Opinion
B164295.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. JEROME L. BROWN, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Jerome Brown challenges his convictions for robbery and brandishing a gun on a playground on the grounds the trial court erred in denying his motion to represent himself and in imposing sentence on both charges. We conclude the trial court did not abuse its discretion by denying appellants motion to represent himself, because the motion was untimely. However, the court erred by imposing a concurrent sentence for the brandishing conviction, as the sole evidence regarding appellants gun use showed that the robbery and gun brandishing was a single, indivisible course of conduct.
BACKGROUND AND PROCEDURAL HISTORY
Appellant pointed a gun at Byron Hall and took Halls gold necklace. Police officers patrolling the area detained appellant immediately.
A jury convicted appellant of second degree robbery and brandishing a gun on a playground (Penal Code section 626.95, subd. (a)). The jury also found appellant personally used a gun in the commission of the robbery. The trial court sentenced appellant to prison for 12 years.
DISCUSSION
1. The trial court did not abuse its discretion by denying appellants motion to represent himself.
Appellants trial was scheduled to begin on October 17, 2002. It was then continued three times at the request of the defense. On November 25, the case was sent to Judge Higa for trial. As soon as the parties appeared in Judge Higas courtroom, appellant, for the first time, indicated he wanted to discharge his attorney and represent himself. He stated his attorney was lying to him, they were unable to agree, and the attorney was "trying to rush me to something I am not ready for." The court asked appellant if he knew how to pick a jury and appellant said he did not, but would learn. The court told appellant he would have to begin selecting a jury at 1:30 p.m. Appellant replied, "Aint got no paperwork or nothing. How am I supposed-?" The court then noted that appellant had appeared in court four times following his arraignment, but had never previously mentioned self-representation. The court denied appellants motion for self-representation on the ground it was untimely.
Unless otherwise noted, all dates refer to 2002.
Appellant had actually made five court appearances between his arraignment in Superior Court and the date he made his motion for self-representation.
Appellant contends the trial courts denial of his motion violated his constitutional right to represent himself.
An accuseds right to counsel also includes a right of self-representation. (Faretta v. California (1975) 422 U.S. 806, 819, 821, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) In order to invoke the constitutional right of self-representation, a defendant must unequivocally assert that right within a reasonable time prior to trial. (People v. Windham (1977) 19 Cal.3d 121, 127-128, 137 Cal. Rptr. 8, 560 P.2d 1187.) Motions made after that time are left to the trial courts discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 809, 928 P.2d 485.) The trial court should consider the quality of counsels representation, the defendants prior efforts to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay reasonably likely to result from granting the motion. (People v. Mayfield, supra, at p. 810, quoting People v. Windham, supra, 19 Cal.3d at p. 128.)
Clearly, appellant did not make his motion for self-representation within a reasonable time before trial. He made it at the start of his trial, about 90 minutes before a panel of prospective jurors was scheduled to appear in the courtroom for the commencement of jury selection. Accordingly, the trial court was not required to permit appellant to represent himself, but could grant or deny the motion, in its discretion.
Appellant argues the trial court abused its discretion by denying the motion without considering the Windham factors set forth above. A review of the transcript of the hearing, however, reveals that the court expressly considered four of the five Windham factors. Regarding the quality of counsels representation, the court stated that defense counsel "has done an excellent job. He is an excellent, experienced lawyer, handled many, many robbery cases. Handled cases before us and tried them very well." With respect to the reason for the request for self-representation, the court noted that appellant and his attorney appeared to be getting along and that the prosecutor, not defense counsel, was the person "trying to rush you somewhere trying to keep you in jail." In denying the motion, the court expressly cited the extreme lateness of appellants request and the number of appearances he had made without mentioning a desire to represent himself. Although appellant did not request a continuance, he implied he would require one because he did not know how to pick a jury and had "no paperwork or anything." On the basis of appellants response, the court could reasonably conclude that granting appellants motion would reasonably require the continuance of the trial a fourth time.
The remaining Windham factor-appellants prior efforts to substitute counsel-was well documented in the trial courts minute orders. Appellants jailers did not transport him to court on November 14. Defense counsel did appear on that date and informed the court that appellant wished to make a motion for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118, 124, 84 Cal. Rptr. 156, 465 P.2d 44. The court continued the motion to November 18, at which time appellant appeared and made his motion, which the court denied. Although Judge Higa did not refer to appellants prior Marsden motion, the reporters transcript indicates he examined prior minute orders when counting the number of appearances appellant had made. Accordingly, it is reasonable to conclude the judge was aware appellant had recently attempted to replace his attorney.
Our own consideration of the Windham factors supports the trial courts denial of appellants motion. Appellant did not invoke his right of self-representation until the case repeatedly had been called for trial, trial had been continued three times by the defense, both counsel had now answered ready, and the case had been transferred to the trial court of Judge Higa for start of jury trial. Voir dire began about 90 minutes after appellant made his motion and the jury was impaneled the same day. Although appellant had appeared in Superior Court on five prior occasions after his arraignment, he never mentioned a desire to represent himself. His Faretta motion may have been a response to the denial of his Marsden motion a week earlier. Moreover, one of the reasons for his desire to represent himself was his belief his attorney was lying to him. He asserted the same theory as the sole basis for his Marsden motion, and explained that counsels "lie" was that he told appellant the case would be "dropped on the 13th," but it was not. Clearly, defense counsel had no ability to "drop" the case and no control over the prosecutors decision to proceed. Another reason cited in support of the Faretta motion-defense counsels purported attempt to "rush" appellant into something he was not ready for-was equally meritless. The court established the trial date and defense counsel succeeded in delaying it three times. Appellants reference to being rushed to trial also suggests that appellant wanted to delay this trial and was using the Faretta motion as a means of doing so. His responses to the courts questions regarding his readiness to commence jury selection demonstrate that appellant would have required a continuance if his motion had been granted. Under the circumstances, the trial court did not abuse its discretion by denying appellants Faretta motion.
2. Penal Code section 654 requires a stay of sentence on count two.
On count one, the trial court sentenced appellant to two years for robbery, plus ten years for a personal gun-use enhancement (Pen. Code, § 12022.53, subd. (b)). The court imposed a concurrent one-year term on count two, a violation of Penal Code section 626.95, subdivision (a).
Penal Code section 626.95, subdivision (a) provides as follows: "Any person who is in violation of paragraph (2) of subdivision (a), or subdivision (b), of Section 417, or Section 12025 or 12031, upon the grounds of or within a playground, or a public or private youth center during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility, knowing that he or she is on or within those grounds, shall be punished by imprisonment in the state prison for one, two, or three years, or in a county jail not exceeding one year."
Appellant contends the court erred by imposing a sentence for count two, as the robbery and violation of Penal Code section 626.95, subdivision (a), arose from the same course of conduct and criminal objective.
Penal Code section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, 858 P.2d 611.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he might be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal. Rptr. 401, 768 P.2d 1078.)
Although one may violate Penal Code section 626.95, subdivision (a), in a variety of ways, the only theory presented to the jury was that appellant brandished a gun in the presence of another person in a rude, angry, or threatening manner, while upon a playground. Accordingly, appellants conviction on count two constitutes a finding that he violated Penal Code section 626.95, subdivision (a), by brandishing a gun. The record shows, however, that appellant brandished the gun only while robbing Hall. Hall testified appellant rode up to him on a bicycle and asked him what gang he was from. When Hall denied gang membership, appellant asked him where he lived and what gangs operated in that area. Appellant then simultaneously drew his gun and asked Hall for his necklace. Appellant then asked Hall for his money, but Hall said he had none. Appellant asked for Halls earrings, then said he was just kidding about the earrings. Appellant put the gun back into his pocket before the police officers arrived. No other evidence regarding appellants use of the gun was presented. Accordingly, the evidence shows a single, indivisible course of conduct: appellant brandished his gun on a playground only to facilitate his objective of robbing Hall. The trial court therefore erred by imposing a concurrent sentence for count two. (People v. Miller (1977) 18 Cal.3d 873, 887, 135 Cal. Rptr. 654, 558 P.2d 552.) The sentence on count two must be stayed.
Moreover, the clerks minute order and abstract of judgment incorrectly indicate a two-year sentence for count two. The reporters transcript of the sentencing hearing clearly indicates the court imposed a one-year term for count two.
DISPOSITION
The sentence on count two is stayed, pursuant to Penal Code section 654. The trial court is directed to issue an amended abstract of judgment reflecting a stayed term of one year for count two. In all other respects, the judgment is affirmed.
We concur: COOPER, P.J., RUBIN, J.