Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA052509, Cynthia Rayvis, Judge.
Lea Rappaport Geller for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Derrick Michael Bell appeals from the judgment entered following his conviction by a jury on two counts of possession of a controlled substance, contending the trial court improperly revoked his right to self-representation, erred in failing to admit into evidence one of the reports prepared by the police following his arrest and improperly sentencing him under the “Three Strikes” law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Bell was charged by information with one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). It was specially alleged as to both counts Bell had suffered a prior conviction in Minnesota for assault with a dangerous weapon, a serious felony within the meaning of the Three Strikes law (Pen. Code, §§ 667.5, subds. (b)-(i); 1170.12, subds. (a)-(d)), and had served a separate prison term for a felony (Pen. Code, § 667.5, subd. (b)). Bell pleaded not guilty and denied the special allegations.
2. Revocation of Bell’s Right to Self-representation
On April 24, 2007 Bell waived his right to counsel and invoked his Sixth Amendment right to represent himself under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta), a decision the trial court found was made knowingly and voluntarily. Bell represented himself at the preliminary hearing.
On June 18, 2007, at Bell’s arraignment, the trial court confirmed Bell wanted to continue representing himself. The court advised Bell of the dangers of self-representation and warned him, “If you are disruptive at any time, your right of self-representation is vacated.” Bell stated he understood, and the court found his waiver of the right to counsel was made knowingly and voluntarily.
At a pretrial hearing on July 16, 2007 the trial court twice warned Bell about his courtroom conduct. First, the court admonished Bell, “Don’t interrupt me, please. And don’t argue with me.”
Subsequently, Bell appeared to become frustrated with several rulings, including that Bell did not have a constitutional or statutory right of access to the law library, as well as the court’s statement it would not order Bell be provided with a haircut for trial. Bell stated, “I do object to these proceedings Your Honor. I do object that you made a ruling on the motion to set aside the information that the People had 30 plus days now to respond to and have not given me a written opposition to, Your Honor.... I asked for a transcript for mandate purposes. You did deny that, right? Okay, and objections to the court—district attorney bootstrapping the case upon me with the court’s help.” The court warned Bell, “Be careful of the accusations you are making.... In People v. Lewis and Oliver ... at 39 Cal.4th 970, the Supreme Court was in accord with other cases that held the right of a self-represented defendant is not a license to abuse the dignity of the courtroom. In accord with that is People v. Howze... at 85 Cal.App.4th 1380. Defendant is now warned. Watch your accusations, sir. You are about to lose your pro. per. status.”
Bell informed the court, “I have no way to get my hair cut for trial. I do want to look good. I have advised the members of the press so I want to make sure my hair is cut.”
At a hearing on July 30, 2007 the trial court again admonished Bell about his conduct after he laughed at a court ruling:
“THE COURT: You remember I warned you last time about your decorum in court. You remember, I cited some cases last time about your decorum.
“MR. BELL: What is decorum?
“THE COURT: The way you’re acting.
“MR. BELL: What did I do?
“THE COURT: You have to have respect. You started laughing when I made a ruling.
“MR. BELL: That’s just my meditation to myself.
“THE COURT: I’m sorry?
“MR BELL: That’s me meditating.”
Later during that hearing Bell attempted to explain his tone of voice was not intended to be disrespectful: “Your Honor, I’m not trying to disrespect the court in any way, and I feel there is some type of animosity.” In response to the court’s statement there was no animosity, but “It’s your tone and your words,” Bell stated, “Your Honor, this is how I talk. No. Like I said, I don’t plan to or intend to disrespect the court in any way, and if the court has any animosity against defense or defense counsel—”
The following day, July 31, 2007, at a hearing on discovery compliance Bell was agitated and complained he believed he was “under attack by the Los Angeles County Sheriff’s Department.” After the trial court informed Bell he should report his complaints to the sheriff’s department, Bell began to yell:
“[MR. BELL]: I’ve been doing that and every time I do that there is repercussions and I get beat up.
“THE COURT: Keep your voice down Sir. Mr. Bell, don’t yell at me.
“[MR. BELL]: I’m not yelling at you. I’m scared for my life. What do you mean yell at you. I’m scared to death in here.
“THE COURT: Mr. Bell, speak civilized, please.
“[MR. BELL]: This is as civil as I can be when I’m in fear, Your Honor.”
Shortly thereafter, during a discussion about whether the prosecutor had produced all documents requested in a subpoena, Bell accused the court of threatening him; after the court revoked his right of self-representation, Bell’s escalating conduct resulted in his removal from the courtroom:
“[MR. BELL]: That’s not all that exists. You trying to tell me that I wasn’t booked under that booking number when I know I was booked under that booking number?
[¶]... [¶]
“THE COURT: One moment. Sir, I’m not trying to tell you anything.
“[MR. BELL]: Are you threatening me now? I heard you call me a monkey when I came in the courtroom....
“THE COURT: One moment.
“[MR. BELL]: What are you looking at? You want to beat me in open court.
“THE COURT: Okay.
“[MR. BELL]: Any other attorney has the right come in here and
“[THE COURT]: One moment, Sir. I have cited before People v. Lewis and Oliver,... which is in accord with other cases. The right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. Defendant has accused this court of using disrespect and calling names, which this court did not do. Defendant’s attitude
[¶]... [¶]
“[MR. BELL]: I didn’t accuse you. I said that I thought I heard you.
“THE COURT: Defendant asked this court or accused this court of threatening the defendant. The defendant has... abused the right of self-representation. His right is now vacated. We will pass this matter to the public defender.
“[MR. BELL]: You know what, Your Honor, where is my tapeset?
“THE COURT: We will pass this matter.
“[MR. BELL]: What do you mean pass it? You ain’t passing nothing. Where is the tapeset? Where is the tapeset? Where is the tapeset? Where are the tapesets and the audiotapes from the MDT’s
“THE COURT: Defendant is now being disruptive. He is to be removed.
“[MR. BELL]: Where is the tapeset? Go ahead, beat me up in the back, officer, and everybody can know that it’s getting done. I could care less now because it happened so many times.”
3. Summary of the Evidence Presented at Trial
The matter was transferred to the Honorable Cynthia Rayvis for trial because of limitations on courtroom availability and Bell’s unwillingness to grant a one-day time waiver.
At approximately 4:00 a.m. on March 1, 2007 Los Angeles Police Officers Eric Coffey and Brian Dameworth were on patrol when they noticed a car, closely followed by another car (a Chevrolet Impala), speed out of an alley. Dameworth, who could only see the license plate of the Impala, entered the number into the police car’s mobile data computer. Information provided in response to the entry indicated the Impala, which had Arizona license plates, had been reported stolen in Nevada. The officers called for backup and continued to follow the cars until the Impala drove into a convenience store parking lot. The officers pulled up behind the Impala and arrested Bell, who was driving the car.
Officer Dameworth searched the Impala and found a plastic baggie containing methamphetamine in the driver-side door-handle pocket; Bell claimed the drugs belonged to his girlfriend. Officer Coffey then searched Bell and found a wrapper containing cocaine base.
Notwithstanding the discovery of the illegal drugs, Bell was arrested only for vehicle theft. Coffey and Dameworth testified at trial that, when multiple offenses have been committed, it is the department’s policy to arrest a defendant on the most serious charge, but include in the arrest report information as to everything that transpired, including the discovery of drugs, so the detective who files the case can decide whether to include additional charges.
When Officer Coffey returned to the police station after Bell was arrested, Coffey booked the illegal drugs into evidence, identifying on the evidence envelope that Bell was being charged with a violation of Vehicle Code section 10851. Coffey then filled out several different reports, including a vehicle report to document the condition and non-criminal contents of the Impala, primarily for towing purposes. Although there is a section in this report to identify any evidence recovered, the report did not mention illegal drugs had been found. Coffey also filled out a probable cause determination and failed to indicate drugs had been found in Bell’s possession. However, the discovery of the drugs was described in the report in someone else’s handwriting. Additionally, although Coffey had noted, “we stopped the vehicle and arrested the defendant for 10851(A) V.C,” someone had noted in the section for booking charges a violation of Health and Safety Code section 11350, subdivision (a).
Officer Dameworth wrote the arrest report. Although it stated Bell had been arrested for violation of Vehicle Code section 10851, the arrest report also noted illegal drugs had been found.
An investigation subsequent to Bell’s arrest revealed the Impala had been rented by Bell’s girlfriend and was not stolen. Bell was later charged with the drug offenses.
Bell did not testify on his own behalf. Through cross-examination of Officers Coffey and Dameworth, particularly with respect to the various reports written in connection with his arrest, Bell attempted to establish the officers had fabricated the drug evidence and altered the reports after it had been determined the Impala was not stolen.
4. The Jury’s Verdict and Sentencing
The jury found Bell guilty of one count of possession of methamphetamine and one count of possession of cocaine. In a bifurcated bench trial the trial court found the elements of Minnesota Statute section 609.222, subdivision 1, assault with a dangerous weapon, matched the elements of the California crime of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), as required for the prior offense to constitute a strike, and found beyond a reasonable doubt Bell had been convicted of a serious felony within the meaning of the Three Strikes law. The court found not true the allegation Bell had served a prior prison term within the meaning of Penal Code section 667.5.
The court sentenced Bell to an aggregate state prison term of four years: the middle term of two years for possession of methamphetamine, doubled to four years under the Three Strikes law, and a concurrent middle term of two years for possession of cocaine.
CONTENTIONS
Bell contends the trial court abused its discretion in revoking his right to self-representation, erred in failing to admit into evidence the vehicle report and erred in finding Bell’s prior felony conviction in Minnesota qualified as a strike under the Three Strikes law.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Revoking Bell’s Right to Self-representation
A criminal defendant has a right to represent himself or herself at trial under the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at pp. 835-836; People v. Marshall (1997) 15 Cal.4th 1, 20.) “A trial court must grant a defendant’s request for self-representation if three conditions are met,” including “the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation.” (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch).) However, “‘[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.’” (Id. at p. 734.) “The high court reiterated this point in McKaskle [v. Wiggins (1984)] 465 U.S. 168, [173] [104 S.Ct. 944, 79 L.Ed.2d 122], noting ‘an accused has a Sixth Amendment right to conduct his own defense, provided only that... he is able and willing to abide by rules of procedure and courtroom protocol.’” (Welch, at p. 734.) “This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.” (Ibid.)
The trial court must decide whether the defendant “is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation.” (Welch, supra, 20 Cal.4th at p. 735.) Factors the court should consider in making this determination include the nature of the misconduct and its impact on the trial proceedings, “whether the defendant has been warned that particular misconduct will result in termination of in propria persona status,” whether the defendant “has ‘intentionally sought to disrupt and delay his trial’” and whether alternative sanctions are available especially when the misconduct takes place outside of courtroom proceedings. (People v. Carson (2005) 35 Cal.4th 1, 10.) However, “[t]he trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’” (Welch, at p. 735.)
Bell contends the trial court abused its discretion in revoking his right to self-representation because his “outburst” in which he accused the judge of threatening him and calling him a monkey was his “first,” and his conduct could have been rectified with proper warning by the trial court. Bell mischaracterizes the record: This was not his first incident; he had been warned twice before about his courtroom conduct to no avail. On July 16, 2007 the court admonished Bell not to argue with the court and expressly warned him he would lose his pro per status if he continued to accuse the court of misconduct. On July 30, 2007 the court again warned Bell about his “decorum” when Bell laughed during a court ruling. When the court identified Bell’s “tone and... words” in response to Bell’s contention he felt there was some type of animosity from the judge, Bell gave no indication he would attempt to conform his speech or conduct to appropriate courtroom standards, instead protesting “this is how I talk.” The following day Bell’s disruptive conduct escalated, with Bell yelling and accusing the court of calling him a “monkey” and threatening him. (Even if Bell genuinely feared for his safety, that does not justify his misconduct in court.) After the court revoked his right to self-representation, Bell continued to act belligerently, telling the court “You ain’t passing nothing,” justifiably leading to his removal from the courtroom.
The trial court did not abuse its discretion in revoking Bell’s right to self-representation in light of his disruptive conduct during the in-court proceedings, the court’s repeated warnings he was at risk of losing his right to self-representation and Bell’s acknowledgement he was essentially unable to reform his conduct, tacitly admitting he would continue to disrespect courtroom protocol.
Bell also contends the trial court abused its discretion in revoking his right to self-representation because his conduct was not manipulative. Although a defendant’s intention to disrupt and delay trial may alone “suffice to order termination,” it is not “a necessary condition.” (People v. Carson, supra, 35 Cal.4th at p. 10.)
2. Any Error in Excluding the Vehicle Report from Evidence Was Harmless
Bell attempted to introduce into evidence the vehicle report, arguing the absence of any reference in the report to the drugs recovered from the Impala supported his theory the drug charges were fabricated after it was determined the car had not been stolen. The trial court excluded the report, stating, “It is a police report and just as when people testify as to what is or is not in certain police reports, an officer is often asked ‘Isn’t it true that you didn’t mention this in your police report’ and that doesn’t mean the police report comes in. You certainly cross-examined the witness about it and you can bring in anything that was brought in during testimony, but the vehicle report will not come in.” Previously, when Bell first attempted to mark the vehicle report as an exhibit, the court had stated, “No. It’s part of the police report. Police reports don’t go into evidence.” Bell contends the court’s refusal to allow the vehicle report into evidence was error of federal constitutional magnitude because it was the one piece of evidence that substantiated his entire theory of defense.
“‘As a general matter, the “[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding defense evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, “[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.” [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711]).’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
Although the trial court did not explain the basis for its categorical view police officer’s reports are not admissible, we assume it is the hearsay rule. However, “a police officer’s report is admissible under Evidence Code section 1280[, the official records exception to the hearsay rule,] if it is based upon the observations of a public employee who had a duty to observe facts and report and record them correctly. [Citation.] Statements independently admissible, such as a party admission, contained in a police report are similarly admissible, despite their hearsay character.” (Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6.)
We need not determine whether a proper foundation was laid for admission of the vehicle report in this case, however, because any error in excluding it was harmless. Both Officers Coffey and Dameworth were cross-examined extensively about the vehicle report and acknowledged it had a section to identify evidence recovered, yet there was no indication any drugs had been found in the Impala. Admitting the vehicle report into evidence would have done nothing to further this point. Moreover, Bell’s theory the drug evidence was fabricated did not hinge on only this “one piece of evidence,” but was also based on Coffey’s testimony he did not include in the probable cause determination the paragraph in someone else’s handwriting describing the discovery of the illegal drugs. The probable cause determination was admitted into evidence, as were two other documents generated in connection with the arrest that did not mention drugs (a printout from the police car’s mobile data computer and the City Attorney disclosure statement). Finally, there was evidence and testimony that significantly undermined Bell’s theory, including the fact the evidence envelope containing the drugs had an intact seal with the date March 1, 2007 written on it when the Los Angeles Police Department criminalist, Stephanie Thomas, opened the envelope to test its contents on March 3, 2007. It is not reasonably probable Bell would have achieved a more favorable result had the vehicle report been admitted into evidence.
3. The Trial Court Did Not Err in Finding the Prior Minnesota Conviction Constituted a Strike Under the Three Strikes Law
A prior conviction from another jurisdiction constitutes a strike under the Three Strikes law if the offense includes all of the elements of a violent or serious felony as described in Penal Code sections 667.5, subdivision (c), or 1192.7, subdivision (c). (Pen. Code, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2); see People v. Myers (1993) 5 Cal.4th 1193, 1201; People v. Avery (2002) 27 Cal.4th 49, 53.) Penal Code section 1192.7, subdivision (c)(31), defines a serious felony to include “assault with a deadly weapon.”
In determining whether a prior conviction qualifies as a strike, the trier of fact may consider the entire record of the prior conviction excepting only material precluded by the rules of evidence or other statutory limitation. (People v. Woodell (1998) 17 Cal.4th 448, 453.) If the record fails to disclose facts of the offense actually committed, the factfinder must presume the prior conviction was for the “least offense punishable” under foreign law. (People v. Miles (2008) 43 Cal.4th 1074, 1083.)
The California Supreme Court has rejected Bell’s argument that, under Shepard v. United States (2005) 544 U.S. 13 [125 S.Ct. 1254, 161 L.Ed.2d 205], the trial court may not look beyond the charging documents to determine the validity of the prior strike because a broader examination of the record would violate the defendant’s Sixth Amendment right to a jury trial. (People v. McGee (2006) 38 Cal.4th 682, 708 [“issue before the high court in Shepard was resolved as a matter of statutory interpretation, and the court did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct the kind of examination of the record of a prior criminal proceeding that occurred in the case before us in determining whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute”].) Moreover, Bell waived his right to a jury trial on his prior conviction.
Bell was convicted in Minnesota of assault with a dangerous weapon pursuant to Minnesota Statute section 609.222, subdivision 1. Assault is defined under Minnesota Statute section 609.02, subdivision 10(1), as “an act done with intent to cause fear in another of immediate bodily harm or death; or [¶] the intentional infliction of or attempt to inflict bodily harm upon another.” Bell contends, because the Minnesota statute criminalizes an attempt to intentionally inflict bodily harm, not just the infliction of bodily harm, it differs from the California crime identified as a strike, which, according to Bell, requires “a person actually be assaulted with a deadly weapon.”
Minnesota Statute section 609.222, subdivision 1, states “Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.” Dangerous weapons include any “device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.” (Minn. Stat., § 609.02, subd. 10.)
Bell’s argument is without merit. California law defines an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) Under California law, like Minnesota law, an assault does not require the actual infliction of bodily harm.
Penal Code section 245, subdivision (a)(1), proscribes both assault with a deadly weapon and assault by means of force likely to produce great bodily injury. Only the first form of aggravated assault is included in the definition of a qualifying strike offense in Penal Code section 1192.7, subdivision (c): “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”
Minnesota does define assault more broadly than California to include an act done with intent to cause fear in another of immediate bodily harm or death. Nonetheless the trial court’s finding Bell had committed assault with a deadly weapon as defined by Penal Code section 245, subdivision (a)(1), is supported by substantial evidence. (People v. Moenius (1998) 60 Cal.App.4th 820, 823-824 [“[i]n deciding whether substantial evidence supports the trial court’s finding that appellant’s 1974 burglary conviction was a qualifying prior felony conviction under the three strikes law, we view the evidence in the light most favorable to the trial court’s finding”].) Bell’s crime apparently included his attempt to crash the car he was driving into a car being driven by his wife. In the transcript from a sentence and revocation hearing in Minnesota, the trial court found “the vehicle that was used by the defendant, Derrick Michael Bell, on the 27th day of March, 2001, was being used as a dangerous weapon because the manner in which he was using it was likely to cause great bodily harm or death not only to the alleged victim, Danielle [B]ell, but others who may have been put at risk because of the manner of using the vehicle during the trip from Minneapolis to St. Paul. Therefore, the court finds that the vehicle was used as a dangerous weapon in violation of [Minnesota Statute section] 609.11, Subd. 4.” From this description it is reasonable to infer Bell’s unlawful conduct amounted to more than just an act done to cause fear and rose to the level of an actual assault as defined in California, “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., JACKSON, J.