Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1202572, Brian E. Hill, Judge
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez, John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
"'Trial courts are not required to engage in game playing with cunning defendants who would present Hobson's choices' [Citation]." (People v. Clark (1992) 3 Cal.4th 41, 115.) While a defendant may insist on the right to represent himself, in recognizing that right the court "did not establish a game in which defendant can engage in a series of machinations, with one misstep by the court resulting in reversal of an otherwise fair trial." (Ibid.; Faretta v. California (1975) 422 U.S. 806 (Faretta).) This appeal arises from just such a trial.
Gregory Joseph Saldivar appeals the judgment entered following a court trial in which he was convicted on five counts of second degree robbery (Pen. Code, § 211). The court also found true the allegation that appellant had suffered five prior strike convictions (§§ 667, subd. (e)(2)(A); 1170.12, subd. (c)(2)(A)) and two prior serious felony convictions (§ 667, subd. (a)(1)). He was sentenced to 40 years plus 100 years to life in state prison, consisting of 4 consecutive 25-year-to-life terms and 2 five-year prior serious felony enhancements on each life term. He was also awarded 1, 255 days of custody credit. He contends the court erred by (1) denying his request for reappointment of counsel; (2) failing to suspend the proceedings and declare a doubt as to his competency; and (3) denying his motion for appointment of counsel at sentencing. He also challenges the sufficiency of the evidence supporting two of his robbery convictions, claims he is entitled to additional custody credits, and asks us to correct errors in the abstract of judgment. We shall order the judgment modified to correct two clerical errors and to reflect that appellant is entitled to a total of 1, 267 days custody credit. In all other respects, we affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
The Bank of the West Robbery
On May 6, 2005, appellant entered the Bank of the West on State Street in Santa Barbara and approached teller Diane Purinton. Appellant handed Purinton a piece of paper on which he had written, "bank robbery." Purinton asked, "Is this a joke?" Appellant told her it was a bank robbery and said he had a gun. He also told her to give him all of her money and said "no dye packs." Purinton proceeded to give him all the money in her drawer, including "bait money" that had been photocopied, for a total of $1,305. Purinton also pressed the silent alarm.
Appellant moved to the next teller window, where he confronted Jeanne Hernandez and the new teller she was training, Eric Roachell. Appellant said, "'This is a robbery, I have a gun, this is not a joke.'" Hernandez thought appellant was "kidding, " but realized he was serious after she saw the fear in Purinton's face. Appellant demanded money, and Hernandez proceeded to hand over the bills from her top drawer. Hernandez also attempted to give appellant bait money, but was unable to do so.
Hernandez testified that she was initially in fear of appellant and took his statement as a threat. After he started using both of his hands to collect the money she was turning over to him, she no longer believed he had a gun and was "not really" afraid of him. She, nevertheless, continued turning over the money because she had been trained to do so in those circumstances.
Roachell helped turn over the money to appellant, and attempted to give him a dye pack. When appellant asked Roachell to open the pack, he declined. Appellant said he also wanted the cash in the bottom drawer. As Hernandez was in the process of giving appellant a dye pack, he asked her whether she was doing so. Hernandez "appeared to freeze for a moment, " so Purinton stepped over and began handing appellant the rest of the money from Hernandez's top drawer. At that point, Hernandez pressed the silent alarm several times. After appellant collected all the money, which totaled approximately $5,000, he walked out of the bank.
The incident was captured on the bank's video surveillance cameras. Three days after still images of the suspect were distributed to the media, a citizen identified appellant. His driver's license photograph was obtained and placed in a six-pack photographic lineup. Roachell positively identified appellant as the robber from the photographic lineup. In choosing appellant's photograph, Hernandez wrote, "pretty sure it's that guy." Purinton also chose appellant's photograph and stated, "looks like our suspect." All three victims positively identified appellant at trial.
The Citibank Robbery
On May 24, 2005, appellant walked into the Citibank branch at 3757 State Street in Santa Barbara and approached Amy Weidemann at a teller's window. Appellant showed Weidemann a note stating, "robbery, gun." He put his hand under his shirt as if he were pointing a gun and said, "'I'm not kidding, this is a robbery, I want all your money.'" Appellant told Weidemann to hand over the larger bills first and said, "no bait money." Weidemann, who was in fear, began placing the money on the counter in the hope that someone would notice that she was being robbed. She also handed over a packet of bait money.
After Weidemann had emptied both of her drawers, appellant told her to give him the money from the next drawer. Weidemann told him she did not have the keys. When appellant demanded more money, Weidemann approached teller Christa Smith and told her a customer needed help. Smith and Weidemann walked over to Smith's window where appellant was standing. Appellant told Smith "it was a robbery" and demanded all the money from her bottom drawer. He warned her, "no funky business" and said he did not want any dye packs or bait money. After Smith gave appellant all the money from her bottom drawer, he asked for more and she proceeded to turn over the money from the top drawer. Appellant walked out of the bank with approximately $12,000.
The incident was captured on the bank's surveillance camera. The police arrived, reviewed the tape, and recognized appellant as the robber. Weidemann identified appellant from the photographic lineup, and also identified him in court with "one [h]undred percent certainty." Smith identified appellant from his photograph as resembling the robber, but said he had different hair and eyes. In court, she positively identified him.
DISCUSSION
I.
Request for Reappointment of Counsel
Appellant contends the court erred in denying his request for reappointment of counsel on the date set for trial. We conclude the court did not abuse its discretion in denying the request as untimely.
Background
The information against appellant was filed on January 20, 2006. On February 9, he sought to continue his arraignment on the ground that he wanted to retain private counsel. The request was denied. Immediately thereafter, appellant filed a Marsden motion. Following a hearing, the motion was denied.
(People v. Marsden (1970) 2 Cal.3d 118.)
On June 22, 2006, after the case had been assigned for trial, appellant renewed his Marsden motion and it was once again denied. Appellant then filed a peremptory challenge to the trial judge under section 170.6, and the case was reassigned to another judge. On August 8, 2006, appellant filed yet another Marsden motion. Before the court ruled on the motion, appellant waived his Faretta rights and was granted self-representation.
On March 5, 2007, appellant requested and was granted reappointment of counsel. On August 30, 2007, appellant filed yet another Marsden motion that was denied. Then, on September 21, appellant once again waived his right to counsel and was allowed to proceed as his own attorney. Appellant then moved to recuse the prosecutor. That motion was denied on December 6, 2007. About three months later, appellant again moved to recuse the prosecutor, and the motion was once again denied.
When the matter was finally called for trial on March 12, 2008, appellant asked the court to yet again reappoint counsel. The court denied the motion as untimely. Appellant responded, "I object to the denial. Because, one, I'm not skilled in law, and especially criminal trial law, and, two, I'm overwhelmed by today's proceedings, if they proceed to go trial I will not be able to represent myself effectively or have the ability to be able to go up against a skilled lawyer like [the prosecutor] Mr. Dozer." After stating that it would research the issue of advisory counsel, the court replied: "[W]e've gone back and forth [sic] numerous occasions you representing yourself, then changing to having counsel represent you and then representing yourself and the Court appointing counsel to represent you, and so to do this on the eve of trial seems to me rather untimely and the Court can only conclude that you're doing it in order to delay proceedings."
Appellant denied that he was trying to delay the proceedings. The court told him: I think you would have to agree that there have been repeated changes of heart... as to whether you were going to represent yourself or have counsel represent you. [¶] And now we've gone through numerous pretrial proceedings, we've brought a witness from New York, the District Attorney is prepared to go, and we're 45 minutes from the start of the trial and now you're saying that you want counsel to represent you. [¶]... I'm not inclined to allow the Court to be manipulated in this way in terms of my own trial calendar and also in terms of your very late request to have counsel appointed. [¶] It puts the Court in a very untenable situation. I've cleared my calendar to start trial, other cases that could have started today or tomorrow are not starting because we have your case scheduled for the next week or so, and now you're telling me 45 minutes from the start of this trial that you want to have counsel. [¶] We've been meeting over the last year regarding this issue of whether you'd be representing yourself and at no time did you indicate to the Court that you wanted to have counsel appointed. You've been filing numerous motions, the Court has reviewed those motions, several of them I've granted, others I have not, but you clearly have the capacity to represent yourself in this matter." When appellant repeated his complaint that he was unable to effectively represent himself against the prosecutor, the court replied: "I warned you about that. I took great pains to warn you that you were at a disadvantage in representing yourself and you indicated to me you understand that, you accepted that risk and you wanted to go forward, and so that's the way we went forward."
Following a recess, the court reiterated its ruling. Appellant then claimed that he could not represent himself because he was hearing voices. The court attempted to question appellant about the voices he claimed to be hearing, but he repeatedly refused to answer and said he wanted to talk to a mental health professional. After further questioning, appellant finally said that he had been hearing voices for months. When the court asked appellant why he did not bring the issue to the court's attention earlier, appellant replied, "I'm not going to answer that question, Judge, I want to speak to somebody in mental health, please." The court concluded that appellant's claim of hearing voices was not credible, and that appellant was trying to "manipulate the criminal justice system" and "manufacture reasons to avoid going to trial...."
Appellant requested a continuance to give him time to retain counsel. The court denied the request. Appellant then said that he was not going to participate in the trial, and asked to be taken back to jail. The court denied the request, and noted that appellant would receive a mental health evaluation following the proceedings that day. Appellant's investigator subsequently informed the court that appellant had never said anything to her about hearing voices.
Analysis
When a defendant who is representing himself requests the reappointment of counsel, the court must exercise its discretion by considering "'the totality of the facts and circumstances.'" (People v. Gallego (1990) 52 Cal.3d 115, 164 (Gallego).) The relevant factors to consider are: "'... (1) defendant's prior history in the substitution of counsel and 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....' [Citation.]" (Ibid.) "'While the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation....'" (Ibid.)
The court did not abuse its discretion in denying appellant's request for reappointment of counsel. Appellant's numerous pretrial maneuvers, which included two Faretta motions, two requests for reappointment of counsel, five Marsden motions, and two unsuccessful motions to recuse the prosecutor, provide ample support for the court's conclusion that his latest request was merely part and parcel of his ongoing attempt to manipulate the court and thereby avoid trial. It is apparent that appellant was engaging in the very sort of game playing courts need not tolerate. (People v. Clark, supra, 3 Cal.4th at p. 115.) As the court noted, this was appellant's second request to have counsel reappointed after he had been granted self-representation. Moreover, the reasons for the request were unpersuasive. Although appellant claimed he was unversed in the law, he had twice been advised of the pitfalls of self-representation and yet had chosen to proceed on his own. In any event, his professed inability to effectively represent himself was contradicted by the record. His subsequent claim that he was hearing voices was simply not credible.
Granting appellant's request to reappoint counsel on the date set for trial also would have caused substantial disruption. A witness had already flown from New York to testify, and the court had cleared its calendar for the matter. In addition, there was no telling how long of a continuance appointed counsel would have needed to prepare for trial. As for the likelihood that appellant would be able to effectively represent himself, the record supports the court's conclusion that he "clearly [had] the capacity" to do so. These facts and circumstances amply support the court's conclusion that appellant's second request for reappointment of counsel was both untimely and an improper attempt to manipulate the proceedings by further delaying his trial. Accordingly, the court's denial of the request does not constitute an abuse of discretion. (Gallego, supra, 52 Cal.3d at p. 164.)
II.
Competence
Appellant asserts that the court erred in failing to suspend the proceedings to determine his competency to stand trial based on his claim that he was hearing voices. The claim is meritless.
Shortly after the trial began, appellant expressly invoked section 1368, purportedly on the advice of an attorney he had spoken to during a recess. The court responded that it had already made a finding of competency on the issue that morning after appellant claimed to be hearing voices, and that nothing it had observed in the brief interim had changed its opinion. The court also found that appellant was "clearly capable of representing himself" in light of his prior performance. When appellant responded that he was not going to actively represent himself because he was mentally incapable of doing so, the court replied: "Well, we're not going to interrupt these proceedings. I don't think you're incompetent within the meaning of Penal Code Section 1368. [¶] I am going to have mental health examine you this afternoon, we'll get a report from jail mental health and then -- but we're going to proceed with the trial now."
Section 1368 provides in pertinent part: "(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of a judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel.... [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing...."
"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 the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] 'Evidence is "substantial" if it raises a reasonable doubt about the defendant's competence to stand trial.' [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 131.) "On appeal a finding of competency to stand trial 'cannot be disturbed if there is any substantial and credible evidence in the record to support the finding.' [Citation.]" (People v. Hightower (1996) 41 Cal.App.4th 1108, 1111.)
Substantial and credible evidence supports the court's finding that appellant was competent to stand trial notwithstanding his claim of aural hallucinations. The court found that the claim was not credible and was simply another attempt to delay the proceedings. The record plainly supports that finding. To the extent appellant asserts that it was improper for the court to assess his credibility in this regard, the law is to the contrary. (See, e.g., People v. Marks (2003) 31 Cal.4th 197, 220 [review of trial court's decision whether to hold competency hearing is deferential because "'"'[a]n appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.'"' [Citation.]"].)
III.
Appointment of Counsel at Sentencing
Appellant contends the court violated his right to counsel by denying his request to have counsel appointed to represent him at sentencing. We disagree.
On May 15, appellant moved to continue the sentencing hearing set for May 22 on the ground that he needed to obtain the transcripts of the trial of his prior conviction allegations for the purpose of challenging his prior convictions. The motion was granted, and sentencing was continued to Monday, June 2. When appellant appeared at the continued hearing, he asked the court to appoint counsel to represent him for the purpose of filing a Romero motion and to collaterally challenge his prior federal convictions. The court denied the request as untimely, reasoning as follows: "You've been pro per for quite some time. We've gone back and forth on whether you're going to represent yourself or have an attorney represent you and I think on at least two prior occasions I've allowed you to withdraw as counsel representing yourself and I've appointed the Public Defender..., and then on two other occasions I've relieved the Public Defender and re-appointed you to represent yourself. [¶] So, there's a limit to the number of times we're going to go back and forth like this. It would be very difficult for an attorney to get up to speed just in terms of the sentencing issues. Plus, we're at a point where I think there is very little an attorney could do for you in terms of a sentencing argument. We're at the point now of deciding whether or not the Court should impose the three strikes law. [¶] I have found that there were five prior convictions of bank robberies, which are considered serious or violent felonies within the meaning of the three strikes law. [¶] I was proactive in reviewing those documents in terms of whether I saw any procedural irregularity or defect in those convictions out of federal court and I didn't. I was, I think, proactive in terms of trying to protect your interests and your rights, though, I didn't have an obligation necessarily to act as your advocate, at times, I did, because I wanted to make sure that everything was done properly in terms of fundamental fairness and the protection of your rights."
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
The trial court did not abuse its discretion in denying appellant's request for appointment of counsel at the sentencing hearing. (Gallego, supra, 52 Cal.3d at p. 164.) As the court noted, appellant had a proclivity for substituting counsel. Over the course of the proceedings he brought a total of five Marsden motions and two Faretta motions. Appellant's stated reasons for seeking counsel were not persuasive. According to appellant, he wanted counsel to file a Romero motion and collaterally attack his prior convictions based on the vague allegation that they involved Boykin-Tahl issues. The court indicated that it was not inclined to grant a Romero motion regardless of how well it might be argued. The court also noted that it had not only been "proactive" in adjudicating the prior conviction allegations, but had effectively acted as his advocate. Moreover, the record reflects that appellant was quite capable of conducting legal research and filing motions on his own behalf. On two occasions he had been warned of the dangers of self-representation, yet chose to proceed with full knowledge of the potential consequences of doing so.
(Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)
The length and stage of the proceedings, as well as the disruption and delay that would ensue if the matter were continued, also support the denial of appellant's request. (Gallego, supra, 52 Cal.3d at p. 164.) The case had been underway for almost three years, and appointed counsel would have necessitated yet another continuance. The likelihood that appellant would be able to continue effectively representing himself also weighs in favor of the court's decision. (Ibid.) Appellant represented himself capably throughout the proceedings, and continued to do so at sentencing when he argued his Romero motion. Moreover, the court had already found appellant's prior convictions true, and in doing so saw nothing that would have entitled him to relief. Under the circumstances, the court did not abuse its discretion in denying appellant's request for appointment of counsel as untimely.
IV.
Sufficiency of the Evidence - Victim Hernandez
Appellant challenges the sufficiency of the evidence supporting his robbery conviction as to victim Hernandez. Specifically, he contends there was insufficient evidence that he took money from her by force or fear because "Hernandez testified that when she handed over the bank's money, she felt no fear and further she testified as to a sound, logical reason for doing so, i.e., because she was trained to hand over money in the event of a robbery."
In reviewing claims of insufficient evidence, "'"... we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [ Citations.]"' [Citation.]... '[W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.)
The elements of robbery are the felonious taking of personal property in the possession of another, from his person or immediate presence, against his will, by force or fear, with the intent to permanently deprive the person of possession. (§ 211; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) "[W]hen the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence 'from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.' [Citation.]" (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.)
Substantial evidence supports the finding that appellant obtained property from Hernandez by means of fear. Appellant's argument to the contrary misconstrues the record and disregards the applicable standard of review. Hernandez testified that she was placed in fear when appellant first approached her and said, "'This is a robbery, I have a gun, this is not a joke.'" While she also testified that she no longer feared appellant after she came to believe he did not have a gun, that belief was based on the fact that appellant was using both hands to collect the money she was turning over to him. In other words, Hernandez stopped fearing appellant only after she gave him money. This evidence is sufficient. (People v. Cuevas, supra, 89 Cal.App.4th at p. 698.)
V
Sufficiency of the Evidence - Victim Roachell
Appellant claims the evidence was insufficient to support his robbery conviction as to victim Roachell because there was no evidence from which the court could have found that Roachell had actual or constructive possession of the money that he turned over to appellant. In his opening brief, he urges us to follow People v. Frazer (2003) 106 Cal.App.4th 1105 (Frazer). In Frazer, the court held that employees have constructive possession of their employer's property during a robbery only when "the circumstances indicate the employee has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property." (Id. at p. 1115.) In his reply brief, he acknowledges that our Supreme Court recently disapproved Frazer on this very point in People v. Scott (2009) 45 Cal.4th 743, 746 (Scott). The correct rule, as previously stated in People v. Jones (2000) 82 Cal.App.4th 485, 491, is broad and straightforward: "[A]ll employees on duty during a robbery have constructive possession of their employer's property...." (Scott, supra, at p. 746.) It is undisputed that Roachell was acting as an on-duty employee when he turned his employer bank's money over to appellant. It is therefore beyond legitimate dispute that he had constructive possession of the money as contemplated by section 211.
Appellant nevertheless asserts in his reply brief that Scott is not controlling here because "[i]ndividual bank tellers are not like the multiple employees of a store or restaurant who have joint access to cash proceeds.... Employees who are bank tellers are different because each teller is personally responsible for individual cash drawers." He adds that Roachell "was a teller in training who was not approached for cash and was not in possession of a cash drawer." These purported distinctions are of no moment. The holding in Scott is plain and unequivocal: All employees are deemed to be in constructive possession of their employer's property during a robbery. We are bound by this conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant's citation in his reply brief to People v. Gilbeaux (2003) 111 Cal.App.4th 515, is unavailing. Aside from the fact that Gilbeaux addresses the circumstances under which an independent contractor - not an employee - can be deemed in constructive possession of property for purposes of robbery (id. at p. 523), its holding is entirely consistent with Scott. Indeed, the court in Scott expressly relies on Gilbeaux in reaching its conclusion. (Scott, supra, 45 Cal.4th at p. 754.)
VI.
Custody Credits
Appellant contends he is entitled total of 1, 267 days custody credit, consisting of 1, 102 days of presentence custody and 165 days of conduct credit pursuant to section 2933.1. In awarding credits, the court erroneously calculated the actual days of presentence custody at 1, 092 days, which resulted in 163 days conduct credit (i.e., 15 percent of 1, 092). Because appellant was arrested on May 27, 2005, and sentenced on June 2, 2008, the actual days of presentence custody should have been calculated at 1, 102 days, which results in 165 days of conduct credit under section 2933.1. The People concede this error. We shall order the judgment amended accordingly.
VII.
Clerical Errors
Appellant requests that we order the correction of clerical errors in the abstract of judgment. He contends (1) the date of the conviction on count 5 is erroneously dated "11-02-05" and should be changed to the correct date of March 17, 2008; (2) the box in Section 7 is erroneously checked for "Additional determinate term" because appellant's sentence does not include a determinate term; and (3) Section 12 erroneously indicates that sentence was imposed both "at initial sentencing hearing" and "other" because he was sentenced in a single proceeding. The People agree that the date of the conviction on count 5 should be corrected, and that the box for "other" in Section 12 is erroneously checked. We shall therefore order the abstract of judgment modified to correct these errors. (See People v. Mitchell (2001) 26 Cal.4th 181, 186 [courts have authority to correct clerical errors on appeal].) As to the "Additional determinate term" identified in Section 7, the People correctly note that appellant's sentence does in fact have a determinate component, i.e., the 40-year term imposed pursuant to section 667, subdivision (a). (People v. Williams (2004) 34 Cal.4th 397, 405.)
DISPOSITION
The judgment is ordered modified to reflect a total of 1, 267 days custody credit, consisting of 1, 102 days of presentence custody and 165 days of conduct credit. The abstract of judgment is further modified as follows: (1) on count 5, the date of conviction shall be changed from 11-02-05 to 4-12-08; and (2) in Section 12, the check in the box for "other" shall be stricken. The trial court shall prepare and forward a modified abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.