Opinion
C055500
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JAMES VINCENT, Defendant and Appellant.
Not to be Published
A jury convicted defendant Daniel James Vincent of felony evasion (Veh. Code, § 2800.2, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), driving under the influence with a prior (Veh. Code, §§ 23152, subd. (a); 23103; 23103.5), driving on a license suspended due to a DUI conviction (Veh. Code, § 14601.2, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)).
The trial court sentenced defendant to state prison for three years eight months. The sentence consisted of the upper term of three years on the evasion count and eight months on the receiving stolen property count.
Defendant appeals, claiming the trial court erred by
(1) failing to secure a knowing and intelligent Faretta waiver of defendants right to counsel, and (2) imposing the upper prison term on the evasion count in violation of Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We disagree and affirm the judgment.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
FACTS
California Highway Patrol Officer Robert Hymas was on routine patrol in Quincy the evening of September 8, 2006, when he saw an off-road motorcycle being operated on the highway. The operator, subsequently identified as defendant, was not wearing a helmet and was driving on the road without the legally required equipment.
Hymas activated his emergency lights and executed a traffic stop. Defendant pulled over to the shoulder and came to a stop. Hymas pulled in behind defendant and, using his loud speaker, ordered defendant to shut off his engine. Defendant, however, made a U-turn and drove away.
Hymas pursued defendant. At times, the chase reached speeds of over 100 miles per hour. Eventually, defendant lost control of the motorcycle and struck a dirt embankment. He "popped out" from underneath the downed bike and ran away from the highway. Hymas pursued him on foot. Defendant ran off a five-foot embankment and broke his leg.
While detaining defendant, Hymas smelled alcohol on defendant and noticed his eyes were bloodshot and watery. A blood sample later taken from defendant at the local hospital showed defendant had a blood alcohol concentration of .09 percent.
Kevin Pearson, the lawful owner of the dirt bike, testified he never gave anyone permission to drive or take his motorcycle. Once he noticed his motorcycle was missing, he made a report to the police.
DISCUSSION
I
Faretta Waiver
Defendant claims the trial court failed to secure a Faretta waiver in this case, as indicated by the courts failure to inform him of the charges pending against him and the potential prison term. He argues the court at best secured a waiver in another case against defendant that it was hearing at the same time. After reviewing the entire record, we find defendant knowingly and intelligently chose to represent himself and waived his right to appointed counsel in this case.
A. Additional background information
We first detail the facts leading up to the trial. At one point, the trial court was faced with three different cases against defendant, a Marsden motion, and a Faretta motion. Under these circumstances, it is easy to see how the court and parties may not have handled such a significant number of simultaneous prosecutions with mathematical rigor.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The district attorney filed a "Complaint/Information" against defendant on September 11, 2006. This complaint alleged six criminal counts: felony evasion (Veh. Code, § 2800.2, subd. (a)), unlawful driving and taking of a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), driving under the influence with a prior (Veh. Code, § 23152, subd. (a)), driving on a license suspended due to a DUI conviction (Veh. Code, § 14601.2, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)).
The original complaint and the preliminary hearing transcript were not included in the record filed on appeal. We ordered them delivered to us and have augmented the record with them.
Sometime after the filing of the complaint, defendant apparently ran afoul of the law again. On January 26, 2007, the court had two matters before it involving defendant; a preliminary hearing in this case (No. 06-33706), which we will call the evasion case, and a hearing in the second case (No. 06-33956). In that case, defendant was charged with driving on a suspended license and other Vehicle Code violations. (Veh. Code, §§ 14601.5, 16028, 4462.5.) We will refer to this second case as the suspended license case.
The court first conducted the preliminary hearing in the evasion case, which is the case before us. At the conclusion of the preliminary hearing, which defendant attended, the court found there was sufficient evidence to hold him over for trial on all of the counts. The court recited each count of the evasion case on the record: "Counsel, Im going to find it appearing to me that the offenses in the within Complaint, basically in Count I, a violation of 2800.2(a), has occurred. Ill also make a finding . . . that in Count II, a violation of 10851(a) of the Vehicle Code, commonly known as — it used to be called felony joyriding — has occurred; that Count III, receiving stolen property, a violation of 496d(a), has occurred; a violation in Count IV of a violation of 23152(a) has occurred. [¶] . . . [¶] [A]nd Count V, a violation of Vehicle Code section 14601.2(a) has occurred, and Count VI, a violation of 148(a)(1) of the Penal Code, has occurred, or has been committed I should say instead of occurred, and there is sufficient cause to believe that the within-named Daniel James Vincent is guilty. I order that he be held to answer to the same."
As to the suspended license case, the court noted that defendant had already been arraigned and had entered a plea in that matter. The court set a hearing for February 9, 2007, for arraignment on the new information in the evasion case, and for pretrial and setting on the suspended license case.
On February 8, 2007, the prosecution filed the information in the evasion case. The information alleged the identical counts that had been alleged in the earlier "Complaint/Information." It did not add to or eliminate any of the original counts.
At the hearing on February 9, 2007, the trial court began by announcing the hearing now concerned three separate cases: the evasion case, the suspended license case, and a new, third case (No. 07-34087). The third case accused defendant of deterring a police officer from performing his duty (Pen. Code, § 69), possessing a dirk or dagger (Pen. Code, § 12020, subd. (a), driving under the influence (Veh. Code, § 23152, subd. (a)), and driving on a license suspended due to a DUI (Veh. Code, § 14601.2, subd. (a)). For ease of reference, we refer to this third case as the dagger case. Defendant was represented by his appointed attorney, George Zube, in all three matters.
The court first conducted an arraignment in the evasion case. As the court began reading the offenses alleged in the information, defense counsel interrupted and offered to waive the reading of the pleading. The court asked defendant if he joined in the waiver. Defendant agreed to the waiver, stating he could read the information himself.
The court accepted the waiver as well as defendants plea of not guilty. It set a trial date on the evasion case for March 7, 2007, with a readiness hearing for February 23, 2007, at 9:00 a.m.
Next, the court arraigned defendant in the dagger case. Defendant again waived reading of the complaint and entered a plea of not guilty. The court set a pretrial hearing at 9:00 a.m., February 23, 2007, and preliminary hearing at 1:30 p.m. that same day.
Still in the same hearing, the court finally turned its attention to the suspended license case. The prosecution moved to dismiss this particular complaint, and the trial court granted the motion.
At the February 23 readiness and pretrial hearings on both remaining cases, defendant requested a Marsden hearing. The court passed on the matter until the 1:30 p.m. preliminary hearing in the dagger case that afternoon. The court opened the 1:30 hearing by first entertaining defendants Marsden motion. During the hearing on that motion, defendant stated he wanted to represent himself. He stated his attorney had explained to him the maximum possible sentence and the terms of an offer made by the prosecution. He said the offer was not acceptable, but the maximum sentence was acceptable if he lost at trial. He stated the maximum would be five years in state prison. It was not clear to which case defendant was referring in this sentencing discussion.
The court tried to persuade defendant not to represent himself, but with no success. To ascertain with certainty defendants position, the court asked defendant if he wanted to represent himself in both pending matters. Defendant replied, "In all matters, your Honor." The court did not relieve Mr. Zube at this point. Back in open session, the court informed the prosecution there would be a Faretta motion, and it gave defendant time to fill out a waiver form.
A short while later, the court recalled both the dagger case and the evasion case by their case numbers, and suggested defendant allow the court to appoint for him a new attorney, Tom Clute of Chico. Defendant asked if he could be represented instead by a different attorney, a Mr. Jackson. The court stated Mr. Jackson was not taking any appointments. Defendant stated if he could not have Mr. Jackson, he chose to represent himself.
The court took defendant and Mr. Zube back into chambers where it announced it was granting the Marsden motion, and it relieved Mr. Zube. The court again gave defendant an opportunity to forgo the Faretta waiver. It stated it could grant the Faretta motion and proceed that day on the preliminary hearing in the dagger case, or it could put the matter over to give defendant time to meet with Mr. Clute or even to talk with Mr. Jackson without prejudicing his right to bring a Faretta motion later. Defendant said he was ready to proceed with the preliminary hearing. For confirmation, the court again asked defendant if he would be representing himself "in both cases." Defendant said yes.
The court went back into open session on "two matters," announced it had granted the Marsden motion, and then stated it was now in a Faretta proceeding. The court announced that defendant had stated he wanted to represent himself on the preliminary hearing in the dagger case and on the jury trial set in this, the evasion case for March 7. At that point, defendant said he thought they were discussing only the preliminary hearing. The court reiterated it was relieving Mr. Zube in both cases. However, all the court would do at this hearing was conduct a preliminary hearing. It would talk with defendant the following week about the jury trial set in the evasion case for March 7.
The court proceeded to voir dire defendant in detail on his understanding of his constitutional rights, the difficulties he would face representing himself, and the standards of conduct to which he would be held responsible. The court again asked defendant if he wished to represent himself. Defendant replied, "For this preliminary hearing, yes, I do, your Honor."
The court then began explaining the charges filed against defendant in the dagger case. Defendant interrupted because he could not locate that complaint. After the bailiff gave him the record, defendant located that complaint but he could not correctly answer the courts questions as to some of the charges. The court used this moment as an example of the difficulty defendant would face representing himself. However, the court did not complete informing defendant of the charges in the dagger case.
The court continued explaining defendants responsibilities during the trial process. Twice, the court asked defendant if he still wanted to represent himself. Both times, defendant said he did for the "preliminary hearing today." The court "in this case" granted defendant the right to represent himself. The court also set a hearing in the evasion case for February 26 "for a discussion of the jury trial and where were going with that case[.]" The court did not read the charges in the evasion case or the possible penalties associated with each charge.
At the February 26 hearing, the court stated it had ordered the hearing in the evasion case because it had granted defendants Faretta motion the previous week and it wanted to know whether defendant would be ready for jury trial scheduled on March 7. Defendant questioned the courts statement. He thought the court had put off the Faretta motion in the evasion case. The court said it had granted it. The court asked if defendant was representing himself and if he intended to be ready on March 7 for trial. Defendant replied, "Im ready tomorrow."
As the court tried to confirm that defendant would be ready, defendant said he wanted to retain Mr. Jackson. The court stated that as far as it was concerned, defendant would either retain a lawyer or represent himself. Defendant agreed that was his intent. The court ordered trial to proceed on March 7.
On March 6, the trial court conducted a preliminary hearing in the dagger case and a pretrial conference in the evasion case. The court asked defendant if he wanted to represent himself or if he wanted an attorney appointed. Defendant said he would represent himself. The court stated defendant was qualified to represent himself in both cases.
During the pretrial conference on the evasion case, defendants understanding of his potential sentence became known. The court inquired whether the parties could resolve the case without trial. The prosecutor stated defendant had already rejected an offer of a two-year prison term. Defendant claimed he had added up the potential terms on all of the "original" counts, which he said totaled 13, and they called for a total sentence of 30 years. He claimed the maximum was three years on most of the counts, with one-year and two-year enhancements.
Defendant said he was willing to take the 30-year sentence if that was the courts decision, and anything less than that was "even better." However, he wanted to go to trial to raise certain issues, and thus he refused to agree to the two-year term.
Defendant represented himself throughout the trial in the evasion case, and now challenges the adequacy of the Faretta waiver for that specific case.
B. Analysis
"A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 835-836; People v. Bradford (1997) 15 Cal.4th 1229, 1363.) A defendant seeking to represent himself `should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." [Citation]. (Faretta, supra, 422 U.S. at p. 835.) `No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation. (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) 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. (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140; People v. Marshall (1997) 15 Cal.4th 1, 24.)" (People v. Blair (2005) 36 Cal.4th 686, 708.)
The preferred procedure is for the trial court to discuss with the defendant on the record "`"whether the waiver was knowingly and intelligently made, with an understanding of the charges, the possible penalties, and the dangers of self-representation." [(United States v. Balough (9th Cir. 1987) 820 F.2d 1485, 1488.)]" (People v. Truman (1992) 6 Cal.App.4th 1816, 1824.) However, the courts failure to follow this procedure in some cases does "not necessitate automatic reversal `when the record as a whole reveals a knowing and intelligent waiver. [Citations.]" (Ibid.)
"On appeal, the courts `review the entire record — including proceedings after the purported invocation of the right of self-representation — and determine de novo whether the defendants invocation was knowing and voluntary. [Citations.] Even when the trial court has failed to conduct a full and complete inquiry regarding a defendants assertion of the right of self-representation, these courts examine the entire record to determine whether the invocation of the right of self-representation and waiver of the right to counsel was knowing and voluntary. [Citations.]" (People v. Sullivan (2007) 151 Cal.App.4th 524, 547.)
The courts have split on the standard of reversible error when concluding a trial court failed to advise a defendant as required by Faretta: "[S]ome have determined that the error is structural and reversible per se; others have declared the error must be found prejudicial under Chapman v. California (1967) 386 U.S. 18, 24, unless the error is harmless beyond a reasonable doubt. [Citations.]" (People v. Sullivan, supra, 151 Cal.App.4th at p. 551, fn. 10.) Because we find no error, we need not address this issue here.
In this case, the record as a whole reveals a knowing and intelligent Faretta waiver by defendant in this, the evasion case. Defendant indicated to the court two times that he intended to represent himself in both this case and the dagger case. Thereafter, the court provided defendant with all of the required advisements and warnings, and it thoroughly inquired of defendant to ensure he understood them. Defendant does not challenge the adequacy of the warnings the court gave him.
Defendant continued to intend to represent himself in both cases. Although defendant began, belatedly, to suggest he was waiving his right to counsel only as to the preliminary hearing in the dagger case, he was informed by the court that it had earlier and, in fact, granted defendants request to represent himself in both cases. When the court asked if defendant, representing himself, would be ready to proceed with the jury trial in the evasion case in about one week, defendant announced he would be "ready tomorrow." He confirmed his intent was to represent himself or hire Mr. Jackson, something that never happened. Moreover, at the pretrial conference, defendant again stated he would represent himself at the trial in this case. The court said defendant remained qualified to represent himself in both cases.
In light of these facts, defendants argument on appeal narrows to challenging the courts failure to inform defendant during the Faretta hearing of the charges pending against him in the evasion case and the penalties associated with these charges. The record, however, contains sufficient evidence demonstrating defendant understood the charges against him and the potential punishments.
Defendant understood the charges against him. The court informed defendant of the pending charges at the preliminary hearing. Those charges did not change with the filing of the information. When offered the opportunity to hear those charges again, defendant waived that right, saying he could read the information himself.
Defendant was also sufficiently aware of the potential punishment. He knew he was at risk of significant prison time. While he considerably overestimated the maximum term he could serve, he nonetheless agreed to represent himself at trial based on that inflated figure. For some reason, defendant believed receiving a long prison term after representing himself at trial was preferable than having his appointed attorney negotiate a two-year term. That was his decision to make.
Whether there has been a Faretta waiver is a question of fact. (See People v. $241,600 United States Currency (1998) 67 Cal.App.4th 1100, 1109.) "The burden is on appellant to demonstrate that he did not intelligently and knowingly waive his right to counsel. [Citation.] . . . [T]his burden is not satisfied by simply pointing out that certain advisements were not given." (People v. Truman, supra, 6 Cal.App.4th at p. 1824.)
Defendant has failed to satisfy his burden. The record as a whole establishes he intelligently and knowingly waived his right to appointed counsel and chose to represent himself. The trial courts failure in this instance to repeat the charges and potential sentences against defendant at the Faretta hearing did not invalidate the waiver.
II
Upper Term Sentence
The trial court imposed the upper term of three years on the felony evasion count. The court stated it selected the upper term because defendants record "is escalating, he has too many convictions over the last ten years, and I think that the aggravated term of three years is appropriate." Defendant asks us to ignore the single factor eligibility test announced in People v. Black (2007) 41 Cal.4th 799 (Black II) under which one aggravating circumstance that complies with Cunningham renders a defendant eligible for the upper term, regardless of any additional factfinding engaged in by the trial court in selecting the appropriate sentence. We have no jurisdiction to ignore Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
A prior conviction is an aggravating circumstance that renders a defendant eligible for an upper term sentence without the conviction having to be proven to a jury. (Cunningham, supra, 549 U.S. at p. ___ .) Defendants probation report notes that from 1986 to this case, defendant has been convicted of 20 misdemeanors and one felony in California. This is sufficient evidence to justify the imposition of the upper term. The trial court committed no error.
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, Acting P. J.
CANTIL-SAKAUYE, J.