Opinion
G037136
5-31-2007
THE PEOPLE, Plaintiff and Respondent, v. SANDRA LYNN LANE, Defendant and Appellant.
James M. Crawford for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Sandra Lynn Lane of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and unauthorized entry into a dwelling (Pen. Code, § 602.5, subd. (a)). She contends the trial court interfered with her constitutional right to counsel at trial and sentencing, and denied her right to allocution. She also argues the trial court erred in finding she lacked standing to suppress evidence seized during her arrest. We conclude defendants right to counsel was violated and therefore reverse the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On Sunday, January 30, 2005, around 9:00 p.m., Costa Mesa Police Officer Eugene Kim received a dispatch concerning a female who had forced her way into a vacant apartment at a five-unit complex on Victoria Avenue. Kim spoke to a next-door neighbor, walked to the rear of the apartment, and observed pry marks on a bent window screen. The window was unlocked, and a lock had been drilled out of a rear sliding door.
Defendant represented herself at trial. She generally did not interpose objections to testimony, but the court directed the jury not to consider the callers information as substantive evidence of guilt.
Kim removed the screen, opened the window, struck his flashlight against the wall, and yelled "Costa Mesa Police." He asked anyone inside to identify themselves, waited 30 seconds and repeated the request. Smelling cigarette smoke, Kim and his partner crawled through the window and began searching the apartment.
A man, Chris Beaker, emerged from one of the rooms. Officers found defendant in one of the other bedrooms. The apartment contained a makeshift table but no other furniture, with a few blankets scattered on the bedroom floors. Officers observed several computers, computer parts, and other electronic equipment and power tools, including drills. Defendant acknowledged everything in the room belonged to her. Kim found a baggie containing about 2 grams of methamphetamine in a black laptop computer bag in the living room. Defendant admitted the bag and drugs belonged to her.
Sheila Anders began living on site as the apartment manager in January 2005. On January 30, the apartment in which Kim had discovered defendant was listed as vacant. Neither defendant nor Beaker were tenants and they had no permission to enter the apartment. Anders noticed damage to the apartment after January 30 that had not been there before.
Defendant told officers she and Beaker were in the process of moving into the apartment. She explained they entered through the open slider because they had not yet spoken to the manager and did not have a key. Defendant did not testify or present any evidence.
In April 2006, a jury convicted defendant of methamphetamine possession and misdemeanor trespassing. Defendant admitted she had previously suffered a prior "strike." The court imposed the low term of 16 months for the drug offense, suspended sentence on the trespass count, and struck the prior strike conviction.
II
DISCUSSION
A. Defendant Involuntarily Waived Her Right to Counsel
Defendant argues the trial court erroneously refused to relieve retained counsel unless she agreed to represent herself at trial. The Attorney General counters counsels request to withdraw was untimely and the trial court, to prevent further delay of the proceedings, acted within its discretion in giving defendant the option to represent herself if she discharged her lawyer.
1. Background Facts
Defendant retained Attorney Jack Swickard to represent her. Swickard was her attorney of record from April 26, 2005, the initial arraignment date, until November 21, 2005, the original date set for trial. Between April and November, the defense obtained several continuances. On November 21, the parties answered ready for trial and the case trailed. Later that morning, however, Swickard declared a conflict: "Actually, your honor, the reason I came back is after discussing thoroughly with the client in the hallway, I discovered the conflict still exists. Its deep and abiding and its relatively recent in nature and we cannot resolve that conflict. The client is here and I also informed the district attorney of that, as well." Swickard declined to disclose the nature of conflict citing attorney-client privilege, but represented defendant would move quickly to hire another lawyer. The court trailed the matter to the following day.
The next day, defendant informed the court she had spoken with a "John" Silverman and had decided to retain him, but he could not appear until the following week. Defendant explained she would prefer not to waive time for trial. The court replied she had no choice, but also stated if "you want to go pro[.] per[.], no problem." Defendant replied, "I cant do that." After speaking with a deputy public defender at the courts invitation, defendant waived time. The court set a pretrial for December 2, deeming that day zero of 60 for trial.
On December 2, defendant appeared in pro. per. and successfully moved for a one-week continuance. On December 9, Phillip Silverman appeared for defendant as her attorney of record. The court set a pretrial date in early January after defendant waived her right to a speedy trial, but later continued the January pretrial so defense counsel could file a suppression motion. After one postponement, the court heard and denied the motion to suppress on February 24, and set pretrial for March 3.
On the morning of March 3, Silverman appeared and informed the court defendant "indicated she does not want me to represent her further." The court informed him it would not "relieve" him unless "she wants to represent herself." The judge remarked that several attorneys had represented defendant, and she "has not been very forthcoming towards any of her lawyers." Informed that no trial date had been set, the court selected March 27. Silverman objected he would be out of the country that week. The court responded "lets do it before that then," noting "this is a pretty simple case." The court informed defendant that "if you get convicted . . . Im not going to give you county time. You are going back to state prison. I have been very nice to you in my offers and so forth, and Im not — Im no longer playing games with you. And so you have gone through two or three lawyers in my presence and you have done nothing but stall this case and its game over . . . ."
Silverman suggested April 10 for trial. The court noted no time waiver was required and stated that if defendant wanted to "fill out some papers to go pro[.] per[.], no problem." After a recess to allow defendant to confer with Silverman, defendant accepted the option of self-representation. In providing a waiver of counsel, and in response to the courts questions, defendant noted she had left high school after the ninth grade, her ability to read and write English was excellent, and she was sure she wanted to represent herself. Counsel stated he had gone over the waiver form with his client, which she initialed and signed.
The form reflects defendant agreed with each of the following statements: "Do you understand that you have a right to a lawyer of your choice, and that if you cannot afford to pay for an attorney the Court will appoint a lawyer to represent you at no cost to you? [¶] Do you understand that there are certain dangers and disadvantages to your acting as your own lawyer, some of which are: [¶] 1. That it is almost always unwise to act as your own lawyer? [¶] 2. That you may do more harm than good for yourself by defending yourself? [¶] 3. That you will receive no special treatment from the Court and you will have to follow the same rules and procedures which a lawyer would have to follow? [¶] 4. That the prosecuting attorney in your case will be an experienced lawyer, and it is this lawyers duty to give you no special treatment or consideration, and you will, therefore, be in an unfair fight because he is more experienced and more skilled than you are? [¶] 5. That if you had a lawyer of your own the lawyer might file pretrial motions and conduct investigations. [¶] 6. That acting as your own lawyer, you will not be able to receive the sound advice of an experienced criminal lawyer?" She also agreed she was informed of the elements of the offense with which she was charged, she was aware of possible defenses to the charge and that if she was successful in presenting a defense to a jury she might be found not guilty. She also indicated she understood that if the court permitted her to represent herself, she could not later claim she did not represent herself well or that she should have had a lawyer.
Defendant later acknowledged this was her first trial, having pleaded guilty in her prior cases.
Before the trial started on April 11, defendant conferred briefly with a deputy public defender. Defendant remarked she could "definitely use some help," but disliked the deputys advice, remarking "he didnt want to defend me. He wants to convict me."
With the courts direction, defendant admitted the allegation she had a prior conviction constituting a strike. She also agreed to stipulate that she knew about methamphetamine so the court could exclude her prior convictions for possessing the drug.
2. Defendant Did Not Knowingly and Voluntarily Waive Her Right to Counsel
A criminal defendants right to counsel and to present a defense are among our most cherished constitutional rights. (People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz); U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) These rights include the right to discharge hired counsel the defendant no longer wishes to retain. (Ortiz, at pp. 983, 985.) "The right to discharge retained counsel is based on `"necessity in view both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust." [Citation.]" (Id. p. 983 (original brackets).) In addition to "insuring reliability of the guilt-determining process," the right to chosen counsel serves as a bulwark of liberty in another respect, reinforcing "the states duty to refrain from unreasonable interference with the individuals desire to defend himself in whatever manner he deems best, using every legitimate resource at his command." (People v. Crovedi (1966) 65 Cal.2d 199, 206 (Crovedi).) While counsel may discharge appointed counsel only if that lawyer is rendering inadequate representation or there exists an irreconcilable conflict between counsel and client (Ortiz, at p. 984; see People v. Marsden (1970) 2 Cal.3d 118, 123), the defendant may discharge retained counsel with or without cause. (Ortiz, at p. 983.)
This right is not absolute, however. The trial court may reject a motion to relieve retained counsel "if it is not timely, i.e., if it will result in `disruption of the orderly processes of justice [citations]." (Ortiz, supra, 51 Cal.3d at p. 983.) The court "must exercise its discretion reasonably: `a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." (Id. at p. 984.) Thus, the court "must balance the defendants interest in new counsel against the disruption, if any, flowing from the substitution." (People v. Lara (2001) 86 Cal.App.4th 139, 153 (Lara).) The "prospect of possibly impairing efficient judicial administration" must be sufficiently weighty "to overcome defendants interest in obtaining counsel of his [or her] choice" (People v. Gzikowski (1982) 32 Cal.3d 580, 589 (Gzikowski )); indeed, the disruption must be "unreasonable under the circumstances of the particular case." (Crovedi, supra, 65 Cal.2d at p. 208.)
Here, there was no evidence defendants April 10th trial would be jeopardized if defendant discharged Silverman on March 3d. As the court itself observed, "[T]his is a pretty simple case." Nothing suggests defendant could not have obtained a new lawyer prepared to try the case on the date the court selected. Defendant had promptly hired new counsel after her original lawyer, Swickard, declared a conflict, and there was no reason to believe she would not do so again. Nor was there a showing of inconvenience to witnesses or prejudice to the prosecution which warranted the courts interference with defendants right to defense with counsel of her choice. (See Ortiz, at p. 984 [noting practical difficulties of "`"assembling the witnesses, lawyers, and jurors at the same place at the same time""]; People v. Turner (1992) 7 Cal.App.4th 913, 919 [defendants request to replace his lawyer on the trial date is disruptive because of inconvenience to witnesses and other participants]; People v. Lau (1986) 177 Cal.App.3d 473, 477 [prospective jurors in hallway]); Crovedi, supra, 65 Cal.2d at p. 209 [trial courts concern as to convenience of out-of-state witnesses unjustified in light of all circumstances and defendants interests].) Simply put, defendants request to discharge her attorney was timely because trial was not imminent. (People v. Dent (2003) 30 Cal.4th 213, 221.)
We conclude the trial court unduly restricted defendants options by refusing to allow defendant to exercise her right to discharge counsel unless she agreed to represent herself. The price extracted for removing a lawyer defendant did not want was self-representation, an option she previously had rejected in November. In explaining the condition for removing counsel, the court did not inform defendant she had the option of hiring her own lawyer or requesting appointed counsel if she could not afford to retain an attorney.
In November, the court asked defendant if she preferred to represent herself. Defendant responded, "I cant do that."
The Attorney General contends the court did not expressly restrict defendant from hiring counsel in the interim before trial and therefore did not infringe defendants right to select her own counsel. The courts comments, however, are not reasonably susceptible to this interpretation. Even if the court entertained this notion, it failed to inform defendant she had this option. Moreover, defendants right to counsel would still suffer impairment if defendant lacked the means to hire counsel because the courts choices did not include the option of requesting appointed counsel. As the Supreme Court recently explained, "The right to representation by counsel persists until a defendant affirmatively waives it, and courts indulge every reasonable inference against such waiver." (People v. Dunkle (2005) 36 Cal.4th 861, 908.) Under these circumstances, we cannot deem defendants "choice" to represent herself a voluntary invocation of her right to self-representation.
The Attorney General also argues the court had discretion to deny counsels request to withdraw from the case. A trial court retains the discretion to prevent a defendant from relieving retained counsel only if it would disrupt "`the orderly processes of justice." (Ortiz, supra, 51 Cal.3d at p. 983.) As discussed, we do not see how allowing defendant to discharge her attorney, without conditions, at the March 3 pretrial threatened to derail the courts interest in orderly administration.
The Attorney General cites the courts remark that defendant had not been "forthcoming" with her lawyers. As for this and other statements by the trial judge suggesting it believed defendant was "playing games" or stalling because she was out of custody, the solution was to set a firm trial date, not to issue an ultimatum requiring defendant to choose between self-representation or keeping her retained lawyer, who she did not want. As for the Attorney Generals claim of "nothing in the record to suggest a credible conflict existed," defendant need not show a `conflict to timely discharge retained counsel. (Ortiz, supra, 51 Cal.3d at p. 983 [criminal defendant may discharge retained counsel "with or without cause"].)
Reversal is automatic when a trial court prevents defendant from exercising her right to defend with counsel of her choice. (Lara, supra, 86 Cal.App.4th at p. 154.) Consequently, we need not address defendants claim the court erred by refusing to continue the sentencing hearing and denying defendant her right to allocution. We must decide defendants Fourth Amendment claim, however, to determine if she is entitled to another suppression motion on remand.
B. Suppression Motion
Defendant argues the trial court erroneously denied her suppression motion. The court concluded defendant lacked standing to object to the apartment search because she was a trespasser without a legitimate expectation of privacy in the apartment. Defendant contends she reasonably believed she occupied the apartment lawfully, and the court relied on inadmissible hearsay in finding to the contrary. Even if she lacked standing as to the apartment, defendant contends she had a legitimate expectation of privacy in her computer bag where police found the methamphetamine.
1. Facts at the Suppression Hearing
Defendant testified that on January 30, 2005, she had been living with Ron Roberson at another residence in Costa Mesa for about three or four years, but had been looking for another place to live. A friend, Ron Cross, told her about the Victoria Avenue apartment and suggested she contact "Rob," the landlord. Arriving at the Victoria apartment complex on January 30 around 9:00 a.m., defendant walked upstairs and spoke to Rob about renting an apartment. He told her it was downstairs, the doors were unlocked and she could examine it. After inspecting the unit, she spoke to Rob again. He told her if she left a deposit, she could start moving her things in and he would give her a key the next day when she paid the rest of the money. She returned around noon and handed Rob a $300 deposit. He gave her a receipt, which she identified as an exhibit at the hearing.
At the time counsel identified the exhibit, the court remarked, "Well, anybody can do one of those," and "[e]ven the handwriting on it is suspect."
Defendant started moving in that afternoon with the help of her friend, Chris Beaker. The doors were unlocked. While moving in, a neighbor confronted her about her right to the apartment. Defendant explained she had rented the apartment, but the neighbor threatened to call the police. Defendant told her to call police if she desired and to get off her property. When the police arrived, defendant explained how she had rented the apartment and was in the process of moving in. Defendant told the officers she had a receipt, but could not produce it. Her efforts to locate Rob for the hearing were unsuccessful, and Ron Cross could not testify because he had been sentenced to prison.
Defendants friend Linda Hallock testified she accompanied defendant to the apartment on both occasions that morning. They walked upstairs to talk to the manager. Defendant handed him a deposit and he gave her a receipt. Roberson, defendants boyfriend, testified she had rented a room in his house until January 31, 2005, for $400 a month. Around Christmas or New Years, defendant told him she planned to look for another apartment.
Costa Mesa Detective Matthew Olin testified for the prosecution. On April 25, 2005, he spoke with the manager of the Victoria apartments, Sheila Anders, at her first floor apartment. Anders did not tell him how long she had been the manager. Anders told Olin that defendant was not a resident and had broken into the apartment and damaged property. Defendant lodged a hearsay objection. The court overruled the objection, but asked why Anders could not testify. The prosecutor explained "the officer can testify to what she told him." The court asked, "Well, for hearsay purposes for standing?" The prosecutor replied, "Correct." The court declined to let counsel examine Olin on voir dire. Olin did not ask Anders if she was present when police arrested defendant and did not know if she based her statements on first-hand knowledge or had received the information from a third party.
The court denied defendants suppression motion, finding she did not have a legitimate expectation of privacy: "I think exhibit A [the receipt] is a falsified document. Its got dirt all over it. It was no longer crumpled like it was, but its got footprints all over it. And even the handwriting, I mean, it looks very feminine, number one. Number two is that I dont believe for a minute any of the witnesses. . . . I mean, thats the phoniest story I have ever heard. [¶] . . . And any reviewing court could see that. Its too bad they cant see the witnesses that go with it . . . ."
2. Defendant Failed to Demonstrate a Reasonable Expectation of Privacy
A person may not challenge a search unless she has an expectation of privacy society is prepared to accept as legitimate or reasonable. (Rakas v. Illinois (1978) 439 U.S. 128, 141.) Trespassers do not have a legitimate expectation of privacy. (People v. Satz (1998) 61 Cal.App.4th 322, 325.) Nor do squatters. (Whiting v. State (2005) (Md.Ct.App. 2005) 885 A.2d 785.)
A defendant moving to suppress evidence obtained as the result of a warrantless search must set forth the factual and legal bases for the motion by making a prima facie showing that law enforcement authorities acted without a warrant. (People v. Williams (1999) 20 Cal.4th 119, 136.) The burden of proving the justification for the warrantless search or seizure lies squarely with the prosecution. (Id. at pp. 136-137.) It is defendants burden, however, to establish standing, which is a constitutionally reasonable expectation of privacy in the area searched. (People v. Middleton (2005) 131 Cal.App.4th 732, 737, fn. 2.) Generally, a defendant meets this requirement by showing that an authorized person gave permission to be on the premises. Other relevant factors are whether the defendant has a property or possessory interest in the place searched, whether the defendant has shown a subjective expectation of privacy and whether the defendant was legitimately on the premises. (People v. Thompson (1996) 43 Cal.App.4th 1265, 1269-1270.)
The Attorney General argues that defendant "presented an unconvincing story to try to prove she reasonably believed she had the right to be in" the apartment. He asserts the "trial judge, who was in the best position to judge credibility, told [defendant] she did not believe her or her witnesses, and thought [defendant] falsified the deposit receipt."
While the court erred in admitting hearsay that defendant had no permission to occupy the vacant apartment (see People v. Johnson (2006) 38 Cal.4th 717, 720 [section 1538.5 clearly contemplates a suppression motion will be litigated at a hearing at which live witnesses testify whose demeanor and credibility can be evaluated]; Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927 [Evidence Code, including rules barring inadmissible hearsay, applies to every evidentiary hearing except as otherwise provided by statute]; Evid. Code, § 300), any error was harmless. Defendant bore the burden of demonstrating standing. The trial court clearly disbelieved defendants witnesses and documentary evidence. It is not reasonably probable the trial court would have ruled in favor of defendant on the standing issue had it excluded Olins testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Notwithstanding the lack of standing concerning the apartment, defendant maintains she had a reasonable expectation of privacy in her computer bag where the police found the methamphetamine. But she did not raise that issue in her moving papers and the parties did not litigate it at the suppression hearing. We may not consider the claim for the first time on appeal. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [party may not raise issue for first time on appeal if issue not raised at suppression hearing below].)
Defendants written motion asserted she had a reasonable expectation of privacy in the apartment because she reasonably believed she was renting it, and police officers did not comply with the "knock-notice" requirements of Penal Code section 844. (Cf. Hudson v. Michigan (2006) ___ U.S. ___ [126 S.Ct. 2159, 165 L.Ed.2d 56] [violations of knock and announce requirements cannot alone justify application of the exclusionary rule].)
III
DISPOSITION
The judgment is reversed.
We concur:
SILLS, P. J.
RYLAARSDAM, J.