Opinion
A095527.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. KEELON T. JENKINS, et al., Defendants and Appellants.
This is the second time we have considered this case, which arises from a bungled Brinks truck robbery. On an earlier appeal, we reversed judgments against appellants Keelon Jenkins and Robert McDaniels based on our conclusion that the guilty verdicts were coerced by comments the trial court made to the jury after 20 days of acrimonious deliberations. (People v. Jenkins (Feb. 16, 2000, A081290) [nonpub. opn.].) After a retrial, another jury convicted Jenkins and McDaniels of first degree murder. The jury found that Jenkins committed the murder during the attempted robbery, and personally used a firearm. Jenkins was also convicted of assault with a deadly weapon. The court sentenced Jenkins to a life term without parole, and McDaniels to a term of 25 years to life.
On this appeal, Jenkins challenges the courts decision to permit the prosecutor to reinstate an attempted murder charge that was dismissed after the first trial. He also claims the court erred by denying a defense motion to dismiss the jury panel under People v. Wheeler (1978) 22 Cal.3d 258. McDaniels joins the Wheeler argument by adoption. Both Jenkins and McDaniels challenge the trial courts denial of their motions for substitute appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. McDaniels further contends the court erred by denying his motion to represent himself, and claims his counsel was ineffective in several respects.
We affirm the judgments. We discuss the relevant facts in connection with the arguments raised by appellants.
DISCUSSION
1. Reinstatement of the Attempted Murder Charge Against Jenkins
At the first trial, the jury failed to reach a verdict on the attempted murder charge against Jenkins. The court granted the prosecutors request to dismiss that charge after guilty verdicts were reached on other counts. Before the second trial began the prosecutor moved to reinstate the attempted murder charge. Jenkins opposed the motion, contending the dismissal had been tantamount to an acquittal, and therefore a retrial on the attempted murder charge would violate the prohibition against double jeopardy. The court held lengthy hearings on this motion, at which Jenkins raised a second objection based on his right to a speedy trial. The court granted the prosecutors motion. The jury ultimately convicted Jenkins of assault with a deadly weapon as a lesser included offense of the reinstated attempted murder charge. The court imposed a four-year sentence on this charge, to run concurrently with Jenkins life sentence.
On appeal, Jenkins contends the reinstatement of the attempted murder charge unfairly punished him for pursuing his right to appeal from the judgment entered after the first trial. He claims the refiling of this charge gave rise to a presumption of prosecutorial vindictiveness under In re Bower (1985) 38 Cal.3d 865, 872.
The Attorney General correctly points out that Jenkins waived his claim of vindictive prosecution by failing to raise it below. (People v. Edwards (1991) 54 Cal.3d 787, 827.) Objections on related grounds are not sufficient. (Ibid.)
In any event, Jenkins argument is entirely misplaced. The constitutional protection against prosecutorial vindictiveness comes into play only when the defendant faces "increased or additional charges" after he exercises a legal right. (In re Bower, supra, 38 Cal.3d at p. 872; People v. Bracey (1994) 21 Cal.App.4th 1532, 1542-1544, 1547.) There were no increased or additional charges here; Jenkins faced the same attempted murder charge at both of his trials. As the trial court pointed out at the hearing below, Jenkins was fully protected from any increase in punishment by the double jeopardy clause of the California Constitution. (Cal. Const., art. I, § 13; People v. Henderson (1963) 60 Cal.2d 482, 497; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 157, pp. 509-512.) Under these circumstances, no presumption of prosecutorial vindictiveness could arise.
2. The Wheeler Motion
Jenkins and McDaniels joined in a Wheeler motion challenging the prosecutors use of peremptory challenges against African-American prospective jurors. The court heard the motion after the panel was sworn. The grounds for the motion were only sketchily presented by defense counsel. McDaniels counsel stated simply "the district attorney has systematically excluded members of the African-American race." Jenkins counsel added "specifically female African-Americans were systematically and totally excluded from this panel."
If a defendant makes out a prima facie case of racially discriminatory peremptory challenges, the burden shifts to the prosecutor to come forward with a racially neutral explanation. The trial court must then decide whether the defendant has proved purposeful racial discrimination. (People v. Reynoso (2003) 31 Cal.4th 903, 914-915.) Here, when the court prompted the prosecutor to provide reasons for his challenges, the prosecutor reminded the court that reasons need only be provided when the court finds a prima facie case of discrimination has been made. The court replied that a prima facie case was established "because there [is] this number," a reference to the seven jurors whose dismissal was being challenged by Jenkins and McDaniels. The Attorney General contends the court erred by finding a prima facie case, and asks us to revisit the issue. The Attorney General acknowledges there is no direct authority explaining the nature of appellate review on this point; typically, our Supreme Court has assumed that substantial evidence supports the courts finding of a prima facie showing on a Wheeler motion. (E.g., People v. Silva (2001) 25 Cal.4th 345, 384; People v. Cash (2002) 28 Cal.4th 703, 725; People v. Burgener (2003) 29 Cal.4th 833, 864.) We will follow the high courts lead and accept the trial courts finding in this case.
The prosecutor proceeded to give reasons for his challenges. On appeal, Jenkins takes issue with the following reasons the prosecutor provided for three of the challenges:
Mr. W., whose brother had been an Oakland policeman, believed that policemen plant evidence. Mr. W. himself had been a victim of police brutality. Furthermore, during a break the prosecutor observed Juror W. staring at the area behind the court reporter with a weird look on his face, which made the prosecutor uneasy.
Ms. A., who the prosecutor noted did not appear to be African-American but had listed that race among others on her questionnaire, seemed hesitant and intimidated on voir dire, and did not seem to fully comprehend the situation.
Mr. R., during a break, had an interaction with the prosecutor that left the prosecutor feeling uncomfortable. The prosecutor explained, "being an African-American prosecutor we get used to certain looks, and Mr. R. gave me a look and he looked me up and down as if how could I actually be a district attorney or how could I actually, it was just a weird interaction in that he looked at me from head to toe and kind of had a little I wouldnt say smirk but that uneasy feeling where we know that it wasnt. [Sic.]" The prosecutor also observed that when asked whether he would be able to convict if he were sympathetic toward the defendants, Mr. R. had hesitated. The prosecutor noted this was an important issue for him, because a sympathetic juror had made the deliberations very difficult at the first trial.
Jenkins submitted the Wheeler issue without argument. McDaniels counsel said the prosecutors explanation for Mr. R. "sounded to me as if the only reason he challenged him peremptorily was because he was an African-American." As to Ms. A. and Mr. R.s hesitation when questioned, counsel said "the court saw what the court saw, but I saw no hesitation when he asked . . . those questions." The court found that "it didnt appear here to be any type of racism going on," and that the prosecutor "articulated specific reasons other than race-based reasons for exercising his peremptory challenges." The court denied the motion.
We review the courts determination on the sufficiency of the prosecutors justifications with great restraint. We presume the peremptory challenges were exercised properly, and defer to the trial courts ability to distinguish bona fide reasons from sham excuses. So long as the court makes a sincere and reasoned effort to evaluate the justifications offered by the prosecutor, its conclusions are entitled to deference on appeal. (People v. Burgener, supra, 29 Cal.4th at p. 864.)
Jenkins claims the court failed to make a "sincere and reasoned" evaluation of the prosecutors justifications. He contends further inquiry into the justifications was called for, particularly as to Mr. R. and Mr. W. We disagree. "When the prosecutors stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings." (People v. Silva, supra, 25 Cal.4th at p. 386.) This is particularly true when the prosecutors reason is based on the prospective jurors courtroom demeanor. (People v. Reynoso, supra, 31 Cal.4th at p. 919.)
Jenkins argues that the "look" Mr. R. gave the prosecutor, because it involved an interaction peculiar to African-Americans, was a race-based reason. Race-based reasons are not necessarily impermissible, however. A prospective jurors bias in favor of African-American defendants, for instance, would be a valid race-based justification for a challenge. It is challenges based on "group association rather than . . . any specific bias" that are prohibited. (People v. Wheeler, supra, 22 Cal.3d at p. 280; People v. Johnson (2003) 30 Cal.4th 1302, 1309.) The prosecutor informed the court of his grounds for believing Mr. R. was specifically biased against the prosecutor himself. This was a good reason for the challenge. "Hostile looks from a prospective juror can themselves support a peremptory challenge." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125; see also People v. Reynoso, supra, 31 Cal.4th at p. 917.)
Jenkins also argues the court should have inquired into the prosecutors claim that Mr. W. had a "weird look" on his face as he stared at the area behind the court reporter. We are not sure what more the court might have elicited regarding such a subjective observation. Mistrust of a potential juror based on "bare looks and gestures" is a valid justification and requires no further inquiry from the court. (People v. Wheeler, supra, 22 Cal.3d at p. 275; People v. Reynoso, supra, 31 Cal.4th at pp. 917, 919.) In any event, Mr. W.s experience as a victim of police brutality and his opinion that the police sometimes plant evidence were further sufficient reasons for a challenge. "A prospective jurors negative experiences with law enforcement can serve as a valid basis for peremptory challenge." (People v. Gutierrez, supra, 28 Cal.4th 1083, 1125.) Jenkins claims this case did not depend on the credibility of police witnesses. However, Mr. W.s experiences with and beliefs about police provided reasonable grounds for suspecting he might be unsympathetic to the prosecution.
As to Ms. A., Jenkins contends the record does not support the prosecutors claim that she was hesitant and appeared not to understand the proceedings. To the contrary, the record shows that Ms. A. had to be prompted to speak into the microphone. When asked if she understood the defendants were presumed innocent, Ms. A. answered "no," requiring further questioning on this basic point. The record supports the prosecutors justification.
Jenkins also argues that "except for a few exceptions," only African-American potential jurors were asked whether they could convict even if they felt sympathetic toward the defendants. We note, however, that Jenkins identifies no less than six other jurors who were queried on this point. More importantly, neither he nor McDaniels made this argument below. Evidence supporting such "comparative juror analysis" is properly considered on appeal only if it was presented to the trial court. (People v. Johnson, supra, 30 Cal.4th at pp. 1324-1325.)
The court properly denied the Wheeler motion.
3. The Marsden Motions
"Marsden motions are subject to the following well-established rules. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Denials of Marsden motions are reviewed under an abuse of discretion standard. Denial is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel." (People v. Barnett (1998) 17 Cal.4th 1044, 1085, internal quotation marks and citations omitted.)
A. Jenkins Motion
Jenkins made two Marsden motions. He challenges only the denial of the second, but we review the first for background purposes. Jenkins attorney, William DuBois, had represented him at the first trial. DuBois was reappointed as Jenkins counsel on May 19, 2000. On July 18, 2000, DuBois and Jenkins appeared before the court in camera, without the prosecutor present. DuBois moved to withdraw as counsel, and asked the court to consider his request as part of a Marsden motion by Jenkins. DuBois declared Jenkins no longer wanted him as his lawyer, and therefore DuBois felt he could not adequately represent Jenkins. DuBois said Jenkins testimony was crucial to his defense, as it had been in the first trial, and it was "crucial that whoever represents him work closely with him in their preparation of that testimony." DuBois felt "theres a real danger that [Jenkins] refusal to cooperate or work with me may prevent me from giving him adequate assistance."
In his reply brief, Jenkins asserts he made a third motion on January 29, 2001. However, the record cite he provides is for a Marsden motion filed by McDaniels.
The court asked Jenkins to explain why he wanted a different attorney. Jenkins said he and DuBois were not seeing eye to eye, and he wanted DuBois to take legal steps DuBois didnt want to pursue. The court asked for examples. Jenkins said he thought the charges against him might be reduced after the reversal of the first judgment, though he did not understand the legal basis for this possibility. The court suggested to Jenkins that such issues would be resolved in the court assigned for trial, and told him his attorney was in charge of tactical decisions.
Jenkins complained that he had wanted to insist on his right to a speedy trial after the remittitur issued, but he ended up waiving his time instead of getting a continuance for purposes of obtaining discovery from the prosecutor. DuBois explained that a waiver had not been contemplated, and Jenkins had surprised him by waiving time orally when he appeared for the continuance motion. Dubois said this was an example of the communication problems he had with Jenkins.
Jenkins also said he had wanted to review the testimony of a prosecution witness from the first trial, but DuBois had brought him his own testimony instead. DuBois explained he had thought Jenkins wanted to see his own testimony. Both DuBois and Jenkins said their personal relationship was very good. However, Jenkins was concerned that DuBois was not pursuing available pre-trial avenues of defense, and DuBois was concerned that Jenkins lack of interest in working with him would affect his ability to provide effective assistance.
The court denied the motion to withdraw and the Marsden motion, advising Jenkins to work with DuBois and telling Jenkins there was no apparent reason he could not do that.
The case was assigned for trial on January 22, 2001. Pretrial motions were heard from January 24 through February 5. Jury selection began February 5 and was completed on February 20. On the morning of February 21, the day set for opening statements, DuBois moved for a suspension of the proceedings so that Jenkins competence to stand trial could be determined. DuBois told the court that, due to either mental disease or developmental disability, Jenkins was unable to understand the nature of the proceedings or to assist counsel in conducting a rational defense. Therefore, DuBois requested a competency hearing under Penal Code section 1368, subdivision (b).
The court expressed skepticism that Jenkins mental state had suddenly become worse. It noted that during recent proceedings he appeared to be more aware of what was going on than most criminal defendants. The court found no substantial evidence of incompetence, and denied the motion. DuBois said he was not prepared to go forward, and had no idea what the defense would be. The court told DuBois he would have plenty of time to prepare an opening statement. DuBois then presented the court with a hand-written Marsden motion by Jenkins. The court stated the motion was untimely and would not be considered at that time.
Nevertheless, the court allowed Jenkins to explain the basis for his motion. Jenkins said his relationship with DuBois had deteriorated to the point where they could not communicate or develop a defense together. The court noted they had been conversing together the day before. Jenkins responded that he had been trying to reach out to DuBois, but the split between them was so serious as to deny him his right to effective assistance of counsel. DuBois had not told him what the defense would be. The court said they would be given time to speak together, but noted DuBois had represented Jenkins in the first trial and throughout the pretrial proceedings. The court said it was not willing to suspend the trial at this point.
Jenkins referred to his earlier Marsden motion, and said he had tried to mend the relationship as the judge had advised him to, but that DuBois "hasnt put forth the effort." Jenkins said he was still willing to try, but he and DuBois were unable to have a rational conversation. The court said they would have plenty of time before they had to put on a defense. DuBois responded to Jenkins statements by telling the court he had been unable to communicate rationally with Jenkins about the implications of his testimony at the first trial. DuBois said "yesterday it came to a head when things were said by him which indicated no, not a scintilla of rationality in terms of his defense, and maybe thats whats causing friction, but its not for lack of trying on my part."
The court noted that disagreements between clients and counsel were hardly unusual, and told Jenkins that DuBois was too far into the case and too well informed for a change of counsel to be contemplated. Jenkins said he understood the court to say there would be no Marsden hearing. The court responded: "This Marsden hearing is, number one, untimely. Number two, its already been heard." The court refused to hold an in camera hearing, and reiterated that the motion was untimely.
Jenkins correctly notes that while a Marsden motion may be made at any stage of the proceedings (People v. Smith (1993) 6 Cal.4th 684, 694-695), the trial court has discretion to deny the motion as untimely (People v. Whitt (1990) 51 Cal.3d 620, 659; People v. Williamson (1985) 172 Cal.App.3d 737, 745). However, Jenkins argues the court was obliged to hold an in camera hearing to explore his dissatisfaction with DuBois, instead of summarily denying the motion because it was untimely.
We disagree. The court heard Jenkins objections, and they were as patently groundless as DuBois motion for a competency hearing, which was quickly shown to be frivolous when Jenkins colloquy with the court demonstrated an understanding of the nature of the proceedings beyond that of the ordinary defendant. Neither disagreement over defense tactics nor claimed inability to get along are sufficient to establish an "irreconcilable conflict" requiring the appointment of new counsel. (People v. Welch (1999) 20 Cal.4th 701, 728-729;People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The critical issue is whether it appears that ineffective representation is likely to result from a conflict between counsel and client. (Ibid.) Here, DuBois competence was established at the first trial, which nearly ended in a hung jury. (See People v. Jackson (1981) 121 Cal.App.3d 862, 872.) Jenkins complains that DuBois went on to make an opening statement that was inconsistent with Jenkins testimony. It is improper to rely on subsequent events to challenge a Marsden ruling. (People v. Berryman, supra, 6 Cal.4th at p. 1070.) In any event, Jenkins makes no claim of actual ineffective assistance based on the opening statement or any other aspect of DuBois performance at trial.
It is well settled that a defendant may not force the substitution of counsel by his own conduct manufacturing a conflict. (People v. Smith, supra, 6 Cal.4th at pp. 696-697; People v. Michaels (2002) 28 Cal.4th 486, 523.) The fact that counsel in this case cooperated in the effort to create a conflict does not justify a different result. The timing of the motion for a competency hearing and the Marsden motion was highly suspect, as were the grounds. The court properly denied Jenkins request for the appointment of substitute counsel on the first day of trial.
B. McDaniels Motion
On January 25, 2001, at the end of a session in which the court and counsel discussed pre-trial motions and the jury questionnaire, McDaniels told the court he would like to present a Marsden motion. The court told him to put the motion in writing, with his reasons for seeking substitute counsel, and said it would hear the motion on Monday the 29th, the next day for which proceedings were scheduled.
In his opening brief, McDaniels claims he requested a Marsden hearing on January 22. The record reflects no such request. McDaniels also claims certain comments by the court and his counsel on the 25th indicate his motion was not taken seriously. That inference is unwarranted.
At an in camera hearing on the 29th, the court noted that in his motion papers McDaniels complained that his counsel, Marvin Levy, had failed to provide McDaniels with trial transcripts and police reports. McDaniels also claimed the attorney-client relationship had irreversibly broken down. McDaniels explained to the court that he had the police reports before the previous trial, but his former attorneys had given them to appellate counsel. Levy said there were over a thousand pages of police reports, and he would have to redact them before turning them over to his client. He said he had told McDaniels he would give him specific reports upon request.
The court asked if they had been discussing the defense. Levy said they had, but "the discussions have been difficult because we have disagreements about I guess priorities." McDaniels complained he had been requesting the transcripts and police reports for eight months, and had yet to discuss the defense with Levy. McDaniels said Levy had been busy with other trials and was not prepared for his case. McDaniels said he could have been preparing for the defense if he had the requested materials, and said he had also been unable to get certain taped witness statements. The court explained that it was still early in the pretrial proceedings, and asked Levy to respond.
Levy said he had read up on the case a week ago and had all the police reports indexed. He was having problems getting McDaniels to "deal with the defense." The court told McDaniels to make a list of the police reports he wanted, and said Levy would make him copies of the transcripts of witnesses from the first trial who would be called again. McDaniels then complained about something that was "incorrect" at a hearing where he waived his speedy trial rights, though he could not identify the issue. Levy said he remembered speaking to McDaniels about something that was not a legal problem. Levy said it was "one of the legal disagreements we often have."
The court told McDaniels that Levy was a well respected attorney. McDaniels complained that even if he got the materials he had requested now, it was too late for him to prepare a defense. The court told him he had an attorney working for him, and he should cooperate with counsel. McDaniels protested that Levy was not doing enough, and said the conflict between them was so bad he couldnt trust Levy. The court noted Levy was now better prepared than any other attorney who came into the case could be. The court asked about the witness tapes, and Levy admitted he had not realized until the previous weekend that he did not have the tapes. He intended to get copies from the prosecutor.
The court observed that the rest of McDaniels complaints had to do with the attorney-client relationship. It told McDaniels it was to be expected that his attorney would be busy with other trials, but Levy was now prepared to "represent you to the fullest." The court told McDaniels to listen to Levy and "come to a meeting of the minds." The court then announced that the Marsden motion was denied, but McDaniel had another complaint to put forward, one not in his written motion. He said he had complained to the State Bar about Levys unprofessional conduct when he "started cussing at me" and showing disrespect. McDaniels claimed they could not "really function together at all," and said he "refused to proceed with this man as my attorney" due to Levys "belligerent manner" and lack of effectiveness.
Levy acknowledged telling McDaniels to stop "giving me this bullshit" when they were arguing about things Levy felt had nothing to do with the case, and when he was trying to get some answers from McDaniels about the defense. He had heard nothing about a complaint from the State Bar.
The court told McDaniels it had heard nothing to indicate that Levy could not adequately represent him. While he might not like Levy, most attorneys would not appreciate a client arguing with them about legal issues. The court advised McDaniels that the legal advice he might be hearing from people in jail could be wrong. The court again denied the motion, but let McDaniels go on to say that Levys eight months of neglecting his case and failing to provide McDaniels with discovery material was inexcusable. McDaniels did not think the week or two left before trial was long enough to put together a defense. The court responded that Levys preparation was sufficient, and was "as much as you can expect from an attorney." It told Levy and McDaniels to discuss the materials McDaniels needed.
McDaniels contends the hearing established an irreconcilable conflict between himself and Levy that precluded constitutionally effective assistance of counsel. He also points to several instances of Levys ineffectiveness, most of which were not raised at the hearing. He fails to show any abuse of discretion. A defendant may not obtain substitute counsel merely by claiming a lack of trust in or inability to get along with counsel. (People v. Crandell (1988) 46 Cal.3d 833, 860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Berryman, supra, 6 Cal.4th at p. 1070.) The court inquired into each of McDanielss complaints and heard from Levy. Its conclusion that Levy was prepared to provide an effective defense was a reasonable one.
For instance, McDaniels claims Levy had failed to obtain witness statements, or the names and addresses of prosecution witnesses, or discovery material regarding a carjacking in which the getaway car for the Brinks attempted robbery was stolen. He also claims, with no foundation in the record, that Levy did not obtain transcripts from the first trial. In his reply brief, McDaniels acknowledges his error regarding the transcripts; the transcripts Levy had been unable to obtain were those from the carjacking trial. In any event, the missing transcripts were not mentioned at the Marsden hearing. We do not consider grounds that were not presented to the trial court.
Levy was not required to provide McDaniels with the voluminous transcripts and police reports he requested in advance of trial. It was Levys job to plot the defense, not McDaniels. (People v. Welch, supra, 20 Cal.4th 701, 728-729.) Nor did the court rest its denial of the motion on its own opinion of Levys competence. It simply advised McDaniel to listen to Levy because he was an experienced and respected defense attorney. The Marsden motion was properly denied.
McDaniels also notes that the court summarily refused to hear another Marsden motion toward the end of trial. The court erred in this respect; as McDaniels pointed out below, he had a right to file a Marsden motion at any point in the proceedings and the court had no discretion to refuse to hear it. (People v. Smith, supra, 6 Cal.4th 684, 694-695.) However, McDaniels fails to present argument on this error. In the absence of any contention that the motion should have been granted, or that a more favorable result would have been achieved if had been granted, we need not consider whether the error was prejudicial. (See People v. Washington (1994) 27 Cal.App.4th 940, 944.)
4. McDaniels Faretta Claim
At the end of McDaniels Marsden hearing, after the court had twice announced that the motion was denied, the following exchange occurred:
"[] McDaniels: All right. After this proceeding is it possible that I go pro bono and self representation of myself?
"The Court: Weve already started now with him representing you.
"[] McDaniels: I understand that. Its never too late to represent yourself. Id rather go pro bono.
"The Court: Heres what I want you to do. They wont be back until 3:30. I want you all to sit here and discuss things right here. You can make a list of things you need and then well go from there.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"The Court: Tell him [Levy] what you need and lets see if we cant work something out because I dont think youd be very wise to be trying to represent yourself in this type of a case.
"[] McDaniels: Well, if I bring in a motion tomorrow, is it possible we could have a hearing on self representation or pro bono?
"The Court: What pro bono?
"[] McDaniels: I mean pro per.
"The Court: Pro per. Yeah, Im just saying its not a very wise decision. You can always ask for that."
McDaniels characterizes this colloquy as a "summary denial of appellants request to represent himself." We disagree. To invoke the constitutional right of self-representation under Faretta v. California (1975) 422 U.S. 806, a defendant must make an unequivocal assertion of that right. (People v. Barnett, supra, 17 Cal.4th at p. 1087.) An impulsive request for self-representation made immediately after the denial of a Marsden motion may properly be viewed as an equivocal, emotional reaction to the courts ruling. (Id. at pp. 1087-1099.) Here, the equivocal character of McDaniels request was demonstrated by his inquiry about holding a hearing "if I bring in a motion tomorrow." He never brought such a motion. The court did not deny his request out of hand. It properly warned him about the wisdom of self-representation (Faretta v. California, supra, 422 U.S. at p. 835), but assured him he could "always ask for that." There was no Faretta error.
5. McDaniels Ineffective Assistance Claim
Finally, McDaniels contends Levy provided ineffective assistance of counsel. To establish that counsel is constitutionally ineffective, McDaniels bears the burden of demonstrating both deficient performance and prejudice. He must show that Levys performance was objectively unreasonable under prevailing professional norms, and that it is reasonably probable the result of the trial would have been different but for Levys errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Weaver (2001) 26 Cal.4th 876, 955.) If McDaniels fails to establish prejudice, we may reject his claim on that basis without determining whether Levys performance was deficient. (Id. at p. 961.)
McDaniels claims Levys preparation for trial was inadequate. However, he identifies only one prejudicial effect of Levys allegedly insufficient preparation. McDaniels contends Levys failure to discover that a person named Frank Valentine had died gave the prosecutor an advantage while cross-examining defense witnesses. The defense theory was that Valentine had persuaded Jenkins and McDaniels to participate in the Brinks robbery by telling them a Brinks guard and a bank employee were in on the plan, and the money would be handed over without resistance. Jenkins mother, Linda Armour, testified for the defense. On cross-examination, the prosecutor asked Armour about threatening phone calls she had received over the years since her son became a suspect in the Brinks incident. Armour said she had assumed Frank Valentine was the person making the calls, and the voice on the calls sounded like the same person each time. Armour testified she received these calls in 1994 after the incident, a couple of times in 1995, once in 1996, and again in 1997 before she moved to Vacaville.
At the end of Armours cross-examination, Levy said: "Im asking for a recess, your Honor. We just received some discovery that weve not seen before and we need to deal with it." Out of the presence of the jury, Levy told the court that just before Armour took the stand, the prosecutor handed the defense a copy of a death certificate showing Valentine had died in August 1996. DuBois said Armour was actually on the stand when he got the certificate. After the recess, Levy rehabilitated Armour by questioning her about the certificate, establishing that she had not known about Valentines death and had never been sure the threatening phone calls were all from the same person. Armour stated that was why she had consistently responded to the prosecutors questioning by saying the voice "sounded like" Valentine.
We discern no significant prejudice to the defense from this incident. The threatening phone calls were not a critical part of Armours testimony. They were explored only on cross-examination. Armours identification of Valentine as the maker of the calls was consistently hedged by explanations that she merely assumed it was him, and that it sounded like his voice. Thus, her ignorance of the fact that Valentine had died in 1996 had only a minor impact on her credibility. There is no reasonable probability that McDaniels would have enjoyed a better result had Levy been aware of Valentines death.
McDaniels also complains that Levy failed to object to the prosecutors misconduct in questioning Armour about phone calls he knew Valentine could not have made. McDaniels fails to establish any misconduct. His reference to prosecutorial argument that a defendant has failed to produce evidence is irrelevant the prosecutor made no such argument here. He did made a passing reference to Valentine in cross-examining Jenkins about his ability to find witnesses to corroborate his defense, but that hardly amounted to "argument" and any effect the comment had on the jury would have been dispelled when the death certificate was revealed. McDaniels also cites People v. Daggett (1990) 225 Cal.App.3d 751, 759, for the proposition that it is misconduct for a prosecutor to take unfair advantage of a witness mistake to elicit prejudicial evidence. Nothing of the sort occurred in this case. As we have explained, Armour made it clear that she was never sure about the identity of the caller, and no prejudicial evidence was introduced as a result of her attribution of the 1996 and 1997 phone calls to Valentine.
McDaniels last contention is that Levy erred by having McDaniels testify about his background as a street hustler who sold drugs. This opened the door for the prosecutor to introduce evidence that McDaniels had been arrested three times for selling crack cocaine and once for possession of a loaded firearm, at which time he gave the police a false name and birth date. However, even when defense counsel elicits evidence adverse to his client, an appellate court must be reluctant to second-guess counsel when a tactical choice led to the damaging testimony. (People v. Robertson (1982) 33 Cal.3d 21, 43, fn. 11; accord, People v. Williams (1997) 16 Cal.4th 153, 217.) Here, Levys strategy, made explicit in his closing argument, was to portray McDaniels as a gullible young man, "selling drugs and just getting along," taken in by Valentines promise that the staged robbery would yield him easy money. We cannot say this tactic amounted to ineffective assistance of counsel. Levy could reasonably have deemed the prejudicial impact of the prior arrests to have been minimal, given his clients admitted participation in the Brinks incident.
DISPOSITION
The judgments are affirmed.
We concur: McGuiness, P. J., Corrigan, J.