Opinion
G053677
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. EDDIE J. BRIDGES III, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Minh U. Le Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0630) OPINION Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Minh U. Le Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of one count of attempted pimping (Pen. Code, §§ 266h, subd. (a), 664, subd. (a)), a lesser included offense of the charged offense of pimping, and a second count of pandering (§ 266i, subd. (a)(1)). The court sentenced defendant to eight years in state prison, consisting of the upper term of six years on the pandering count, plus two one-year prison priors (§ 667.5, subd. (b)). The court imposed a two-year sentence on the attempted pimping count, but stayed execution on it pursuant to section 654. The court justified the upper term on the pandering count on the ground that defendant was on parole at the time of the offense.
All subsequent statutory references are to the Penal Code.
Defendant raises four issues on appeal. First, he contends much of the evidence admitted at trial was the fruit of an unlawful traffic stop. Second, he contends the verdict is unsupported by substantial evidence. Third, he contends the court erroneously prevented him from filing a new trial motion on the day of sentencing. Finally, he contends the court erroneously refused to appoint counsel for sentencing after he had waived counsel. We affirm the judgment.
FACTS
The Activity Near Harbor Boulevard
It was approximately 4:00 a.m., and Detective Luis Barragan was working undercover on Harbor Boulevard in Santa Ana, California as part of a prostitution suppression unit. An area of Harbor Boulevard, called a "track," is known for prostitution activities. On a residential street east of Harbor Boulevard, Barragan saw a black, compact automobile drop off a scantily clad woman. Prostitution is common on that particular residential street, which is known as an "artery" to the Harbor Boulevard track. The woman meandered about the area where she had been dropped off.
Shortly afterwards, Barragan again saw the same woman on a different residential street east of Harbor Boulevard, which was also an artery to the Harbor Boulevard prostitution track. He saw her flagging down lone, male motorists. About four or five cars were "almost in a gridlock in an attempt to speak" with her. Barragan attempted to contact her, but, despite his undercover attire, she identified him as a police officer and refused to speak with him. He then called in a marked police vehicle and the woman was placed under arrest. Throughout this opinion we refer to this woman as the "suspected prostitute."
About an hour later, Barragan returned to the original residential street where the suspected prostitute had been dropped off and saw a car slowly driving down the street, as if looking for someone. Because this car resembled the car that had dropped off the suspected prostitute, Barragan followed it. The car turned on Harbor Boulevard and stopped at a red light. Barragan took the opportunity to pull up next to the car and look inside. The driver, defendant, rolled down his window and asked him, using colorful language, what he was looking at. The driver's raised voice roused a passenger sleeping in the back seat, a groggy looking woman, who appeared to have just woken up. Throughout this opinion, we refer to her as the "groggy woman." Barragan called in a marked police vehicle to pull the car over.
Inside the car, police officers found three phones in the front seat, and two more in the back seat. The groggy woman from the backseat also had a phone. The car's trunk contained female clothing and a pink bag. Within the bag was a criminal citation for loitering with intent to commit prostitution bearing the name of the suspected prostitute.
By this time, the suspected prostitute had been arrested, and Barragan searched through her cell phone with her permission. He found a contact dubbed "Mom" associated with text messages that, in Barragan's opinion, indicated a pimp/prostitute relationship. Although the images of the text messages were not made part of our record, they were introduced at trial, and Barragan summarized them on the witness stand as follows: "He refers to her as his lil yellow sexy bitch, I need u to perform. And then he props her up. U young, u sexy, u bodied the fuck up. Then it says, show these hoes u really out here to get a pump his dough. Then today will be a very great day for u and I." That message was received at 3:18 a.m. that same morning (approximately 30 minutes before Barragan saw the suspected prostitute dropped off). The contact "Mom" is consistently referred to as "Daddy" in the text message conversation.
Barragan called the number associated with "Mom" and one of the three phones found in the front seat of the car rang. That phone showed the call as being from a contact dubbed "Star Lucky."
The groggy woman's cell phone also had a contact under the same phone number as "Mom" in the suspected prostitute's phone. On the groggy woman's phone, the contact was dubbed "Eddy/Lucky" (defendant's first name is Eddie) A text from "Eddy/Lucky" to the groggy woman from a few days before read as follows: "I'm pimpin on this hoe mah, and she like it. I got 230 right now, I'm about to hit Hollywood next, I'm just showin this hoe that she can get dough if she move like a real hoe. She listening tho, that's a plus." The groggy woman responded with, "Yep well have fun pimping."
At the time he was arrested, defendant was on parole and wearing a GPS ankle monitor. The GPS tracker showed that defendant spent approximately 436 minutes in the vicinity of Harbor Boulevard in the early morning hours of the day he was arrested.
Finally, the parties stipulated to the admission of two of defendant's prior convictions: "One, on September 5, 2011 the defendant Eddie Bridges was convicted of a violation of Penal Code section 664-266i(a)(1) attempted pandering by procuring in Los Angeles Superior Court case number LA068596-01 for unlawfully attempting to procure Rosa H another person for the purpose of prostitution." "Two, on August 24, 2006 the defendant Eddie Bridges was convicted of two violations of Penal Code section 266i(A)(1) pandering by procuring and two violations of Penal Code section 266h(a) pimping in Los Angeles Superior Court case number LA052367-01 for unlawfully procuring two people for the purpose of prostitution and for unlawfully pimping two people." This evidence was admitted for the following limited purpose: "Whether or not the defendant acted with intent to influence [the suspected prostitute] to be a prostitute. Whether or not the defendant had a motive to commit the offenses alleged in this case. Whether or not the defendant knew [the suspected prostitute] was a prostitute when he allegedly acted in this case. Whether or not the defendant had a plan or scheme to commit the offenses alleged in this case."
The First Criminal Complaint
After defendant was arrested, the People filed charges against him under case No. 14CF1712. In that case, defendant moved to suppress all evidence found in the vehicle on the ground that the traffic stop was unlawful. Judge Dan McNerney granted the motion, stating, "The officer [Barragan] stated frankly, one of the reasons he pulled up next to defendant's vehicle and was looking at him was, according to your own officer, to try to determine if it's the same vehicle. [¶] We don't have anything more than a black four-door vehicle, and that in and of itself isn't even enough, in my opinion, to connect the defendant up with whatever was going on with the prostitute that was dropped off an hour and a half earlier by some black four-door vehicle." "[B]lack is . . . I think the second most popular color of car and, you know, everywhere. You know, a black car with four doors . . . that doesn't, in the court's view, in any way connect up the vehicle that the prostitute got out of and the defendant was driving, which then leaves us with . . . a guy with a groggy girl in the back seat and obviously a lot of attitude which might have aggravated the officer, but I don't think you get to pull somebody over because they use the 'F' word whether they think you're a cop or not."
The Second Criminal Complaint
In response, the People dismissed the charges and refiled the present case. The defense again moved to suppress the evidence. Pursuant to section 1538.5, subdivision (p) ("Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available."), the matter was assigned back to Judge McNerney. Before the motion could be heard, however, Judge McNerney became unavailable for three months and subsequently retired. Defendant was unwilling to waive time and agreed to have Judge Marc Kelly hear the motion.
Judge Kelly denied the motion. He reasoned that the location of the car, its resemblance to the car that dropped off the suspected prostitute, the time of day, the serpentine manner of driving, and the groggy young female in the backseat all provided specific, articulable facts giving rise to reasonable suspicion.
Defendant was ultimately convicted, as set forth above. He appeals from the judgment.
DISCUSSION
The Court Properly Denied the Suppression Motion
Defendant contends the court erred in denying the suppression motion. Only one witness testified at the hearing on the suppression motion, Barragan. As a result, there were no contested facts. The only question is whether, on the undisputed facts, reasonable suspicion supported the traffic stop. We review that question de novo. (People v. Elder (2017) 11 Cal.App.5th 123, 130.)
At the outset, we address defendant's contention that Judge Kelly should have deferred to Judge McNerney's prior ruling, and that his failure to do so should impact our standard of review. Defendant cites People v. Riva (2003) 112 Cal.App.4th 981 (Riva), where, after a mistrial, a new judge denied a suppression motion that an earlier judge had granted. The court concluded the subsequent judge did, in fact, have the authority to overrule the prior judge, but urged judges to be judicious in doing so. "[F]or reasons of comity and public policy . . . , trial judges should decline to reverse or modify other trial judges' rulings unless there is a highly persuasive reason for doing so—mere disagreement with the result of the order is not a persuasive reason for reversing it. Factors to consider include whether the first judge specifically agreed to reconsider her ruling at a later date, whether the party seeking reconsideration of the order has sought relief by way of appeal or writ petition, whether there has been a change in circumstances since the previous order was made and whether the previous order is reasonably supportable under applicable statutory or case law regardless of whether the second judge agrees with the first judge's analysis of that law." (Id. at pp. 992-993, fns. omitted.)
While we agree with the aspirational principles enunciated in Riva, they do not impact our review on appeal. If Judge Kelly had granted the motion, and we were reviewing this by way of the People's petition for writ of mandate, our review would be the same. Where, as here, the facts are undisputed, the trial court's ruling has no bearing on our de novo review. Defendant contends otherwise, stating, "The question is not merely whether to uphold Judge Kelly's order, but whether he had good grounds to overturn the previous order by Judge McNerney. Because each judge reached an opposite legal conclusion based on virtually identical facts, this Court should exercise its independent judgment as to which judge applied the legal principles of reasonable search and seizure following a traffic stop correctly." But that is not quite accurate. Our role is not to decide which judge offered the most persuasive reasoning. Where, as here, our review is de novo, our role is to address the substantive question independently. We turn now to that question.
(Section 1538.5, subdivision (o) ["Within 30 days after a defendant's motion is granted at a special hearing in a felony case, the people may file a petition for writ of mandate or prohibition in the court of appeal, seeking appellate review of the ruling regarding the search or seizure motion"].)
This would be a more difficult issue if the evidence were conflicting and the judges had made opposing factual findings. We express no opinion on how that situation would impact the standard of review.
"'"For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police 'contacts' or 'interactions' with individuals, ranging from the least to the most intrusive. First, there are . . . 'consensual encounters.'" (People v. Hughes (2002) 27 Cal.4th 287, 327.) "Second, there are what are commonly termed 'detentions,' seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police 'if there is an articulable suspicion that a person has committed or is about to commit a crime.' . . . Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual's liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime."'" (Hughes, at pp. 327-328.) Traffic stops fall under the rubric of detentions, and thus require only reasonable suspicion of a crime. (People v. Hernandez (2008) 45 Cal.4th 295, 299.)
"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) "The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith." (In re Tony C. (1978) 21 Cal.3d 888, 893.) Our focus is not whether the police harbored subjective reasonable suspicion, but, instead, is an objective test based on the circumstances known to the officer when the search was conducted. (People v. Sanders (2003) 31 Cal.4th 318, 334.)
Here, we have little difficulty concluding the traffic stop was reasonable under this standard. The location of the car in a known prostitution track, its resemblance to a car that had earlier dropped off a suspected prostitute, the time of day, the manner of driving, and the young groggy woman in the backseat are all circumstances to support this conclusion.
Defendant goes wrong in two ways. First, defendant puts too much emphasis on the uncertainty over whether the car Barragan ordered stopped was the same car that earlier dropped off the suspected prostitute. We recognize that uncertainty, but uncertainty is permitted. The test is whether there is reasonable suspicion a crime may have occurred. Inherent to that definition is the possibility that it may not have occurred. But the resemblance of the vehicles, coupled with the other facts we have identified, was enough to reasonably suspect the driver had committed a crime. Second, to the extent defendant addresses the other facts we rely upon, he tends to address them in isolation. For example, he states, "black is a common color for a car, a lost car might be driving 'aimlessly,' [and] a 'groggy' woman in the back seat probably had been sleeping . . . ." Again, the test is not whether each circumstance would independently arise to reasonable suspicion. The test is whether the totality of the circumstances do. And here, they do.
Defendant also contends that the evidence from the cell phones should have been suppressed because the police did not obtain a warrant to search the phones, as required by Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2498]. Defendant did not raise this contention below, however, and thus forfeited the argument, as the prosecution had no opportunity to present evidence on the reasonableness of those warrantless searches, which is a distinct issue from the reasonableness of the traffic stop. (People v. Partida (2005) 37 Cal.4th 428, 434; Evid. Code, § 353.) Moreover, the evidence at trial was from the cellphones of the suspected prostitute and the groggy woman. Defendant does not have standing to assert their Fourth Amendment rights. (People v. Badgett (1995) 10 Cal.4th 330, 343 ["a defendant has no standing to complain of violations of another's Fourth Amendment rights"].)
Substantial Evidence Supports the Verdict
Defendant contends there is no substantial evidence to support the verdict. "The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] '"If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder."' [Citation.] 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt."'" (People v. Snow (2003) 30 Cal.4th 43, 66.)
Based on the theory the People chose, the conviction of attempted pimping required proof that defendant attempted to knowingly "derive[] support" from the proceeds of the suspected prostitute. (§ 266h, subd. (a)(1).) "An attempt to commit a crime . . . requires only a specific intent to commit it and a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime." (People v. Ross (1988) 205 Cal.App.3d 1548, 1554-1555.)
The pandering conviction required proof that defendant had the specific intent to "procure[] another person for the purpose of prostitution." (§ 266i, subd. (a)(1); see People v. Zambia (2011) 51 Cal.4th 965, 980.)
Defendant contends the evidence did not support either conviction. In particular, he argues, "There was insufficient evidence to connect [defendant] to any activities of [the suspected prostitute] in Santa Ana on the morning of May 21, 2014. He was not observed in the black car that dropped her off at 3:50 a.m. Indeed, he was not seen with her at any time. There was no evidence of any communication between [defendant] and [the suspected prostitute] on the morning of May 21, 2014. There were no condoms found on [the suspected prostitute] or in the car [defendant] was driving. There was no evidence of any exchange of money or any other form of compensation or any other benefit from [the suspected prostitute] to [defendant]. When she was arrested, [the suspected prostitute] had no funds on her person. When [defendant] was arrested an hour later, he had $29 on his person."
Defendant goes on to acknowledge the evidence supporting the verdict: "The sole evidence providing any connection between [defendant] and [the suspected prostitute] at any time consisted of the following: 1) women's clothing and a citation to [the suspected prostitute] from the Los Angeles Police Department for loitering with intent to commit prostitution four days earlier on May 17, 2014, found in the trunk of the black car [defendant] was driving; and 2) text messages found on the cell phone retrieved from [the suspected prostitute] when she was arrested in Los Angeles on May 17 between her and someone named "Mom"; and 3) one of the cell phones seized from the car [defendant] was driving rang when Officer Barragan called "Mom's" number listed on phone seized from [the suspected prostitute]."
Defendant has largely answered his own contention. We would add the fact that defendant was in and around a prostitute track at the same time as the suspected prostitute, in the early morning hours when prostitution is common. And in the text message conversation with the groggy woman, defendant admitted to pimping. Far from lacking substantiality, the evidence recited above is overwhelming evidence of defendant's guilt.
To this, defendant adds two more arguments. First, he contends there was no evidence that he attempted to receive compensation from the suspected prostitute's activities. He points to the fact that the suspected prostitute was found without any money on her, and defendant only had $29. This fact, however, merely explains why the jury convicted him of attempt, rather than actual pimping as charged. Moreover, the text message exchange between defendant and the suspected prostitute was ample evidence of an attempt to derive support from the suspected prostitute.
Defendant also contends defendant could not have been the person to drop the suspected prostitute off because the GPS data from his ankle monitor, while it placed him around the vicinity of Harbor Boulevard, did not place him on the residential street where the drop off occurred, according to Barragan's testimony. The only evidence in the record supporting defendant's argument, however, is the testimony of an expert that at 3:54 a.m., the GPS system placed defendant on Harbor Boulevard. The drop off occurred at approximately 3:50 a.m. Given the rough time frame and close proximity, the GPS data is consistent with defendant dropping off the suspected prostitute on the residential street.
The Court did Not Err in Denying the New Trial Motion
Defendant contends the court erred by prohibiting him from filing a motion for new trial. Below, we briefly set forth the timeline between the jury verdict and the new trial motion, which will be relevant both to this issue and the next issue.
July 29, 2015: the jury reached its verdict. The sentencing hearing was set for September 11, 2015.
September 11, 2015: the sentencing was continued to October 9, 2015, at defendant's request.
October 9, 2015: defendant requested to relieve his counsel and to represent himself for purpose of a new trial motion. At defendant's request, the sentencing was continued to February 19, 2016.
October 30, 2015: defendant requested the appointment of an investigator, which is granted on November 2, 2015.
December 22, 2015: defendant filed various discovery motions.
January 21, 2016: defendant requested additional funds for the investigator.
February 11, 2016: the order for additional investigator funds is filed.
February 19, 2016: per defendant's motion, the sentencing was continued to March 25, 2016. Defendant appeared with a retained attorney who substituted in as counsel of record.
March 25, 2016: defendant's retained counsel declared a conflict and defendant reverted to propria persona status.
April 8, 2016: sentencing was continued to June 17, 2016. The new trial motion was set to be heard the same day.
May 26, 2016: defendant requested, and the court granted, additional investigator funding. The new trial motion hearing, however, remained on calendar for June 17, 2016.
June 1, 2016: the order granting additional investigator funds was mailed to defendant.
June 6, 2016: defendant filed a motion to continue the hearing set for June 17, 2016.
At last we come to the hearing of June 17, 2016, now almost one year from the jury verdict. Defendant explained that he asked for the continuance due to his privately retained counsel substituting out, and the delays in getting funding for his investigator. Defendant explained that he needed time to present the testimony of the suspected prostitute and the groggy woman, who he expected to provide exculpatory evidence, and he also sought to subpoena the cell phones taken from his vehicle.
The court noted it had provided defendant the trial transcripts back in October 2015. It then found defendant had not shown good cause to continue the hearing for the new trial motion. The court reasoned, "under [section] 1181.8, [the evidence] has to be material that you could not with reasonable diligence have discovered or produced at the trial. And everything you are telling me, it appears that you could have done that, or your prior lawyers could have done that." Reviewing the procedural history, the court observed "a pattern that concerns the court, based on what I am seeing, that it looks like you want to completely relitigate the trial, every aspect of the trial. And that's just not how it works." The court further found that the various procedural maneuvers was primarily intended to delay sentencing.
Defendant then requested to proceed with an oral motion for a new trial. He wanted to present "a couple" of witnesses and oral argument. The court ordered defendant to meet and confer with the district attorney over the lunch hour, as the district attorney declared he was unprepared to cross-examine witnesses because he had been given no notice. The court also demanded an offer of proof.
Over the lunch hour defendant hand wrote a new trial motion and attached summaries of witness interviews with the suspected prostitute and the groggy woman. The court responded by stating it had already denied the new trial motion (which, so far as we can tell, was not accurate), but permitted defendant to lodge the materials with the court. The court refused to let defendant file the motion because it was not "properly submitted."
Confusingly, however, the copy of the motion in our record is file stamped, and the minutes reflect both that the motion was filed and denied. Consistent with that result, the court did, in fact, address the merits of some of defendant's contentions on the record. Defendant raised insufficiency of the evidence and ineffective assistance of counsel, both of which the court found to be untimely. The court also found the insufficiency claim to fail on the merits.
Turning now to our analysis of these facts, we note at the outset that defendant does not challenge the court's denial of a continuance. Defendant's principal contention on appeal is that the court, essentially, refused to rule on the motion. Section 1202 states, "If the court shall refuse to hear a defendant's motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial."
The seminal case interpreting section 1202 is People v. Braxton (2004) 34 Cal.4th 798 (Braxton). The facts of Braxton are similar to ours. There, on the day of sentencing, defense counsel stated he had obtained affidavits from three jurors indicating possible misconduct. (Id. at p. 806.) As in the present case, the court stated that the motion was untimely, and it refused to entertain an oral motion. (Ibid.) The court also denied a continuance. (Id. at pp. 806-807.)
Our high court posed the following question: "Does section 1202 require a new trial without regard to whether the trial court's failure to hear or determine the new trial motion has prejudiced the defendant?" It answered, "A reviewing court may order a new trial under section 1202 only if the trial court's failure to hear the defendant's new trial motion has resulted in a miscarriage of justice [citation]." (Id. at p. 805.)
The court provided some guidance on what would constitute prejudice, or the lack thereof. Prejudice "will occur when, for example, the reviewing court properly determines from the record that the defendant's new trial motion was meritorious as a matter of law, or the record shows that the trial court would have granted the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion." (Braxton, supra, 34 Cal.4th at p. 817.) But prejudice will not occur "when, for example, the record shows that the trial court would have denied the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion, or the reviewing court properly determines as a matter of law that the motion lacked merit." (Id. at p. 818.) Sometimes, however, the record simply is not sufficiently clear for a reviewing court to assess the prejudicial impact of the refusal to hear the motion. "[W]hen, as here, a trial court has refused to hear a defendant's new trial motion, and the appellate record is insufficient to permit a reviewing court to determine as a matter of law whether the proposed motion was meritorious, the reviewing court may remand the matter to the trial court for a belated hearing of the new trial motion, absent a showing that a fair hearing of the motion is no longer possible." (Id. at p. 819.) The latter situation occurred in Braxton because the court had not permitted the defendant to file the juror affidavits upon which the motion was based, and the trial court had expressed no opinion on the merits of the motion. (Id. at p. 818.)
The latter observation readily distinguishes the present case from Braxton. As we noted above, defendant's motion was filed and denied. The written motion raised two grounds: ineffective assistance of counsel, and insufficiency of the evidence. We have already determined above that the evidence was sufficient, so there is no error or prejudice on that issue. As to ineffective assistance of counsel, defendant did not even explain what the alleged ineffective assistance was, much less proffer evidence to support his claim, and he has not raised the issue on appeal. Thus, he has not shown error or prejudice.
Orally, defendant suggested that his motion would also be based on newly discovered evidence. In particular, he had witness statements from the suspected prostitute and groggy woman. To the extent the court can be said to have refused to hear the motion, it would be on this ground alone.
Section 1181, subdivision 8, permits a court to grant a new trial: "When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable."
We find no prejudice in the court's refusal to hear the new trial motion on this ground. Defendant offered no explanation as to why he could not, with reasonable diligence, have produced these witnesses at trial. He stated he "just located" the women, but offered no explanation for why they could not have been located earlier. They were obviously known to the defendant and his attorney. In fact, one of the interview reports defendant submitted was performed by a district attorney investigator in February 2015, over five months before the trial. The interview, which was of the suspected prostitute, took place at a Los Angeles County jail, so she clearly was not in hiding. The court gave defendant an ample opportunity to make a record, and he simply did not address the dispositive issue of reasonable diligence. As a result, there was no prejudice in refusing to hear the new trial motion on this ground.
The Court Did Not Abuse Its Discretion in Refusing to Appoint Counsel for Sentencing
Defendant's final contention is that the court abused its discretion in refusing to appoint counsel for sentencing. "A request to revoke in propria persona status and have an attorney appointed is committed to the sound discretion of the trial court." (People v. Weber (2013) 217 Cal.App.4th 1041, 1061.)
When "a self-represented defendant . . . , after commencement of the trial, seeks to relinquish responsibility for his own defense and obtain the appointment of counsel to represent him for the remainder of the trial," a trial court "must consider the totality of the circumstances in exercising its discretion." (People v. Lawley (2002) 27 Cal.4th 102, 149) "[A] trial court should consider, along with any other relevant circumstances, '(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.'" (People v. Lawrence (2009) 46 Cal.4th 186, 192.) "The trial court need not review on the record each factor: 'The standard is whether the court's decision was an abuse of its discretion under the totality of the circumstances . . . .'" (People v. Gonzalez (2012) 210 Cal.App.4th 724, 743.) The same standard applies to a defendant's request for appointment of counsel at sentencing. (Id. at pp. 743-744.)
Here, after the court denied the new trial motion and indicated it would move on to sentencing, defendant requested that he be appointed counsel for sentencing. Drawing on the same timeline we recited above, the court denied the request, concluding it was not in good faith, and instead was intended to further delay the proceedings.
That finding is supported by the record. Defendant had 11 months to prepare for sentencing. He willingly and knowingly signed a Farretta waiver on two different occasions during that timeframe, and thus he was well aware of the consequences of waiving his right to counsel. The first was when he initially waived counsel shortly after the verdict. The second was when his retained counsel substituted out, and at that time he was again advised of his right to counsel. The hearing date had been set as the sentencing date over two months beforehand. Defendant had received a sentencing brief from the People, which the People had filed approximately 10 months beforehand. His only explanation for his delay in requesting counsel was "nothing is going right for me right now." Indeed, that is usually how it goes when a defendant waives counsel, notwithstanding the extensive efforts to which courts go to warn defendants of precisely that consequence. Defendants simply are not guaranteed the right to reinstate counsel at the last possible moment before sentencing, particularly when there is a long history of delays, as there was in this case. The court did not abuse its discretion.
Faretta v. California (1975) 422 U.S. 806.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.