Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. William R. Chidsey, Jr., Judge, Los Angeles County Super. Ct. No. TA080119
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
A jury found defendant Frank Clarence Miller guilty of possession of cocaine base for sale in violation of Health and Safety Code section 11351.5. In a separate bench trial, the trial court found defendant suffered three serious or violent felony convictions under the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served four prior prison terms (§ 667.5, subd. (b)). The trial court granted defendant’s Romero motion, struck two of the strike convictions, and dismissed the prior prison term enhancements. Defendant received a one-strike sentence of eight years, consisting of a four-year middle term doubled.
All statutory references are to the Penal Code, unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
In his timely appeal, defendant contends (1) the trial court violated his state and federal constitutional rights to counsel and a fair trial by denying his request to discharge retained counsel, and (2) defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) were violated when the prosecution improperly commented on defendant’s post-arrest silence in violation Doyle v. Ohio (1976) 426 U.S. 610 (Doyle). We reject both contentions. The trial court acted within its discretion in denying defendant’s untimely request to discharge counsel, and defendant forfeited his Doyle error claim by failing to interpose a timely and specific objection below.
STATEMENT OF FACTS
Prosecution Evidence
On July 1, 2005, at 6:30 p.m., Antonio Lazaro and Lomeli Guzman were inside their home on South Figueroa Street in Los Angeles. Upon hearing a woman’s screams, Lazaro looked out his window into his backyard and saw a woman he did not know. He went outside to investigate and saw defendant with the woman, who was later identified as Tulip Williams. Williams immediately ran inside the Lazaro/Guzman residence through the open door. Defendant was upset, but Lazaro could not understand defendant’s words because Lazaro did not speak English. Lazaro remained with defendant in the driveway until the police arrived. Lazaro did not see defendant pick up anything from the ground.
When Guzman initially heard the noise, she looked outside and saw Williams screaming and running. Guzman became frightened, ran to the bedroom, and called her sister. Soon afterwards, Williams ran into her bedroom in a panic. Guzman never saw defendant.
Officer Andreas An of the Los Angeles Police Department responded to a reported disturbance at the Lazaro/Guzman residence. When he arrived, defendant was trying to get past Lazaro, who was preventing defendant’s entry into the residence. Defendant was agitated and sweating profusely. Officer An did not have the opportunity to interview defendant at that time because he was concerned about reports that another suspect was inside. At some point during the course of the investigation, defendant told Officer An that Williams had taken his money while they were at a hotel, and he was trying to recover it from her. When asked whether defendant told Officer An that he was taking Williams to a drug rehabilitation program, the officer testified, “no.” The officer also denied defendant ever told him that defendant had picked up drugs after Williams dropped them. No objection was made to these questions or answers. On cross-examination, the officer explained that defendant made the statements at the scene, in front of the residence. The officer did not make any “verbatim” notes of the interview. On redirect examination, the officer stated that he noted defendant’s statements as to defendant being at a hotel when Williams took his money, but Officer An’s report had no reference to defendant taking Williams to a drug rehabilitation program or to defendant picking up narcotics dropped by Williams.
The prosecutor was able to anticipate defendant’s defense based on trial counsel’s opening statement.
Officer Manuel Castaneda also responded to the Lazaro/Guzman residence. He saw defendant being detained in front of the house by Officer An. Defendant appeared to have difficulty breathing. Lazaro was outside as well. Suspecting a burglary was in progress, Officer Casteneda took defendant to his patrol car to allow Officer An to search the residence. Upon conducting a pat down search of defendant for weapons, Officer Casteneda found a plastic baggie in defendant’s front pant pocket that contained a large, rock-like substance resembling cocaine base. The officer also found numerous empty baggies in defendant’s other pant pocket.
When Officer Darryl Danaher also responded to the disturbance, defendant told the officer he had arrived at the residence in his van, which appeared to have been hastily parked, as it was partially on the sidewalk in front of the residence. Officer Danaher and his partner recovered various items from the van’s passenger side floorboard and center console, including drug smoking paraphernalia (two pipes—one for cocaine, one for marijuana), marijuana, and $187 in lower denominations of cash. The cash was stashed haphazardly in a black plastic bag. From his experience and training with regard to narcotics transactions, the officer opined defendant was engaged in narcotics sales—the drug packaging, the large size of the cocaine rock on his person, the use of baggies, the cash in the car, and the smoking paraphernalia all combined to support his opinion.
Williams was also searched and two small rock-like substances were recovered from her bra. A criminalist testified the rock-like substances recovered from defendant and Williams, weighing 19.71 and .24 grams respectively, contained cocaine base.
Defense Evidence
Williams testified defendant took her to the Harbor Lights drug treatment program in June 2005. She stayed for a few weeks, but left and began abusing drugs again. On July 1, she saw defendant’s van parked at a liquor store. She went inside the van and prepared to smoke some drugs, having brought the drugs and pipes with her, along with some money in a black plastic bag. Defendant arrived and grabbed the pipe away from her; she placed the two cocaine rocks she had planned to smoke in her bra. She ran away, leaving the cash and taking the drugs.
Williams crossed the street and ran to the Lazaro/Guzman residence. Defendant followed her in his van, before parking it and chasing her on foot. She screamed in fear. Thinking it would stop defendant from chasing her, Williams threw the drugs she was carrying in the yard outside the house. She did not look back to see if defendant picked them up. Williams ran inside the house and tried to explain to Guzman that she and her boyfriend “got in a fight.” When the police arrested her, they found the drugs in her bra. She told them she was pregnant with defendant’s baby.
Defendant testified that Williams told him she was pregnant with his child. In June 2005, he took her to the Harbor Lights drug treatment program for help with her drug problem. She left the program later that month, but defendant hoped to return her to the program. On July 1, he was looking for her at the hotel on Figueroa where she typically used drugs. On the way, he went to a nearby liquor store and purchased a few items for the ride to Harbor Lights. Upon returning to his van, he saw her inside, “trying to smoke dope.” He verbally chastised her for using drugs while pregnant. He snatched the pipe from her hand and threw it on the van’s floor. As they struggled over the cocaine rocks, she put some in her bra. Defendant gave her some cash to buy things at the liquor store “to hold her over” for their trip to the program. She threw the money in the back of the van and ran across the street to the Lazaro/Guzman residence.
Defendant followed in the van, parked hastily, and chased Williams into the yard. As he chased her around the property, she threw down a bag. He “stupidly” picked up the bag off the ground and put it in his pocket, before resuming the chase. Defendant lost sight of Williams, but he came upon Lazaro. Defendant asked him where “his girl” went, but Lazaro did not understand and told defendant to leave his property because he was calling the police. As defendant began to walk away, a number of police vehicles pulled up and detained him. They felt his pockets and handcuffed him. Until the pat-down search, defendant had forgotten about the drugs, which had been in his pocket less than two minutes. Defendant did not pocket the drugs because he wanted to exercise ownership. Rather, his “whole intent” was to stop Williams from abusing them and harming their unborn child. He planned to flush them down the toilet, as he never used cocaine. Defendant denied having the other baggies in his pocket. The police must have taken them from a drawer on the passenger side of his van, where he stored such bags for his two children’s school lunches. Defendant admitted prior felony convictions for robbery in 1981 and attempted murder in 1990.
On cross-examination, the prosecutor asked defendant whether he spoke to the officers at the scene of his arrest. Defendant explained that when the police asked what defendant was “doing,” defendant said he was chasing his girlfriend, who had gone inside the house. That was the “extent of it”—the officers did not ask him why defendant was chasing Williams.
DISCUSSION
Right to Counsel Claim
Defendant argues the trial court violated his state and federal constitutional rights to counsel and a fair trial by denying his belated request to discharge retained counsel. As we explain, there was no constitutional violation. Defendant’s request was untimely and the trial court’s ruling amounted to a legitimate exercise of its discretion.
A criminal defendant has a constitutional and statutory right to the counsel of his choice, and his right to counsel includes his right to discharge retained counsel. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Code Civ. Proc., § 284; People v. Leonard (2000) 78 Cal.App.4th 776, 784; People v. Stevens (1984) 156 Cal.App.3d 1119, 1127.) While a defendant may discharge his retained counsel at any time with or without cause, that right is not absolute. The trial court retains discretion to deny a motion to discharge retained counsel if the discharge would significantly prejudice the defendant, or if the discharge request was untimely and would result in disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. (People v. Ortiz (1990) 51 Cal.3d 975, 982-983.) The trial court must balance a defendant’s interest in new counsel against the disruption, if any, resulting from the substitution. (People v. Lara (2001) 86 Cal.App.4th 139, 153; see People v. Lau (1986) 177 Cal.App.3d 473, 479.)
We hold the trial court reasonably balanced the competing interests. Defendant’s retained counsel, William McKinney, represented defendant as early as the preliminary hearing on August 29, 2005. Four pretrial continuances were granted. Counsel announced he was ready for trial on December 14, 2005, and trial began that day. The trial court engaged the parties in settlement discussions, with the court ensuring defendant understood that a conviction for narcotics possession would trigger the three strikes law, even absent a finding that the possession was for purposes of sales. The trial court made it clear that defendant’s potential exposure was a life sentence with a minimum of 30 years in prison, in comparison to the prosecution’s offer of a 6-year term. Defendant represented he understood that with a possession conviction, he “could lose [his] life in prison.” When the prosecutor verified that his office would not reduce the offer, defendant rejected it. Pretrial motions were discussed. Trial on the substantive offense was bifurcated from trial on the prior convictions. The trial recessed at the day’s end with voir dire in progress.
At the beginning of the trial’s second day, defendant expressed dissatisfaction with his counsel, stating counsel misled him into believing his potential exposure was less than “15 to life.” Defendant also faulted counsel for not filing motions or doing “investigative work.” He did not believe counsel was putting forth his “best effort.” “So I would like to relieve Mr. McKinney of being my attorney and have my family acquire an attorney to represent me, somebody that’s gonna fight because [counsel’s] trying to convince me to take the deal more than the DA is so I don’t feel comfortable with his representation.” The trial court requested clarification as to what defendant wanted—to relieve his counsel and proceed in propria persona, or to obtain a continuance to obtain new counsel. The court noted that it had previously explained to defendant the potential sentences he would face upon conviction, and counsel confirmed that he had accurately done so as well. At that time, the prosecution’s six-year offer remained available.
In denying the motion, the trial court found defendant had no reason to be surprised regarding the plea offer or this potential exposure because those matters were fully explained to him the previous day. It also explained why it would be inappropriate to allow a postponement for defendant to obtain new counsel—the trial had begun and jury selection was ongoing. The trial court found defendant’s motion to relieve counsel was therefore untimely. From the court’s experience, it was confident in counsel’s ability to provide “the best possible legal defense” under the circumstances, and there was nothing to indicate counsel was providing anything less than that. Based on these factors, it denied defendant’s motion to discharge his attorney and request for a reasonable opportunity to retain new counsel.
In response, defendant sought to invoke his Faretta right to proceed in propria persona. The trial court explained that defendant could exercise that option, but no continuance would be granted. The court advised that representing himself would be very risky for defendant, given that counsel was far more knowledgeable concerning the law. Defendant agreed. The court gave defendant the opportunity to think the matter over. Upon reflection, defendant withdrew his Faretta request and elected to proceed with counsel’s representation.
Faretta v. California (1975) 422 U.S. 806.
Defendant’s motion to discharge counsel was untimely, having been made on the first day of trial, after the court had made various in limine rulings and after jury selection had begun. Additionally, the case had been repeatedly continued. Granting the motion would have certainly led to a substantial delay in the trial because defendant had not begun his search for new counsel. Presumably, both civilian and peace officer witnesses had already been subpoenaed for trial. The trial court could reasonably infer that defendant’s request to discharge counsel was a mere pretext for delay. As the trial court found, and the record confirms, defendant’s supposed surprise at his potential exposure was inconsistent with the prior representations of trial court and counsel. Moreover, nothing in the record undercuts the trial court’s conclusion that counsel had performed adequately and was capable of competently representing appellant.
We conclude the trial court properly exercised its discretion in determining the disruption that would ensue upon the granting of defendant’s untimely motion was not justified under the circumstances. (See, e.g., People v. Lau, supra, 177 Cal.App.3d at p. 479 [motion to discharge retained counsel made on first day of trial properly denied as untimely after court concluded counsel would adequately represent defendant].)
Doyle Error Claim
Defendant contends the prosecution committed Doyle error by commenting on defendant’s post-Miranda silence. However, as defendant concedes, trial counsel did not object to any of the prosecutor’s questions or the references in argument upon which he seeks to ground his appellate claim. We find defendant’s claim was not preserved for appellate review.
“In Doyle v. Ohio, supra, 426 U.S. at page 618, the United States Supreme Court held that ‘it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ ‘A similar process of reasoning supports the conclusion that comment which penalizes exercise of the right to counsel is also prohibited. [Citations.]’ [Citation.].) But this does not mean that it always is error to permit evidence that a defendant exercised his right to counsel.” (People v. Huggins (2006) 38 Cal.4th 175, 198.) Doyle error is waived absent a timely and specific defense objection at trial. (People v. Carter (2003) 30 Cal.4th 1166, 1207; People v. Hughes (2002) 27 Cal.4th 287, 332.) That is, “[u]pon timely objection, evidence that the defendant chose to remain silent after being advised of his Miranda rights is inadmissible.” (People v. Kelly (1981) 125 Cal.App.3d 575, 581.) Moreover, case law requires the specific ground of the objection be stated in the record. (People v. Carter, supra, 30 Cal.4th at p. 1207 [the defendant’s objection on the ground that the prosecutor was misstating the evidence did not preserve the claim of Doyle error on appeal].) When there is not a timely, specific objection at trial, “[t]he point must therefore be rejected on appeal, unless it could be said that even had there been a timely objection, an admonition to the jury could not have cured the error. [Citation.]” (People v. Kelly, supra, 125 Cal.App.3d at p. 581 .)
Defendant points to three instances of purported Doyle error: First, during the prosecution’s redirect examination of Officer Danaher, when the officer was asked whether defendant indicated to the officer that he had just picked up the contraband; second, during the direct examination of Officer An, when the officer was asked whether defendant gave the explanation that he had picked up the contraband to keep Williams away from it; and third, during closing argument, when the prosecutor argued that defendant’s story lacked credibility because he did not tell it to the officers at the scene, but merely told Officer An that he was trying to recover money Williams had taken from him.
At no time did the defense object to those questions or arguments. Indeed, there is no evidence below that the police Mirandized defendant or that defendant invoked his Miranda rights. The issue came up only tangentially in the context of discussing jury instructions. While discussing the applicability of instructing the jury on the issue of lawful possession of a controlled substance, defense counsel mentioned that defendant was “given his Miranda rights and he asserted his Miranda rights,” as reflected in the police report. That report is not part of the record. Defense counsel did not make it clear when defendant may have invoked his rights. He stated that defendant had made an initial statement before the warnings were given, however. Neither the prosecutor nor the trial court responded to defense counsel’s mention of Miranda.
We find the requirement of making a specific contemporaneous objection was not excused under these circumstances. Even assuming the possibility of Doyle error, “defendant has failed to show that a prompt admonition . . . would not have cured any harm.” (People v. Carter, supra, 30 Cal.4th at p. 1207.) Moreover, given there was no evidence as to the timing of a Miranda warning and invocation, it is impossible for us to make an assessment of Doyle error. (See People v. Medina (1990) 51 Cal.3d 870, 890.) Defense counsel’s unsworn statements that there was a Miranda invocation do not amount to evidence. (See, e.g., People v. Sahagun (1979) 89 Cal.App.3d 1, 24 [absent a stipulation, unsworn statements do not constitute competent proof of facts that will support an order terminating a felony prosecution]; see also People v. Ringo (2005) 134 Cal.App.4th 870, 877 [unsworn statements by the defendant were not entitled to evidentiary effect].) The issue is forfeited.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.