 204 days of presentence conduct credit, for a total of 613 days of credit.
Pursuant to this court's miscellaneous order No. 2010-002, we deem defendant to raise whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [similar].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2), (c)(2).)
Further, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.; see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Stats. 2010, ch. 426, § 1; Pen. Code, § 2933, subds. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the prior formula when the defendant served an odd number of days in presentence custody. We conclude this new formula also applies retroactively.
Defendant, having served 409 days of actual custody, is entitled to 409 days of conduct credit under the new formula. We modify the judgment to award defendant 409 days of conduct credits, in addition to his 409 days of actual presentence credits. (Pen. Code, § 1260.)
The judgment is affirmed as modified in connection with custody credits by this opinion. The trial court is directed to prepare and forward to the Department of Corrections and
Rehabilitation a new abstract of judgment, reflecting the modification we have made.
NICHOLSON , Acting P. J.
BUTZ , J.
MAURO , J.
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