Opinion
B162966.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. WAHEED ALAM, Defendant and Appellant.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Waheed Alam appeals the judgment entered after conviction by jury of arson of a structure. (Pen. Code, § 451, subd. (c).) We reject Alams claim of Faretta error (Faretta v. California (1975) 422 U.S. 806 ) and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May of 2001, after Sayed Shah and Alam had been roommates for four years, Shah moved to Lomita to be closer to a video store specializing in Indian movies that Shah operated from 6:00 to 10:00 p.m. after he finished work as a baggage handler at LAX. Alam had done much of the work preparing the video shop to open and Shah had not yet paid Alam for all the work. Shah had not had any previous problems with Alam.
On June 23 or 24, 2001, Shah went to his old apartment and Alams new roommate allowed Shah to take a toolbox that originally belonged to Shah but had been used primarily by Alam. Alam also had placed some tools he had purchased in the toolbox. On June 24, 2001, Alam called Shah at the video shop and requested the toolbox. Shah told Alam to wait until the video shop closed and he would give it to him. Alam arrived at 7:00 p.m. and argued with Shah about the toolbox and the work Alam had done for Shah. Shah told Alam he would go to his apartment and get the toolbox when there were no customers in the store. Alam went to his car and returned with a container of gasoline and started to sprinkle gasoline around the video store. A female customer testified drops of gasoline landed on her arm and she ran from the store with her child. Alam threw a match and ignited the gasoline, then went toward Shah, knocked the telephone out of his hand, poured gasoline over Shahs head and threw lit matches at him. When Shah tried to get out of the store, Alam pushed him back, then held the only door to the video store closed from the outside. The husband of the female customer forcefully knocked Alam from the door allowing Shah to exit the store. Shahs pant leg and foot had started to burn and he had blisters on his leg.
Both Shah and Alam called 911. Alam admitted at the scene and in a subsequent interview that he had set fire to the shop. At trial, Alam testified he felt Shah had taken his gift of the toolbox from Alam and now Alam was going to take the gift of his work on the video shop from Shah. Alam said he was going to break the shop with a hammer but Shah suggested he burn the shop and put matches on the counter. Alam admitted he held Shah inside the burning shop but indicated he intended to open the door when the flames reached Shah. Alam claimed he voluntarily opened the door to allow Shah to escape and denied he had been pushed aside by a male.
The jury acquitted Alam of attempted murder but convicted him of arson of a structure. The trial court imposed the upper term of six years because it considered the case "quite . . . aggravated . . . because of the burning of the victim . . . , in addition to the burning of the store."
CONTENTION
Alam contends the trial court erroneously denied a request for self-representation.
DISCUSSION
1. Procedural background of the Faretta claim.
At arraignment on December 31, 2001, Alam sought substitution of counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The trial court considered and denied the claim outside the hearing of the prosecutor.
On January 23, 2002, Alam requested self-representation. Alam completed a Faretta waiver and the hearing was continued to January 28, 2002. On that date, Alam again requested substitution of defense counsel under Marsden. The trial court denied Alams Marsden request outside the hearing of the prosecutor but granted Alams request for self-representation.
On February 8, 2002, the trial court appointed stand-by counsel to assist Alam and granted Alam a continuance of 39 days.
On March 12, 2002, the trial court denied Alams request for a continuance and admonished Alam not to argue with the court after the court had ruled.
On March 21, 2002, the People announced ready. Alam announced not ready and, after arguing numerous unsuccessful motions, Alam became disruptive, insisted on speaking to the audience in the courtroom and had to be removed by the bailiff.
The next day, Alam was deemed ready for trial. Alam relinquished the right to represent himself and the trial court appointed stand-by counsel to represent Alam.
On May 23, 2002, the case was called for trial. Alam requested substitution of counsel under Marsden. The trial court denied the motion outside the hearing of the prosecutor and a panel of jurors was sworn to try the case.
On May 28, 2002, as the prosecutor was about to make an opening statement, defense counsel requested a side bar conference. Defense counsel indicated Alam now wished to represent himself due to a disagreement over trial tactics. Defense counsel noted Alam was ready to proceed to trial and had prepared several pages of questions for the witnesses. Alam confirmed he wished to represent himself. The trial court advised Alam against self-representation but indicated that, if Alam insisted, the trial court would grant Alams request.
The trial court then asked if Alam were aware of the penalty he faced. Alam responded: "That is my destiny." The trial court again asked if Alam was aware of the penalty. Alam replied: "Let the sentencing and what penalties I will suffer be set aside. Lets just talk about June 24th, what happened on that date." The trial court again asked if Alam was aware of the penalty he faced if convicted. Alam replied, "You are all trying to stop me from speaking the truth." The trial court responded, "I see. Well, then I can only conclude that you have no idea of the possible penalty that you are facing and so you will not be competent to represent yourself. Your motion to represent yourself is denied."
The matter proceeded with Alam represented by counsel. However, the trial resulted in a mistrial after a dispute developed as to whether all of Shahs testimony was being interpreted properly, and the People disclosed they had located the female customer who had been inside the shop and her husband, the man who knocked Alam from the door.
After the jury was excused, the trial court denied Alams request to act as cocounsel. The trial court indicated Alam was not capable of waiving the right to counsel. The trial court reminded Alam he had failed to respond to the trial courts questions concerning the possible penalty Alam faced if convicted "and he either could not or would not answer the court. So hes not capable of representing himself, and I will not permit co-counsel status . . . ."
A second trial commenced on July 30, 2002. Alam made outbursts during the prosecutors opening statement and was removed from the courtroom. On July 31, 2002, Alam promised to comply with the trial courts orders and attended the balance of the trial.
2. Alams contention.
Alam contends that when he requested self-representation on May 28, 2002, he was ready to proceed to trial and did not request a continuance. Thus, the request should have been granted. (People v. Herrera (1980) 104 Cal.App.3d 167, 175-176.) Alam asserts he was not required to renew the request after the first trial resulted in a mistrial because the trial court made it clear it would not permit Alam to represent himself.
Alam notes the trial court could not have found him incompetent to represent himself because the standard for competency to waive counsel is the same as that for competency to stand trial. (Godinez v. Moran (1993) 509 U.S. 389, 397-402 ; People v. Hightower (1996) 41 Cal.App.4th 1108, 1116.) Here, Alam was competent to stand trial and to waive the right to counsel. In fact, Alam previously had enjoyed pro per status in this case, had filed written motions and a writ petition, had worked with an investigator to gather evidence and was ready to proceed to trial. That Alam might have done a poor job of representing himself is of no moment. Alam asserts the record demonstrates his choice of self-representation was knowing and intelligent and the trial court was required to honor it. (People v. Dent (2003) 30 Cal.4th 213, 217; People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070.) Alam concludes the error requires reversal per se.
3. Applicable law.
In order to invoke an unconditional right of self-representation, a defendant must unequivocally assert the right within a reasonable time prior to the commencement of trial. (People v. Burton (1989) 48 Cal.3d 843, 852.) The motion is untimely, however, if made after trial has commenced. (People v. Clark (1992) 3 Cal.4th 41, 99-100.) An untimely Faretta motion is addressed to the sound discretion of the trial court. (People v. Barnett (1998) 17 Cal.4th 1044, 1104; People v. Marshall (1996) 13 Cal.4th 799, 827.) The trial courts discretion to deny an untimely motion exists to "prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice." (People v. Burton, supra, 48 Cal.3d at p. 852.) In exercising its discretion, the court should consider certain factors, including the quality of counsels representation, the defendants 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 (1977) 19 Cal.3d 121, 128.) On review of the denial of a Faretta motion, considerable weight is given to the trial courts exercise of its discretion. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
4. Application.
Alams Faretta motion of May 28, 2002, was interposed after the jury had been empaneled and thus was not timely. Accordingly, it was directed to the trial courts discretion.
The record reveals that, in attempting to rule on Alams request, the trial court questioned Alam relative to his understanding of the risks involved in self-representation. Alam refused to respond in a meaningful fashion. Based thereon, the trial court found Alam was not aware of the probable risks and consequences of self-representation and denied the Faretta request. (See People v. Clark, supra, 3 Cal.4th at p. 107.)
We agree the trial courts finding that Alam was not competent to waive counsel does not withstand scrutiny. Alam previously had represented himself and he was competent to stand trial. (See Godinez v. Moran, supra, 509 U.S. 389 at p. 399.)
Nonetheless, because the record reveals the trial courts ruling was correct under Windham, it is appropriate to affirm the trial courts denial of the Faretta request even though the trial court based its ruling on different grounds. (People v. Dent, supra, 30 Cal.4th at p. 218; see generally People v. Smithey (1999) 20 Cal.4th 936, 972 [" ` " ` [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. [Citation.]" [Citations.] " Thus, it has been held the failure to address each of the Windham factors may be overlooked where the record contains sufficient reasons to constitute an implicit consideration of the factors. (E.g., People v. Scott (2001) 91 Cal.App.4th 1197, 1206; People v. Perez (1992) 4 Cal.App.4th 893, 904-905 [appellate court may draw inferences necessarily implied by trial courts ruling in reviewing courts discretionary denial of an untimely Faretta motion].)
Here, based on Alams conduct, the trial court appropriately could conclude Alam made the Faretta request not out of a genuine desire to represent himself, but for the purpose of disruption or delay. A trial court properly may deny an untimely Faretta request on that basis alone. (See People v. Rudd (1998) 63 Cal.App.4th 620, 626.)
Additionally, the trial court previously had denied Alams three requests for substitution of counsel under Marsden. Thus, the trial court was well aware of the quality of counsels representation and it may be inferred defense counsel was providing suitable representation. This inference is supported by the trial courts remark at sentencing that defense counsels "representation was a substantial factor in [Alams] acquittal of the more serious charge . . . ."
With respect to the timing of the request, Alam interposed the Faretta motion just as the prosecutor was about to make an opening statement, thereby suggesting Alam intended to disrupt the proceedings. Also, Alam previously had been disruptive in court on two separate occasions. On one occasion, Alam continued to argue after the trial court had ruled. On another occasion, Alam insisted on addressing the courtroom audience.
Because the record clearly demonstrates Alam interposed the Faretta request for the purpose of disruption and delay, the trial courts denial of the request was not error.
Finally, even assuming error for the sake of discussion, Alam cannot show prejudice. Unlike error in denying a timely Faretta motion, which is reversible per se, the erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Nicholson (1994) 24 Cal.App.4th 584, 594-595; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.)
Given the overwhelming evidence of Alams guilt of the arson count, it is not reasonably probable the outcome of the trial would have been more favorable had he been allowed to represent himself at trial. Indeed, the trial court noted Alam was "quite fortunate" the jury acquitted him of attempted murder or he would be facing a life sentence. For all the foregoing reasons, Alams claim of Faretta error fails.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J. --------------- Notes: We exclude from consideration in this regard Alams disruptive conduct at the second trial. Review of the denial of a Faretta motion must be based on the facts known to the trial court at the time of the motion. (See People v. Marshall (1997) 15 Cal.4th 1, 24, fn. 2.)