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People v. Becerra

Supreme Court of California

June 27, 2016

THE PEOPLE, Plaintiff and Respondent
v.
FRANK KALIL BECERRA, Defendant and Appellant.

Superior Court Los Angeles County No. BA 106878, J. D. Smith Judge

          Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Alison Bernstein, Deputy State Public Defender, for Defendant and Appellant.

          Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

          Corrigan, J.

         Defendant Frank Kalil Becerra was convicted by jury of the first degree murders of James Harding and Herman Jackson, [1] with the special circumstance of multiple murders.[2] He was also convicted of first degree burglary with use of a knife[3] and assault causing great bodily injury on George McPherson.[4] The jury returned a verdict of death, which the court imposed, [5] along with seven years in prison for the first degree burglary and enhancement. The assault sentence was stayed.[6]

         In this automatic appeal, defendant contends the trial court erroneously terminated his right to self-representation in violation of the Sixth and Fourteenth Amendments to the federal Constitution. (See Faretta v. California (1975) 422 U.S. 806, 807, 835 (Faretta).) We agree. The court’s rationale, that defendant had been “dilatory” and had been “stalling, ” is not supported by the record. Faretta and its progeny require reversal of the judgment in its entirety.

         I. BACKGROUND

         On December 28, 1994, Harding and Jackson were found bound to each other and strangled to death with electrical cords in Harding’s room at the Pacific Grand Hotel, a residential hotel in downtown Los Angeles where drugs were routinely bought and sold. Defendant, an admitted drug dealer and gang member, had repeatedly threatened to kill Harding in a dispute over a bag of missing cocaine. A few days before the murders, defendant forced his way into McPherson’s room and held a knife to McPherson’s neck while demanding to know where his “stuff” was. Because resolution of defendant’s appeal turns exclusively on his Faretta claim, we focus solely on facts germane to that contention.

         In April 1995, before his preliminary hearing, defendant moved unsuccessfully to replace his public defender, Gregory Fisher. In May, still awaiting his preliminary hearing, defendant asked to represent himself, adding that he was acting as his own counsel in another, unrelated criminal case. The court granted his Faretta request. It directed the public defender to turn over his records, approved funds for an investigator[7] and supplies, and set a June date for defendant’s discovery motion. Fisher informed the court he had already given defendant copies of all reports except the victims’ rap sheets and would turn over any additional discovery.

         At the June discovery hearing, defendant requested a postponement, claiming he had not yet received a complete copy of the prosecution’s murder book[8] from his investigator. The court concluded defendant could proceed with an additional 73 discovery requests. On the record but outside the court’s presence, the prosecutor and defendant discussed each request. In most instances, the prosecutor explained the items were either contained in the murder book, had been given to defendant’s previous counsel, or did not exist. As to many requests, the prosecutor told defendant just where the information could be found in the murder book. With consent of the parties, the court continued the matter to July to set a preliminary hearing.

         In July, the prosecutor declared he was “available any day” for the preliminary hearing. Defendant, however, requested additional discovery, claiming an inventory of the material he had been given revealed “a lot” of items were missing, as detailed in his compliance motion. The prosecutor responded he had turned over “a complete and true copy of the murder book” to defendant’s previous counsel. He did not otherwise speak to the contention that “a lot” of defendant’s requested discovery items had not been turned over. The court directed defendant’s investigator to ascertain “all the matters” that defendant was seeking, meet with the prosecutor to secure them, and then deliver them to defendant. If problems arose, they were to notify the clerk so the court could intervene. The court also directed the parties to cooperate so the preliminary hearing could be set in August.

         At the August hearing, the prosecutor reported that he and defendant’s investigator had gone through the murder book “page by page by page, literally through the entire murder book. [¶] There were some documents Mr. Jensen did not have that I copied and gave to him. He gave me the further request for discovery; one being request for receipt by fax [of] rap sheets for approximately 25 witnesses.” (Italics added.) The process of checking those records had not been completed. “Other than that, I believe that all the discovery Mr. Jensen asked of me has been provided” except for the audio tapes, which were in the process of being reproduced. The prosecutor said he would notify Jensen in three or four days when the tapes were ready. After addressing several subpoena issues with the court, defendant identified additional discovery items he claimed were still missing. The prosecutor did not object to the requests, nor did the court rule that defendant was not entitled to the items mentioned. Instead, the court set an additional hearing date, explaining, “I want to make sure that you have all those things before we go ahead with the prelim. [¶] Approximately 30 days from today’s date? Will that be enough time, or do you need more time?” (Italics added.) Defendant responded, “Yeah, that is fine, ” and the parties agreed to meet on September 28 to set the preliminary hearing.

         At the September hearing, however, the court opened the proceedings by terminating defendant’s self-representation during the following exchange, without any record of prior warning or discussion:

         “The Court: I gave you pro per privileges a little over four months ago and you continued this case on at least six occasions. The Court finds that everything you’ve done is dilatory; that this case is never going to get off the ground; that the prelim will never occur; and that all you’re doing is stalling. ...


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