Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM020835
SIMS, Acting P.J.A jury convicted defendant Donald Lee Bogart of possessing methamphetamine for sale (count 1; Health & Saf. Code, § 11378), possessing up to 28.5 grams of marijuana (count 2; Health & Saf. Code, § 11357, subd. (b)), and destroying evidence (count 3; Pen. Code, § 135), but rejected the allegation that defendant was personally armed with a firearm as to count 1. The trial court sentenced defendant to probation.
Defendant contends: (1) “The court lacked jurisdiction because appellant was promptly taken before a magistrate [sic], not timely arraigned, the complaint was not proper and he was prevented from raising this issue thereby requiring a reversal of his conviction.” (2) “The order modifying the original minute order was issued outside appellant’s presence and without appellant being afforded due process of law and therefore appellant’s conviction must be reversed.” (3) “Appellant was denied effective representation of counsel and his right to represent himself at the preliminary hearing and such error is reversible per se.” (4) “Appellant’s federal constitutional rights to due process, to a public trial, to effective assistance of counsel and to confrontation were violated in connection with the sealing of evidence of probable cause to support the search warrant.” (5) “This court must review the sealed documents and taped conversation that the trial court reviewed in camera to determine if the trial court’s ruling was correct.” (6) “The trial court erred in denying appellant’s request for a short continuance to allow counsel who had been recently retained due to prior counsel’s conflict of interest to prepare for trial.” (7) “The prosecution failed to establish the chain of custody with respect to the contraband that was tested and therefore the trial court erred in admitting this evidence.” (8) “The court prejudicially erred in admitting certain photographs of contraband seized in connection with the search because the prosecution failed to establish a proper foundation.” We shall affirm.
FACTS AND PROCEDURE
On February 17, 2004, a magistrate issued a search warrant for defendant’s residence in a mobile home park in Chico, based on information from a citizen informant that defendant sold methamphetamine out of the residence. At the affiant’s request, the affidavit in support of the warrant request was sealed.
We describe the basis for the search warrant in connection with parts IV and V of the Discussion.
On February 18, 2004, officers of the Butte Interagency Narcotics Task Force (BINTF) executed the warrant. Finding defendant apparently trying to flush contraband down the toilet, the officers arrested him.
The officers thereafter seized drug-related items from the master bedroom and bathroom, including five rocks of a substance which tested positive for methamphetamine, weighing a total of two grams; a film canister containing a crystalline substance with a net weight of .2 gram; containers which held loose marijuana and suspected marijuana residue; a green tube holding 1.3 grams of powder which tested positive for methamphetamine; a drinking glass containing white residue which tested positive for methamphetamine with a net weight of .1 gram; a methamphetamine pipe and two lighters; and a digital gram scale. The officers also found video surveillance cameras, a semi-automatic rifle, and what appeared to be a pay-owe record for drug transactions.
At trial, two officers with expertise on the issue of possession of methamphetamine for sale or personal use opined that the methamphetamine found in defendant’s residence was possessed for purpose of sale, based on the quantity and amounts of methamphetamine, the surveillance system, and the fact that defendant was caught in the bathroom with drugs in the toilet bowl and the toilet cycling.
After defendant’s arrest, he was booked, then released on bail with an order to appear on March 5, 2004. According to an affidavit filed by defendant on March 12, 2004, in propria persona, he appeared on March 5, but his matter was not calendared and his request to see the magistrate was refused; instead, although he did not want to waive time, he was given a new appearance date of March 26, 2004. However, according to a declaration filed by Deputy Court Clerk Schneberger in the superior court on July 21 (no year given), no formal proceedings were held on March 5, 2004, except for “the Notice, Sentence, Commitment form.”
On March 24, 2004, the Butte County District Attorney filed a felony complaint against defendant, signed by Deputy District Attorney Kevin Maloney.
On March 26, 2004, defendant in propria persona filed an “Amended Motion [¶] Special Appearance [¶] Notice of Motion to Quash Warrant BSW 04-026, and [¶] Quash and suppress Unlawfully obtained Evidence, and Bar further Action for all eternity [¶] and Dismiss[.]” He claimed that the warrant must be quashed because the trial court lacked personal and subject matter jurisdiction.
Defendant alleged that the trial court lacked personal jurisdiction over him because: (1) “Donald Lee Bogart is not the misnomer ‘Donald Lee BOGART.’ ‘It is now the settled law that a mistake in the Christian name of the defendant is fatal’. [Citation.]” (2) Defendant’s place of domicile is within the venue and jurisdiction of Butte County and “California state, California Constitution 1849 Article XII Boundary, one of the United State [sic] of America. United States Statues [sic] at Large Vol 9 page 452. NOT within the STATE OF CALIFORNIA, a municipal corporation.” (3) Since defendant’s domicile is not within the court’s venue and jurisdiction, it followed that he had committed no “act or public offense” within that jurisdiction. (4) Defendant does not own real property or carry on business within the court’s jurisdiction. (5) The search warrant is unlawful on its face because it “dose [sic] not issue from a judicial court which has the full judicial power of the state California [sic] under Constitution of California 1849 Article VI Section 1, nor dose [sic] it issue from a court where all criminal acts shall begin, Court of Sessions of Butte County in Term, which petitioner party is amenable too [sic], nor dose [sic] the warrant follow the form to this courts [sic] venue and jurisdiction.” (7) The search warrant is also unlawful on its face because “even within the ‘private law’ of the California Code,” employees of the Butte County Superior Court are not “State Judicial Officers” and the court’s judges and commissioners are not magistrates with power to issue a warrant.
Defendant also alleged that the trial court lacked subject matter jurisdiction because the search warrant was not issued under seal from a proper court as described above or as required by Penal Code section 1503; it did not contain an affidavit with specific “clear and concise” facts showing a basis for the search; the affidavit of Officer Sorenson appeared to be “based on hearsay from some rogue, leaving the court without a competent witness”; there was no evidence that a magistrate had taken an affidavit on oath before issuing the warrant; and the warrant was not in proper form, which “would void grounds under Penal Code Section 1524[.]”
A minute order dated March 26, 2004, shows that defendant was arraigned on that date before Judge Lamb, Deputy Public Defender Hoptowit was appointed to represent him, and a “warrant” was recalled; no district attorney or court reporter was present. The minute order also states in handwriting: “Motion to Quash Bench Warrant Granted (as noted above Bench Warrant recalled[)] [¶] Motion to Dismiss Denied Without Prejudice[.]” (Italics added.) Defendant did not enter a plea.
On April 20, 2004, and May 4, 2004, defendant appeared with Hoptowit for further arraignment proceedings before Judge Hermansen, but contested the court’s jurisdiction, objected to Hoptowit’s appointment, and indicated he wanted to represent himself. He still did not enter a plea.
On May 4, 2004, Hoptowit informed Judge Hermansen that defendant had filed his pro se motion to quash the search warrant and dismiss, and that the docket indicated “the motion to quash the warrant was granted.” Judge Hermansen surmised that a clerical error had occurred, but it needed to be straightened out before anything else happened. Accordingly, he continued the matter to May 25, 2004.
Judge Hermansen also remarked: “[I]n addition to there being no district attorney present at arraignment, there is no court reporter present at arraignment.”
On May 6, 2004, Judge Lamb entered a “correction of minute order dated March 26, 2004,” stating: “The clerk has reviewed her notes and has corrected the minute order dated March 26, 2004 to reflect [that] the Motion to Quash Bench Warrant is granted. Motion to dismiss is denied without prejudice.” (Italics added.) This order was copied to defendant, Hoptowit, and the District Attorney.
The record before U.S. does not contain any “uncorrected” version of the March 26 minute order.
On May 25, 2004, defendant told Judge Hermansen that he wanted to represent himself. Judge Hermansen gave him a Faretta form to review and fill out, then continued the matter for three weeks to allow time for his decision.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
On June 15, 2004, Hoptowit told Judge Hermansen that defendant was still not ready to decide on self-representation. Defendant said he wanted to see his records. Asked if he wanted a continuance to review the court file, he said yes -- “I need to see the file where I can make that decision . . . [¶] . . . [¶] . . . Whatever is in the file.” After being given time to review the file, defendant asked again for a continuance. Judge Hermansen granted a one-week continuance and told defendant that on June 22 he would have to decide if he wanted to represent himself.
Defendant mentioned a “transcript,” but Judge Hermansen told him that there were none.
On June 22, 2004, when Judge Hermansen pressed defendant for a decision, defendant repeated that he was “still waiting for the transcript and records.” Judge Hermansen reiterated that there were no transcripts. Defendant insisted: “I would like to see my records, all of my records. You’ve still denied them. I need them to be able to see what I can do.” Judge Hermansen said that defendant would have to enter a plea now and asked if he wanted an attorney appointed for him. After alluding without explanation to the court’s alleged lack of subject matter jurisdiction, defendant again said: “I can’t make that decision right now until I see my records.” Judge Hermansen entered a plea of not guilty on defendant’s behalf, granted Hoptowit’s request to be relieved (without prejudice to reappointing him), and set the matter for preliminary hearing.
On July 7, 2004, before the preliminary hearing began, Judge Hermansen asked again if defendant wanted to act as his own attorney. Defendant replied: “I have not received a certified copy of all my records, and I can’t . . . go ahead without them and can’t decide what I’m going to do without it.” He claimed that he did not know he had received a Faretta form. Judge Hermansen asked him to take the time to review it and fill it out, granting a recess for the purpose. After the recess, when Judge Hermansen asked if defendant had filled in the form, defendant repeated that he needed to “look at the . . . files.” Judge Hermansen then declared defendant incompetent to represent himself and reappointed Hoptowit to represent him at the preliminary hearing.
After holding defendant to answer at the preliminary hearing and setting arraignment for June 20, 2004, Judge Hermansen ordered the unfilled-out Faretta form placed in the record as an exhibit to explain his ruling: “Since it appeared he was unable to do the simplest form, it appeared to the Court he would be unable to handle his own representation in this serious felony matter.”
Following the preliminary hearing, defendant, represented by Hoptowit, pled not guilty to the amended information and denied the firearm use allegation.
On August 31, 2004, Judge Hermansen held an in camera hearing concerning defendant’s representation. Hoptowit explained that because defendant did not want Hoptowit’s services and refused to work with him, he was asking the court to relieve him and to vacate the imminent trial date so that defendant could obtain new counsel. (Hoptowit had thought that defendant wanted to represent himself, but now it appeared that he sought to retain counsel without waiving his speedy trial right.) Defendant explained that he wanted to hire an attorney with money from a relative, but could not say when he would get it. On hearing that the 60-day period for his speedy trial would expire the next day, defendant insisted that he did not want either to waive his speedy trial right or to go to trial with Hoptowit. Judge Hermansen granted a one-day continuance for defendant to try to obtain an attorney.
The People call this a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), but Hoptowit explained that it was not.
On September 1, 2004, after defendant said that he had not been able to hire a lawyer yet, Judge Hermansen granted a further continuance on the ground that defendant’s right to competent counsel outweighed his right to a speedy trial under the circumstances. Defendant said that he wanted to represent himself. Judge Hermansen indicated that defendant could make another Faretta motion if he wished to do so. Defendant said that he would accept a continuance to get a lawyer, but “for the record” did not want to give up his speedy trial rights or to accept Hoptowit’s representation. Judge Hermansen continued the matter to September 21, 2004, by which time defendant would have received a new Faretta form to fill out if he wanted one.
Apparently he did not do so.
On September 21, 2004, defendant, who still had not retained an attorney and still objected to Hoptowit representing him, sought to move to dismiss for lack of speedy trial. Judge Hermansen said that Hoptowit would make that motion; defendant objected. Judge Hermansen replied that if defendant did not hire another lawyer, the only thing to do was to give him his trial date. The trial readiness conference was set for October 13, 2004.
On October 13, 2004, defendant’s newly retained attorney, Kenneth Miller, moved to vacate jury trial and reset it beyond the 60-day period. The prosecutor objected. Judge Hermansen reset the matter for a trial readiness conference on November 23, 2004, and for trial on December 1, 2004.
On November 18, 2004, defendant moved to traverse the search warrant and to suppress evidence. On November 23, 2004, Judge Hermansen set a hearing date of December 7, 2004, for the motion; defendant waived his speedy trial right.
On December 6, 2004, the affidavit in support of the search warrant was redacted by court order. On March 8, 2005, following an in camera Hobbs hearing, Judge Hermansen denied defendant’s motions to traverse the warrant and to suppress evidence without prejudice.
People v. Hobbs (1994) 7 Cal.4th 948.
On May 4, 2005, Raymond Simmons, substituting in as defendant’s counsel, moved unsuccessfully for a continuance. Simmons also asserted the illegality of the search and the failure to disclose the confidential informant’s identity, but did not offer any additional arguments.
Jury trial finally began on May 5, 2005. The officers testified as indicated above about the search warrant, the search and seizure, and defendant’s arrest; a toxicologist testified about his analysis of the seized substances. Defendant put on one witness, his brother Dale Bogart, who testified as to defendant’s regular sources of income and his good character.
DISCUSSION
I
In his first argument heading, defendant asserts: (1) The trial court lacked jurisdiction because, although defendant was taken promptly before a magistrate after his arrest, he was not timely arraigned. (2) The complaint filed against him at that time was not proper. (3) He was prevented from raising “this issue.” (4) He suffered prejudice which compels reversal. We reject these contentions.
We have been unable to detect any argument under this heading which supports this assertion.
Without signaling the point either in his argument heading or in any subheading, defendant also asserts that the required judicial determination of probable cause, which purportedly must be made within 48 hours of arrest, was improperly delayed until more than four months after his arrest, when the preliminary hearing was held. The point is forfeited because defendant has not given proper notice of its existence as required by the California Rules of Court. (Cal. Rules of Court, rule 8.204(a)(1)(C); Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1346; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.)
Timely arraignment
Defendant cites Penal Code section 825 (section 825), which provides in part: “(a)(1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays.” Defendant asserts that this statute was violated because he was arrested on February 18, 2004, but not arraigned until March 26, 2004. We conclude that defendant may not raise this point now because he did not do so in the trial court. (People v. Tennyson (1954) 127 Cal.App.2d 243, 246; People v. Arnest (1933) 133 Cal.App. 114, 121.)
The exception set out in paragraph 2 is not relevant here.
In defendant’s reply brief, he cites to a writ petition defendant filed in this court allegedly raising the issue, as to which he requests judicial notice. We deny the request for judicial notice because the matter of which defendant seeks notice is immaterial. Even if defendant raised the issue in a writ petition filed in this court, that does not excuse his failure to raise it below, as clearly required under People v. Tennyson, supra, 127 Cal.App.2d 243, and People v. Arnest, supra, 133 Cal.App.4th.
The complaint
Defendant asserts that the felony complaint filed on March 24, 2004, was improper because: (1) To be sufficient, a complaint must be “made and subscribed by some natural person and sworn to before some officer entitled to administer oaths.” (Pen. Code, § 959, subd. (3); defendant’s bolding.) (2) The complaint here was signed by Deputy District Attorney Maloney acting in his official capacity, without personal knowledge of the facts. (3) The District Attorney, when prosecuting an individual, acts “as in the name of the People of the State of California.” (4) One who acts in this manner is an artificial person, not a natural person. (5) Unless authorized by a specific statute, therefore, one acting in his or her official capacity lacks the power to subscribe to a criminal complaint. Defendant concludes that because the complaint was not validly subscribed, the trial court had no jurisdiction to proceed. Although we admire the creativity of this argument, we must reject it.
Defendant does not spell out this step of the argument, instead merely quoting a legal dictionary’s definition of artificial persons. However, as the argument would lead nowhere without this step, we have taken the liberty of filling it in.
Because defendant never raised this argument in the trial court, it is forfeited. Moreover, it lacks merit. It is true that prosecutions in California are conducted in the name of the People of the State of California. (People v. Black (2003) 114 Cal.App.4th 830, 832-834.) But it does not follow that when a deputy district attorney initiates a prosecution by filing and signing a complaint in his or her official capacity, he or she ceases to be a natural person and becomes an artificial person. Defendant does not cite authority for this proposition, and we cannot imagine that any such authority might exist. Indeed, the only relevant authority that defendant cites is against him. (Rocklite Products v. Municipal Court (1963) 217 Cal.App.2d 638, 646 [rejecting similar argument as to prosecutions under Bus. & Prof. Code, § 16754, by analogy to Pen. Code, § 959]).
Defendant has shown no error.
II
Defendant contends that “the order modifying the original minute order” (i.e., the purported minute order of March 26, 2004, which stated that defendant’s motion to quash the search warrant was granted) was issued outside his presence and without due process of law, compelling reversal. We conclude that the contention is forfeited. But even if it is not, defendant cannot show prejudice.
Background
As explained above, on May 4, 2004, defendant’s then attorney Hoptowit stated that the “docket” of March 26, 2004 -- the date when defendant was first brought before the magistrate for arraignment -- appeared to show that his pro se motion to quash the search warrant had been granted. Judge Hermansen (who apparently had no such “docket” before him) surmised a clerical error, but acknowledged that the truth had to be ascertained before the case could proceed.
On May 6, 2004, Judge Lamb, who had acted as the magistrate on March 26, 2004, entered a “correction of minute order dated March 26, 2004” which reads as relevant: “The clerk has reviewed her notes and has corrected the minute order dated March 26, 2004, to reflect [that] the Motion to Quash Bench Warrant is granted.” (Italics added.) The order was separately copied to defendant, his counsel, and the district attorney.
So far as the record shows, the issue was not raised again until May 3, 2005, shortly before the start of trial, when defendant’s just-retained attorney, Raymond Simmons, moved for a continuance. One stated ground was the need for “[c]larification . . . as to whether Judge Lamb quashed a bench warrant or . . . the search warrant[.]”
In support of the motion, Simmons declared: “Defendant filed a motion to quash the search warrant in this case. The court minutes for March 26, 2004 reference a motion to quash a bench warrant. . . . On May 6, 2004, the court issued a “Correction of Minute Order Dated March 26, 2004” . . ., which on its face recites the same information as contained in the court minutes for March 26, 2004. This raises a question as to why it was necessary to restate the same information[. I]t logically follows that if the court minutes were incorrect on March 26, 2004, then the ‘correction’ of May 6, 2004 is also incorrect. This apparently also caused DDA Maloney confusion as to the quashing of a bench warrant or a search warrant, as stated in his memo to defense counsel Dennis Hoptowit. . . . Defendant requests time to obtain the official transcript of the March 26, 2004 proceeding. [¶] If the search warrant was quashed, then evidence collected pursuant to the warrant must be excluded. [¶] I am informed and believe that attorney Miller [defendant’s previous counsel] had a discussion with Superior Court Judge Hermans[e]n regarding this issue and that the judge told him no official transcription of the hearing existed regarding the quashing of the warrant. The lack of a court reporter/court record in a felony case is highly unusual and suspect. Defendant requests time to investigate this matter further.”
This memo, dated May 14, 2004, is attached as an exhibit. It reads: “Attached is some kind of minute order which shows the clerk correcting the March 26, 2004, minute order to reflect the ‘Motion to Quash Bench Warrant is granted’ but when I look at the minutes provided therewith, that’s almost exactly what was said on the minutes . . . . [¶] I ordered up a copy of the whole file and was unable to locate anything that said the [m]otion to quash the search warrant on your client was [q]uashed [sic] by the Court. So I don’t know what I am missing here but it does not appear to me that Judge Lamb either entertained or [g]ranted your client’s motion to [q]uash the search warrant in this case. [¶] If you see this matter differently, please let me know what I am missing and if we cannot agree on the matter, we can simply have a hearing and let the court decide.” As noted, no such hearing occurred.
Judge Hermansen addressed this contention in limine: “The business of court minutes showing a motion to quash a bench warrant. [¶] It is pretty clear that at the time Mr. Bogart appeared at the first arraignment, he filed a motion to quash a bench warrant and a search warrant. There was no DA present. Judge Lamb, apparently . . . the arraignment magistrate, did not grant a motion to quash a search warrant. I mean, I can’t even imagine a judge doing that at an arraignment, but he did apparently set aside the bench warrant and then allowed Mr. Bogart to stay out of custody. That is not unreasonable at all; so I think that is kind of a red herring.” (Italics added.)
Simmons again questioned whether there was a transcript of the arraignment proceedings. Judge Hermansen replied: “There wasn’t. I can tell you that just by looking at the court file. It is not common to have court reporters at arraignments before the magistrate.” Judge Hermansen added that he had not spoken to Judge Lamb about the matter.
Simmons asked why it would have been “necessary for the Court to correct itself on the same information that is contained, not only in the minutes, but is contained in the subsequent correction.” Judge Hermansen replied that any answer would be speculation. Simmons then restated his “belie[f]” that there was a motion to quash the search warrant and that it was granted. Judge Hermansen indicated that he understood Simmons’s position.
The record does not contain any copy of a minute order purporting to grant defendant’s pro se motion to quash the search warrant.
Analysis
A trial court order is presumed correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant’s burden of showing reversible error includes the burden of producing a record sufficient to review his claims of error; he may not simply assert error and challenge the respondent to prove that the trial court was right. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Estate of Palmer (1956) 145 Cal.App.2d 428, 431.) One presumption we indulge is that official duty was regularly performed. (Evid. Code, § 664.)
Defendant has never produced the purported “original minute order” on whose existence he relies. His claim that an order purporting to quash the search warrant was entered on March 26, 2004, is mere speculation. (The fact that Judge Lamb’s “correction” clarified that it was a bench warrant which was quashed does not tend to prove that the original order spoke of a search warrant; it might well merely have mentioned an unspecified “warrant.”) Without supporting evidence, this speculation cannot overcome the presumption that Judge Lamb and the court clerk performed their duties correctly in issuing and entering the corrected minute order. (Evid. Code, § 664.) Therefore, we reject defendant’s claim that the correction of the minute order somehow violated due process.
Furthermore, like Judge Hermansen, we find it inconceivable that a magistrate at an arraignment, without a district attorney or a court reporter present, would have granted a defendant’s pro se motion to quash a search warrant. “An arraignment is a court hearing at which an individual accused of a public offense . . . is informed of the nature of the charge . . ., given a copy of the accusatory pleading, and given an opportunity to enter a plea. [(Pen. C[ode,] §988; In re Mitchell (1961) 56 C[al.]2d 667[].” (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2007) § 6.1, p. 138.) Since the authorized proceedings at the arraignment stage do not include hearing motions to quash search warrants, to do so then would have been a gross abuse of judicial discretion.
Finally, it is also inconceivable that any judge, sitting as a magistrate or otherwise, would have granted the motion to quash the search warrant filed by defendant. As our summary of that motion above should make clear, it did not state any grounds for quashing the warrant which are cognizable under California law. At most, it asserted grounds which might support a Hobbs hearing (as was eventually held).
Defendant has shown no grounds for reversal on this issue.
III
Defendant contends that he was denied effective representation of counsel and the right to represent himself at the preliminary hearing; he also contends that he is entitled to reversal either per se or due to prejudice. We are not persuaded.
If a defendant makes a timely, clear, and unequivocal request to represent himself, and the trial court finds that he has knowingly and intelligently waived the right to counsel, the court must grant his request; its wrongful denial requires reversal. (People v. Clark (1992) 3 Cal.4th 41, 107; People v. Joseph (1983) 34 Cal.3d 936, 943-944; People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) Here, however, defendant neither made an unequivocal request to represent himself before the preliminary hearing nor satisfied the trial court that he could knowingly and intelligently waive his right to counsel. We review the court’s determination as to defendant’s competence to waive counsel only for abuse of discretion. (People v. Clark, supra, 3 Cal.4th at p. 107.) We find none.
Beginning on April 20, 2004, defendant protested the appointment of Deputy Public Defender Hoptowit and said that he wanted to represent himself. However, under questioning he repeatedly equivocated on this point and never gave a definitive answer before the preliminary hearing; nor, despite numerous opportunities provided to him by Judge Hermansen, did he ever waive his right to counsel on the record in any form, oral or written.
Defendant’s equivocal conduct on this issue before the preliminary hearing is understandable in light of his claim after the preliminary hearing that he had never wanted to represent himself at all, but had wanted only to remove Hoptowit and obtain a different lawyer.
On May 25, 2004, after declaring that he wanted to represent himself and receiving a Faretta form, defendant agreed to a three-week continuance to decide whether he really wished to waive counsel. At the end of that time, on June 15, 2004, defendant insisted he needed to see his file before he could decide; after Judge Hermansen gave him the time to do that, defendant asked for another continuance. Judge Hermansen continued the matter to June 22, 2004, telling defendant that he would have to decide then. On June 22, 2004, defendant still insisted that he could not decide until he had seen “all of my records.” Nevertheless, Judge Hermansen relieved Hoptowit and set the matter for preliminary hearing on July 7, 2004. Before the hearing began on that date, Judge Hermansen asked defendant once again for his decision; defendant once again repeated that he needed to see all of his records and “can’t go ahead without them and can’t decide what I’m going to do without it.” After he claimed to be unaware that he had received a Faretta form, Judge Hermansen gave him a recess to review and fill out the form, but he did not do so, instead repeating yet again that he needed to “look at the . . . files.” Only then did Judge Hermansen, citing defendant’s failure to fill out the form, declare him incompetent to waive counsel and reappoint Hoptowit for purposes of the preliminary hearing.
Contrary to defendant’s assertion, Judge Hermansen did not make an order granting self-representation to defendant (which would have been impossible, since defendant had not yet unequivocally requested self-representation). Rather, he advised defendant that Hoptowit could be reappointed to represent him. Thus, defendant’s claim that Judge Hermansen thereafter “revoked a previous order allowing [defendant] to represent himself” is groundless.
Since defendant utterly failed to make a clear and unequivocal request to represent himself, and refused to fill out the court’s Faretta form, Judge Hermansen could reasonably have found that there was no Faretta motion for him to rule on, without even reaching the question whether defendant was competent to waive counsel. (People v. Rivers, supra, 20 Cal.App.4th at p. 1051, fn. 7.) In any event, it was within Judge Hermansen’s discretion under all the circumstances to find that defendant’s repeated failure or refusal to fill out a Faretta form sufficed to prove that he could not knowingly and intelligently waive his right to representation.
Because no error or abuse of discretion occurred, defendant’s arguments for per se reversal or prejudice fail.
IV
Pursuant to Hobbs, supra, 7 Cal.4th 860, the trial court reviewed in camera the sealed affidavit in support of the search warrant, and an audio CD of an alleged controlled buy of methamphetamine from defendant by a confidential informant (CI), which was cited by the affidavit in support of probable cause for the warrant. Thereafter, the court denied defendant’s motions to suppress evidence, to quash the warrant, and to disclose the CI’s identity.
Defendant contends that his “federal constitutional rights to due process, to a public trial, to effective assistance of counsel, and to confrontation were violated in connection with the sealing of evidence of probable cause to support the search warrant.” The People reply that defendant has forfeited these constitutional claims because he not only did not raise them below, but expressly agreed to the procedure adopted by the trial court. We agree with the People. (Cf. People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Siripongs (1988) 45 Cal.3d 548, 571-572; People v. Feagin (1995) 34 Cal.App.4th 1427, 1438.)
In defendant’s reply brief, he asserts for the first time that it would have been futile for him to object to the procedure sanctioned by our Supreme Court in Hobbs, supra, 7 Cal.4th 948, as the trial court could not have refused to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He also asserts for the first time, inconsistently, that this court can consider his constitutional claims, notwithstanding Hobbs. Because raised for the first time in defendant’s reply brief without an explanation for failing to raise them in his opening brief, these contentions are forfeited. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) In any event, they are meritless. Trial counsel could have raised the claims to preserve the issues for ultimate federal review even though the trial court and this court are bound by Hobbs.
V
Defendant asks U.S. to review the sealed documents and the taped conversation which the trial court reviewed in camera under Hobbs, supra, 7 Cal.4th 860, to determine whether the court correctly denied defendant’s motion to unseal the evidence and disclose the identity of the confidential informant (CI). The People join in the request.
Having reviewed the sealed materials, we find no error.
VI
Defendant contends that the trial court erred by denying the request for a 30-day continuance made by defendant’s most recently retained attorney, Simmons, just prior to trial. We disagree.
Background
On May 3, 2005, Simmons filed motions for continuance and for discovery. The motion for continuance asserted that defendant had substituted Simmons in for Miller, defendant’s prior attorney, on April 29, 2005, because of an attorney-client conflict, and that Simmons had notified the prosecutor by telephone and fax. Simmons requested the vacation of the trial date, set for May 4, 2005, and an open-ended continuance (“to a date to be determined by the court”), for six reasons: “[s]ubstitution of attorney”; “[f]ailure of prosecution to provide to defendant all discovery relevant to the case”; “[c]larification required as to whether Judge Lamb quashed a bench warrant or the defendant’s motion to quash the search warrant [sic]”; “[a]dditional investigation is required by the defendant”; “[s]ubpoena witnesses as a result of evidence learned at the settlement conference held on April 27, 2005”; and “[t]hat a continuance of the trial does not constitute a hardship or a burden on the prosecution.” Inter alia, Simmons sought to review a DVD which contained 100 images of which he had been able to view only 29, to further investigate circumstances involving the withholding of the CI’s identity and the probable cause for issuing the search warrant, to view the prosecution’s evidence, and to secure certain witnesses for trial.
On May 4, 2005, the prosecutor told Judge Hermansen that on April 28, Simmons had notified him of the purported substitution and had requested a stipulation to vacate and reset the trial date, but the prosecutor had refused to stipulate to defendant’s “pattern of avoiding trial by getting a new attorney to file . . . motions[.]”
On May 4, 2005, as jury trial was about to start, Simmons appeared on defendant’s behalf. The prosecutor opposed the motion for continuance. Judge Hermansen denied the motion, then explained that the issues Simmons had raised on his motion had been resolved and would not be relitigated.
Later during the in limine proceedings, Simmons said he needed time to subpoena other officers and requested a continuance for that purpose. Judge Hermansen said he would not allow the trial to be delayed, but would recess after jury selection and reconvene the next morning to give Simmons some preparation time.
Still later in limine, Simmons said that he had now viewed all the photographs on the DVD mentioned in his continuance motion, had met with Miller and defendant, and had reviewed the reports, and that despite his continuance motion he was prepared to go to trial that day based on those reports.
Analysis
Continuances may be granted only on a showing of good cause. (Pen. Code, § 1050, subd. (e).) The trial court has broad discretion to grant or deny a continuance, and a defendant can obtain reversal based on the denial of a continuance only by showing a prejudicial abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003 (Beeler); People v. Fudge (1994) 7 Cal.4th 1075, 1105 (Fudge).)
Here, Judge Hermansen impliedly found that Simmons had failed to show good cause for a continuance because he had not shown that further time was needed to resolve any issue he had raised in his motion. Simmons impliedly conceded the justice of that ruling by declaring, later in the same proceeding on the same date, that he was prepared to go to trial immediately. Under the circumstances, defendant cannot show that the denial of the continuance was an abuse of discretion.
Contrary to defendant’s assertion, Judge Hermansen did not deny the continuance motion simply because the prosecutor opposed it. At the cited passage, Judge Hermansen asked the prosecutor whether he opposed the motion, and on learning that he did, made his ruling; however, as we have said, the judge then went on to explain on the merits why the issues Simmons had raised did not entitle him to a continuance.
Defendant cites People v. Crovedi (1966) 65 Cal.2d 199 (Crovedi) and People v. Gzikowski (1982) 32 Cal.3d 580 (Gzikowski) for the proposition that to deny a continuance needed to accommodate newly retained counsel is reversible per se. Assuming that these cases are still good law as to the standard for reversal (cf. Beeler, supra, 9 Cal.4th at p. 1053; Fudge, supra, 7 Cal.4th at p. 1105), they are distinguishable. In both, the trial court’s ruling in effect denied the defendant the right to be represented by counsel of his choice. (Gzikowski, supra, 32 Cal.3d at p. 589; Crovedi, supra, 65 Cal.2d at pp. 205-209.) Here, defendant was allowed to proceed with his chosen counsel, who declared himself ready to proceed despite the denial of a continuance.
Alternatively, defendant tries to show prejudice by citing Simmons’s claim in closing argument that he had not been able to obtain the names and roles of all of the officers who conducted the search and seizure, then asserting: “Even the prosecutor recognized . . . the need for defense counsel to perform such investigation to obtain this information.” This contention is not supported by the record.
At the cited passage, the prosecutor actually said (not before the jury but in a sidebar): “Counsel continues to testify [sic] that he didn’t have notice of the names of the officers and I understand that great latitude in closing argument, but the fact of the matter is that he was given the police report, and it has the names of all the officers that were there, and they were free to speak to all of them in this investigation. So the testimony [sic] that, ‘I don’t have the names of officers,’ I think, is stating facts not in evidence.” (Italics added.) Simmons did not dispute the prosecutor’s assertion. Thus, the passage in the record on which defendant relies actually refutes his contention.
Finally, defendant points out that the jury failed to find the charged firearm use enhancement true and asserts that he denied possessing any drugs for sale. However, he fails to explain how either of these points tends to show that he suffered prejudice from the denial of a continuance.
Defendant has shown no grounds for reversal on this issue.
VII
Defendant contends that the trial court erred in admitting the contraband which was tested into evidence because the prosecution failed to establish the chain of custody. The People reply that the contention is forfeited because defendant did not raise any objection to the prosecution’s showing as to the chain of custody when the criminalist who tested the contraband was testifying. (Evid. Code, § 353, subd. (a).) We agree.
In his reply brief, defendant asserts that the point is not forfeited: when the prosecutor moved to admit photographs of certain exhibits (after all of the People’s witnesses had already testified), counsel objected to their admission on “chain of evidence” and foundational grounds, asserting that the officers who testified about the photographs had admitted they lacked direct knowledge of where the items came from. We reject this contention for two reasons: (1) It was not raised in the opening brief, even though the People’s claim of forfeiture could easily have been anticipated. (See Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.) (2) Since counsel did not raise a chain-of-custody or foundational objection when the investigating officers or the criminalist were testifying, it was already too late for him to object on this ground to the admission of the photographs. By withholding his objection at the proper time, he precluded the prosecutor from meeting it directly and giving the trial court a proper basis for ruling on it.
Judge Hermansen overruled the objection, ruling that it went to the weight rather than the admissibility of the evidence. We address this ruling in part VIII of the Discussion below.
Alternatively, defendant asserts in his reply brief that if the objection was forfeited, his trial counsel provided ineffective assistance. Not only is this contention raised belatedly, which is sufficient reason to disregard it (Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8), but it is not signaled by any argument heading or subheading. (Cf. Cal. Rules of Court, rule 8.204(a)(1)(B).) Thus, it is forfeited for both reasons.
VIII
Lastly, defendant contends that the trial court prejudicially erred in admitting the photographs of the seized contraband because the prosecution did not establish a proper foundation. We conclude that the claim of error is forfeited.
As on the prior issue, defendant does not show by record citation that he raised a foundational objection when the evidence was originally offered during the testimony of the investigating officers. Therefore, his objection to the admission of the photographs on this ground came too late. (Evid. Code, § 353, subd. (a).)
Defendant cites to several places at which witnesses testified on the subject, but his counsel did not raise any foundational objection at any of those places. Counsel objected for the first time, as noted above, when the prosecution moved the photographs into evidence, after all the witnesses had already testified.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., RAYE, J.
On May 4, 2005, as jury trial was about to begin, Judge Hermansen stated on the record (apparently in response to an argument by counsel) that it was clear Judge Lamb had granted only a motion to quash a bench warrant at defendant’s first arraignment, not a motion to quash the search warrant: “I mean, I can’t even imagine a judge doing that at an arraignment[.]” Judge Hermansen explained that he was going by the court records, not by any personal information from Judge Lamb. Nevertheless, defendant’s then counsel continued to assert that the motion to quash the search warrant had been granted.
So far as he asserts in his reply brief that he “properly challenged the court’s jurisdiction” in the trial court, he is mistaken. We have cited the grounds on which he purported to challenge the trial court’s jurisdiction in his pro se filing dated March 28, 2004. They do not include any of the arguments he raises now.