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People v. Espinoza

Supreme Court of California

July 11, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
ZEFERINO ESPINOZA, JR., Defendant and Appellant.

         Santa Clara County Super. Ct. No. CC954850 Paul Bernal Judge.

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[Copyrighted Material Omitted]

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         COUNSEL

         Lawrence A. Gibbs, under appointment by the Supreme Court, and E. Michael Linscheild, under appointment by the Court of Appeal, for Defendant and Appellant.

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         Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Jeffrey M. Laurence, Acting Assistant Attorney General, Eric D. Share, Luke Fadem, Laurence K. Sullivan, René A. Chacón and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.

         OPINION

         CANTIL-SAKAUYE, C. J.

         The unusual circumstances of this case present a cautionary tale for defendants who choose to represent themselves, for in the end, this defendant has no one but himself to blame for any failure to present a defense.

         Defendant here waged a long campaign of manipulation and delay of his trial proceedings after being held to answer on a number of felony and misdemeanor charges. He was represented by seven different appointed counsel over the course of more than two years, largely due to how difficult a client he was. Over the same period, five different deputy district attorneys were assigned to handle the case. The case was set for trial numerous times, but defendant made repeated requests for continuances. Indeed, defendant's case trailed for so long that there was concern over the continuing availability of witnesses.

         When defendant's jury trial finally commenced, defendant moved, during jury selection, to dismiss his latest public defender and represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta). In the course of providing defendant with the appropriate Faretta warnings, the court indicated it did not find defendant had stated an appropriate ground for a one-day continuance in the event his Faretta motion were to be granted. Defendant continued to request self-representation and the trial court eventually granted that request. Defendant appeared as his own counsel for the completion of voir dire and the examination of the prosecution's first witness.

         Defendant failed, however, to appear in court for the next day of trial. The court recessed for the entire day while efforts were made to locate defendant, who was out of custody.

         When these efforts failed, the trial court found that defendant had voluntarily absented himself from the trial proceedings. Placed in a dilemma by defendant's disappearance, the court chose not to unilaterally revoke defendant's status as his own counsel, and accordingly, did not reappoint counsel to represent defendant. It proceeded with the trial in defendant's absence under

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the authority of Penal Code section 1043, subdivision (b)(2), which permits a trial court to continue with a noncapital felony trial in a defendant's absence if the trial was commenced in the defendant's presence and the defendant is "voluntarily absent."[1] The jury returned a mixed verdict, convicting defendant of a subset of the charges. Defendant subsequently appeared before the court and moved for a new trial. The trial court denied his motion and sentenced him to state prison.

         On appeal, the Court of Appeal concluded the trial court committed structural error by proceeding with trial in the absence of defendant and without the reappointment of defense counsel. It also concluded reversal was required because, in the appellate court's view, the trial court had abused its discretion in denying defendant's motion for a one-day continuance after it had granted defendant's Faretta motion. We granted the People's petition for review.

         We conclude that the trial court did not err, under the specific circumstances present in this case, in proceeding with the already-commenced trial after defendant had expressly waived his constitutional right to counsel and subsequently implicitly waived his constitutional right to be present. We also conclude that the trial court did not abuse its discretion in denying defendant's request for a one-day continuance, which the record reflects was made prior to the grant of his Faretta motion. Accordingly, we reverse the judgment of the Court of Appeal.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 3, 2009, defendant Zeferino Espinoza, Jr., got into a verbal altercation with his roommate Augustine Gonzalez. During the argument, defendant purportedly threatened Gonzalez's life and told him not to call the police. Gonzalez called the police. When the police arrived, they obtained defendant's consent to search his room and upon doing so, located two firearms, ammunition, morphine, diazepam, and a small amount of marijuana. Defendant is a convicted felon.

         Defendant was charged with a number of criminal violations relating to the incident and items found. The public defender was appointed to represent him. After being held to answer at a preliminary hearing, an information was filed in December 2009. It charged defendant with two felony counts of being

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a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a)(1)); felony possession of a controlled substance (morphine) (Health & Saf. Code, § 11350, subd. (a)); felony making of criminal threats (Pen. Code, § 422); misdemeanor possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)); felony possession of ammunition (Pen. Code, former § 12316, subd. (b)); felony dissuasion or attempted dissuasion of a witness (Pen. Code, § 136.1, subd. (c)(1)); and misdemeanor possession of a controlled substance without a prescription (diazepam) (Health & Saf. Code, § 11375, subd. (b)(2)).

         As previously mentioned, seven different public defenders represented defendant over the course of the next 27 months. They made more than 60 court appearances on his behalf. During that period of time, a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] was tiled and denied, a motion to suppress was filed and denied, and two motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden) were made and denied. The case was finally assigned to a trial department on April 16, 2012. and the trial court began to consider pretrial motions.

         On April 17, 2012, defendant made another Marsden motion to relieve his then current public defender, Mark Camperi. Defendant requested that the court appoint a conflict of interest attorney or allow him to represent himself. (Faretta. supra, 422 U.S. 806.) The trial court asked defendant how much time he would need if he were to represent himself. Defendant indicated that he would need three weeks and he might then file some further motions. The trial court observed that the case had been trailing for an extraordinarily long time, that defendant could have requested to represent himself anytime in the previous few years, and that the trial was set to begin. It noted that defendant was not prepared to represent himself with a minimal continuance and stated that it was not inclined to continue the case for a further two to three weeks, which it suspected would be more likely at least another month. The court suggested that defendant was asserting his rights under Faretta at that time because he was attempting to manipulate the court. The trial court denied defendant's Faretta motion.

         As to defendant's Marsden motion defendant insisted that he wanted "to fire" Camperi. He stated he was "[n[ot going to trial with this attorney" because Camperi had a conflict of interest, failed to communicate with him, had no interest in the case, had threatened him, and had failed to investigate the witnesses defendant suggested. Camperi denied all of defendant's assertions. Camperi described his investigative efforts and attempts to discuss the case with defendant, who he claimed repeatedly interrupted and talked over him. The trial court found no basis to relieve Camperi and denied defendant's Marsden motion.

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         The next day, Camperi informed the trial court that defendant desired a two-week continuance in order to represent himself and that defendant was adamant that he wanted to fire Camperi. The court stated that its prior orders would remain in effect because the court did not believe it would be possible for the case to be ready in two weeks if defendant were to represent himself. The court observed that "there's been five D.A.'s assigned to go to jury trial. There have been seven public defenders. This case keeps rattling around the courthouse, for lack of a better word. And it's not for any lack of effort on the part of the D.A. or the public defender." The court proceeded to discuss various pretrial matters, including an estimated schedule for the jury trial. With respect to that schedule, the court stated it anticipated, at most, a two-week trial with jury selection set to begin on April 23, 2012.

         On the day jury selection was set to begin, defendant again moved to relieve Camperi, reasserting a failure to communicate, a lack of interest in the case, and a failure to investigate witnesses. Defendant complained that his discovery packet was incomplete and asserted there was a "major conspiracy" "all the way from the police department to confidential witnesses" and that the asserted conspiracy included Camperi. Defendant said that he had evidence of a romantic relationship between the investigating officer and the victim Gonzalez. Camperi responded and denied defendant's claims. The trial court found defendant's contentions baseless and contrary to the record. It stated that defendant's various requests appeared to be part of a delay tactic. The court questioned the credibility of defendant's additional assertion that he was in the process of retaining private counsel. And, at one point, it noted that defendant's case had been trailing for so long that one of the expected defense witnesses was dying of cancer and might not be able to testify if there were a continuance. Defendant continued to complain about Camperi. The trial court stated that defendant's complaints did not "line up with the evidence before the court, or in some cases reality." The court denied defendant's Marsden motion, suggesting that defendant would be unhappy with any public defender. It also denied his further Faretta motion, finding that it was brought for the purposes of delay. The trial court proceeded to consideration of several pretrial matters and then began jury selection.

         The next morning, April 24, 2012, defendant again moved to dismiss Camperi under Marsden and to represent himself under Faretta. The court found that defendant, in stating the grounds for his request, was lying to justify his goal of getting rid of Camperi and failed to establish any basis for relieving counsel. It denied the Marsden motion.

         Defendant once again asked if he could "go pro per." The trial court indicated that if defendant was ready to proceed to trial without counsel, he could do so. Defendant responded that he would "need co-counsel" and

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explained that it would take him two weeks to be ready for trial. The court denied the request for cocounsel and said the fact that defendant would need such a continuance if he were granted self-representation was the reason why he was not being permitted to represent himself. Moments later, the court told defendant that it would give him a fair trial and reiterated that defendant could represent himself, but only if he was ready to proceed with the already commenced trial. The court told defendant that his "two options [were] you either represent yourself or you have Mr. Camperi represent you, because I can't continue this case." Defendant stated that he would like to represent ...


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