Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA096891 Larry S. Knupp, Judge.
Susan L. Wolk, 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, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Julio Cesar Sanchez appeals from the judgment entered following his conviction by a jury on one felony count of possession of heroin and one misdemeanor count of giving false information to a police officer. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Sanchez was charged by information with one count of possession of cocaine for sale (Health & Saf. Code, § 11351) (count 1); one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 2); one count of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) (count 3); and one count of giving false information to a police officer (Pen. Code, § 148.9, subd. (a)) (count 4). As to the first three counts, it was specially alleged Sanchez had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). Sanchez pleaded not guilty and denied the special allegation.
2. The Grant of Sanchez’s Request for Self-representation
The day after jury selection had been completed and the jury pre-instructed, Sanchez asserted his Sixth and Fourteenth Amendment right under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta) to represent himself. The court required Sanchez to complete an advisement and waiver of counsel form (commonly referred to as a Faretta waiver) to ensure Sanchez understood the dangers and consequences of representing himself. The court also orally warned Sanchez of many of the dangers of self-representation reflected on the Faretta waiver, including that its “experience has been that pro. pers. lose. Generally, they do not do well because they don’t know how to handle a case. You are not trained to be a lawyer. Your lawyer is. And you have to act like a lawyer. You cannot later complain to the . . . Court of Appeal[] that, ‘Gee, my lawyer was incompetent.’ You’re the one who insists on going pro. per. We can tell you you are pretty much incompetent to handle your own case. But you have a constitutional right to do so, if you so desire and it if does not delay the proceedings.” After the trial court finished, Sanchez confirmed he still wished to represent himself and stated he would be ready to proceed to trial that afternoon. Sanchez’s counsel was relieved.
Sanchez utilized a Spanish interpreter throughout the proceedings.
3. Summary of the Evidence Presented at Trial
a. The People’s evidence
On August 19, 2006 at approximately 11:00 p.m. Huntington Park police officers went to a bar to conduct a check of its alcohol beverage license. While walking through the parking lot located behind the bar, Officer Esteban Palacios and Officer William Wallace observed Ernesto Rosales appear to hide something in the rear seat of a Honda. The officers approached the Honda and asked Rosales to step outside the vehicle. Rosales complied. The officers searched the Honda after obtaining Rosales’s consent, but found no contraband or anything suspicious.
After the Honda had been searched, Officer Wallace approached Sanchez and two other men, who had initially been standing between the Honda and Sanchez’s Volkswagen parked approximately four feet away, but who had moved to the front of the Honda. As Wallace approached, he noticed a small matchbox -- approximately one-half inch deep, one and one-half inches long and one inch wide -- on the ground where the men had been originally standing. The matchbox, which bore the name and logo of “Bad Boys Bail Bonds,” contained six small, blue-tinted plastic bags with what was later determined to be 2.26 grams of methamphetamine and five small, clear plastic bags with 2.01 grams of cocaine.
After Rosales, Sanchez and the other two men with Sanchez denied ownership of the matchbox, Officer Wallace obtained Sanchez’s consent to search his Volkswagen. Wallace testified he found a clear plastic bag containing cocaine in a compartment on the driver’s door. Wallace then noticed the Volkswagen’s center console adjacent to the gear shift was loose, as if it had been manipulated, allowing its removal. Wallace lifted up the console and discovered a metal breath mint box and a black plastic bag. The metal box contained 29 small, blue-tinted plastic bags with 12.14 grams of a crystalline substance. (Two of the bags were tested, and it was determined they together contained 1.01 grams of methamphetamine.) The metal box also contained a black tar substance, later determined to be .68 grams of heroin, wrapped in clear plastic. Inside the black plastic bag were additional clear plastic bags with methamphetamine and cocaine. Wallace also found six or seven “Bad Boys Bail Bonds” matchboxes on the passenger seat.
Although Officer Palacios testified the heroin was recovered “[w]ithin that same baggy,” it is clear from the full context of his testimony and the photographs taken of the recovered drugs the heroin was found inside the metal box.
Officer Palacios searched Sanchez and found $495 on him. He did not find any drug paraphernalia in Sanchez’s possession or the Volkswagen.
Photographs of the recovered drugs, cash, and matchboxes and parts of the Volkswagen’s interior were shown to the jury. The photographs of the Volkswagen’s interior had a date stamp of August 19, 2006. The remainder of the photographs had a date stamp of August 20, 2006.
When Sanchez was booked into custody following his arrest, he told Officer John Castro, the custody officer, his name was Luis Enrique Sanchez and his birth date was March 24, 1979. Castro conducted a driver’s license and criminal history search, but found no record of Luis Enrique Sanchez in either database. Based on Sanchez’s mannerisms, Castro suspected Sanchez was not being truthful. After fingerprinting Sanchez, Castro determined his real name was Julio Cesar Sanchez, with a birth date of August 8, 1974, and he was on active parole. Sanchez then admitted this information was correct.
b. Sanchez’s evidence
In his own defense Sanchez insisted the officers had planted the drugs in his car. He testified he did not use or sell drugs, the bag of cocaine the officers claimed was found in the Volkswagen’s driver side door compartment had actually been in the officer’s hand and he only had $37.17 when he was arrested.
Martin Gamez, one of the men standing with Sanchez between the Honda and the Volkswagen, testified that, although he saw the matchbox on the ground, he did not hear the police accuse Rosales of owning it, did not hear the police ask Sanchez for permission to search his car and did not see the police remove any drugs from the Volkswagen.
Rosales testified he was looking for clothes in the back of his car when the officers detained him. He stated he did not see the officers remove any drugs from Sanchez’s Volkswagen.
During closing argument Sanchez argued, among other things, it was not plausible 12 baggies together containing 5.8 grams of drugs would fit in the small matchbox found on the ground and suggested the date stamp on the photographs of the drugs -- one day later than the date stamp on the photographs of the Volkswagen -- was suspicious. Sanchez also questioned why fingerprints from the evidence had not been taken.
In fact, the testimony was that 11 bags containing 4.37 grams had been found in the matchbox.
4. The Verdict and Sentencing
The jury found Sanchez guilty of simple possession of heroin and giving false information to a police officer but was unable to reach a verdict on the charges of possessing cocaine and methamphetamine with intent to sell. The trial court declared a mistrial as to those counts. In a bifurcated bench trial Sanchez admitted the prior prison term enhancement. The court then sentenced Sanchez to an aggregate state prison term of three years: the middle term of two years for possession of heroin, plus one year for the prior prison term enhancement. Sanchez was also sentenced to a concurrent 90-day jail term, time he had already served.
CONTENTIONS
Sanchez contends there is insufficient evidence to support his conviction for possession of heroin; the trial court erred in failing, sua sponte, to instruct the jury with CALJIC No. 12.32 explaining how to determine if he possessed a usable quantity of heroin and in disallowing his wife’s testimony concerning a telephone call with police officers and his own testimony regarding the contents of the police reports; his waiver of his right to counsel was not made knowingly and voluntarily; the court failed to recognize its discretion to deny his untimely motion to represent himself and, in any event, abused its discretion in granting the motion; and the court erred in denying his suppression motion and his request for a transcript of the suppression hearing. Sanchez also requests we conduct an independent review of the trial court’s in camera inspection of police officer personnel records following his request for discovery of those records and we either correct the ambiguous oral pronouncement of judgment or remand the matter for resentencing.
DISCUSSION
1. Substantial Evidence Supports Sanchez’s Conviction for Possession of Heroin
a. Standard of review
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)
“Substantial evidence” in this context means “evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“[w]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence --i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
b. The jury could reasonably infer Sanchez knew he possessed heroin
“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) “[K]nowledge of a substance’s narcotic nature may be shown by evidence of the defendant’s furtive acts and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or an attempt to hide or dispose of the contraband [citations], or by evidence showing a familiarity with the substance, such as needle marks or other physical manifestations of drug use or instances of prior drug use.” (People v. Tripp (2007) 151 Cal.App.4th 951, 956 (Tripp).) Knowledge, as well as the other elements of unlawful possession, “may be established by circumstantial evidence and any reasonable inferences drawn from such evidence.” (People v. Williams (1971) 5 Cal.3d 211, 215; Palaschak, at p. 1242.)
Relying on Tripp, supra, 151 Cal.App.4th 951, Sanchez contends his possession of the heroin alone is insufficient evidence to support the jury’s finding he was aware of its narcotic nature. Sanchez argues there was no evidence he was under the influence of heroin; he had ever used it; he had any heroin-related paraphernalia; the packaging was characteristic of heroin; or he attempted to flee from the officers or hide the substance, suggesting consciousness of guilt.
Sanchez is certainly correct that possession alone does not necessarily support an inference the defendant was aware of the substance’s narcotic nature. (Tripp, supra, 151 Cal.App.4th at p. 957 [an “evidentiary link was missing” when only evidence of defendant’s knowledge of nature of substance was “methamphetamine’s presence on the nightstand in [defendant’s] room” in a house he shared with others]; People v. Williams, supra, 5 Cal.3d at p. 216 [no substantial evidence passenger in vehicle knew single, white tablet sitting on floor in front of passenger seat was narcotic].) He is incorrect, however, there was nothing more in this case than just the fact of possession from which the jury could infer Sanchez knew he possessed heroin. Specifically, the heroin, which was a black tar substance with a unique smell wrapped in clear plastic, was in a box concealed in an area of Sanchez’s vehicle not ordinarily accessible, strongly suggesting consciousness of guilt. (Cf. People v. Waller (1968) 260 Cal.App.2d 131, 142 [“‘rule is that when narcotics are found concealed in or about an automobile, at least where such automobile is in the possession of the owner or his entrustee, the trial court may infer knowledge on the part of the owner’” ].) In addition, although the jury ultimately failed to convict Sanchez on the more serious possession with intent to sell charges involving the other drugs discovered by the officers, the heroin was found in the same place as the other drugs. When the issue is Sanchez’s knowledge of the nature of the drug, not his intent in possessing it, that fact further supports an inference Sanchez was aware he had heroin.
Contrary to Sanchez’s argument, neither Officer Palacios’s inability to conclusively determine the substance was heroin, notwithstanding his education and training in narcotics, nor the use by Luis Olmos, the criminalist who ultimately determined the substance was heroin, of five different testing methods to make that determination is relevant to whether Sanchez knew what he possessed was heroin. The jury could reasonably conclude, if Sanchez did not believe he was in possession of heroin, he would not have gone to the effort to conceal it.
c. The jury could reasonably infer .68 grams of heroin was a usable quantity
A “usable amount” of a controlled substance is a quantity sufficient to be consumed in any manner customarily employed by users of the substance, as opposed to debris or useless traces. (People v. Piper (1971) 19 Cal.App.3d 248, 250.) In People v. Leal (1966) 64 Cal.2d 504, 512 (Leal), the Supreme Court held, “[I]n penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such [a] substance. Hence the possession of a minute crystalline residue of narcotic useless for . . . consumption . . . does not constitute sufficient evidence in itself to sustain a conviction.” In People v. Rubacalba (1993) 6 Cal.4th 62, 66, the Supreme Court clarified “the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.”
Sanchez contends the record is devoid of evidence the .68 grams of heroin recovered from his vehicle was a usable quantity: There was no testimony as to the average dose of heroin (see People v. Morales (1968) 259 Cal.App.2d 290, 295 [sufficient evidence of usable quantity when officer testified concerning average dose]), the monetary value of the recovered heroin or the manner of packaging that would suggest a usable quantity (see People v. Perry (1969) 271 Cal.App.2d 84, 97 [“fact that [heroin] was packaged in a balloon, that it was protected by the cup, and that it was concealed in the rain gutter bespeaks that it qualitatively had sufficient heroin to make it usable for sale or consumption”]). Nor was there any opinion testimony from the officers that the amount recovered, based upon their experience, was a usable quantity.
Although there was no testimony a usable quantity of heroin was recovered from Sanchez’s car or evidence regarding what generally constitutes a useable quantity, there was nonetheless sufficient evidence from which the jury could infer the heroin was more than a useless trace. Olmos testified the heroin weighed .68 grams, far from an amount that “simply cannot be used.” (People v. Gossett (1971) 20 Cal.App.3d 230, 234 [.022 grams of pure heroin was a usable quantity]; People v. Morales, supra, 259 Cal.App.2d at p. 295 [0.12 grams of 1 to 2 percent heroin “was neither a minute amount nor useless for either sale or consumption”].) To the extent members of the jury did not otherwise have a frame of reference to evaluate whether .68 grams was so miniscule as to be useless, one of the photographs admitted into evidence was of the metal box in which the heroin and 29 small bags of a crystalline substance were found. The heroin is shown lying in the lid of the box; its length is three-quarters the size of the short side of the box, clearly appearing as more than a trace amount. (Cf. People v. Stafford (1972) 28 Cal.App.3d 405, 413-414 [four capsules introduced into evidence and testimony of chemist capsules contained heroin mixed with sugar and starch created prima facie case defendant possessed usable quantity even though chemist had not weighed capsules].) Additionally, there was a photograph of the six bags of methamphetamine and five bags of cocaine located in the matchbox found on the ground. From the evidence all the methamphetamine together weighed 2.26 grams and the cocaine 2.01 grams, or an average of .48 grams per bag, and in the absence of any evidence suggesting otherwise, the jury could reasonably infer .68 grams was a usable quantity.
Officer Palacios described the heroin as “residue” during the hearing on Sanchez’s motion to suppress. That testimony, however, does not establish the heroin was in fact merely “residue” as that term was used in Leal and Rubacalba to refer to the useless byproduct left by certain drugs after they have been ingested. (See People v. Karmelich (1979) 92 Cal.App.3d 452, 456 [“decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this, comparable to the cases distinguished in Leal, where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered”].)
2. The Trial Court Did Not Have a Sua Sponte Duty To Instruct the Jury on Proof of a Usable Quantity of Drugs
The trial court has a sua sponte duty to instruct the jury on the general principles of law governing the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) We review de novo the claim a court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Sanchez’s jury was instructed with CALJIC No. 12.00 on the elements of possession of heroin, “In order to prove the crime of possession of controlled substances, each of the following elements must be proved: [¶] 1. A person exercised control over or the right to control an amount of heroin . . ., a controlled substance; [¶] 2. That person knew of its presence; [¶] 3. That person knew of its nature as a controlled substance; and [¶] 4. The substance was in an amount sufficient to be used as a controlled substance.” Sanchez argues the court had a sua sponte duty to further instruct the jury with CALJIC No. 12.32 concerning the manner in which the existence of a usable quantity of the controlled substance may be proved: “Proof that the [controlled substance] . . . possessed, if any, was in an amount sufficient to be used as [a controlled substance] . . . may be established: [¶] 1. By expert testimony, or [¶] 2. By evidence that the amount possessed, if any, was sufficient to be used in any manner customarily employed by users of the substance.”
The need for CALJIC No. 12.32 in any prosecution is problematic: The instruction simply tells the jury this element of the crime of possession of a controlled substance may be proved either with evidence -- presumably direct or circumstantial evidence -- or by expert opinion testimony. These general points are fully covered by other standard jury instructions that were given in this case. (See, e.g., CALJIC Nos. 2.00, 2.80.) In any event, the use note to CALJIC No. 12.32 directs, “This instruction is designed for use in prosecutions for possessing a controlled substance . . . where the usable quantity possessed is an issue.” Whether the amount of heroin Sanchez possessed was a usable quantity was not an issue at trial. To the contrary, Sanchez’s defense was the drugs were planted by the officers. (See People v. Guzman (1988) 45 Cal.3d 915, 952 [“the court’s obligation to instruct sua sponte extends only to those general principles of law ‘closely and openly connected with the facts before the court’”], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Raising usable quantity as an issue on appeal does not retroactively make it an issue during the trial -- especially in light of the fact it is not fairly disputable whether .68 grams is a usable quantity. In sum, the jury was “‘fully and fairly instructed on the applicable law.’” (People v. Martin, supra, 78 Cal.App.4th at p. 1111.)
That Sanchez did not raise the issue is hardly surprising. One would not expect experienced narcotics officers to plant a non-usable quantity of a drug.
Sanchez’s reliance on Tripp, supra, 151 Cal.App.4th 951 to support his argument is misplaced. The Tripp court stated in dicta, “Although we need not address defendant’s remaining contentions, we note the trial court’s failure to instruct on [the] knowledge element of the crime was reversible error in its own right.” (Id. at p. 959, fn. 3.) In Tripp, however, the defendant’s knowledge of the narcotic nature of the methamphetamine was directly at issue. The Court of Appeal’s observation, therefore, does not in any way suggest the trial court has a sua sponte duty to instruct on the method of proving usable quantity, an entirely different element of the offense, particularly when the element is not at issue.
Similarly misplaced is Sanchez’s argument the jury instruction for possession of a controlled substance adopted by the Judicial Council of California Criminal Jury Instructions (CALCRIM) in 2006 demonstrates the trial court had a sua sponte duty to instruct the jury on how usable quantity may be proved. CALCRIM No. 2304 sets forth the elements of possession, but, different from CALJIC No. 12.00, includes the further instruction, “A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.” CALCRIM No. 2304 does not address how a usable quantity may be proved, the instruction Sanchez contends should have been given in this case. Indeed, nowhere in the Judicial Council’s approved instructions is there such an instruction -- it apparently having been deemed nonessential under any circumstances.
3. The Trial Court’s Evidentiary Rulings Did Not Deny Sanchez His Constitutional Right To Present a Defense
Sanchez contends the trial court’s denial of his requests to present testimony by his wife, Monica Pintor, and to testify himself about the contents of the police report pertaining to his arrest denied him his constitutional right to present a defense. “As a general proposition, the ordinary rules of evidence do not infringe on a defendant’s right to present a defense. [Citation.] Trial courts possess the ‘traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.’ [Citation.] The trial court’s rulings in this regard will not be overturned on appeal unless it can be shown that the trial court abused its discretion.” (People v. Frye (1998) 18 Cal.4th 894, 945; see People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639 [“‘[b]roadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion’”].) “The trial court’s ‘discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.’” (Sun Pacific Farming Co., at p. 640.)
The trial court did not abuse its discretion in excluding Pintor’s testimony as irrelevant. Sanchez indicated Pintor would testify detectives had telephoned her the day after Sanchez’s arrest and asserted the drugs were hers. Sanchez argued the testimony demonstrated, “Before me, they blamed other people.” As the trial court explained, however, the evidence was irrelevant because the purported telephone call was made after Sanchez had been arrested and therefore would have no bearing on whether officers attempted to “blame[]” other suspects before they identified Sanchez. Moreover, the evidence was inconsistent with Sanchez’s defense: It would make little sense for the officers to have planted drugs in Sanchez’s car and then arrest him, only to call his wife the following day claiming the drugs belonged to her.
The trial court also did not abuse its discretion in precluding Sanchez from testifying regarding the contents of police reports in an effort to demonstrate the officers had not testified truthfully at trial. After Sanchez informed the court he intended to testify in his own defense, he asked whether he could “use the police reports.” The court replied, “You can testify as to facts, Sir. You can testify to what happened. I don’t know what you mean use the police reports.” Sanchez explained, “Because what [the officers] said yesterday and what the report says, they are lies. I think I can use that before the court.” The court ruled, “You may testify as to what you think the facts are. You may not testify that the police officers said something in the police report and he’s lying because you have not cross-examined him on that issue. You may testify as to what you feel the truth is. In other words, if it is your testimony that there was nothing found in your car, you can certainly testify to that.”
The trial court’s analysis and ruling were correct. If Sanchez believed the police officers’ trial testimony was inconsistent with statements in the police report, he should have cross-examined Officer Palacios, who wrote the police report, to demonstrate the inconsistencies. Sanchez could then have challenged the officers’ credibility in his argument. Under no circumstances, however, would it have been proper for Sanchez to testify regarding his belief as to the officers’ veracity based upon his own analysis of the purported inconsistencies between the police report and their trial testimony, nor was it error to preclude him from testifying about the contents of the police report itself. Sanchez was limited, as the trial court properly advised him, to testifying to the facts surrounding his arrest and the search of his car.
4. The Court Properly Granted Sanchez’s Request for Self-representation
a. Sanchez’s waiver of his right to counsel was made knowingly and voluntarily
A criminal defendant has a right under the Sixth and Fourteenth Amendments to waive the right to counsel and to represent himself or herself. (Faretta, supra, 422 U.S. at p. 819 [“[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”].) If the defendant is mentally competent and, within a reasonable time before trial, makes an unequivocal request knowingly and voluntarily after having been advised by the court of the dangers of self-representation, the request must be granted. (Id. at p. 835; People v. Valdez (2004) 32 Cal.4th 73, 97-98; People v. Welch (1999) 20 Cal.4th 701, 729.) “‘No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.’ [Citation.] Rather, ‘the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.’” (People v. Blair (2005) 36 Cal.4th 686, 708.) We examine de novo the whole record to determine the validity of the defendant’s waiver of the right to counsel. (People v. Koontz (2002) 27 Cal.4th 1041, 1069.)
The record reflects Sanchez knowingly and voluntarily waived his right to counsel and invoked his right to self-representation. The trial court adequately advised Sanchez of the dangers of self-representation and informed him, among other things, he would not be afforded special treatment. Additionally, the Faretta waiver form Sanchez completed notified him of his rights and warned him in detail about the disadvantages of self-representation.
Sanchez contends his waiver was not made knowingly and voluntarily notwithstanding the extensive warnings and advisement he received because the section of the Faretta waiver form where the defendant acknowledges his or her understanding of the charged crimes only listed possession for sale of methamphetamine and possession for sale of heroin. Sanchez, however, was present on at least three occasions when all the charges against him were identified: the preliminary hearing, his arraignment and jury selection. Additionally, Sanchez was provided with copies of the preliminary hearing transcript by his counsel before the court granted his request for self-representation. Sanchez’s suggestion he was somehow unaware of all the crimes charged is not credible.
Although the record does not indicate who wrote “Poss for sale of meth/cocaine” in the space provided for the listing of the charged crimes, Sanchez initialed the box indicating he understood he was charged with those crimes.
Sanchez also contends his waiver was invalid because he was not advised, either on the Faretta waiver form or orally by the trial court, of the sentence he might receive if convicted, including the possibility of a one-year sentence enhancement for having served a prior prison term. There is no requirement the defendant be advised of the possible punishment he or she faces for the waiver of the right to counsel and invocation of the right to self-representation to be knowingly made. (See People v. Harbolt (1988) 206 Cal.App.3d 140, 150 [“[i]n our research we have not found any California case that interprets Faretta so as to mandate an advisement on possible penal consequences”].) Similarly, the court was not obligated to advise Sanchez of the wording of the instruction it would use to explain the absence of appointed counsel or the fact the prosecutor could comment on his choice of self-representation. “[W]hat the cases do uniformly stand for is that the record must show the trial court determined the defendant was knowingly exercising his informed free will in waiving counsel.” (Ibid.) This record demonstrates Sanchez was thoroughly informed of the dangers of acting without counsel, he knew what he was doing and he made his choice with “eyes open.” (Faretta, supra, 422 U.S. at p. 835.)
People v. Noriega (1997) 59 Cal.App.4th 311, cited by Sanchez is distinguishable. In that case, the trial court gave no specific warnings or advisements regarding the risks and dangers of self-representation, and there was no showing Noriega had completed a Faretta waiver form similar to the one provided to Sanchez in this case. (Id. at pp. 316-319.)
b. The Trial Court Did Not Err in Denying Sanchez’s Motion for Self- representation
A defendant has an absolute right to self-representation only if he or she invokes that constitutional right a reasonable time prior to the start of trial. (People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham) [“in order to invoke the constitutionally mandatedunconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial”].) If a defendant asserts the right to self-representation after trial has commenced, the trial court has discretion to deny the request. (Id. at p. 127.) Nevertheless, given the importance of the right to self-representation, the court may not simply deny an untimely Faretta motion; rather, the court must exercise its sound discretion after considering several factors, including “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Id. at p. 128)
Sanchez contends the trial court in this case did not realize it had the discretion to deny his request for self-representation. Alternatively, he asserts the trial court abused its discretion in granting his motion because it failed to assess the factors identified in Windham, supra, 19 Cal.3d 121. Sanchez’s request, made after the jury had been selected, was untimely. (See People v. Valdez, supra, 32 Cal.4th at pp. 102-103 [Faretta motion made moments before jury selection set to begin was untimely]; People v. Howze (2001) 85 Cal.App.4th 1380, 1397 [motion made immediately before or on day of trial is generally considered untimely].) Nonetheless, his argument directed to the trial court’s exercise of discretion in evaluating that untimely request turns the principles of Windham and related cases on their head. The discretion to deny a defendant’s untimely Faretta motion is designed to safeguard the judicial process, not protect the defendant who has knowingly and voluntarily, albeit belatedly, insisted he or she be allowed to try the case without benefit of counsel. That is, the requirement a defendant assert the constitutionally mandated unconditional right of self-representation within a reasonable time prior to trial “serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice.” (People v. Horton (1995) 11 Cal.4th 1068, 1110; see People v. Nicholson (1994) 24 Cal.App.4th 584, 592 [“[e]very case upholding a discretionary denial of a Faretta motion involves a request for a continuance (or some other delaying tactic) or a demonstrated proclivity to substitute counsel or both”].) Requiring the trial court to exercise discretion, constrained by the Windham factors, ensures the defendant is permitted to justify a delayed motion and establish he or she is not simply playing the “Faretta game” (People v. Williams (1990) 220 Cal.App.3d 1165, 1170 [describing defendant who “juggl[ed] his Faretta rights with his right to counsel interspersed with Marsden motions” as “playing ‘the Faretta game’”]; People v. Trujillo (1984) 154 Cal.App.3d 1077, 1087 [request for appointment of counsel by self-represented defendant properly denied when request was part of defendant’s “deliberate attempt to manipulate the court system”]); the trial court cannot use the untimeliness of the motion as an excuse to deny it when the delay is justified and there is no other valid basis for refusing the defendant’s request. Thus, the Windham factors do not provide a ground for appeal for a defendant with self-representation remorse, but rather serve to ensure the defendant is given a full opportunity to exercise his or her right to self-representation.
The requirements the waiver of the right to counsel be unequivocal, knowing and voluntary protect the defendant from an improper decision to grant his or her request for self-representation. (See Faretta, supra, 422 U.S. at p. 835; People v. Valdez, supra, 32 Cal.4th at pp. 97-98; People v. Welch, supra, 20 Cal.4th at p. 729.) As we have discussed, the record amply supports the conclusion Sanchez made his choice to represent himself knowingly and with a complete understanding of the dangers of self-representation.
5. The Trial Court Properly Denied Sanchez’s Suppression Motion
Prior to trial Sanchez unsuccessfully moved to suppress the drugs seized from his automobile, arguing his consent to Officer Wallace to search the car was vitiated by his unlawful detention. He renews that argument on appeal.
In reviewing the denial of a motion to suppress, the appellate court defers to the trial court’s express or implied factual findings when supported by substantial evidence (People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597.) Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
Police contacts with individuals fall into “three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains the individual’s liberty. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 789-790; People v. Souza (1994) 9 Cal.4th 224, 231.) Unlike consensual encounters, which do not trigger Fourth Amendment scrutiny (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389]; In re Manuel G., supra, 16 Cal.4th at p. 821), detentions must be supported by articulable suspicion that the person has committed or is about to commit a crime. (In re Manuel G., at p. 821; Souza, at p. 231 [“[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity”].) If a defendant consents to a search while being illegally detained, that is, if there is no reasonable suspicion to support the detention or the detention is unlawfully continued after any lawful and proper purpose has passed, that consent is vitiated by the illegal detention. (See Florida v. Royer (1983) 460 U.S. 491, 501 [103 S.Ct. 1319, 75 L.Ed.2d 229] [“statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will”]; People v. Valenzuela (1994) 28 Cal.App.4th 817, 833 [“it is axiomatic that a consent to search produced by an illegal arrest or detention is not voluntary”].)
At the suppression hearing Officer Palacios testified officers conducted a pat search of Sanchez and the other two men standing with him after the matchbox was recovered and the officers determined it contained drugs. Although no contraband or weapons were discovered, the officers ordered the men to sit on the curb. Palacios asked Rosales if he knew who owned the matchbox. Rosales told Palacios he was scared to tell him who it belonged to, but then pointed to Sanchez and said it belonged to him. Rosales also identified the Volkswagen as belonging to Sanchez. Palacios then asked Sanchez for consent to search his vehicle, which Sanchez gave.
The trial court denied Sanchez’s motion to suppress the drugs found in his car on the ground Sanchez had consented to the search and his consent was not vitiated in any way. Sanchez contends the trial court erred because, even though not under arrest or in custody, he was illegally detained when he consented to the search.
The trial court stated, “Well, the only evidence I have is that the three of them were told to sit on the curb. That’s all I have. And that does not appear to rise to the level of custody. So for those reasons, the motion is denied.”
The record of the suppression hearing adequately demonstrates Sanchez was not illegally detained when he gave his consent to Officer Wallace. The officers had just found a matchbox filled with drugs within feet of where Sanchez and the other two men were standing. Although the pat search did not reveal additional drugs on Sanchez’s person, shortly thereafter Rosales identified Sanchez as the owner of the matchbox. There was reasonable suspicion justifying Sanchez’s continued detention. The consent given during that detention was not involuntary or otherwise invalid.
6. Any Error in Denying Sanchez’s Motion for a Transcript of the Suppression Hearing Was Harmless
Equal protection principles require the government provide an indigent criminal defendant with a free reporter’s transcript of prior proceedings if the transcript is needed for an effective defense. (Griffin v. Illinois (1956) 351 U.S. 12, 18-19 [76 S.Ct. 585, 100 L.Ed 891]; Britt v. North Carolina (1971) 404 U.S. 226, 227-230 [92 S.Ct. 431, 30 L.Ed.2d 400] (Britt ).) The two factors relevant to determining the need for a transcript are “(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same function as a transcript.” (Britt, at p. 227.) In certain circumstances a defendant who makes a timely request is presumptively entitled to a transcript from a prior proceeding, for example, when the transcript is from a prior mistrial on the same charges. (See People v. Hosner (1975) 15 Cal.3d 60, 66 [“defendant, upon his timely motion therefor, was presumptively entitled to a complete transcript of his first trial”]; People v. Markley (2006) 138 Cal.App.4th 230, 242 [“where a criminal defendant requests a transcript from a prior trial for use in a later trial on different charges, the necessity of the transcript for the preparation of an effective defense is not presumed”].)
Sanchez contends the trial court improperly denied his request for a transcript from the suppression hearing. Sanchez argues the transcript, which contained Officer Palacios’s testimony describing the heroin as “residue” and stating he could not conclusively identify the substance, would have substantially assisted his defense challenging knowledge of the substance’s narcotic nature and usable quantity, two of the elements of possession.
As a threshold matter, Sanchez’s request, made after the jury had been selected and only hours before testimony was to begin, was not timely. (See People v. Markley, supra, 138 Cal.App.4th at p. 243 [request for transcript on day before trial commenced was untimely].) Indeed, the trial court expressly warned Sanchez it would grant his request for self-representation, “if you so desire and if it does not delay the proceedings.” After being advised of the dangers of self-representation and told the court would permit no delay in trial -- then scheduled to begin that afternoon, which Sanchez stated he understood -- Sanchez requested a copy of the suppression hearing transcript. Because Sanchez’s untimely request would have delayed the commencement of trial, the trial court properly denied the request.
Even if Sanchez’s request had been timely, however, any error in denying the request was harmless beyond a reasonable doubt. (See United States v. Devlin (9th Cir. 1994) 13 F.3d 1361, 1364-1365 [applying Chapman standard of review to failure to supply defendant with transcript from suppression hearing]; cf. People v. Hosner, supra, 15 Cal.3d at p. 71, fn. 7 [leaving open question whether denial of a transcript from prior proceedings other than a trial is per se prejudicial].) As discussed, Officer Palacios’s reference to the heroin recovered from Sanchez’s automobile as “residue” during the hearing on his suppression motion -- a hearing focused on the officer’s conduct and Sanchez’s consent, not the quantity of the drugs recovered -- does not transmute what was clearly a usable quantity of heroin into a useless or trace amount of the drug. (See People v. Gossett, supra, 20 Cal.App.3d at p. 234; People v. Morales, supra, 259 Cal.App.2d at p. 295.) Similarly, whether Palacios could conclusively identify the substance has no bearing on whether Sanchez knew it was heroin. (Cf. People v. Waller, supra, 260 Cal.App.2d at p. 142.) The transcript from the suppression hearing, in short, could not have assisted Sanchez in defending against the charge he knowingly possessed a usable amount of heroin. We are confident the jury would necessarily have found him guilty of that charged beyond a reasonable doubt in any event.
7. The Trial Court Did Not Err in Determining, Based on Its In Camera Review, That Sanchez Was Not Entitled To Disclosure of Pitchess Material
“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc), fn. omitted; see Pitchess v. Superior Court (1974) 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense with the peace officer’s reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential personnel record must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating “good cause” for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The information must be requested with “sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information.” (Mooc, at p. 1226.)
Once the trial court concludes the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents “potentially relevant” to the defendant's motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian “and such other persons the custodian of records is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd . (b); see Warrick, supra, 35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, at p. 1226; Warrick, at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court must exclude from discovery: “(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
Sanchez requests that we review the in camera proceedings on his Pitchess motion to determine whether the trial court properly ruled he was not entitled to disclosure of any material from the personnel files of Officer Palacios, Officer Wallace and a third responding officer. In his pretrial motion for Pitchess discovery Sanchez asserted the officers had planted the drugs in his car and were untruthful in the police report written by Palacios. The trial court found Sanchez had demonstrated good cause and conducted an in camera review of the personnel and administrative records of the officers.
We have reviewed the sealed record of the in camera proceedings and conclude the trial court appropriately exercised its discretion in finding there was nothing relevant to Sanchez’s case and, therefore, disclosure of material from the officers’ personnel files was not appropriate. (See Mooc, supra, 26 Cal.4th at p. 1229 .)
8. The Clerk’s Transcript Accurately Reflects the Sentence Imposed on Count 4
On count 4, the misdemeanor offense of giving false information to a police officer, the court’s oral pronouncement of judgment, reflected in the reporter’s transcript, was, “Defendant is sentenced to 90 days county jail, concurrent suspended time served.” The minute order states, “As to count (04): Court orders probation denied. Serve 90 days in Los Angeles County Jail. Defendant given total credit for 90 days in custody 90 days actual custody and 0 good time/work time. Sentence on count 4 is time served.”
Noting the potential inconsistencies in the oral pronouncement of judgment and the minute order, Sanchez suggests what the court intended was to deny probation, to impose a concurrent 90-day sentence and to give him full credit against that sentence for the county jail time (more than 90 days) he had already served while awaiting trial. He asks that we correct the sentence or remand the matter for resentencing. The People, in effect, agree with Sanchez’s view of the sentence imposed and suggest there is no need for a remand.
While it is generally true the oral pronouncement of judgment controls over the clerk’s minute order and any discrepancy between the two is presumed to be clerical error in the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471), the two should be harmonized if possible. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018.) Here both the reporter’s transcript and the clerk’s transcript make clear the court imposed a concurrent 90-day sentence on count 4, and that Sanchez received full credit for time served.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.