Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin and Robert H. Oliver, Judges. Super. Ct. No. F08901754
Richard J. Krech, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Alonzo Tobias Oliver of violating Health and Safety Code section 11350, subdivision (a), possession of cocaine base. Oliver contends the conviction must be reversed because the trial court erred in (1) denying his suppression motion; (2) declaring him competent to stand trial; (3) denying his Marsden motions; (4) denying his Faretta motion; (5) denying his mistrial motion; and (6) denying his motion to dismiss the jury panel. Oliver’s remaining two challenges are that counsel rendered ineffective assistance and cumulative error warrants reversal. We disagree with his contentions and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Faretta v. California (1975) 422 U.S. 806 (Faretta).
FACTUAL AND PROCEDURAL SUMMARY
On February 25, 2008, Fresno Police Officer Vanita Schell-Route was on duty patrolling the southwest portion of the city. At around 2:00 p.m. she was in her patrol car turning from G Street onto California Street when she saw Oliver standing on the corner of the intersection, holding his penis and urinating in public. Oliver had his back to G Street, but as Schell-Route turned onto California Street she could see him holding his penis with both hands and a stream of urine flowing.
By the time Schell-Route parked her vehicle, Oliver had finished urinating and was walking toward her. She stopped Oliver and explained that he was being detained because she had seen him urinating on a public street. Oliver acknowledged he had been urinating in public, but seemed irritated and annoyed at being detained.
Schell-Route asked to see Oliver’s identification. When he did not produce a valid identification, she placed him under arrest. Shell-Route handcuffed Oliver for officer safety purposes because she was by herself. After arresting Oliver, Shell-Route conducted a search incident to arrest. She found an off-white substance in Oliver’s jacket pocket, which she believed to be rock cocaine. Schell-Route informed Oliver that additionally he was being arrested for possession of rock cocaine. It was subsequently confirmed that the off-white substance was cocaine base in a usable quantity.
On March 6, 2008, Oliver filed a motion to suppress, claiming there was no valid basis for his detention and the rock cocaine was seized as the result of an unreasonable warrantless search. The People opposed the suppression motion, contending that the officer had probable cause to arrest Oliver based upon his violation of Fresno Municipal Code (hereafter FMC) section 9-2512 for urinating in public. At the March 26 hearing on the suppression motion, the trial court denied the motion.
On April 8, 2008, Oliver was charged in count 1 with possession of cocaine base and in count 2 with giving false information to a police officer, a violation of Penal Code section 148.9, subdivision (a). It also was alleged that he had two strike priors for robbery and had served four prior prison terms. The count 2 charge was dismissed on the People’s motion and Oliver pled not guilty to the count 1 offense.
All further statutory references are to the Penal Code unless otherwise specified.
On May 14 and 19, 2008, the trial court denied Oliver’s Marsden motions.
On May 27, 2008, defense counsel requested a competency determination. The trial court suspended criminal proceedings and appointed two psychologists to conduct evaluations of Oliver. One found Oliver competent; the other did not. The trial court appointed a third psychologist, who found Oliver competent to stand trial. On September 2, 2008, based upon the evaluations, the trial court found Oliver competent to stand trial.
On October 8, 2008, jury selection for the trial commenced. On October 9, the trial court denied another of Oliver’s Marsden motions and also denied his Faretta motion.
At trial, the People presented testimony regarding two prior incidents to establish Oliver’s knowledge of cocaine base. In one incident he had a crack pipe in his possession. In the second incident, Oliver had a crack pipe in his possession that had burn markings, residue, and condensation, indicating it recently had been used.
Oliver testified in his own defense and denied urinating in public. He claimed he had been walking in the area when Schell-Route stopped him for no reason. He was homeless and cold and had been wearing a jacket that someone had given him. That jacket had rock cocaine in the pocket, which he told the officer was not his.
The jury convicted Oliver of the count 1 offense. Oliver previously had waived his right to a jury or court trial on the priors and now sought to withdraw his waiver; the trial court denied the request.
On November 13, 2008, the trial court declined to strike the prior convictions and sentenced Oliver to a term of 29 years to life in prison.
DISCUSSION
Oliver contends eight errors warrant reversal of his conviction: (1) denial of his suppression motion; (2) declaring him competent to stand trial; (3) denial of his Marsden motions; (4) denial of his Faretta motion; (5) denial of his mistrial motion; (6) denial of his motion to dismiss the jury panel; (7) ineffective assistance of counsel; and (8) cumulative error.
I. Suppression Motion
Oliver contends the trial court erred in denying his motion to suppress the evidence. Specifically, Oliver argues the warrantless detention, search, and seizure were unsupported by probable cause because all necessary elements of the offense were not established. The People claim this issue is forfeited because Oliver failed to raise this specific point in his moving papers filed with the trial court.
We decline to treat the issue as forfeited. When a defendant has been subjected to a warrantless search or seizure, he or she is not required to anticipate the People’s justification for proceeding without a warrant. “Therefore, defendants who do not know, and hesitate to guess, what justification the prosecution might offer can simply await the prosecution’s argument and evidence, and then respond with specific objections. [Citation.]” (People v. Williams (1999) 20 Cal.4th 119, 136.) Under Williams, Oliver was not required to assert with specificity in his moving papers the grounds for objecting to a warrantless search and seizure.
Standard of review
When reviewing the denial of a motion to suppress, we employ a two-prong standard of review. We begin by viewing the record in a light favorable to the ruling and “defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).) We then exercise our independent judgment to determine “whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment.” (Ibid.)
Analysis
The warrantless detention, search, and seizure were valid. Section 1538.5 governs motions to suppress evidence obtained as a result of a search or seizure. Section 1538.5, by its terms, authorizes a motion to suppress if “The search or seizure without a warrant was unreasonable.” (People v. Curley (1970) 12 Cal.App.3d 732, 746, quoting § 1538.5, subd. (a).) “The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists.” (Ibid.)
Here, Schell-Route stopped Oliver after she observed him urinating on a public street. The officer testified she arrested him for this offense, which is a misdemeanor set forth in FMC section 9-2512. Following Oliver’s arrest, Schell-Route conducted a search incident to arrest, during which she discovered the baggie with crack cocaine.
The Fourth Amendment allows a police officer to make a custodial arrest, even for minor offenses. (Atwater v. Lago Vista (2001) 532 U.S. 318, 323 [arrest for violation of seatbelt law upheld].) Atwater upheld a custodial arrest for a violation of Texas’s seatbelt law, an offense punishable by a fine of not less than $25 or more than $50. (Ibid.) Under Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (Id. at p. 354.)
There “is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense. [Citation.]” (People v. McKay (2002) 27 Cal.4th 601, 607 (McKay).) In McKay, the defendant was arrested because he failed to produce a driver’s license or other identification when requested by an officer. (Id. at p. 606.)
Oliver contends, however, that Schell-Route did not have probable cause to arrest him. FMC section 9-2512 provides:
Oliver argues there was no one present to be annoyed or offended by his urinating in public because the street corner was deserted; consequently, there was no probable cause to arrest him for violating this code section.
The plain language of FMC section 9-2512 provides that “no person shall commit a nuisance in any public place.” The street corner at G and California clearly is a public place. FMC section 9-2512 defines “commit a nuisance” as including evacuating one’s bladder, which Oliver was doing when Schell-Route spotted him.
It is entirely irrelevant whether Schell-Route, or anyone else, was annoyed or offended by Oliver’s urinating in public. FMC section 9-2512 is stated in the alternative: no person shall commit a nuisance in any public place, or upon any private property, or in any place where there are persons to be offended. The language of FMC section 9 2512 is clear and unambiguous.
In analyzing a statute, we give meaning to every word and phrase in order to accomplish a result consistent with legislative intent. (McKay, supra, 27 Cal.4th at p. 621.) “‘When the language of a statute is “clear and unambiguous” and thus not reasonably susceptible of more than one meaning, “‘“‘there is no need for construction.’”’” [Citations.]’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999, 1007.)
Having determined that Schell-Route properly placed Oliver under arrest for violating FMC section 9-2512, it follows that she was justified in conducting a search incident to arrest. (U.S. v. McFadden (2d Cir. 2001) 238 F.3d 198, 204 [upholding search incident to arrest for riding a bicycle on the sidewalk].)
We therefore conclude the trial court did not err in denying the motion to suppress. (See Glaser, supra, 11 Cal.4th at p. 362.)
Ineffective assistance of counsel claim
Because we decline to treat as forfeited the challenges to admission of the evidence obtained as a result of the search incident to arrest, it follows that we need not address Oliver’s claim of ineffective assistance of counsel for failing to raise these challenges in the trial court. We also note that our analysis of the relevant FMC section makes clear that Oliver’s contentions are without merit, thus any attempt to assert these contentions in the trial court would have been fruitless. (People v. Thomas (1992) 2 Cal.4th 489, 531.)
II. Competency to Stand Trial
Oliver claims he was denied an independent judicial evaluation of his competence to stand trial when the trial court ignored the observations of his attorneys. He further argues that the trial court “merely counted up the doctors’ reports on both sides of the issue, and determined that the position with two votes was more meritorious than the position with only one.” Oliver opines that the trial court ignored the evidence of his incompetency, including (1) his decision to skip portions of his trial, (2) refusal to dress in civilian clothes for the trial, (3) admitting the allegations regarding the priors, and (4) his difficulty communicating, trusting, or cooperating with his lawyers.
Factual summary
On May 27, 2008, the trial court suspended criminal proceedings and appointed two clinical psychologists, Norman E. Hendricksen and Harold L. Seymour, to examine Oliver. Seymour filed his report on June 17, 2008, concluding that:
Hendricksen also filed his report on June 17, 2008, but he reached the opposite conclusion. Hendricksen opined:
Despite these observations, Hendricksen concluded Oliver was not competent because he was guarded and suspicious, only moderately cooperative, and Oliver believed he would not receive a fair trial because he was falsely arrested and charged. Hendricksen stated, “Oliver’s overall presentation suggests he is incapable of rationally assisting in his defense or of representing himself in court.”
On June 24, 2008, the trial court appointed a third clinical psychologist, Laura A. Geiger, to evaluate Oliver. Geiger concluded Oliver was competent. He exhibited an understanding of the charges, potential penalties, courtroom procedures, and functions of courtroom participants. He exhibited “good abstract reasoning processes.” Oliver was able to cooperate rationally with counsel and assist in his defense. Geiger opined that “any lack of cooperation with counsel most likely was volitional.”
At the hearing on September 2, 2008, the trial court received Geiger’s evaluation. The trial court then stated, “We had had split authority. This was the third opinion sought in light of the first two. [¶] With that, I believe we will proceed, given the evidence that is before the Court from the witnesses.”
Analysis
A person cannot be tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Ibid.) When there is a doubt as to the defendant’s competence, section 1368, subdivision (b) requires that the defendant receive a hearing on the issue of competency. The hearing may consist of a determination of competency by the trial court after receipt of the psychological evaluations. (People v. Weaver (2001) 26 Cal.4th 876, 904.) A trial court’s finding of competence is not disturbed on appeal if there is any substantial, credible evidence to support the finding. (People v. Castro (2000) 78 Cal.App.4th 1402, 1418 (Castro).)
Here, all three evaluations of Oliver were received and reviewed by the trial court. Seymour and Geiger concluded Oliver was competent to stand trial; Hendricksen concluded Oliver was not competent. The rationale for Hendricksen’s conclusion that Oliver was not competent was that Oliver claimed to be arrested falsely and was guarded and suspicious. Geiger, however, noted that Oliver was capable of cooperating and working with defense counsel. Oliver’s refusal to do so likely was volitional.
The test in a section 1368 determination is whether the defendant is competent to cooperate and work with counsel; not whether he chooses to cooperate. (People v. Hightower (1996) 41 Cal.App.4th 1108, 1112.) Based upon the evidence before it, the trial court reasonably could have found by a preponderance of the evidence that Oliver was competent to stand trial. (Castro, supra, 78 Cal.App.4th at p. 1418.)
As for Oliver’s decision to skip portions of his trial, admit his priors, and refuse to dress in civilian clothes during trial, these matters are irrelevant to our analysis of the trial court’s ruling on competency. The trial proceedings were suspended on the first day of voir dire, May 27, 2008. Oliver was found competent on September 2, 2008. The trial commenced on October 9, 2008. Oliver admitted the priors on October 10, 2008.
Any refusal of Oliver to wear civilian clothing or attend hearings in his case prior to the commencement of trial were known by the trial court before it suspended proceedings and ordered the psychological evaluations. These concerns had been brought to the trial court’s attention by defense counsel.
Whether Oliver continued during the trial to insist on wearing jail clothing or whether he refused to attend a portion of the trial, as well as his decision to admit the priors, are not germane to our analysis on appeal. Our review is limited to the evidence before the trial court at the time of the competency hearing. (People v. Welch (1999) 20 Cal.4th 701, 739 (Welch) [trial court’s decision not to declare doubt as to defendant’s competency cannot be challenged on appeal by reference to subsequently produced evidence].) Any matters occurring after the competency hearing cannot be used as a basis to challenge the trial court’s competency determination. (Ibid.)
On appeal, this court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the trial court’s finding. (People v. Marshall (1997) 15 Cal.4th 1, 31 (Marshall).) We conclude substantial evidence supported the trial court’s competency determination.
III. Marsden Motions
Oliver made a total of four Marsden motions, one each on May 14, 19, and 27, and again on October 9. All of the motions properly were denied.
Factual summary
On May 14, 2008, Oliver asked to replace one of his two attorneys, Hyung Ki Kim. Oliver had numerous complaints about Kim, including that he failed to file motions on Oliver’s behalf, told Oliver the charged offense was a misdemeanor when Oliver claimed it was an infraction, and failed to present a conceivable defense on Oliver’s behalf. Kim described his six visits with Oliver, the suppression and Pitchess motions filed on Oliver’s behalf, and the legal research conducted on the offense, including that the research confirmed the offense was a misdemeanor. The trial court denied the Marsden motion, stating that Kim had done more than reasonably could be expected of an attorney handling the case.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Five days later, on May 19, Oliver was before a different judge and again sought a Marsden hearing to replace Kim. The judge was aware that a Marsden motion had been denied five days earlier and inquired what had changed in the interim. Oliver stated that it was “suspicious” that Kim did not “step down” when Oliver indicated he wanted a different attorney and claimed there was a breakdown in communication. Kim indicated that Oliver was being uncooperative in that he would refuse to speak to Kim when Kim did not talk about what Oliver wanted to discuss, and Oliver was refusing to change from jail clothing for the trial. The judge expressly found that Oliver was choosing not to speak to Kim and denied the motion.
On May 27, 2008, Oliver was present in court and told the trial court he wanted to file some motions himself, apparently instead of through his attorney. When Oliver’s attorney, Alan De Ocampo, Kim’s cocounsel, told Oliver to be careful about statements made in open court because they could be used against him, Oliver stated he wanted to “fire” De Ocampo. Oliver insisted that counsel had not filed motions that Oliver had requested be filed. The trial court found these matters already had been addressed at the previous Marsden hearings.
Later in the day on May 27, the trial court suspended criminal proceedings and ordered a competency determination.
On October 9, 2008, more than 30 days after criminal proceedings had been reinstated, Oliver again asked to replace De Ocampo. Oliver claimed he and De Ocampo had a conflict of interest because De Ocampo had told him, Oliver, that he did not have any rights. De Ocampo responded that Oliver was insisting on relitigating the suppression issues instead of addressing trial matters. In denying Oliver’s request, the trial court found that the motion was untimely because voir dire had commenced the previous day and that counsel had been aggressively representing Oliver.
Analysis
A defendant is entitled to the relief requested in a Marsden motion if the record clearly shows that counsel is not providing adequate representation or that counsel and the defendant have an irreconcilable conflict, such that ineffective representation is likely to result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett).) A defendant, however, does not have the right to a defense of his own choosing, only the right to an adequate and competent defense. (Welch, supra, 20 Cal.4th at p. 728.) Consequently, tactical disagreements between counsel and the defendant do not amount to an irreconcilable conflict. (People v. Carpenter (1997) 15 Cal.4th 312, 376 (Carpenter).)
When the trial court has conducted an adequate Marsden hearing, its determination of the request for new counsel is a matter of judicial discretion. “Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 435; People v. Horton (1995) 11 Cal.4th 1068, 1102.)
As to the May 14, 2008, request for change of counsel, Oliver admits in this appeal that he did not make an adequate showing in the trial court of a breakdown in communication sufficient to warrant a change of counsel. Therefore, Oliver cannot show an abuse of discretion on the part of the trial court in denying this motion.
Additionally, Oliver’s list of concerns with Kim’s handling of his case amount to no more than disagreements over tactical decisions and to Oliver wanting to control how the defense was presented. Oliver, however, had neither the right to control the defense presented nor the right to dictate tactical decisions. (Welch, supra, 20 Cal.4th at p. 728; Carpenter, supra, 15 Cal.4th at p. 376.) As the judge at the hearing specifically noted, Kim was doing more than would be expected of an attorney handling Oliver’s case. Oliver failed to establish that he was not receiving adequate representation. (Barnett, supra, 17 Cal.4th at p. 1085.)
At the May 19, 2008, hearing, Oliver essentially restated his earlier objections to Kim’s representation. Kim did note certain instances where Oliver had refused to speak to or cooperate with him. Absent a complete breakdown in the attorney-client relationship, which was not shown here, failure to cooperate and tactical differences do not require the substitution of counsel under Marsden (People v. Shoals (1992) 8 Cal.App.4th 475, 496-497) or, in our view, under a conflict-of-interest rationale. “[I]f a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.” (People v. Crandell (1988) 46 Cal.3d 833, 860 (Crandell).)
On May 27, 2008, Oliver requested that he be allowed to fire De Ocampo because De Ocampo was not filing the motions that Oliver requested be filed in the case. The trial court did not conduct a full Marsden hearing. The trial court’s failure to conduct a Marsden hearing is reviewed for an abuse of discretion. (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.)
Oliver was given an opportunity to state his reasons for seeking to fire counsel. Oliver’s stated reasons amounted to a disagreement over tactics and what motions should be filed. Tactical disagreements and disagreements over how defenses should be presented are not matters within Oliver’s control; tactical decisions are within counsel’s control. (Welch, supra, 20 Cal.4th at p. 728; Carpenter, supra, 15 Cal.4th at p. 376.)
Moreover, “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (Crandell, supra, 46 Cal.3d at p. 860.) Oliver had made three Marsden requests within a single month and it was apparent that he selectively was choosing not to speak with or cooperate with counsel because he, Oliver, wanted to control trial tactics.
At the October 9, 2008, hearing, Oliver stated he wanted to replace his counsel because counsel had told him he did not have any rights. Counsel explained that Oliver was insisting on relitigating the suppression motion and the propriety of the initial detention, instead of focusing on the trial for possession of rock cocaine. The trial court credited counsel’s remarks, telling Oliver that the issue of the detention and suppression already had been addressed and denied the Marsden request. The trial court makes credibility determinations and properly can credit counsel’s remarks, thus finding no ineffective representation. (People v. Jones (2003) 29 Cal.4th 1229, 1245.)
An assertion of ineffective assistance of trial counsel will not overcome a defendant’s “refusal to cooperate with his attorney.” (People v. Booker (1977) 69 Cal.App.3d 654, 668.) The trial court noted that Oliver was being represented effectively and aggressively by counsel in the case. A trial court does not abuse its discretion by denying a request for substitution of attorneys where the only substantial conflict between the defendant and counsel is the defendant’s refusal to cooperate in the preparation of a defense or a disagreement over trial tactics. (Welch, supra, 20 Cal.4th at p. 728; Carpenter, supra, 15 Cal.4th at p. 376.) Likewise, where the record supports the conclusion that whatever breakdown occurred between the defendant and counsel was caused by the defendant’s intransigence, the motion for substitution is properly denied. (Crandell, supra, 46 Cal.3d at p. 860.)
We conclude the trial court did not abuse its discretion in denying the Marsden requests.
IV. Faretta Motion
Although Oliver claims the trial court erred in finding him competent to stand trial, he also contends the trial court abused its discretion in denying his motion to represent himself at trial. We conclude the trial court did not abuse its discretion in denying Oliver’s request for self-representation.
Factual summary
On May 19, 2008, Oliver indicated he might want to represent himself, but that it was not “definite as a decision.” The trial court provided Oliver with a Faretta questionnaire to complete and warned Oliver of the perils of self-representation. Later that afternoon, Oliver indicated he had decided to continue being represented by counsel.
On October 9, 2008, during jury selection, Oliver stated he wished to represent himself at trial, but needed a “short time” to study the law. The trial court asked Oliver to specify if he was asking for a week, two weeks, or a few days. Oliver did not provide any estimate, but remarked it would depend on how long it took the county jail to provide him access to the law library.
The trial court noted that it was the second day of jury selection and that if Oliver’s request for self-representation were granted, a continuance of an unknown period of time would have to be granted for Oliver to research the law and the jury would have to be dismissed. The trial court stated that the request was untimely and denied it.
Analysis
A criminal defendant has the right to represent himself at trial. (Marshall, supra, 15 Cal.4th at p. 20.) In order to invoke the right to self-representation, a defendant must be competent; the request must be knowingly and intelligently made; the request must be unequivocal; and the request must be made within a reasonable time before trial. (Id. at pp. 20-21.) There is no particular time period at which a motion for self-representation must be made in order to be considered timely, other than it must be made a reasonable time before trial. (People v. Clark (1992) 3 Cal.4th 41, 99.)
A trial court has broad discretion in determining whether to grant or deny an untimely request for self-representation. (People v. Hardy (1992) 2 Cal.4th 86, 196-197.) A trial court acts within its discretion in concluding that a motion for self-representation on the eve of trial will be granted only if a defendant is ready to proceed without delay. (People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez).) Here, the trial court was well within its discretion to deny Oliver’s motion for self-representation.
In Valdez, the defendant made a motion for self-representation moments before jury selection was to begin. (Valdez, supra, 32 Cal.4th at p. 101.) The California Supreme Court concluded the defendant’s motion was untimely and the trial court acted within its discretion in concluding the defendant could represent himself only if the case could proceed without any delay. (Id. at p. 103.)
That Oliver did not use the word “continuance” or provide a specific time estimate of when he would be ready to proceed did not mean there would be no delay if the motion were granted. Even though Oliver failed to state specifically a time estimate or a date by which he would be ready to proceed, he did state that he needed a “short time” to study the law.
Clearly, Oliver was not ready to proceed at the time he made the request for self-representation. Jury selection already had commenced, and giving Oliver a “short time” to study the law meant a delay or continuance. Thus, the trial court did not abuse its discretion in denying Oliver’s request for self-representation. (Valdez, supra, 32 Cal.4th at p. 103.)
V. Mistrial Motion
Oliver contends the trial court erred prejudicially when it denied his motion for a mistrial after a prosecution witness in direct testimony referred to a matter that the trial court had precluded from being introduced into evidence. Oliver maintains the prosecutor committed misconduct by deliberately eliciting the information, thus depriving Oliver of a fair trial and a mistrial should have been granted. We disagree.
Factual summary
Prior to the start of trial, the trial court ruled that, with respect to the prior incidents where Oliver was in possession of a crack pipe, the evidence that one pipe had cocaine residue in it was more prejudicial than probative. The trial court precluded the People from introducing evidence regarding the residue.
When the officer was testifying regarding the crack pipe found in Oliver’s possession, the prosecutor asked the officer for the basis of his opinion that the crack pipe had been used. The officer responded, “The burn markings on the pipe along with the white residue.” Defense counsel immediately called out “Objection, ” but failed to state a basis for the objection. When the trial court indicated it was seeking the basis of the objection, defense counsel responded, “Objection, relevance.” The trial court overruled the objection.
Immediately after the objection was overruled, defense counsel requested a sidebar, which the trial court denied. Defense counsel stated again that if the trial court was overruling the objection, a sidebar was requested. The trial court again denied the request for a sidebar and directed the parties to proceed.
After the jury had been instructed and had commenced deliberations, defense counsel complained that the trial court’s in limine ruling had been violated and the trial court had denied the request for a sidebar. The trial court acknowledged it had erred in denying the request for a sidebar. Defense counsel moved for mistrial, which the trial court denied on the grounds the circumstances did not “cut close to that standard to declare a mistrial.”
Analysis
The People contend that Oliver failed to preserve the claim of prosecutorial misconduct because the stated basis for the objection was relevance. The issue on appeal, however, is not specifically whether the prosecutor committed misconduct, but whether a mistrial should have been granted based on the admission of evidence that was excluded under the in limine ruling.
A trial court should grant a mistrial “only when ‘“a party’s chances of receiving a fair trial have been irreparably damaged, ”’” and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. (People v. Ayala (2000) 23 Cal.4th 225, 282 (Ayala).)
The trial court’s ruling on the in limine motion was that “the testimony [would] be as to the paraphernalia … without reference to residue or anything else.” This ruling came after a discussion among the trial court, prosecutor, and defense counsel that the evidence would be limited to paraphernalia, with evidence of prior cocaine possession excluded as unduly prejudicial.
Both parties concede that testimony regarding the residue on the crack pipe violated the trial court’s in limine ruling. The question is whether this reference deprived Oliver of a fair trial. Even if we were to conclude there was inadvertent prosecutorial misconduct, the denial of the mistrial motion still would not be incorrect. (People v. Bolton (1979) 23 Cal.3d 208, 213-214 (Bolton).) First, because the one comment regarding residue was not so prejudicial that it deprived Oliver of a fair trial. Second, the evidence of guilt was convincing and substantial.
Whether a particular incident is prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.) Here, the reference to the residue on the crack pipe was made once by the officer and constituted a passing reference contained in response to one question. The reference was one comment out of two days of testimony by various witnesses. The prosecutor did not reference the residue comment in closing argument. The jury was instructed that the uncharged acts evidence was admitted for the “limited purpose of deciding whether or not: The defendant is familiar with and knows that cocaine base is a controlled substance.” The trial court reasonably could have concluded that the one comment regarding the residue was not so prejudicial that Oliver’s ability to receive a fair trial had been so damaged that it warranted granting a mistrial. (Welch, supra, 20 Cal.4th at p. 749.)
“[T]he test of prejudice is whether it is ‘reasonably probable’ a result more favorable to the defendant would have occurred.” (Bolton, supra, 23 Cal.3d at p. 214.) Improper evidence of a past crime does not cause reversal where the record evidence otherwise points convincingly to guilt. (People v. Cabrellis (1967) 251 Cal.App.2d 681, 688; People v. Stinson (1963) 214 Cal.App.2d 476, 482.) Shell-Route testified that she found cocaine in Oliver’s jacket pocket when she conducted a search incident to arrest. On two prior occasions, Oliver was found to be in possession of a crack pipe. The pipe had burn markings on it, which indicated it had been used. Oliver admitted that the cocaine was found in his jacket pocket and maintained he had no knowledge of its presence, even though he had been wearing the jacket for a few days.
We are satisfied that it is not reasonably probable the result of the trial would have been more favorable to Oliver absent the one reference to residue. Necessarily, then, Oliver was not prejudiced by the trial court’s denial of the mistrial motion. (Welch, supra, 20 Cal.4th at pp. 749-750.) It follows, therefore, that the trial court did not abuse its discretion in denying the mistrial motion. (Ayala, supra, 23 Cal.4th at p. 282.)
VI. Motion to Dismiss the Jury Panel
Oliver contends the trial court erred in denying his motion to dismiss the entire venire panel after two prospective jurors made comments about the location where Oliver was arrested that were potentially inflammatory. We disagree with Oliver’s contention.
Factual summary
During voir dire, one prospective juror commented in response to a question about the area where Oliver was arrested that “you’re not at G and California for a good reason.… [Y]ou’re in the tent city, or you’re up to no good in that tent city, and that’s my thing.” The prospective juror admitted that her knowledge and perception of the area would affect her ability to be impartial; she was removed for cause.
Subsequently, another prospective juror commented, “anybody that’s down here is either stranded or --” The trial court immediately stopped the juror and admonished, “there’s been no evidence. And what jurors say in voir dire and what I say is not evidence.” Upon being asked, the prospective juror remarked that he would be unable to separate his life experiences with the area from the deliberative process.
Out of the presence of the venire panel, Oliver moved to dismiss the entire jury panel because it had heard prejudicial information about the area around G and California Streets. Oliver noted that an in limine ruling precluded officers from referring to the area as a high crime area. The trial court responded that it had admonished the prospective jurors that information provided or comments made by prospective jurors were not evidence and were not to be considered.
The trial court took the motion under submission. The following day, the trial court denied the motion to dismiss the entire venire panel.
Analysis
A trial court’s refusal to dismiss the entire jury panel based upon comments from a prospective juror is reviewed for abuse of discretion under the totality of the circumstances. (People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42 (Nguyen).) The trial court “possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina (1990) 51 Cal.3d 870, 889.) As the California Supreme Court stated:
Ibid.In determining whether the panel as a whole could not be fair and impartial, we consider the totality of the circumstances surrounding jury selection, keeping in mind that the conclusion of the trial court with respect to claims both of individual juror bias and group bias is entitled to great deference. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1465, 1466-1467 (Martinez).)
We conclude the trial court here did not err in declining to discharge the entire panel. True, two prospective jurors had made comments about the area in which Oliver was arrested and persons found in that area in the presence of the venire panel. Oliver fails to persuade us that these individuals, and any venireperson, affected by the remarks could not be, and were not, weeded out through the normal course of jury selection. The record affirmatively shows that the prospective jurors making these remarks were dismissed for cause and the venire panel admonished not to consider their remarks.
The case of People v. Ayala (2000) 24 Cal.4th 243 is instructive. In that case, the defendant’s brother was tried for, and sentenced to death on, crimes arising from the same events for which the defendant was on trial. Because of the news coverage of the brother’s case, the defendant moved to dismiss the jury panel or, alternatively, to continue the trial. The motions were denied. (Id. at p. 270.) In finding no error, the California Supreme Court stated: “[W]e observe that there was no need to discharge the jury panel unless, after the jury was selected, jurors were sworn who, because of their knowledge of the trial or sentence, or both, of [the brother], could not be fair in defendant’s case. [Citation.]” (Id. at p. 271.)
Oliver’s contention that the venire panel was biased by the remarks made by the two prospective jurors is pure speculation. Oliver presents no evidence that prospective jurors ignored the trial court’s admonishment to disregard the remarks made by the two prospective jurors. Absent evidence to the contrary, we presume jurors followed the instruction. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
Implicit in the trial court’s denial of the motion to dismiss the entire venire panel is the finding that the entire venire panel was not prejudiced or biased by the remarks, and the trial court’s determination in this regard is entitled to great deference. (Martinez, supra, 228 Cal.App.3d at pp. 1465, 1466-1467.)
We conclude the trial court did not abuse its discretion in denying the motion to dismiss the entire venire panel. (Nguyen, supra, 23 Cal.App.4th at pp. 41-42.)
VII. Cumulative Error
We have concluded that Oliver’s multiple claims of error are not meritorious, with one exception regarding the remark about residue, which we conclude was not prejudicial. Since there are not multiple errors, it follows therefore, that there is no cumulative effect from multiple error. (People v. Heard (2003) 31 Cal.4th 946, 981.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J.KANE, J.