IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
April 5, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LARRY WALKER MCCASLIN, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCF78625)
The opinion of the court was delivered by: Mauro J.
P. v. McCaslin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After the police stopped defendant for an expired registration tag, they suspected he was under the influence of alcohol and called the California Highway Patrol (CHP) for a driving under the influence (DUI) turnover. Defendant took off in his car, knocking an officer down and injuring him. Defendant continued to flee after the CHP arrived and joined in the pursuit. A jury convicted defendant of assault with a deadly weapon on a peace officer, resisting an executive officer, driving under the influence of alcohol with a previous DUI conviction, driving with a blood alcohol level of .08 percent or more with a previous DUI conviction, and resisting a peace officer.
Defendant contends on appeal that the trial court erred in denying his motion for self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). He further contends there is insufficient evidence to support the conviction for resisting a peace officer.
We conclude the trial court did not abuse its discretion in denying defendant's request to represent himself where defendant made his request minutes before jury selection was to begin and the trial court determined defendant was not ready to represent himself and the untimely request would delay and disrupt the trial. We also conclude that the evidence was sufficient to support a conviction for resisting a peace officer where defendant fled a pursuing CHP vehicle with activated lights and siren, then continued to flee on foot. We will affirm the judgment.
Deputy Kyle Lovelady was on patrol one night when he saw a green Pontiac with an expired registration tab and made an enforcement stop. Deputy Danielle Harris was on duty in a separate car and also stopped. Defendant was driving the Pontiac, accompanied by his dog. Defendant had no license, but gave Lovelady his California identification card. Defendant was agitated and asked, "Why are you fucking with me?" Harris noticed defendant smelled of alcohol and had red, watery eyes. Suspecting defendant was under the influence, Lovelady had Harris call the CHP for a DUI turnover.*fn1
A white female was walking nearby and Harris made contact with her. Meanwhile, defendant kept trying to get out of his car, once leaving to chase down his dog. Lovelady told defendant to stay in the car. Finally, defendant said, "Fuck this," slammed his door shut, and started his car. Lovelady ran to the car, opened the driver's door, and grabbed defendant's arm to remove him from the car. Defendant stepped on the accelerator. Lovelady took a few steps forward with the car but he was losing his balance. He let go of defendant and fell to the ground, trying to get out of the way of the car. Lovelady hurt his left hand and left knee in the fall. He still had pain in his knee at the time of trial.
Harris asked Lovelady if he was okay and Lovelady told her to go after defendant. As Harris ran to her car, CHP Officers Ferguson and Keffer arrived and saw Harris pointing toward a cloud of dust. The car in that dust turned on Mariposa and was accelerating rapidly. The CHP officers activated the lights and siren and followed. When they turned on Mariposa, they saw defendant had stopped, left his car, and was running into a yard. The CHP stopped as defendant was about to climb a fence. Ferguson ordered defendant to stop and Keffer threatened to use a taser. Defendant stopped and was arrested.
At the jail defendant took a breath test. The test was administered three times and the results showed a blood alcohol level of .12 percent, .09 percent, and .10 percent.
A jury convicted defendant of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)), resisting an executive officer (Pen. Code, § 69), driving under the influence of alcohol with a previous DUI conviction (Veh. Code, §§ 23152, subd. (a), 23550, 23550.5), driving with a blood alcohol level of .08 percent or more with a previous DUI conviction (Veh. Code, §§ 23152, subd. (b), 23550, 23550.5), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant pled guilty to driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and admitted he had a strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
The trial court sentenced defendant to an aggregate term of 17 years and four months in prison.
Defendant contends the trial court erred in denying his request to represent himself. He contends the court erred by improperly basing its decision to deny the Faretta motion on the court's perception that defendant lacked the legal skill to represent himself adequately.
On the day set for trial, defendant made a motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant claimed his attorney lied, did not do anything on the case, and had a conflict because he had represented the officer. Defendant indicated that if he could not get another attorney, he was better off representing himself.
After defense counsel responded to and disputed defendant's complaints, the trial court questioned defendant about his knowledge of the applicable law and procedure. Among other things, defendant said he would select a jury by asking the first 12 people if they believed in the Lord Jesus Christ, and he would learn applicable rules of evidence by looking it up on a computer. He said he could not cite a rule of evidence yet because he had not been on the computer, but if he realized mid-trial he did not know how to handle the law, "that would be on me," and he would take full responsibility. Defendant asserted he was better off representing himself than having an attorney who thinks he is guilty. He understood he would be held to the same standard as an attorney and had to follow the court rulings, even if he did not understand them.
The trial court denied defendant's Marsden motion, noting that his trial counsel had handled many jury trials and finding that the quality of defendant's representation by counsel was adequate.
Regarding defendant's Faretta request to represent himself, the trial court stated the request must be timely, and making a request two minutes before jury selection was not timely. The court asked counsel if there was any authority to allow a defendant to represent himself when the request was made two minutes before trial. The trial court considered defendant's proclivity to make motions to substitute counsel, and also determined that allowing defendant to represent himself would cause disruption and delay. In addition, the court found defendant had an inability to prepare for trial in a timely fashion and there would be no benefit in a delay because defendant had not shown the ability to become ready. The motion for self-representation, "which is about as untimely as a motion can get," was denied.
Under the Sixth Amendment to the United States Constitution, a criminal defendant has a right to represent himself at trial. (Faretta, supra, 422 U.S. at p. 819 [45 L.Ed.2d at pp. 572-573]; People v. Marshall (1997) 15 Cal.4th 1, 20.) "A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729.) Under the reasonable time requirement, "a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request." (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5.)
A Faretta motion made on the eve of trial is untimely. (People v. Frierson (1991) 53 Cal.3d 730, 742.) In People v. Valdez (2004) 32 Cal.4th 73, the request was made moments before jury selection. The court found it was untimely. (Id. at pp. 102-103.) Defendant concedes his Faretta motion, made just before jury selection was to begin, was not timely.
"When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion." (People v. Bradford (1997) 15 Cal.4th 1229, 1365.) In exercising such discretion, the court should consider "the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Windham, supra, 19 Cal.3d at pp. 127-128.)
Here the trial court properly considered these factors. The court considered that trial counsel's representation of defendant was more than adequate and defendant had shown a proclivity to substitute counsel. Although defendant had not requested a continuance, the trial court found there would be delay or disruption if the Faretta motion was granted. The court based this conclusion on defendant's lack of preparation and ability to try his case. For example, defendant believed he could find the necessary law on the computer, but he had not done so yet. Regarding jury selection, defendant intended to ask the first 12 jurors about their belief in Jesus Christ. The trial court concluded defendant's lack of readiness would delay and disrupt the trial.
Under the circumstances, the trial court did not abuse its discretion in denying defendant's untimely Faretta motion.
II Defendant also contends there was insufficient evidence to support his conviction for resisting a peace officer. Count VI charged defendant with a violation of Penal Code section 148, alleging defendant "did willfully and unlawfully resist, delay and obstruct Officer Ferguson" when the officer was engaged in the performance of his duties. Defendant contends there was no evidence he resisted the efforts of CHP Officer Ferguson to arrest him. Defendant asserts he had left, or at least was a "cloud of dust," when Officer Ferguson arrived at the scene, and that when Ferguson caught up to defendant and commanded him to stop, defendant complied with the order.
When a criminal conviction is challenged on the basis of insufficient evidence, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
"The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citation.]" (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) Fleeing an officer who is attempting to lawfully detain defendant violates Penal Code section 148. (People v. Allen (1980) 109 Cal.App.3d 981, 985-986.)
Defendant was already fleeing the police when the CHP arrived. The deputy sheriffs did not immediately follow, but Officer Ferguson activated the lights and siren on the CHP vehicle and pursued defendant down Mariposa. Rather than stop in response to this pursuit, defendant continued to flee. He left his car, ran to a yard, and began to climb a fence. These actions provide sufficient evidence of a violation of Penal Code section 148. (People v. Allen, supra, 109 Cal.App.3d at pp. 985-986.)
The judgment is affirmed.
We concur: BLEASE Acting P. J. NICHOLSON J.