Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA075189. Cary Nishimoto, Judge.
Stephen M. Hinkle 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, Supervising Deputy Attorney General and Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
ZELON, J.
INTRODUCTION
A jury convicted DeAngelo Wayne Ross of two counts of robbery and a single count of possession of a firearm by a felon. The jury also found that Ross committed both counts of robbery for the benefit of a criminal street gang and was therefore subject to a sentencing enhancement under Penal Code section 186.22, subdivision (b)(1). On appeal, Ross contends that: (1) there is insufficient evidence to support his section 186.22 gang enhancement, and (2) the trial court violated his Sixth Amendment right to self-representation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Description of the Offenses
On May 31, 2009, at approximately 3:00 a.m., Raphael Richie was at a gas station when he was approached by two men, one of whom was on a bicycle. The man on foot was holding a gun and ordered Richie to pull everything out of his pockets. After Richie handed the man three cigarettes and one dollar, the man became irritated, cocked the gun and told Richie he would have to “come up better than that... ‘you have to come up with your keys.’” Richie then gave the man approximately $180 in cash. During these events, the man on the bike, who was wearing a black jacket with gold trim, stood at the far end of the gas station and appeared to act as a lookout. Richie was eventually told to get back in his car and pretend that nothing had happened. Richie entered his car, drove away and called 9-1-1.
Approximately a half hour later, Rickey Joseph arrived at the same gas station where Richie had been robbed and was approached by two men, one of whom was on a bike. The man on foot put a gun to Joseph’s forehead and ordered him to hand over his jewelry and money. When Joseph hesitated, the man on the bike said “give your stuff up, he’s on three pills.” Joseph gave the men his jewelry, money and cell phone. The men walked away, but continued to point the gun toward Joseph. After the men left, Joseph went to a police station and reported the robbery.
At approximately 5:30 a.m., Los Angeles County Deputy Sherriff Carl Lumpkin detained Appellant DeAngelo Ross, who was in possession of a firearm and wearing jewelry. Officers transported Joseph to the location where Ross was being held and conducted a “field show-up identification.” Joseph identified Ross as the man who had robbed him at gunpoint and stated that Ross was wearing his jewelry.
Later that morning, police found an individual named Derek Evans wearing a black jacket with gold trim; he was wounded and bleeding. After Edwards was taken to the hospital, Joseph informed officers that Edwards’s jacket matched the jacket of the man who had been on the bicycle during the gas station robbery.
B. Information and Events Preceding Trial
On August 6, 2009, the Los Angeles County District Attorney filed an Information charging DeAngelo Ross and Derek Edwards with two counts of second degree robbery (Penal Code, § 211), and charging Ross with a single count of possession of a firearm by a felon (§ 1201). The Information further alleged, pursuant to Penal Code section 186.22, subdivision (b)(1), that Ross and Edwards committed the robbery counts “for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”
All further statutory citations are to the Penal Code, unless otherwise indicated.
The Information was later amended to add allegations that Ross had two prior serious or violent felony convictions.
During a pretrial hearing, defense counsel informed the trial court that Edwards intended to accept a plea deal, but Ross “want[ed] to go pro per.” Ross immediately interjected, stating “I ain’t taking shit, I ain’t taking shit... [¶] fuck that shit, fuck all that shit [¶].... I want to go pro per.” The court denied Ross’s request for self-representation, but invited him to renew the request at a future proceeding:
Based on the defendant’s... [¶]... [¶] in court conduct, it appears to me that he’s being resistant as to court procedure. So he will not be going pro per.... [¶]... [¶] If you want to go pro per, you can go pro per, but you have to represent yourself as a gentleman and not come in here and tell me you ain’t taking shit, fuck all this.... [¶]... [¶] So at some point in the future if you decide you want to represent yourself, you conduct yourself properly, then I’ll consider it. As of now, you are not representing yourself.
Ross never renewed his request and proceeded with court appointed counsel.
Prior to trial, Edwards pled guilty and admitted he had aided and abetted Ross in committing the robberies. According to Edwards, he had been operating as a look out and a backup for Ross “in case the victim fought back.” Edwards also admitted that he and Ross were members of the “Eight Trey Gangster Crips” street gang and had committed the robberies for the benefit of the gang.
C. Ross’s Trial
The prosecution called Richie and Joseph to testify at Ross’s trial. Richie identified Ross as the man who had robbed him at gunpoint. He further testified that the day after he had been robbed he met with Los Angeles County Detective John Ganarial, who presented a pack of six photographs. Richie “immediately recognized” Ross from among the six photographs and told Ganarial that Ross was “the one who robbed me with a gun.” Ganarial showed Richie a second pack of photographs, and Richie identified Edwards as the individual who had been on the bike. Richie also testified that the jacket Edwards was wearing on the morning police found him matched the jacket worn by the man on the bike.
Ricky Joseph stated that he recognized the man who robbed him as an “Eight Tres [sic] Gangster Crip” that he knew “from around the neighborhood.” However, Joseph said he “d[idn’t] remember” whether Ross was the man who had robbed him, later adding that he was afraid to identify the defendant at trial because the gang might retaliate. Joseph also testified that the man who robbed him was wearing a blue hat with the letter “T.” Based on his familiarity with the “Eight Tres [sic] Gangster Crips, ” Joseph believed the “T” stood for “Tres, ” [sic] and the blue color signified “Crips.”
The prosecution also called Deputy Sherriff Carl Lumpkin and Detective John Ganarial, who had investigated the robberies. Lumpkin testified that, shortly after the robberies were reported, he found Ross wearing jewelry and in possession of a firearm. At the time of his arrest, Ross was displaying several symbols indicating he was a member of the Eight Tres [sic] Gangster Crips. First, he was wearing a belt with a silver buckle containing the letter “C, ” which, according to Lumpkin, is “typically worn by gang members and it signifies that they’re a Crip.” Second, Ross had numerous gang tattoos, including the letters “E.T.G.C.” on his hand, the number “3” on his arm and face and the number “8” on the side of his head. According to Lumpkin, all of these tattoos were symbols indicating membership in the gang.
Detective Ganarial testified that he had been investigating gangs for approximately two years and investigating the Eight Trey Gangster Crips, which is a subset of the “Crips” gang, for the last eight months. Ganarial stated that the robberies had occurred within the Eight Trey Gangster Crips’s territory and that both Ross and Edwards had previously identified themselves as members of the gang.
The prosecution introduced extensive additional evidence indicating that Ross and Edwards were members of the Eight Trey Gangster Crips. According to Ganarial, numerous other officers reported that Ross and Edwards had identified themselves as gang members, which was corroborated by several “field interview” cards. Los Angeles County Deputy Sheriff Justin Diez also testified that on December 18, 2008, he witnessed Ross vandalize a shopping center by spray painting the letters “ETG, ” which referred to Eight Trey Gangsters. At the time, Ross was wearing a blue hat and a blue belt with a buckle containing the letter “T” and identified himself to Officer Diez as a member of the gang.
Ganarial testified at length about the nature of the Eight Trey Gangster Crips, explaining that their primary activities included “robberies, illegal shootings, possession of weapons, burglaries, vehicle thefts and... other crimes.” In support of this statement, Ganarial described two recent cases in which two different members of the gang had been convicted of possession of a firearm by a felon. Ganarial also stated that in 2009 he had investigated six shootings and over a dozen robberies committed by the gang.
Ganarial also testified that there were numerous facts indicating Ross and Edwards robbed Richie and Joseph for the benefit of the Eight Trey Gangster Crips. First, he explained that they performed the robberies in gang territory, which was intended to intimidate the community by showing that the gang could commit “blatant[]” crimes in their area without “fear of retribution.” Second, he stated that two gang members – Ross and Edwards – had committed the robberies together, which was intended to show “they’re not alone.” Third, during the robberies, Ross was wearing a hat and belt with gang symbols, which was intended to inform the victim that gang was responsible for the crime, thereby creating fear and intimidation and enhancing the gang’s reputation. Finally, Ganarial explained that the crime of robbery benefitted the gang by providing capital that could either be split with other gang members or used to purchase weapon or drugs that could then be sold for profit. Ganarial further stated that, even if the proceeds of the robbery were not shared, the crime would still “benefit the reputation” of the gang and enhance the reputation of Ross within the gang.
Appellant Ross called his own gang expert, Alex Alonso, who testified that the primary activities of the Eight Trey Gangster Crips was to “hang[] out, drink[ and] smok[e].” Alonso “absolutely” disagreed with the assertion that committing crimes, such as robberies or murders, was a primary activity of the gang. He also stated that, in his experience, gang members frequently committed crimes for their own personal benefit, rather than for the benefit of their gang. When presented with a hypothetical summarizing the circumstances of these particular robberies, Alonso stated that he did not believe the crimes were committed for the gang’s benefit because there was no evidence the victims were aware the gang was responsible for the acts: “if [Ross] didn’t yell out the gang, if he didn’t use the gang as a way to intimidate the person, then I just see that as just a typical robbery that you see every day in this county.”
The jury convicted Ross of all counts and found that he committed both robberies “for the benefit of... or in association with” a criminal street gang. (§ 186.22, subd. (b)(1).) Ross filed a timely appeal.
DISCUSSION
Ross raises two arguments on appeal. First, he contends there is insufficient evidence to support his section 186.22 gang enhancement. Second, he argues that the trial court violated his Sixth Amendment right to self-representation.
A. There Was Substantial Evidence Supporting Ross’s Section 186.22 Gang Enhancement
1. Standard of Review
“Where there is a claim of insufficient evidence, ‘we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – evidence that is reasonable, credible and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. [Citation.]’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329 (Martinez) [summarizing standard of review applicable to jury’s finding on section 186.22 gang enhancement].)
2. Substantial evidence supported the jury’s finding on section 186.22 enhancement
Penal Code section 186.22, subdivision (b)(1) states, in relevant part, that “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang” shall receive an additional term of two to ten years imprisonment. Ross alleges the prosecution failed to prove that (1) the Eight Trey Gangster Crips qualify as a “criminal street gang, ” or (2) his robberies were committed “for the benefit of... or in association with” the gang.
The specific length of the additional term is dependent on the nature of the felony. (See, §§ 186.22, subds. (b)(1)(A)-(C).)
a. There is substantial evidence to support the jury’s finding that the Eight Trey Gangster Crips is a “criminal street gang”
The term “criminal street gang” is defined in section 186.22, subdivision (f) as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated [elsewhere in the statute]..., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
“[T]he ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1222 (Vy).) Ross concedes there is sufficient evidence to support the first and third elements, but contends that the prosecutor failed to prove the “primary activities” element.
It is well-established that “[t]he primary activities element may be proven by expert testimony that the criminal street gang ‘was primarily engaged in... statutorily enumerated felonies. [Citation.]’ [Citation.]” (People v. Cabrera (2010) 191 Cal.App.4th 276, 282.) At trial, Detective Ganarial testified that the Eight Trey Gangster Crips’s primary activities included “robberies, illegal shootings, possession of weapons, burglaries, vehicle thefts and... other crimes.” In support, Ganarial explained that he had “personally investigated” numerous crimes committed by gang members, including six shootings and over a dozen robberies that occurred in 2009. He also described two recent cases – one in 2008 and one in 2009 – in which gang members had been arrested and convicted for being felons in possession of a firearm.
Ross concedes that the crimes referenced by Ganarial, including, robbery and illegal possession of firearms, are among the statutorily enumerated felonies that will support the primary activities element.
Numerous cases have held that analogous expert testimony is sufficient to satisfy the “primary activities” element. For example, in People v. Margarejo (2008) 162 Cal.App.4th 102, an officer testified that the “primary activities” of defendant’s gang included a “range” of crimes “from simple vandalism and battery... all the way to murder. They also include consolidated weapons, carjackings, robberies and a lot of narcotic related offenses.” (Id. at p. 107.) The expert further stated that although the gang might engage in other activities, “their main activity, their primary activities, I would say are to complete crimes [including murder.]” (Id. at p. 108.) The appellate court concluded that the officer’s testimony, standing alone, was sufficient to satisfy the “primary activities” element.
Similarly, in People v. Martinez, supra, 158 Cal.App.4th 1324, an officer with several years of gang-related experience testified that he was familiar with the defendant’s gang “based on regular investigations of its activity and interaction with its members.” (Id. at p. 1330.) He further testified that “[t]he gang’s primary activities include robbery, assault -- including assaults with weapons, theft, and vandalism, ” and described “two predicate offenses [committed by gang members], both robberies, one in 2002 and one in 2003.” (Ibid.) The appellate court ruled that the officer’s testimony was sufficient to prove the primary activities element, explaining that “[the witness] had both training and experience as a gang expert” and had “specifically testified as to [the gang’s] primary activity.” (Ibid.; see also Vy, supra, 122 Cal.App.4th at pp. 1225-1226 [primary activities element satisfied by “expert testimony that [the gang] was engaged in criminal actions that constituted predicate crimes” and “evidence... show[ing] the existence of three serious, violent crimes by... gang members that took place over a period of less than three months”].)
The testimony provided by Detective Ganarial, who has years of gang-related experience, cannot be meaningfully distinguished from the expert testimony analyzed in Margarejo and Martinez. Ganarial specifically stated that the Eight Trey Gangster Crips’s primary activities included the commission of offenses listed in section 186.22, subdivision (f) and explained the basis for that opinion.
Ross, however, contends that this case is controlled by In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), which held that a gang expert’s statement that “he ‘kn[e]w’ that the gang had been involved in certain crimes” was insufficient to establish the primary activities element. (Id. at p. 611.) The court explained that the testimony was inadequate because it failed to describe any “specifics... as to the circumstances of the[] crimes, or where, when, or how [the officer] had obtained the information. [The expert] did not directly testify that criminal activities constituted [the gang’s] primary activities.” (Id. at pp. 611-612.)
Unlike the expert in Alexander L., Ganarial specifically stated that the Eight Trey Gangster Crips’s primary activities included the commission of various crimes listed in section 186.22, subdivision (f). (See Martinez, supra, 158 Cal.App.4th at p. 1330 [“Alexander L. is different because there the expert never specifically testified about the primary activities of the gang”]; Margarejo, supra, 162 Cal.App.4th at p. 108 [“The expert testified the gang’s primary activities included murder. There was no such testimony in Alexander L.”].) Moreover, Ganarial’s opinion was based on his personal involvement in numerous criminal investigations. Therefore this is not a case where the expert failed to explain “where, when, or how he had obtained” knowledge that the gang had been involved in criminal activity. (Alexander L., supra, 149 Cal.App.4th at pp. 611-612.)
b. There is substantial evidence that Ross committed the crimes for the benefit of the gang
Ross also argues that the prosecution failed to prove that he robbed Richie and Joseph “for the benefit of... or in association with” a gang. (§ 186.22, subd. (b)(1).) Ross contends that the only evidence indicating that he committed the robberies for the benefit of the gang was Ganarial’s unsubstantiated expert opinion, which was “not coupled with other evidence from which the jury could reasonably infer that the offense was gang related....”
“It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a... finding on a gang allegation.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).) However, to support a section 186.22 enhancement, the expert’s testimony must be accompanied “by some substantive factual evidentiary basis, ” (People v. Ochoa (2009) 179 Cal.App.4th 650, 661 (Ochoa)), from which “the jury could reasonably infer the crime was gang related.” (Ferraez, supra, 112 Cal.App.4th at p. 931.) In other words, “something more than an expert witness’s unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement.” (Ochoa, supra, 179 Cal.App.4th at p. 660.)
In this case, Detective Ganarial testified that, in his expert opinion, Ross committed the robberies for the benefit of the gang. Specifically, Ganarial explained that the crimes were intended to enhance the gang’s reputation, instill fear in the community, demonstrate control within the gang’s territory and provide gang members with capital that might be used to purchase drugs or guns.
Ganarial based his opinion on numerous different facts established at trial. First, Ganarial noted that Ross committed the crimes with another gang member. This fact alone is sufficient to support the jury’s finding on a gang enhancement. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1179 [“The evidence that defendant knowingly committed the charged crimes in association with two fellow gang members was sufficient to support the jury’s findings on the gang enhancements”]; People v. Villalobos (2006) 145 Cal.App.4th 310, 322 (Villalobos) [“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”]; Martinez, supra, 158 Cal.App.4th at p. 1333 [“benefit” element satisfied where “defendant, an admitted gang member sporting gang tattoos, actually committed the robbery with a gang confederate”].)
Second, Ganarial testified that the crime was committed within the gang’s territory. (See People v. Miranda (2011) 192 Cal.App.4th 398, 413 [evidence that “crime was committed in the gang’s territory” supported jury finding on gang enhancement].) Third, Ganarial noted that, during the commission of the robberies, Ross was wearing a hat and belt displaying the gang’s symbols. (Compare Ochoa, supra, 179 Cal.App.4th at pp. 662-663 [reversing gang enhancement where defendant “did not... display gang signs[ or] wear gang clothing... while committing the instant offenses”].) Fourth, Ganarial testified that the crime Ross committed – robbery – was a primary activity of the gang and explained how the gang would benefit from the crime.
Ganarial’s expert testimony, which was based on numerous specific facts established at trial, constitutes substantial evidence that Ross committed the two robberies for the benefit of the gang. (See People v. Gardelay (1996) 14 Cal.4th 605, 618-619 [gang expert opinion, combined with evidence that multiple gang members committed assault together in gang territory, was sufficient to prove gang enhancement].)
B. Ross Abandoned his Request for Self-Representation
Ross also contends that the trial court “erred by summarily denying [his] unequivocal requests to represent himself... prior to the start of trial.” According to Ross, “the error requires reversal of his conviction.”
1. Factual summary
At a pretrial hearing on December 3, 2009, defense counsel informed the court that Derek Edwards intended to accept a plea deal. Counsel also stated that Ross intended to proceed to trial and wanted to represent himself, which led to the following exchange:
[COUNSEL]: I would indicate to the court Mr. Ross wants to go pro per. [Edwards] wants to accept the People’s disposition and wants to have his case separated.
[COURT]: Say it again.
[COUNSEL]: There’s an offer. A package deal has been offered. [Edwards] wants to accept the disposition. Mr. Ross does not wish to accept.
[ROSS]: I ain’t taking shit.
[COUNSEL]: Mr. Ross wants to go pro per.
[ROSS]: I ain’t taking shit. I ain’t taking shit. Okay.
[COURT]: Say again.
[ROSS]: Fuck that shit. Fuck all that shit.
[COURT]: Based on the defendant’s
[ROSS]: I want to go pro per.
[COURT]: – in court conduct, it appears to me that he’s being resistant as to court procedure. So he will not be going pro per.
If you want to go pro per
[ROSS]: My rights
[COURT]: If you want to go pro per, you can go pro per, but you have to represent yourself as a gentlemen, and not come in here and tell me you ain’t taking shit, fuck all this. This isn’t the street. This is a courtroom.
We have a lot of people representing themselves but they do so as gentlemen and gentlewomen, not like what you have just done.
So at some point in the future if you decide you want to represent yourself, you conduct yourself properly, then I’ll consider it. As of now, you are not representing yourself.
[ROSS]: Yeah, whatever.
After the December 3 hearing, the court held numerous additional pretrial hearings before the trial commenced in late January, but Ross never renewed his request for self-representation.
2. Summary of legal principles and standard of review
In Faretta v. California (1975) 422 U.S. 806, the United States Supreme Court ruled that “[a] criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch).) “A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]” (Ibid.)
Even if a defendant satisfies all three of these conditions, the trial court may still deny a motion for self-representation when “a defendant’s conduct... [provides] a reasonable basis for believing that his self-representation will create disruption.... This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.” (Welch, supra, 10 Cal.4th at p. 734.)
We review the denial of a Faretta motion predicated on a defendant’s obstructive conduct for abuse of discretion. (See People v. Carson (2005) 35 Cal.4th 1, 12 (Carson) [reviewing court must “accord due deference to the trial court’s assessment of the defendant’s motives and sincerity as well as the nature and context of his misconduct and its impact on the integrity of the trial... [and the] fairness of the proceedings”]; see also Welch, supra, 20 Cal.4th at p. 735.)
3. Ross abandoned his request for self-representation
The record demonstrates the trial court denied Ross’s Faretta motion because he repeatedly used profanity during the December 3 pretrial hearing. Ross argues that his behavior did not constitute “serious and obstructionist misconduct, ” (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46), and therefore did not provide an adequate basis to deny his right to self-representation. Respondent disagrees, arguing that Ross’s conduct demonstrated he “was not capable of showing ‘dignity’ in court if granted pro per status.”
Respondent also argues we should affirm the trial court’s ruling because Ross’s invocation of his right to self-representation was equivocal and untimely. Both arguments lack merit. First, Respondent contends Ross’s request was equivocal because he failed to renew the request at any point after the December 3 hearing. The record shows that, during the December hearing, Ross and his counsel plainly indicated to the court, without any hesitance or ambiguity, that Ross “want[ed] to proceed pro per.” Ross’s failure to renew his request does not alter the fact that he clearly and unequivocally asserted the right during the December 3 hearing. Respondent also argues that Ross’s request was untimely because it was made on the day trial was scheduled to begin. However, while December 3 was technically the date on which Ross’s trial was scheduled to begin, the hearing transcripts show that the parties had previously informed the court that they did not intend to try the case until January. Following the December 3 hearing, the trial court delayed the trial by seven weeks for reasons that had nothing to do with Ross’s Faretta request. Thus, there is no reason to believe that Ross’s Faretta request would have unjustifiably delayed the trial. (See People v. Burton (1989) 48 Cal.3d 843, 852 [“‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice”].)
When determining whether to terminate or deny self-representation based on a defendant’s misconduct, the “trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation.” (Welch, supra, 20 Cal.4th at p. 735.) Factors the court should consider in making this determination include “the nature of the misconduct and its impact on the trial proceedings, ” “the availability and suitability of alternative sanctions, ” “whether the defendant has been warned that particular misconduct will result in termination of in propria persona status” and whether the defendant “has ‘intentionally sought to disrupt and delay his trial.’ [Citation.]” (Carson, supra, 35 Cal.4th at p. 10.)
Generally, a defendant’s right to self-representation will only be denied or terminated for misconduct if the defendant has engaged in a repeated pattern of obstreperous behavior. For example, in People v. Welch, supra, 20 Cal.4th 701, the California Supreme Court affirmed the trial court’s decision to deny self-representation where “a review of the record of pretrial proceedings prior to deciding the Faretta motion... reveal[ed] a number of instances in which defendant engaged in disruptive behavior.” (Id. at p. 735.) Specifically, the record showed defendant had “belligerently denied awareness of a calendar date that was set in his presence; he turned his back on the trial court when addressing it; he interrupted the trial court several times to argue what the court had declared to be a nonmeritorious point; he accused the court of misleading him; he refused to allow the court to speak and he refused several times to follow the court’s admonishment of silence.” (Ibid.) The Court explained that, “while no single one of the above incidents may have been sufficient by itself to warrant a denial of the right of self-representation, taken together they amount to a reasonable basis for the trial court’s conclusion that defendant could not or would not conform his conduct to the rules of procedure and courtroom protocol.” (Ibid.)
Similarly, in United States v. Brock (7th Cir. 1998) 159 F.3d 1077 (Brock), which the California Supreme Court has cited with approval, (see Carson, supra, 35 Cal.4th at pp. 10, 12), the Seventh Circuit affirmed the district court’s decision to terminate defendant’s self-representation as the result of repeated disruptive behavior. The defendant had filed multiple motions asserting that neither his attorney nor any other attorney was authorized to act on his behalf. (Brock, supra, at p. 1078.) When the district court attempted to conduct a Faretta hearing, defendant repeatedly demanded a “Bill of Particulars, ” challenged the court’s authority and “‘refused to answer the [c]ourt’s questions or to cooperate in any way.’” (Ibid.) After the trial judge appointed defendant stand-by counsel, defendant repeated his demands and again refused to answer any questions. (Ibid.) The trial court held defendant in contempt multiple times and finally revoked his pro se status. (Id. at pp. 1078-1079.) The appellate court affirmed the lower court, noting that defendant’s “repeated” instances of misconduct “made it practically impossible to proceed.” (Id. at p. 1080. See also People v. Watts (2009) 173 Cal.App.4th 621, 630 [affirming denial of self-representation where “defendant continuously manifested an inability to conform his conduct to procedural rules and courtroom protocol”].)
In contrast to the cases described above, the trial court here denied Ross’s Faretta request based on a single instance of misconduct and without any prior warning that the continued use of profanity would result in the waiver of his right to self-representation. (See Carson, supra, 35 Cal.4th at p. 10 [“The court should... consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status”].) Moreover, there is no indication that the trial court considered whether alternative sanctions might have rectified or corrected the disruptive behavior. (See ibid. [court should consider “availability of alternative sanctions” and whether conduct might be “subject to rectification or correction”].) Although the California Supreme Court has made clear that “[a] constantly disruptive defendant” may be denied the right to self-representation, (Welch, supra, 20 Cal.4th at p. 734), Respondent has cited no decision upholding the denial of Faretta rights based on an isolated instance of profanity.
For the purposes of this case, however, we need not determine whether Ross’s conduct would support a complete denial of his right to self-representation because his conduct after the December 3 hearing demonstrates that he abandoned his Faretta motion. It is well-settled that “the Faretta right, once asserted, may be waived or abandoned.” (People v. Dunkle (2005) 36 Cal.4th 861, 909 [disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22]; People v. Tena (2007) 156 Cal.App.4th 598, 609-610 (Tena) [defendant’s conduct following preliminary hearing demonstrated that he abandoned any desire to represent himself].) A “waiver may be found if it reasonably appears from the conduct of the defendant that he has abandoned his request to represent himself.” (People v. Kenner (1990) 223 Cal.App.3d 56, 60.)
Although the trial court denied Ross’s request for self-representation, it specifically invited Ross to renew his request at some future point if he believed he could conduct himself appropriately:
If you want to go pro per, you can go pro per, but you have to represent yourself as a gentleman, and not come in here and tell me you ain’t taking shit, fuck all this. This isn’t the street. This is a courtroom....
[¶]... [¶]
So at some point in the future if you decide you want to represent yourself, you conduct yourself properly, then I’ll consider it. As of now, you are not representing yourself.
Ross, however, never accepted the court’s invitation to renew his request and proceeded with appointed counsel.
In Tena, supra, 156 Cal.App.4th 598, the appellate court held that the defendant abandoned his request for self-representation under similar circumstances. At the preliminary hearing, the defendant asked the court whether he could proceed pro per, which lead to the following dialogue:
[Defendant]: Can I go pro per, sir? Your Honor, may I go pro per?
[Judge]: No.
[Defendant]: Why? I have the right.
[Judge]: The request is not timely. You can revisit that after the preliminary hearing, at your next appearance.
(Id. at p. 606.) Thereafter, the defendant did not renew his request and proceeded to trial with private counsel. On appeal, defendant argued that “his requests for self-representation... were improperly denied.” (Id. at p. 604.)
The appellate court rejected the argument, explaining that because the defendant had never “accepted [the trial court’s] invitation to renew his request following the preliminary hearing, ” he had abandoned his right to self-representation. (Tena, supra, 156 Cal.App.4th at p. 610.) The court acknowledged that, to avoid waiver, a defendant need not renew a request for self-representation once it has been conclusively denied. (Id. at pp. 611-612. See also People v. Butler (2009) 47 Cal.4th 814, 826, fn. 3 [“defendant was not required to renew his request after it was conclusively denied”].) However, it further reasoned that the trial court’s “announced ground for denying self-representation at the time of the preliminary hearing – untimeliness – was not a settled or fixed condition permanently foreclosing the option of appellant’s self-representation.” (Tena, supra, at p. 612.)
As in Tena, the trial court here explained to Ross that it was not categorically denying his motion for self-representation and would reconsider the request if Ross demonstrated the ability to abide by proper courtroom protocol. Rather than accept the trial court’s invitation to renew his request, Ross chose to proceed to trial without ever indicating any further desire to invoke his Faretta right. On these facts, we conclude that Ross abandoned his right to self-representation.
DISPOSITION
The trial court’s judgment of conviction is affirmed.
We concur: PERLUSS, P. J., WOODS, J.