Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7529, James T. LaPorte, Judge.
Carol A. Navone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Raylon Shane Attebury was convicted of possession of a sharp instrument while he was confined at Corcoran State Prison. On appeal, he contends (1) the trial court abused its discretion when it denied his motion for a continuance, and (2) defense counsel was ineffective because he found no legal basis for a motion for new trial. Finding no prejudice, we affirm.
PROCEDURAL SUMMARY
On November 1, 2007, the Kings County District Attorney charged defendant with possession of a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a)). The information further alleged that defendant had suffered two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
On November 13, 2007, defendant pled not guilty and the court granted his motion to represent himself. On December 11, 2007, the court appointed standby counsel.
On January 2, 2008, defendant stated he would not be ready for trial on January 22, 2008, because of his limited access to the prison law library. The court continued the matter to January 18, 2008.
On January 18, 2008, defendant again stated he was not ready for trial due to limited library access. The court denied defendant’s request for a continuance, finding no good cause.
On January 22, 2008, the court continued the matter for two months to March 24, 2008, because there was a shortage of courtrooms and because defendant requested a 60 day continuance.
On March 5, 2008, defendant stated he would not be ready for trial on March 24, 2008.
On March 21, 2008, defendant again stated he was not ready, and he filed a written motion to continue the trial for another 60 days because of deficiencies in the prison law library. The court denied defendant’s motion for further continuance.
On March 24, 2008, jury trial commenced. The jury found defendant guilty on count 1, and found true the prior conviction allegations.
The prison term allegation had been dismissed.
On April 22, 2008, counsel was appointed to represent defendant when he stated that he wished to make a motion for new trial. On June 30, 2008, defense counsel filed a memorandum, stating that he found no basis for a motion for new trial. The court sentenced defendant to 25 years to life, consecutive to the 55-year-to-life term imposed on prior cases.
FACTS
On June 27, 2007, Officer Foley and Officer Silva conducted a random inspection of defendant’s prison cell (cell 51) while defendant was in the exercise yard. Defendant had occupied cell 51 for about five weeks. Before that, he had occupied cell 1.
In cell 51, the officers noticed scrape marks on one of the concrete bunks, suggesting defendant had been sharpening a metal object. When the officers scanned the cell with a metal detector, the detector responded to a rolled up blanket on defendant’s bunk. The blanket roll contained a rolled up jumpsuit and T-shirt, and a metal object about nine and one-half inches long, three-quarters inch wide, and one-eighth inch thick. One end of the metal piece had been sharpened to a point and the other end was wrapped in cloth, like a handle. The instrument appeared to be a stabbing device.
This discovery led the officers to cell 1, defendant’s former cell. There, they realized that a length of metal had been cut from the cell door frame. The missing piece had been cleverly concealed with a folded paper that had been stained, perhaps with coffee, to match the color of the surrounding metal.
Prior Offense Evidence
Several months earlier, on August 7, 2006, Officer Foley had conducted a similar search of defendant’s cell when he was housed in cell 1. Again, defendant was in the exercise yard at the time of the search. The officer discovered that some metal had been cut and was missing from the flange of the cell door frame (a different piece than was found missing on June 27, 2007). The metal detector revealed only small metal pieces inside a bar of soap and in defendant’s personal papers. These pieces were too small to be made into a weapon, but the officer believed they were the tools that had been used to cut the missing metal piece from the door flange.
Defendant was brought in for a search. He relinquished his clothing and the metal detector responded to his foam shower shoe. When the officer broke the shoe open, he found the missing piece of metal inside. It was about nine inches long, one inch wide, and one-eighth inch thick. One end was sharpened.
Defense Evidence
Defendant testified that he was tired because he had chosen not to eat for over a week. He said it was hard for him to talk because his source of water was broken. The court pointed out, however, that he had water to drink in court. After the court struck defendant’s testimony about having three life sentences, defendant testified, “That’s it, man. The state’s wasting money on me.” He provided no other testimony.
Defendant offered no substantive argument either. Other than stricken statements about his life terms, he said, “[J]ust think about it, man. I let it go because this is just wasting a bunch of the tax payer’s money you know what I mean.” When the court asked if he wanted to argue the facts of the case, he said, “That’s it. I just—I come to court to the jury just to say this—all this time they’re wasting, all this money. I’m never getting out.”
DISCUSSION
I. Motion for Continuance
Defendant contends the trial court erred when it denied his motion for a further continuance. He argues that the court erroneously relied on Kane v. Garcia Espitia (2005) 546 U.S. 9 to conclude he did not have a right to law library access. The People respond that defendant failed to establish good cause for the continuance. Defendant replies that he needed access to legal materials to (1) comply with the rules of evidence and procedure and (2) conduct research so he could raise an Evidence Code section 352 objection to evidence of his prior offense.
A defendant’s federal and state constitutional rights to self-representation include the right to all reasonably necessary means of presenting a defense. (People v. Blair (2005) 36 Cal.4th 686, 733.) “Thus, ‘a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’ [Citation.]” (Ibid.) The right to any of these means of presenting a defense is not absolute, however. For example, “‘[i]nstitutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense. [Citations.]’ … In the final analysis, the Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances. [Citation.]” (Ibid.)
Furthermore, a defendant who represents himself must be given a reasonable opportunity to prepare his defense, and a denial of a continuance can be an abuse of discretion. (People v. Cruz (1978) 83 Cal.App.3d 308, 324-325.) But a trial court may grant a continuance only “upon a showing of good cause.” (§ 1050, subds. (e) & (a) [codification of legislative finding that “criminal courts are becoming increasingly congested” and that “[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses”].) A trial court has broad discretion to determine whether good cause exists. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) “The court must consider ‘“‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’”’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 450.) “The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
On review of the denial of a continuance, the defendant bears the burden of establishing both an abuse of discretion and prejudice. (People v. Beeler (1995) 9 Cal.4th 953, 1003; People v. Barnett (1998) 17 Cal.4th 1044, 1126.) “A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court’s denial of a continuance was so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court’s denial does not warrant reversal. [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p. 450; People v. Zapien (1993) 4 Cal.4th 929, 972.)
In this case, defendant has not established prejudice, and thus we need not consider whether the trial court abused its discretion in denying the continuance. In his reply brief, defendant argues he was prejudiced because, had the continuance been granted, he would have been able to prepare for and make an objection under Evidence Code section 352 to evidence of his prior possession of a sharp instrument, which he claims should have been excluded because it was irrelevant to his knowledge that a sharp instrument could be used as a weapon. We conclude, however, that evidence of the prior offense was properly admitted and an Evidence Code section 352 objection would have failed.
“Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident …) other than his or her disposition to commit such an act.’ Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity. It recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.] … [T]he admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy [such as Evidence Code section 352] requiring exclusion of the evidence. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 145-146.)
“In order to be material, the fact in dispute ‘may be either an ultimate fact in the proceeding or an intermediate fact “from which such ultimate fact[] may be … inferred.”’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th at p. 146.) Knowledge of the presence and character of the object possessed is an essential element of the offense. (See In re Jorge M. (2000) 23 Cal.4th 866, 877; People v. Westlund (2001) 87 Cal.App.4th 652, 657-658; People v. Strunk (1995) 31 Cal.App.4th 265, 272.) Section 4502, subdivision (a) provides that “[e]very person who, while at or confined in any penal institution, … possesses or carries upon his or her person or has under his or her custody or control any … sharp instrument … is guilty of a felony.…” “To show a violation of this statute, the prosecution must prove the defendant was confined in a state prison and that he had knowledge of the prohibited object in his possession. [Citation.]” (People v. Strunk, supra, at p. 272.) By pleading guilty, defendant placed this material fact in issue. (See People v. Catlin, supra, at p. 146 [not guilty plea put in issue elements of crime]; People v. Thornton (2000) 85 Cal.App.4th 44, 48-49.)
Defendant’s prior possession of a nearly identical sharpened instrument, made from prison door metal and capable of being used as a weapon, provided an overwhelming inference that on this occasion he knew the weapon was present and he knew of its prohibited character—that is, he knew it could be used as a weapon. (See People v. Pijal (1973) 33 Cal.App.3d 682, 691 [defendant’s prior narcotic offense admissible to show his knowledge of narcotic nature of drug].)
Evidence of other offenses has a tendency to prove the material fact (and is therefore relevant (Evid. Code, § 210)) when the other offense “serves ‘“logically, naturally, and by reasonable inference”’ to establish that fact. [Citations.]” (People v. Thompson (1980) 27 Cal.3d 303, 316.) To establish relevance on the issue of knowledge, the other offense “‘need only be “sufficiently similar [to the charged offense] to support the inference that the defendant ‘“probably harbored the same [knowledge] in each instance.” [Citations.]’”’ [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 637; see also People v. Hawkins (2002) 98 Cal.App.4th 1428, 1445; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210.)
Here, the prior offense was nearly identical to the charged offense. In both cases, defendant possessed a sharpened metal instrument made from a piece of metal cut from his prison cell door. His prior possession of a sharp instrument in prison strongly suggested that his possession of a sharp instrument in prison on this occasion was accompanied by his knowledge that a prohibited weapon was in his possession. (See People v. Tapia (1994) 25 Cal.App.4th 984, 1022.)
Finally, we turn to defendant’s claim that the evidence of his prior offense should have been excluded under Evidence Code section 352. “Once a court determines that a prior bad act is admissible under Evidence Code section 1101, subdivision (b), it must conduct a further inquiry. ‘Evidence of uncharged offenses “is so prejudicial that its admission requires extremely careful analysis….” … [¶] … [T]o be admissible such evidence “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352….”’ [Citation.] A court must therefore also examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Zepeda, supra, 87 Cal.App.4th at pp. 1210-1211.) “‘“Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.” [Citation.]’” (People v. Hawkins, supra, 98 Cal.App.4th at p. 1445, italics omitted.) A court must therefore also examine whether the probative value of other offense evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352; People v. Zepeda, supra, at p. 1211.)
In this case, evidence of the prior offense was overwhelmingly probative on the issue of knowledge (People v.Ewoldt (1994) 7 Cal.4th 380, 404-405 [principal factor affecting probative value of uncharged act is its similarity to charged offense]), and this probative value was not overwhelmed by undue prejudice. The type of prejudice that Evidence Code section 352 was meant to avoid is not prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) “‘[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.) Rather, evidence should be excluded as unduly prejudicial when it uniquely tends to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Branch (2001) 91 Cal.App.4th 274, 286.) “‘“[T]he statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.”’ [Citation.]” (People v. Harris (1998) 60 Cal.App.4th 727, 737.)
In sum, we are confident this evidence was properly admitted and would not have been excluded had defendant raised an objection pursuant to Evidence Code section 352. Accordingly, defendant has not shown that his lack of access to an adequate legal library resulted in the admission of improper evidence. Defendant was not prejudiced by his inability to prepare for and present an objection to evidence of his prior offense. Such an objection would have been meritless and unsuccessful. Nor has defendant shown any other prejudice due to his inability to research the rules of procedure and evidence. Accordingly, we will not reverse.
We note that the trial court gave a limiting instruction regarding the limited purpose for which the jurors could consider the other offense evidence, and we presume the jury adhered to this admonition. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1023.)
Any misconception on the trial court’s part regarding defendant’s right to access to a legal library does not affect our decision. We conclude defendant has not shown prejudice resulting from the court’s decision, regardless of the court’s reasoning.
II. Ineffective Assistance of Counsel
Defendant also contends defense counsel was ineffective because he determined defendant had no legal basis for a new trial motion, although defendant believed the motion could be raised on the ground that the court had improperly denied his motion for a continuance.
“A defendant is entitled to competent representation at all times, including presentation of a new trial motion ….” (People v. Smith (1993) 6 Cal.4th 684, 695.) To establish ineffective assistance of counsel, a defendant must show (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, the defendant must make a showing that but for counsel’s deficient performance there was a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington, supra, at pp. 693-694; People v. Ledesma, supra, at pp. 217-218.) The reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsel’s performance. (Strickland v. Washington, supra, at p. 697; People v. Ledesma, supra, at pp. 216-218.)
Here, as we have explained, a continuance would not have resulted in exclusion of evidence of defendant’s prior offense. In other words, the continuance would not have affected the outcome of the trial that did occur, or the outcome of a new trial that might have occurred. Therefore, the trial court did not err by denying the motion for a new trial, regardless of its reasoning for doing so (People v. Geier (2007) 41 Cal.4th 555, 582 [we review the court’s ruling, not its reasoning, and if the ruling was correct on any ground, we affirm]). Because defense counsel’s representation, even if ineffective, did not prejudice defendant, the ineffective assistance argument fails. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Dawson, J.
The court instructed: “The People presented evidence of other behavior by the defendant that was not charged in this case, that the defendant previously possessed a sharp instrument capable of being used as an inmate weapon. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence whether the defendant in fact committed the acts. [¶] … [¶] If you decide that the defendant committed the acts, you may but are not required to consider the evidence for the limited purpose of deciding whether or not the defendant knew that the item could be used as a weapon when he allegedly acted in this case. [¶] In evaluating this evidence consider the similarity or lack of similarity between the uncharged acts and the charged crime. [¶] Do not consider this evidence for any other purpose except for the limited purpose of knowledge that the instrument could be used as a weapon. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the acts, that conclusion is only one factor to consider along with the other evidence. It is not sufficient by itself to prove that the defendant is guilty of possession of a sharpened weapon. The People must still prove each element of the charge beyond a reasonable doubt.”