Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF124986 & RIF134386, Douglas E. Weathers, Judge.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Theodore Cropley, Felicity Senoski, and Scott Taylor Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut Acting P.J.
This case arises out of defendant assaulting his girlfriend during an argument. Defendant appeals judgment entered following jury convictions for uttering criminal threats (Pen. Code, §242 ; count 1) and for misdemeanor assault of Grace Leniu (§ 422; count 3, lesser included offense). The jury acquitted defendant of uttering criminal threats to Rafael Lopez and assaulting him with a knife (§§ 245, subd. (a)(1), 422; counts 2 and 4). During a bifurcated hearing, the trial court found not true a prior conviction allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to two years in state prison for the criminal threat conviction and a concurrent 180-day term in jail for the misdemeanor assault conviction.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in granting his request to represent himself, and then violated his Sixth Amendment right to counsel by denying his subsequent request to reappoint counsel. Defendant also asserts that the trial court violated his Sixth Amendment right to self-representation by beginning the trial before he had access to a law library. In addition, defendant complains that the trial court deprived him of the right to cross-examine Leniu by excusing her from further testimony without defendant’s consent.
Defendant further requests this court to correct erroneous trial court minute orders dated February 11, 2008, indicating defendant was convicted of battery (§ 242), rather than simple assault, and related minute orders dated August 16, 2007, June 19, 2008, and June 27, 2008 (case print), also misstating defendant’s count 3 conviction. The People do not oppose defendant’s request to these corrections to reflect defendant was convicted of simple assault, and this court instructs the trial court to correct the minute orders as requested.
With regard to defendant’s other contentions, we conclude there was no prejudicial error or cumulative error requiring reversal of the judgment. Accordingly, we affirm the judgment.
1. Facts
In January 2007, defendant and his girlfriend, Grace Leniu, rented a room in a four-bedroom house in Moreno Valley. Philimenthia Atkinson and Ralph Lopez lived in the master bedroom of the home with their four-year-old son. During the evening of January 17, 2007, defendant and Leniu played dominoes with Atkinson, Lopez, and a friend of Lopez’s. Defendant accused the others of cheating. Leniu mentioned that defendant was sweating and needed to use cologne. The game ended and Atkinson and Lopez went upstairs to their bedroom, which was across the hall from Leniu and defendant’s bedroom.
Leniu’s Testimony
Leniu testified that shortly after she went to her bedroom, defendant entered the room yelling at Leniu. Defendant called Leniu a “bitch” and told her that if she ever tried to go against him, he would kill her and no one would ever know. Leniu believed defendant meant that he could have killed her then. Defendant was holding a metal rod in his hand and waved it in her face.
Defendant ordered Leniu off the bed and told her that if she screamed or yelled for help, it would not do any good because “what he can do could happen in a minute.” Defendant told Leniu he was going to cut her up and no one would know because, by the time the police arrived, defendant would be gone. Leniu believed defendant was telling her he was going to stab her and feared for her life.
After defendant went downstairs, Leniu ran to the bedroom door and saw Lopez standing by his bedroom doorway. Leniu asked him to help her because she was afraid. Lopez told Leniu defendant was returning and to go back in her room and close the door. Defendant kicked the door several times and told Leniu, “Open the door, bitch, I’m going to cut you up. I’m going to slice you up.” Leniu told defendant to leave. She was afraid to let him in the room.
A couple minutes later defendant exchanged words with Lopez. Lopez told defendant to leave and tried to calm him down. After defendant left the house, Leniu opened the bedroom door. Lopez told Leniu to go into his room.
About 15 minutes later, defendant returned. Leniu heard defendant and Lopez shouting as they were coming up the stairs. Lopez was telling defendant to leave. Leniu was in Lopez’s room with Atkinson. Atkinson called the police while standing in the doorway. Defendant heard Atkinson and left.
After the police left, defendant returned. Lopez called the police again. Defendant left before the police returned. The police later found defendant and arrested him. Sheriff’s Deputy Brian Wolfe testified he arrived at the scene and spoke to Leniu. She told him defendant entered her room with a metal rod and threatened to cut her up. She said she feared for her life.
Lopez’s Testimony
Lopez testified he heard defendant say to Leniu, “You fucking bitch. I’m going to cut your ass. You’re done.” Lopez saw defendant hitting Leniu with a three-foot metal rod. Lopez noticed that defendant had a knife sheath. Lopez did not see defendant holding a knife but heard Leniu say, “He’s got a knife.” Lopez told defendant to stop and leave. Defendant came out of the room toward Lopez and put his knife in the sheath. Lopez felt threatened. Defendant went downstairs.
After defendant left, Leniu came out of her room. Leniu looked scared and asked for help. A few minutes later defendant returned. Leniu went back in her room and locked the door. Defendant started kicking the door and yelling obscenities at Leniu. Defendant told Lopez he was going to cut her. He did not have a knife in his hand at that point but was trying to kick down the door.
Because Lopez believed defendant was armed with a knife, Lopez went downstairs, retrieved a knife, returned to his bedroom, and stood in front of his door. Defendant came towards Lopez. Lopez pushed defendant up against the wall and told him to leave. Defendant pulled out a knife. Lopez feared for his life. Lopez pulled only a portion of his knife out of his pouch to show defendant he had a knife. The two argued and then defendant left the house. Meanwhile, Leniu went into Lopez’s bedroom and Atkinson called the police.
Defendant’s Testimony
Defendant denied threatening Leniu or Lopez. He also denied carrying a weapon. Defendant, who was a mechanic, had a knife which he kept in his tool box and only used as a tool.
Defendant had a loud argument with Leniu during the evening of the charged offenses. Defendant left the house to “take time out,” as he always did after an argument with Leniu. When defendant returned to go to bed, Lopez confronted him with a knife and accused defendant of threatening his family. Defendant denied making any threats towards Lopez’s family. While defendant and Lopez were arguing, Lopez brandished a knife and cut defendant’s finger as defendant was putting his hands up to protect his face. He heard Atkinson call the police. Atkinson told the 911 operator, “He threatened his girl with that knife, and now he’s trying to do it to my man.” Defendant left and was gone while the police officers were there. Defendant denied ever “rais[ing] a hand at [Leniu].”
During cross-examination, defendant admitted he was holding a metal rod while arguing with Leniu, but denied holding a knife. While playing dominos, defendant had been working on the metal rod and brought it upstairs to put away in his tool box. He had the metal rod in his hand when he and Leniu started arguing. The two began yelling at each other. Defendant moved the metal rod in his hand as he gestured. He denied waving the rod over Leniu while Leniu was cowering on the floor in the corner. He waved it at her “in a motion of gesture by pointing it, talking.”
Defendant explained that, “when you talk to somebody, you gesture in that motion. Yes, I did have the rod up in the arm motion in a level of her, not on top of her.” When asked if he waved the metal rod, defendant said he was to the side of Leniu, who was standing, and defendant was “pointing that five-inch metal rod and just talking in a way of gesture. . . . The rod just happened to be in my hand, so now the rod is moving with my hand.”
Defendant claimed that Lopez lied about the incident because he wanted defendant kicked out of the house so Lopez’s brother or friend could live there. Defendant and Lopez were friends at the time. Nevertheless, defendant claimed that Lopez and Leniu had colluded so that when the police arrived, their stories would be consistent.
Defendant’s mother testified that defendant was a good son but conceded that she had once filed a restraining order against him in 2004, claiming he had threatened to kill her and her older son. Defendant denied ever threatening to kill his mother or brother. Defendant claimed his brother made up the restraining order allegations to get defendant out of the house.
Defendant conceded he had previously been convicted of grand theft auto and operating a chop shop.
2. Self Representation
Defendant contends the trial court erred in granting his request to represent himself, in violation of Faretta v. California (1975) 422 U.S. 806, 835 (Faretta). Defendant argues he did not knowingly and intelligently waive his right to counsel and his self-representation request was equivocal.
A. Procedural Background
On July 18, 2007, the People filed a motion to continue the trial to August 6, 2007. The prosecutor stated in his supporting declaration that a material witness was unavailable until August 6, 2007. The jury trial was trailing until July 20, 2007. The last day to try the case was July 27, 2007.
At the hearing on July 20, 2007, defense counsel informed the trial court that defendant’s trial attorney was medically unavailable until July 24, 2007. Upon hearing this, defendant told the court he wished to represent himself. Defendant did not want to wait any longer for his trial. The court asked defendant if he would be ready for trial on July 27, 2007. Defendant said he was ready but would like to use the law library. The court responded that things, such as getting an investigator and going to the law library, would not happen by July 27, 2007. If defendant nevertheless wanted to represent himself and go to trial before July 27, the court would grant defendant’s self-representation request. The court added that if defendant was requesting self-representation merely for purposes of delay, then the court would deny the request.
After taking a recess, the court asked defendant why he wanted to represent himself. Defendant stated that he wanted a speedy trial. He claimed his rights had been violated because he had not been given a speedy trial. The court responded that, if it granted his self-representation motion, it would delay his trial beyond July 27, which would defeat the purpose of defendant’s request to represent himself. Defendant said he was ready to go to trial. He claimed he had studied the case, he knew the case, and he had the discovery papers with him. The court said it would allow defendant to represent himself on the condition defendant was ready to go to trial. Defendant again stated he was ready to go to trial.
The trial court then attempted to determine whether defendant was capable of representing himself. The court asked defendant to state his educational background and warned defendant that, if he represented himself, he would have to appear before the jury, follow the same rules applicable to lawyers, and be held to the same standards. Defendant said he had a high school diploma and was educated “through the university level.” In addition, he had been employed as a shipping/receiving clerk, a warehouse manager, and an auto mechanic.
Before deciding defendant’s motion to represent himself, the court considered the prosecutor’s motion to continue the trial until August 6. The trial court wanted to question the prosecutor who would be trying the case, David Tahan. The court therefore took a brief pause in the proceedings until Tahan was able to appear at the hearing. Before taking a recess, the court told defendant that if the court granted the prosecution a continuance until August 6, defendant could still represent himself, although it would be better for him to keep his court-appointed attorney because he was a good attorney.
Upon Tahan appearing in court, the court explained to Tahan that defendant wanted a speedy trial and therefore wanted to represent himself. The court stated it was going to allow defendant to represent himself as long as it did not cause any delay, even though it was unwise for defendant to do so. Tahan stated that the prosecution was requesting a continuance because a key witness was unavailable and Tahan would be out of town.
The court granted the prosecution’s motion to continue the trial until August 6, finding there was good cause for the continuance, and advised the parties were to be ready for trial by then. The court explained to defendant that as a consequence of the continuance, defendant’s attorney would be ready to try the case then.
The court asked defendant, if under such circumstances, defendant nevertheless wished to represent himself. Defendant responded that he did. The court granted defendant’s request and ordered defendant’s attorney to turn over to defendant all discovery as soon as possible. The trial court confirmed that defendant had filled out and signed the Faretta waiver form, and the court had approved it. The court also stated that it found defendant had the proper education to represent himself. The court further noted that the court had told defendant he could not represent himself for the purpose of delaying the trial and warned defendant that the trial would begin August 6, with no trailing or further delays.
B. Standard of Review
A defendant has an absolute right of self-representation “if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 97-98 (Valdez); Faretta, supra, 422 U.S. at pp. 835-836; People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham).)
The Supreme Court has “emphasized the importance of an unequivocal request for self-representation. ‘The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.’ [Citation.] Moreover, the Faretta right is forfeited unless the defendant ‘“articulately and unmistakably”’ demands to proceed in propria persona. [Citations.]” (Valdez, supra, 32 Cal.4th at pp. 98-99.)
Under Faretta, supra, 422 U.S. at page 834, “a defendant’s technical legal knowledge is an irrelevant consideration to the trial judge’s assessment of whether the defendant has made a knowing exercise of the right to defend himself. The important considerations are that it be established that the defendant is literate and understanding and that he has voluntarily exercised the choice of representing himself. ‘[A]lthough he [defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” [Citation.]’” (People v. Elliott (1977) 70 Cal.App.3d 984, 991 (Elliott), quoting Faretta, supra, 422 U.S. at p. 834.)
A motion to proceed to trial represented by counsel made the day before trial or on the day trial is scheduled to begin is addressed to the sound discretion of the trial court. (Windham, supra, 19 Cal.3d at p. 129, fn. 5; People v. Burton (1989) 48 Cal.3d 843, 852.)
Here, defendant moved to represent himself when the case was called for trial, after the case had been trailing for trial. We thus will not reverse the trial court’s decision to grant such motion absent an abuse of discretion.
C. Discussion
In the instant case, defendant articulately and unmistakably demanded to proceed in propria persona after the trial court informed defendant of the risks and disadvantages of self representation. The court initially told defendant that he would have to be ready for trial within a week, by July 27, the last day the case could be tried. Defendant therefore would not have a chance to request an investigator or go to the library. The court also told defendant, after continuing the trial to August 6, that he would have to be ready by August 6 and there would be no further delays. Defendant again said he was ready to try the case and had already studied the case.
The court further warned defendant that he would be held to the same rules and standards required of lawyers and he would have to try his case in front of a jury. The court asked defendant what his educational background was to determine whether defendant was capable of representing himself. Defendant established he was sufficiently educated and capable. The court told defendant it was unwise for defendant to represent himself. Nevertheless defendant insisted on representing himself.
Defendant received further detailed written warnings of the risks of self representation when he signed a written Faretta waiver form stating his desire to proceed without assistance of counsel.
In addition to warning defendant of the risks and disadvantages of self representation, the trial court sufficiently inquired of defendant as to why he wanted to represent himself. Defendant initially said he wanted to represent himself because he wanted a speedy trial and no further delays. The trial court noted that it was continuing the trial beyond the date defendant’s attorney had said he was unavailable. Therefore defendant’s attorney could represent defendant without delaying the trial and therefore it was unnecessary for defendant to represent himself. Nevertheless, defendant insisted on representing himself.
Under these circumstances, we conclude the court provided defendant with sufficient warnings, and defendant knowingly, intelligently, and unequivocally waived his right to court-appointed counsel, even if his initial reason given for requesting self-representation, that of achieving a speedier trial due to his attorney’s unavailability, was no longer valid because his attorney would be available to try the case. The court brought this fact to defendant’s attention but defendant unequivocally insisted that he nevertheless wished to represent himself.
Defendant’s subsequent request for counsel does not convince us that defendant’s request for self-representation was equivocal. It simply indicates that he later changed his mind or intended to delay the trial. There is no evidence that defendant’s request was equivocal when made.
3. Denial of Defendant’s Request to Reappoint Counsel
Defendant contends the trial court abused its discretion in denying his request to reappoint counsel in violation of defendant’s constitutional rights to counsel. (U.S. Const., 6th and 14th Amends.; Cal. Const., Art. 1, § 15.) Defendant complains that when denying the request, the trial court did not inquire as to whether the delay would prejudice the prosecution or whether the public defender would require a continuance if reappointed.
On August 8, 2008, two and a half weeks after the court granted defendant’s request to represent himself, defendant requested the court to reappoint counsel because his left eye was bothering him. He had had an eye exam the day before and claimed the eye drops used for the exam had irritated his eye, causing it to be more sensitive to light and ache. In response, the prosecutor offered to print his written motions in a larger font and suggested taking longer breaks during the trial if defendant’s eyes were bothering him. The prosecutor said he anticipated the trial would be a quick two-day trial.
Defendant added that he had not had access to the law library and therefore it would be unfair for him to have to go to trial that day. Defendant said he had not attempted to go to the law library until he began representing himself.
The court denied defendant’s request to reappoint counsel, noting that everyone else was ready to go to trial and there was no evidence that defendant had a medical problem that would prevent him from representing himself.
A. Applicable Law
In ruling on a motion to reappoint defense counsel after a waiver of the right to counsel, the trial court should consider the following relevant factors: “(1) defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.” (Elliott, supra, 70 Cal.App.3d at pp. 993-994.)
These are not the only factors that may be considered. “[I]t is the totality of the facts and circumstances which the trial court must consider in exercising its discretion” as to whether or not to reappoint counsel. (People v. Gallego (1990) 52 Cal.3d 115, 164.) When deciding the request, the trial court “must establish a record based upon the relevant factors involved and then exercise his discretion and rule on defendant’s request for a change from self-representation to counsel-representation.” (Elliott, supra, 70 Cal.App.3d at p. 994.)
B. Discussion
Taking into consideration the totality of the circumstances, including the five factors enumerated in Elliot, we conclude the trial court did not abuse its discretion in denying defendant’s request to reappoint defense counsel. Although defendant had no history of substituting counsel in and out, other than the one instance in which he insisted on representing himself, the totality of the circumstances support the trial court’s ruling denying reappointment of counsel.
The trial court reasonably found that defendant’s stated reasons for requesting reappointment did not support granting the motion. Defendant told the court he wanted counsel to represent him because he was unable to use the library and his left eye was bothering him. The court responded, “There is no sufficient information or evidence before the court regarding any new or different medical condition that would prohibit your ability to proceed with the trial at this point in time.”
There was also no evidence that defendant’s eye condition was significantly different than it had previously been or that it precluded him from representing himself. Furthermore, the prosecutor offered to accommodate defendant’s eye condition by using a large font for his written motions. Defendant responded that it was not necessary: “No, my left eye is still good. I can see these copies. They’re fine. The only issue was when I concentrate. When I read a lot, it causes me dizziness because of the left eye. . . . [¶] . . . [¶] The left eye it gives me a little dizziness.” The court suggested defendant take reading breaks and tell the court if it becomes a problem and the court will address it.
As to defendant’s inability to use the library, the trial court previously warned defendant that there would not be time for him to visit the library. The court told defendant that he would not get law library access before July 27, 2007. Defendant assured the court that he nevertheless wanted to represent himself and was ready and able to go to trial, but also said he would like to use the library.
In addition, the stage of the proceedings when defendant requested reappointment of counsel supported the trial court’s ruling denying defendant’s request. The trial had been delayed and continued numerous times. Defendant had complained on July 20, 2007, that his right to a speedy trial was being violated by delays. At the time of defendant’s request for reappointment of counsel, the case had been assigned to a courtroom for trial on August 6, the last day to try the case, but delayed two days so that defendant could dress in civilian clothes. Defendant agreed to a two-day waiver of his right to a speedy trial. No mention was made that defendant wanted to represent himself.
Then, when trial was to begin on August 8, after having been continued beyond the last day to try the case, defendant requested reappointment. At this point, delaying the trial any further would have caused disruption to the court calendar, as well as further delay beyond the last day to try the case. Under these circumstances, in which defendant had previously insisted he was ready to go to trial, and defendant was capable of representing himself, the trial court did not abuse its discretion in denying his request to reappoint counsel, particularly since further delay was highly probable if the court reappointed counsel.
As to the length of the trial, the prosecutor indicated that the trial was not complex and would be brief. The prosecutor intended to call three witnesses, plus his investigator, and estimated the trial would take only two days.
The trial ultimately lasted six days.
The trial court could reasonably infer from the totality of these circumstances that, when it was apparent the trial would go forward on August 8, defendant requested reappointment of counsel for the purpose of delaying the trial. It was also reasonable for the trial court to conclude that reappointing counsel would cause disruption and delay the trial. Essentially nothing had changed since defendant had requested to represent himself and he had previously insisted he was ready for trial. Defendant had made no mention he wanted the court to reappoint counsel or that he was unprepared to try the case two days earlier, other than saying he did not have civilian clothes to wear to trial.
In addition, defendant demonstrated his ability to represent himself effectively. During the hearing on the prosecution’s motions in limine on August 6, 2006, defendant was given a copy of the prosecutor’s trial brief, which he was permitted to read while the court also read the brief. When the court asked defendant if he had read it, he said he had and then discussed the contentions with the court. Defendant informed the court he had had some legal training and had defended himself in a federal proceeding. Defendant demonstrated considerable knowledge of both trial tactics and trial procedure.
Defendant’s ability to represent himself effectively was also apparent from the fact that he was convicted of only one of the four charged offenses and was additionally convicted of one lesser included offense, misdemeanor assault. Defendant also successfully challenged the prior conviction allegation, which the trial court found not true.
Defendant’s reliance on Elliott, supra, 70 Cal.App.3d at pages 993-998, People v. Hill (1983) 148 Cal.App.3d 744, 758-762, and People v. Cruz (1978) 83 Cal.App.3d 308, 319-321, is misplaced. In these cases, the defendants made their requests for reappointment of counsel about the same time in the case, right before or during the trial. The instant case, however, is distinguishable in that defendant had recently asserted his right to a speedy trial and had insisted he was ready to try the case. In addition, defendant requested reappointment of counsel on the last day to try the case and there was sufficient evidence to support the trial court’s finding that defendant did not bring his motion in good faith but, rather, for the purpose of delaying and obstructing the proceedings.
In rejecting defendant’s request for reappointment of the public defender, the trial court explained: “You had a public defender. You removed the public defender. You chose to represent yourself in trial. You consistently maintained your right to a speedy trial, and you demanded that the Court honor that request for a speedy trial, at the risk of your case being dismissed if they did not bring your case to trial on time.”
Under the totality of circumstances, we conclude the trial court did not abuse its discretion in denying defendant’s request to reappoint counsel.
4. Defendant’s Lack of Access to the Law Library
Defendant contends his Sixth Amendment rights were violated by being forced to begin trial without access to the law library.
A. Background Facts
Defendant first mentioned he would need law library access on July 20, 2007, when the trial court granted his request to represent himself. He insisted he was ready to go to trial but would like to use the law library. The court warned him that it was unlikely he could use it before going to trial on July 27, 2007. Defendant stated he was ready to go to trial anyway and wished to represent himself nevertheless.
The next time defendant appeared in court on August 6, 2007, he stated he was not ready to go to trial because he did not have civilian clothes. He made no mention of the need to use the law library. However, at the end of the hearing on August 6, 2007, after the court heard the People’s motions in limine, defendant requested the court to order that he be given law library access since he was having a difficult time going to the law library without an order. The court agreed to issue the order.
Two days later, on the day the trial was to begin, defendant told the court he was not ready for trial in part because he had not been able to use the law library. Defendant said he had not attempted to use the law library until after he began representing himself. He said he did not realize it would be a problem getting library access until then since he had not previously attempted to go to the library. Defendant added that when he tried to go to the library, he was told to make a written request to the jailer. He did this several times but never got a response.
When asked what research he needed to do, defendant said he needed to research excluding domestic violence evidence and speaking objections. The court responded that it had already discussed with defendant speaking objections in detail. The prosecutor said he gave defendant his “cheat sheet of objections.” In addition, the prosecutor said he did not intend to raise any Evidence Code section 1109 matters (domestic violence) in the trial or introduce any such evidence, unless defendant raised the issue.
The jury trial began the next day, on August 9, 2007. After opening statements, defendant requested to use speaking objections during the trial because he had not been granted access to the law library to educate himself on proper trial objections. The trial court denied his request but said he would allow defendant wide latitude. In addition, the court said it would contact the sheriff’s department regarding library access, and did so during a break in the trial that day. The court spoke to the jail captain, who assured the court he would arrange for defendant to have access to the library that evening and over the weekend.
When the court reconvened the following Monday, on August 13, defendant reported that he had been permitted to use the library for only four hours, during the evening of August 9. Most of his time was spent preparing a subpoena for defense witness Steven Judd, an investigator. He claimed he was unable to complete the subpoena because he was denied library access over the weekend. At the court’s request, the prosecutor assisted defendant with subpoenaing the witness, and the witness appeared at trial and testified.
Defendant claims that, under these circumstances, he was forced to present his defense without reasonable and unimpeded access to the law library or other means necessary to developing his defense in violation of his right to self-representation.
B. Applicable Law
The right to counsel under the federal and state Constitutions includes the right to effective counsel, and thus also includes the right to reasonably necessary ancillary defense services. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319 (Corenevsky).) A defendant who is representing himself “‘may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’” (People v. Blair (2005) 36 Cal.4th 686, 733 (Blair), quoting People v. People v. Jenkins (2000) 22 Cal.4th 900, 1040.)
In the final analysis, however, “the Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances.” (Blair, supra, 36 Cal.4th at p. 733.) Access to a law library is a privilege and not a right. “Access to a law library, by defendants freely choosing to represent themselves at trial, is not compelled by any constitutional, statutory or common law mandate. While access by such defendants may not arbitrarily be denied, nor, once conferred, terminated or restricted [citation], there is no requirement that such defendants be afforded specific books or access at specific times or on specific days.” (People v. Davis (1987) 189 Cal.App.3d 1177, 1196.)
The crucial question here is whether defendant “had reasonable access to the ancillary services that were reasonably necessary for his defense. A review of the record reveals that he did.” (Blair, supra, 36 Cal.4th at p. 734.)
A trial court’s ruling on a motion for defense services is reviewed for an abuse of discretion. (Corenevsky, supra, 36 Cal.3d at p. 321.)
C. Discussion
Defendant was provided with reasonable access to the law library under circumstances in which he insisted he wanted to represent himself on the eve of trial, shortly before the last day to try the case. The trial court warned defendant that if he represented himself, he might not have the opportunity to use the law library. Defendant said he nevertheless wanted to represent himself. The trial court ultimately continued the trial two and a half weeks due to the unavailability of a key prosecution witness and the prosecutor. There was thus additional time for defendant to use the law library.
Defendant did not mention to the court that he was having difficulty getting access to the library until the day the trial was to begin and two days before the trial actually began on August 8, which was the last day to try the case. Defendant indicated that he had not actually attempted to use the library until then or until shortly before that day. As a consequence, the court was given very little notice there was a problem. The court took reasonable action in attempting to assist defendant in providing him with access to the library once it was informed of the problem. As requested by defendant, the court ordered access on August 6. When defendant told the court on August 9, he still had not received access, the court called the sheriff’s department regarding library access during a break in the trial that day and was assured defendant would have access to the library.
Defendant did not request a continuance of the trial on August 9 due to not being able to go to the law library, and the court and prosecutor assisted defendant with the matters which defendant said required research. In addition, defendant was permitted to use the law library after the second day of trial for four hours. Defendant told the court he had done most of his research that day but still needed to file a motion to subpoena a witness. The court requested the prosecutor to assist defendant with subpoenaing the witness, who ultimately appeared for trial and testified.
While defendant was entitled to use the law library to conduct his own research, the court provided him with reasonable access to the library under the circumstances. The record indicates defendant was not prevented from effectively defending himself during the trial despite logistical problems using the law library.
5. Cross-Examination of Grace Leniu
Defendant contends the trial court violated his Sixth Amendment right to cross-examine Grace Leniu by excusing her without defendant’s consent.
During defendant’s recross-examination of Leniu, defendant asked the court if he could call Leniu back to testify later in the proceedings and the court said it would discuss the matter later. However, there was no further discussion. After defendant told the court that he was done questioning her for the time being, the court asked the prosecutor if Leniu could be excused and the prosecutor said yes. The court then excused Leniu.
The next Monday, which was the next trial day, defendant told the court he wanted to question Leniu further and had not wanted her excused.
The trial court asked the prosecutor to attempt to locate Leniu.
The following day the prosecutor reported he had attempted to locate Leniu by contacting the victim/witness advocate, who was unable to locate Leniu. The court noted that Leniu had already “given lengthy and extensive testimony both on direct examination and over an hour to an hour and a half cross-examination by the defendant.”
Under the Sixth Amendment Confrontation Clause, defendant is guaranteed the right “to be confronted with the witnesses against him.” (U.S. Const. amend. VI.) The main and essential purpose of the right of confrontation “‘is to secure for the opponent the opportunity of cross-examination.’” (Davis v. Alaska (1974) 415 U.S. 308, 315-316, quoting 5 J. Wigmore, Evidence s 1395, p. 123 (3d ed. 1940).)
A defendant’s Confrontation Clause rights have been violated when he or she is prohibited from engaging in otherwise appropriate cross-examination, thus preventing the defendant from exposing facts from which jurors could appropriately draw inferences relating to the reliability of the witness. The defendant has met his burden when he has shown that “[a] reasonable jury might have received a significantly different impression of [a witness’s] credibility had . . . counsel been permitted to pursue his proposed line of cross-examination.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 .)
Here, defendant’s Sixth Amendment confrontation right was not violated because defendant was given a reasonable opportunity to cross-examine Leniu and it is not likely a reasonable jury would have received a significantly different impression of Leniu’s credibility had defendant been permitted to cross-examine her further. Defendant told the court after Leniu had been excused that he wanted to recall Leniu to the stand to establish that defendant did not make up and down gestures while standing over Leniu holding a three foot metal rod.
During the trial, defendant asked a few questions regarding the metal rod. Leniu testified defendant entered their bedroom with a metal rod and pointed it at her, while arguing with her. When defendant asked Leniu if she felt threatened when he did this while she was lying down, Leniu responded that she did. Leniu said that when she jumped up from the bed as defendant came in the room pointing the rod at her, defendant said, “Bitch, why do you play games with me?” and picked up a knife, pointed it at her, and said he could cut her up. Defendant argues that additional cross-examination of Leniu regarding the metal rod might have produced inconsistencies undermining Leniu’s credibility as a witness.
While defendant did at one point in the trial indicate that he wanted to call Leniu to testify later on, he did not mention it again after telling the court he was done questioning Leniu. When defendant told the court he was done, it appears he intended to say something else but the court cut him off, and defendant did not mention he wanted to recall Leniu until the following Monday, after she had been excused.
Regardless of whether the trial court prematurely dismissed Leniu, it is highly unlikely that additional cross-examination would have made any difference in the outcome of the trial. Defendant cross-examined Leniu for an hour and a half. Leniu’s testimony revealed Lopez and Leniu’s lack of credibility. Leniu testified Lopez attempted to persuade her to lie. Defendant succeeded in convincing the jury that, contrary to Leniu and Lopez’s testimony, he did not assault Lopez or Leniu with a knife.
Furthermore, there was overwhelming evidence supporting defendant’s convictions for assaulting Leniu and making criminal threats. Defendant admitted waving a metal rod at Leniu while arguing with her and Leniu stated during cross-examination that she felt threatened by this. If there was any error in the court not permitting defendant to cross-examine Leniu further, such error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Brown (2003) 31 Cal.4th 518, 538; People v. Watson (1956) 46 Cal.2d 818, 836.)
6. Disposition
The judgment is affirmed, with instructions that the trial court correct its erroneous trial court minute orders dated February 11, 2008, August 16, 2007, June 19, 2008, and June 27, 2008 (case print), to state that defendant was convicted as to count 3 of the lesser included offense of simple assault.
We concur: King J., Miller, J.