Opinion
B328296
05-03-2024
THE PEOPLE, Plaintiff and Respondent, v. EARL HARRIS, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jason Tran, Supervising Deputy Attorney General, and Kristen J. Inberg, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA302062, Eleanor J. Hunter, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jason Tran, Supervising Deputy Attorney General, and Kristen J. Inberg, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, ACTING P. J.
INTRODUCTION
Earl Harris appeals from the superior court's order denying his petition for resentencing under Penal Code section 1172.6 (formerly section 1170.95). At the evidentiary hearing under section 1172.6, subdivision (d), Harris moved under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself. Harris argues the court abused its discretion by conditioning its order granting his motion to represent himself on Harris agreeing to proceed with the hearing and, after granting the motion, by denying his request to continue the hearing. Because neither ruling was an abuse of discretion, we affirm the order denying Harris's petition under section 1172.6.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Harris of Murder and Other Crimes, the Trial Court Sentences Him, and We Affirm
In 2006 Harris was selling drugs out of a hotel room. One day he and two associates, Kenneth Butler and Charles Ray, met and discussed a plan to "eliminate" Harris's competition, Marvin Williams, who sold drugs out of another room in the hotel.Harris and Butler had firearms. Harris, Butler, and Ray went to Williams's room in the hotel to rob him, and Ray knocked on the door. Ray moved away from the door because he feared he might be shot. As Williams opened the door, he fired his gun; Harris fired two shots at Williams. Williams died from multiple gunshot wounds. (People v. Harris (June 29, 2009, B205745) [nonpub. opn.] (Harris I)).
We summarize the facts from our opinion in Harris's direct appeal, People v. Harris (June 29, 2009, B205745) [nonpub. opn.]. We rely on that opinion solely to summarize the background of the case and to provide context for the superior court's comments. (See People v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)
Another witness testified that the first two shots were from the hallway and that the third was from Williams's room. (Harris I, supra, B205745.)
A jury convicted Harris of first degree murder, conspiracy to commit robbery, and attempted robbery. The jury also found true the special-circumstance allegation Harris murdered Williams while engaged in the commission of a robbery, within the meaning of section 190.2, subdivision (a)(17), and firearm allegations under section 12022.53, subdivisions (b)-(d). The trial court sentenced Harris to life imprisonment without the possibility of parole, plus 25 years to life on the firearm enhancement under section 12022.53, subdivision (d). The court imposed and stayed additional terms under section 654. Harris appealed, and we affirmed. (Harris I, supra, B205745.)
B. Harris Files a Petition for Resentencing Under Section 1172.6; The Superior Court Grants Harris's Motion To Represent Himself and Denies the Petition
In January 2022 Harris filed a petition for resentencing under section 1172.6. At Harris's request, the superior court appointed counsel to represent him. The People conceded that Harris had established a prima facie case (because the trial court gave a jury instruction on the natural and probable consequences doctrine), but argued that Harris was ineligible for relief because he was the actual killer. The superior court accepted the People's concession Harris had made a prima facie case, issued an order to show cause, and set an evidentiary hearing.
After granting counsel for Harris's request to continue the hearing to allow an investigator to conduct further investigation, the court held the evidentiary hearing in November 2022. At the start of the hearing, counsel for Harris informed the court he had just learned from Harris that Harris's family had retained private counsel. Counsel stated that he attempted to contact the attorney, but that he was unable to reach her or leave her a message. Counsel for Harris asked the court to give Harris "time" to work with new private counsel and to continue the evidentiary hearing to allow her to "join the case." The court stated that the hearing had been set for "today" and that, though court had been in session for approximately an hour, "no attorney has contacted this court." The court, after observing the case "has been pending for a very long time," denied the request to continue the hearing "for this ghost of an attorney" who, in the court's view, did not "have the courtesy" to call the court.
Harris invoked his rights under Faretta and said he wanted to represent himself. The court asked Harris whether he was ready to proceed, and Harris said he was not because he had not spoken to the investigator. Referring to Harris's motion to represent himself, the court stated, "I'm going to say it's not timely." Harris told the court that he had not communicated with appointed counsel except by letter and that he spoke with the new attorney the first time on "Friday." The court stated that a letter was a "communication" and that, because "now is the time for the hearing," Harris's request for self-representation was not timely. The court said it intended to deny Harris's request to represent himself unless he was ready to proceed that day. Harris stated, "Yes, I am ready today, Your Honor." After the court acknowledged Harris was ready to proceed, Harris stated, "With that being said, I would like to file a motion for discovery, a verbal motion." The court interrupted Harris and said, "No, no, no. That means you're not ready. We are having the hearing today. So that is what we're doing."
It appears Harris was referring to the previous Friday, November 18, 2022.
Harris said he did not want court-appointed attorneys to represent him because they had a conflict of interest. The court construed Harris's statement as a request to replace appointed counsel and held an immediate hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Harris claimed his appointed counsel called him a "no-good nigger" (which appointed counsel categorically denied), and the court found it appeared Harris had raised the issue because the court had denied his motions "up to this point." The court found Harris's claim was "not credible" and denied Harris's request under Marsden to replace his appointed counsel.
The court told Harris again that, unless he was ready to "go forward at this moment," the court would find his request to represent himself was "a delay tactic." The court pointed out that, "right when" Harris announced he was ready, he sought to file a discovery motion, which the court found was an attempt to "circumvent the court's ruling" denying his request to continue the hearing. Harris once again stated, "I want to represent myself." The court asked, "And you're ready to go now?" When Harris failed to give a definitive answer, the court reviewed the procedure and sequence of events at an evidentiary hearing under section 1172.6 and explained announcing ready meant that, if Harris's witnesses were not present in court when it was Harris's turn to present evidence, he would not be able to call those witnesses, and the court would proceed to hear argument. The court asked Harris again, "Are you ready to proceed right now?" Harris said, "Yes." The court reiterated it would not grant a motion to continue the hearing, a motion for discovery, or a motion to postpone the hearing to secure the presence of witnesses. The court asked Harris, "So with that understanding, are you sure you want to go forward without counsel?" Harris said that he did not want appointed counsel to represent him and that there were "new witnesses."
The court told Harris, "This is not a do-over trial. You have been convicted. You've been sentenced." The court summarized the limited issues to be decided on a petition under section 1172.6 based on the changes to the law governing liability for murder. The court admonished Harris that, if he represented himself, he would not get any guidance from the court and that, "Right now, we are going forward." The court asked Harris a third time, "Are you ready to go forward today?" Harris replied, "Yes, I am." The court reminded Harris, "I'm not going to grant any continuance. I'm not going to let you call witnesses . . . . I'm not going to allow you to do anything outside of the Evidence Code." The court gave Harris a form titled "Advisement and Waiver of Right to Counsel (Faretta Waiver)" and warned Harris, "And if you waive your rights, you waive your rights. That's fine. But I am not going to continue [the hearing]. So, if you think that's going to be your tactic, then it's not going to happen."
After Harris completed the Faretta waiver form, the court summarized the colloquy thus far: "Mr. Harris, when we broke, you indicated that you wished to represent yourself for today's hearing, with the understanding that you have no discovery, I don't believe you have any witnesses here, and it's a very limited type of subject matter, the petition that you filed. So, do you still want to represent yourself?" Harris said, "Yes." The court proceeded to review the written waiver form Harris had completed and reminded Harris: "Because you have announced that you want to represent yourself today, I will not be granting a continuance." When the court asked if Harris had placed his initials next to each of the boxes on the form to indicate he "understood all of those constitutional rights," Harris answered "not completely" and asserted he had the "constitutional right" to subpoena witnesses and records. The court explained that Harris could present evidence relevant to the hearing, but that the witnesses had to be present "right now," and the court again stated it would not continue the hearing for Harris "to go out and find them and bring them in." Harris informed the court that an investigator found witnesses who placed him "somewhere else." The court told Harris that alibi witness testimony would not be relevant because the jury had "already identified" Harris as "being involved in this case." The court again told Harris that, if he had subpoenaed any witnesses, they had to be present in court that day. The court reviewed the rest of the written waiver form with Harris, the dangers and disadvantages of self-representation, and the consequences of the hearing. The court confirmed Harris understood the court's advisement, waived his rights as stated on the form, and wanted to waive his right to have an attorney represent him at the hearing. The court, after finding Harris had knowingly, voluntarily, and intelligently waived his right to counsel, granted Harris's request to represent himself.
Then the evidentiary hearing began. The People introduced an electronic file of the trial transcript. Harris objected to "the whole proceeding" because, he argued, he was not "allowed time to prepare for this." When the court asked Harris if he had any witnesses in court, Harris said he did not. Harris stated the investigator found a witness who placed him "outside the hotel." The court confirmed with Harris that the witness would testify that Harris was "not present at that door, going forward with the robbery when the victim was shot," and that Harris instead was "outside." Harris said, "Absolutely." The court again asked Harris if the witness would say Harris was not "at that door when the crime was committed." Harris again said, "Absolutely." The court found the proposed witness was not relevant to the proceedings because the jury found Harris was one of the individuals who went to Williams's hotel room door. The court explained that section 1172.6, subdivision (d), authorized the parties to submit "evidence that would affect whether or not you come under" the legislative changes to the definitions of murder and that Harris was "going beyond that" by seeking to introduce evidence he was not "involved at all." The court reminded Harris that the jury had "already rendered its decision with regard to identification in this case." When the court asked Harris if he had any "further evidence," Harris stated that he did not believe the court accurately described the anticipated testimony of his proposed witness and that he did not have time to talk to the investigator or his appointed counsel. Harris again objected to "not having time to prepare" for the hearing, and the court again recounted its "abundantly clear" condition that Harris could represent himself, but that the court would not continue the hearing.
The People argued the evidence showed Harris was the actual shooter who killed Williams and therefore was still guilty of murder "as the law stands today." Harris did not argue he was entitled to relief under section 1172.6, but argued instead that he was "not prepared for this hearing" and that the court had precluded him from speaking to his appointed counsel and the investigator. The court corrected Harris by summarizing the proceedings to that point, stated it had reviewed the trial transcript, and found the evidence proved beyond a reasonable doubt Harris was the "actual shooter" who "caused the death" of Williams. In the alternative, the court found, Harris was a major participant in the robbery who acted with reckless indifference to human life. The court ruled Harris was not entitled to relief under section 1172.6 and denied Harris's petition. Harris timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
By amending sections 188 and 189 effective 2019, the Legislature revised "'the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (People v. Curiel (2023) 15 Cal.5th 433, 448; see People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1235.) The Legislature also enacted section 1172.6, "which created a procedural mechanism 'for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief' where the two substantive changes described above affect a defendant's conviction." (Curiel, at p. 449; see Beaudreaux, at p. 1236.) "That procedure permits these defendants to petition for resentencing if they could not currently be convicted under the newly amended sections 188 and 189. It calls for a series of adjudication steps, starting with a determination of prima facie sufficiency under section 1172.6, subdivision (c); followed, where necessary, by an evidentiary hearing under section 1172.6, subdivision (d); and finally, where the petitioner prevails at the evidentiary hearing, by redesignation of the conviction at issue under section 1172.6, subdivision (e)." (Beaudreaux, at p. 1236; see § 1172.6, subds. (a)-(e); Curiel, at pp. 449-450.) "'At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.'" (Curiel, at p. 450; see § 1172.6, subd. (d)(3); People v. McClelland (2024) 100 Cal.App.5th 1109, 1114.)
"A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing. [Citations.] The right to counsel may be waived by a criminal defendant who elects to represent himself at trial." (People v. Doolin (2009) 45 Cal.4th 390, 453; accord, People v. Parrott (2017) 10 Cal.App.5th 485, 496.) "A defendant has a federal constitutional right to self-representation if he or she voluntarily and intelligently so chooses." (People v. Thomas (2023) 14 Cal.5th 327, 397; see Faretta, supra, 422 U.S. at pp. 835-836; People v. Wright (2021) 12 Cal.5th 419, 436.) "When a defendant makes a timely and unequivocal request for selfrepresentation, and does so knowingly, voluntarily, and intelligently, a trial court must grant the defendant's request. [Citation.] When a defendant's motion is untimely, the motion is 'based on nonconstitutional grounds' [citation] and it is 'within the sound discretion of the trial court to determine whether such a defendant may dismiss counsel and proceed pro se.'" (Thomas, at p. 397; see People v. Buenrostro (2018) 6 Cal.5th 367, 425.) "In evaluating whether a Faretta motion is timely, we have contrasted motions 'made long before trial' with motions '"made on the eve of trial."' [Citation.] The former are timely; the latter are not." (Thomas, at p. 397; see People v. Jenkins (2000) 22 Cal.4th 900, 959 (Jenkins); People v. Stringer (2019) 41 Cal.App.5th 974, 991.) "The purpose of the timeliness requirement is to prevent a defendant from misusing a Faretta motion to unjustifiably obstruct the orderly administration of justice or delay trial." (People v. Kocontes (2022) 86 Cal.App.5th 787, 886; see Wright, at p. 436.)
"'Although a necessary continuance must be granted if a motion for self-representation is granted, it is also established that a midtrial Faretta motion may be denied on the ground that delay or a continuance would be required.' [Citation.] A trial court may also condition the grant of an untimely Faretta motion on a defendant's ability to immediately proceed to trial." (People v. Espinoza (2016) 1 Cal.5th 61, 81; see People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez) ["the court acted within its discretion in concluding that defendant could represent himself only if he was ready to proceed to trial without delay"]; People v. Clark (1992) 3 Cal.4th 41, 110 (Clark) [court did not err when it granted the defendant's Faretta motion "only when [the] defendant expressly represented he was able to proceed without a continuance"].)
"A trial court has broad discretion to grant or deny continuances." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508; see Jenkins, supra, 22 Cal.4th at p. 1037.) "We review a trial court's order denying a motion to continue for abuse of discretion." (People v. Gonzalez (2021) 12 Cal.5th 367, 387; see Jenkins, at p. 1037.)
B. The Trial Court Did Not Abuse Its Discretion in Conditioning Its Order Granting Harris's Faretta Motion on Not Continuing the Hearing
Harris concedes his motion was untimely. He invoked his right to represent himself the day of the evidentiary hearing to determine whether he would be eligible for resentencing. (See People v. Doolin, supra, 45 Cal.4th at p. 454 [defendant's request to represent himself on the day of sentencing "was manifestly untimely"]; People v. Kocontes, supra, 86 Cal.App.5th at p. 887 ["'the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing'"].) Though the prosecutor presented evidence first, Harris moved to represent himself the morning of (or moments before) the hearing, which made the motion untimely. (See People v. Thomas, supra, 14 Cal.5th at p. 397 [defendant's motion for self-representation on the eve of trial was untimely]; Valdez, supra, 32 Cal.4th at p. 102 [defendant's motion to represent himself was untimely because he made it "moments before jury selection was set to begin"]; People v. Stringer, supra, 41 Cal.App.5th at p. 991 [collecting Supreme Court cases holding "'Faretta motions made on the eve of trial are untimely'"].) Because Harris's motion to represent himself was untimely, the court could condition on order granting the motion on not continuing the hearing.
Imposing that condition was not an abuse of discretion. Harris asked to represent himself only after the court denied appointed counsel's request to continue the hearing to allow an attorney his family purportedly retained to represent Harris in the proceeding. When the court stated it would deny as untimely Harris's motion to represent himself, Harris said he was ready to proceed, but promptly asked to file a discovery motion. After the court pointed out that filing such a motion meant Harris was not ready to proceed, Harris effectively asked the court to replace his appointed counsel under Marsden, supra, 2 Cal.3d 118. The court disbelieved the reason Harris gave for requesting new appointed counsel and denied the motion. Given Harris's multiple attempts to delay the proceedings and the untimeliness of his request to represent himself, the court did not abuse its discretion in granting Harris's motion to represent himself on the condition there would be no further continuances of the hearing. (See Jenkins, supra, 22 Cal.4th at p. 1039 [court did not err in conditioning an order granting the defendant's motion to represent himself on the understanding the court would not grant a continuance]; Clark, supra, 3 Cal.4th at p. 110 [same]; see also People v. Espinoza, supra, 1 Cal.5th at pp. 80-81 [where the trial court denied the defendant's Marsden motion as "baseless" and his initial Faretta motion as a "delay tactic," the court acted within its discretion "to condition the grant of [the] defendant's [renewed] Faretta motion on his ability to immediately proceed to trial unless he had a reasonable basis for a short continuance"]; Valdez, supra, 32 Cal.4th at pp. 103-104 [where the trial court denied the defendant's Faretta motion because it "was not made in good faith, but made 'merely for the purposes of obtaining a continuance,'" the court acted within its discretion in informing the defendant that "it would allow defendant to represent himself if he was able to proceed with the trial without delay"].)
C. The Trial Court Did Not Abuse Its Discretion in Denying Harris's Request for a Continuance
Harris argues the superior court abused its discretion by denying his request to continue the hearing after the court had granted his motion to represent himself. Harris did not specifically ask the court to continue the hearing, but he did object he did not have time to prepare for it. The court appears to have construed Harris's objection as a request to continue the hearing, because the court responded by reminding Harris that the court had told him it would not grant any requests to continue the hearing.
Section 1050, subdivision (e), provides continuances "shall be granted only upon a showing of good cause." (See People v. Caro (2019) 7 Cal.5th 463, 499 ["A trial court does not abuse its discretion in denying a continuance unless the defendant establishes good cause for a continuance."]; Jenkins, supra, 22 Cal.4th at p. 1037 [same].) "When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.'" (Jenkins, at p. 1037; see Caro, at p. 500; Elias v. Superior Court (2022) 78 Cal.App.5th 926, 938-939.) Here, although the superior court warned Harris that, if the court granted his request to represent himself, the court would not grant any continuances, the court nevertheless assessed whether the reason Harris gave for requesting a continuance-to subpoena a witness who would testify Harris was not in the hotel at the time of the crimes-constituted good cause. The court did not err in ruling the testimony of this proposed witness was irrelevant to the issues the court needed to decide at the hearing under section 1172.6, subdivision (d), namely, whether Harris was entitled to relief because of legislative changes to sections 188 and 189. (See People v. Coley (2022) 77 Cal.App.5th 539, 549 ["a section 1170.95 petition is not a means by which a defendant can relitigate issues already decided"]; People v. Farfan (2021) 71 Cal.App.5th 942, 947 ["'The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'"]; see also People v. Burns (2023) 95 Cal.App.5th 862, 865 ["[s]ection 1172.6 does not create a right to a second appeal," and the defendant "cannot use it to resurrect a claim that should have been raised [on] direct appeal"].)
As the superior court informed Harris, the jury had already resolved the identity issue against Harris. Indeed, in our opinion in Harris's direct appeal, we observed that, in finding the felonymurder special circumstance true, "the jury specifically determined that the killing was committed while Harris was engaged in the commission of a robbery." (Harris I, supra, B205745.) We also concluded that, because the evidence "tended to connect Harris with the charged offenses," sufficient evidence corroborated the accomplice's testimony (which included that Harris fired two shots at Williams). (Ibid.) In addition, the jury found true the allegation Harris personally and intentionally discharged a firearm causing great bodily injury or death to Williams, within the meaning of section 12022.53, subdivision (d). Thus, because the jury found Harris was one of the robbers who stood outside the door of Williams's hotel room, testimony from a witness Harris represented could testify he was not there was not relevant to the issues at the evidentiary hearing under section 1172.6, subdivision (d). The superior court did not abuse its discretion in denying Harris's request to continue the hearing so that he could subpoena that (irrelevant) witness. (See People v. Riggs (2008) 44 Cal.4th 248, 297 ["trial court's decision not to further delay the trial so defendant could attempt to bring in three witnesses who, judging from defendant's offers of proof, would not have provided remotely convincing evidence . . . was not an abuse of discretion"]; People v. Beeler (1995) 9 Cal.4th 953, 1003-1004 [trial court did not abuse its discretion in denying the defendant's motion to continue the sentencing hearing because he failed to show that the evidence would be relevant or that he could obtain it within a reasonable time]; see also People v. Mora and Rangel, supra, 5 Cal.5th at p. 509 [trial court acted within its discretion in denying the defendant's request for a continuance during the penalty phase because he "was unable to show that [the witness's] expected testimony . . . would be material, noncumulative, or would concern facts not otherwise capable of proof"]; Jenkins, supra, 22 Cal.4th at p. 1038 [trial court "was within its discretion in refusing to grant a continuance, because [the] defendant had not demonstrated that a continuance would be useful in producing specific relevant mitigating evidence within a reasonable time"].)
Harris cites a footnote in the Supreme Court's opinion in People v. Bigelow (1984) 37 Cal.3d 731, where the Court stated: "We agree with defendant that he could not reasonably be expected to proceed to trial without any time for preparation, and that if the trial court did not intend to deny the motion for selfrepresentation as untimely . . ., it should have considered granting a continuance. Since we reverse the conviction on other grounds, we do not discuss whether the court's action constituted reversible error." (Id. at p. 741, fn. 3.) The Supreme Court in Clark, supra, 3 Cal.4th 41, however, distinguished the People v. Bigelow footnote on the ground the trial court in Clark made clear it would deny the defendant's Faretta motion if granting the motion would require a continuance and granted the defendant's motion only when he "expressly represented he was able to proceed without a continuance." (Id. at p. 110.) That is exactly what happened here: The court did not grant Harris's motion until Harris unequivocally stated he was ready to proceed with the hearing.
Harris also cites People v. Morgan (1980) 101 Cal.App.3d 523 and People v. Hill (1983) 148 Cal.App.3d 744. These two Court of Appeal cases, however, were decided almost two decades before the Supreme Court's decision in Jenkins, supra, 22 Cal.4th 900, where the Court held a trial court can condition an order granting a defendant's untimely motion to represent himself on not granting a continuance. (Id. at p. 1039.)
DISPOSITION
The order denying Harris's petition under section 1172.6 is affirmed.
We concur: FEUER, J. RAPHAEL, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.