[REVIEW GRANTED BY CAL. SUPREME COURT]
Santa Clara County, Superior Court No. CC954850 Honorable Paul R. Bernal Judge.
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Attorney for Defendant and Appellant Zeferino Espinoza, Jr. E. Michael Linscheild under appointment by the Court of Appeal for Defendant and Appellant
Kamala D. Harris, Attorney General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Eric D. Share, Luke Fadem
and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.
This case concerns the constitutionality of a trial held without the presence of the defendant or defense counsel. Several attorneys from the public defender’s office had represented defendant Zeferino Espinoza Jr. in lengthy pretrial proceedings as he repeatedly moved for dismissal of counsel under Marsden. In the week before trial, the court denied several motions by defendant to dismiss counsel againthis time, under both Marsden and Faretta. The court also refused to grant a continuance, and the case went to trial. Then, in the middle of jury selection, the court granted defendant’s Faretta motion, denied his motion for a one-day continuance, and dismissed the public defender.
Defendant proceeded with the trial in pro per, but on the second day of the evidentiary phase, he failed to appear. After trying unsuccessfully to locate defendant, the court proceeded with the trial in defendant’s absence and without appointing defense counsel.
The jury found defendant guilty on six counts: Two counts of possession of a firearm by a felon; possession of morphine; possession of marijuana; possession of ammunition by a felon; and possession of diazepam without a prescription. The jury acquitted defendant on two counts: Making criminal threats, and attempting to dissuade a witness by use or threat of force. The trial court sentenced defendant to an aggregate term of two years eight months.
On appeal, defendant contends: (1) the trial court erred by trying him in abstentia without appointing counsel; (2) his conviction for possession of marijuana must be reduced to an infraction; (3) the trial court erred by sentencing him to one year in county jail for possession of marijuana; (4) the trial court erred in denying his motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess); and (5) the trial court erred by denying his motion for a one-day continuance.
We hold the trial court erred by proceeding with trial in the absence of defendant and defense counsel because defendant did not knowingly waive several fundamental trial rights. We hold that this error was structural, requiring automatic reversal. We further conclude the trial court erred in denying defendant’s motion for a one-day continuance after granting his
Faretta motion––a separate ground for reversal. Finally, we conclude defendant’s Pitchess claim is without merit. We will reverse the judgment of conviction.
I. Factual and Procedural Background
A. Facts of the Offenses
Defendant lived with his roommate, Augustine Gonzales, Jr., and one other person in a four-bedroom house in San José. On September 3, 2009, Gonzales arrived home to find defendant had changed the lock on the front door. The new lock was poorly installed, and Gonzales was able to enter the house. Gonzales found defendant in the kitchen, and the two began arguing angrily. When Gonzales threatened to call the police, defendant threatened to kill him. Undeterred, Gonzales called the police to complain. He told the dispatcher that defendant possessed a firearm. On the dispatcher’s instructions, Gonzales left the house while police were dispatched. Defendant followed him out of the house and continued to make threats.
At trial, several police officers testified that upon their arrival they found both defendant and Gonzales in the street outside the house. The police handcuffed defendant and requested consent to search his bedroom. Defendant consented to the search and told police which bedroom in the house was his. Defendant also alerted them to the presence of a shotgun and a handgun in the house. In searching defendant’s bedroom area, police found an unloaded 12-gauge shotgun in the closet, a loaded.25-caliber pistol under the mattress, a box of ammunition for a.38-caliber revolver, three containers of marijuana, and prescription medications including 11 morphine pills, 4 diazepam pills, and 28 lorazepam pills.
In a bifurcated portion of the trial, the prosecution presented evidence of defendant’s prior felony convictions for false personation (Pen. Code, § 529) and infliction of corporal injury resulting in a traumatic condition on a spouse or cohabitant (Pen. Code, § 273.5).
B Procedural Background
In December 2009, the prosecution charged defendant by information with eight counts: Count One-possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1), repealed and reenacted as Pen. Code, § 29800,
subd. (a)(1) [Stats. 2010, ch. 711, § 6); count two—possession of morphine (Health & Saf. Code, § 11350, subd. (a)); Count Three-criminal threats (Pen. Code, § 422); Count Fourpossession of marijuana (Health & Saf. Code, § 11357, subd. (b)); Count Five-possession of ammunition by a felon (Pen. Code, former § 12316, subd. (b)(1), repealed and reenacted as Pen. Code, § 30305, subd. (a)(1) [Stats. 2010, ch. 711, § 6]); Count Sixattempting to dissuade a witness by use or threat of force (Pen. Code, § 136.1, subd. (c)(1)); Count Sevenpossession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)); and Count Eight-possession of diazepam without a prescription (Health & Saf. Code, § 11375, subd. (b)(2)).
After numerous lengthy delays, jury selection began April 23, 2012. The evidentiary phase of the trial began the next day. The court bifurcated the trial to separate the evidence of defendant’s past felony convictions. In the first part of the trial, with respect to Counts One, Five, and Seven, the jury was told only that defendant was not allowed to possess firearms or ammunition. After the jury rendered its verdict on this basis, the prosecution introduced uncontested evidence of defendant’s past felonies in the second part of the trial. On April 30, the jury acquitted defendant on Counts Three and Six, but found him guilty on all other counts.
The trial court sentenced defendant to an aggregate term of two years eight months as follows: two years on Count One; eight months on Count Two, consecutive to the two-year term on Count One; two years each on Counts Five and Seven, concurrent with the two-year term on Count One; and 365 days in county jail on each of Counts Four and Eight, concurrent with the two-year term.
A. Trial in Abstentia
Defendant argues that, by proceeding in his absence and without appointing counsel, the trial court violated his constitutional rights to due process, to be present at trial, to present a defense, and to confront witnesses against him. The Attorney General contends defendant voluntarily absented himself for the purpose of delaying or obstructing proceedings and thereby waived his trial rights.
The pretrial proceedings lasted more than two years, during which defendant made several motions to relieve appointed counsel under Marsden. Seven different public defenders represented defendant in 65 appearances on his
behalf. The trial court found this to be a product of defendant’s delay tactics and “manipulations of the process.”
In March 2012, Mark Camperi from the public defender’s office represented defendant. Defendant moved under Marsden to relieve Camperi, but after a closed hearing, the court denied the motion. On April 17, 2012, six days before trial, defendant again moved to relieve Camperi, but this time under Faretta. Defendant requested, among other things, “a conflict of interest attorney to help me handle my case.” The court held another closed hearing and asked defendant when he would be ready for trial. Defendant requested a continuance of “a little bit more than three weeks or so just to see where I’m at.” The trial court denied the Faretta motion on the ground that defendant was not prepared to represent himself in a timely fashion. The court also found that “sometimes people use the Faretta as a tool to manipulate the court system, which appears to be happening. If you truly wanted to represent yourself you could have brought that motion any time in the last few years in this case and then you would have been ready for trial.”
Defendant then once again moved to relieve Camperi under Marsden. Defendant claimed Camperi had a conflict of interest, that Camperi had threatened him, that Camperi did not care about the case, that Camperi had failed to investigate certain witnesses, and that Camperi would not communicate with him. Camperi ...