Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF090674A
ROBIE , J.
A jury found defendant James Edward Caldwell guilty of gross vehicular manslaughter while intoxicated, driving under the influence of alcohol causing injury, and driving under the influence with .08 percent blood alcohol with injury. As to the manslaughter count, the jury found true the allegation that defendant proximately caused great bodily injury to three passengers in the car he was driving. Defendant admitted nine prior serious felony convictions. After denying defendant’s Romero motion, the trial court sentenced him to an aggregate term of 32 years to life in state prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends: (1) the court committed prejudicial error or abused its discretion in denying his Faretta motion; and (2) the court abused its discretion in denying his Romero motion. Finding no merit in these contentions, we will affirm.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
FACTUAL AND PROCEDURAL BACKGROUND
While driving with a blood-alcohol level of 0.17 percent, defendant lost control of his car and slammed into a tree on Bianchi Road in Stockton, killing three of his passengers and injuring a fourth.
On May 11, 2005, the case was assigned to Judge Cinda Fox for trial beginning Tuesday, May 17. On May 17, the court addressed some motions in limine, then continued the matter for two days because defense counsel had a “time-not-waived” preliminary hearing the following day and because defense counsel was also in the midst of contacting an accident reconstruction expert. The expectation at that time was that jury selection would begin on May 24.
On Thursday, May 19, defense counsel had still not been able to consult with his potential expert but expected to do so the following day, so the court continued the matter until Monday, May 23 “for status” and ordered a jury panel for Tuesday, May 24.
On Monday morning, defense counsel informed the court he would not be bringing an expert and that defendant wanted “another judge [to] look at [the] relationship” between his client and him. Judge Fox confirmed that defendant no longer wanted his attorney to represent him and then directed that defendant’s Marsden motion be heard by another judge immediately.
People v. Marsden (1970) 2 Cal.3d 118.
Judge Fox stated, “If he’s bringing a Marsden, I don’t think it’s proper for the trial court to hear it. I don’t want to hear potentially attorney-client matters that may affect my ability to be impartial.”
The Marsden motion was heard by Judge Bernard J. Garber that morning, at which time defendant also asked to submit a “Farretts [sic] motion,” clarified by his attorney to be a Faretta motion. Defense counsel also asserted he might have an ethical conflict arising out of recent conversations with defendant and the accident reconstruction expert.
When asked to explain his “problem” with his attorney, defendant responded, “Conflict of interest. Irreconcilable conflict.” When Judge Garber asked what the conflict was, defendant explained that he and his attorney had “two different agendas” -- defendant’s agenda was “to prove [his] innocence” while defense counsel’s was “to resolve the case.” Defendant declined to elaborate, but he later disagreed with counsel’s assertion that there were “no witnesses as far as the defense is concerned” because defendant believed “that we do have witnesses.”
Judge Garber denied the Marsden motion, finding no “evidence of a breakdown between the attorney/client relationship” and no “legal basis to relieve [defense counsel].” Judge Garber sent the Faretta motion and (despite defense counsel’s misgivings) the conflict issue back to Judge Fox for disposition.
That afternoon, Judge Fox addressed both issues. Upon defendant’s confirmation of his desire to represent himself, the court explained that the Faretta motion might be “untimely,” given that “we are past the day of trial, because this was assigned here last week.” Citing People v. Frierson (1991) 53 Cal.3d 730, Judge Fox stated “it actually may be too late for you to represent yourself,” but to assist in resolving that question she asked defendant if he was “ready to proceed to trial tomorrow.” He said he was not and confirmed he would “want a continuance to prepare [himself].” Judge Fox reiterated, “Then I think [the Faretta motion] might be untimely,” but before ruling on that issue, she conducted an in camera hearing on the conflict issue.
Given Judge Fox’s prior reticence to hear defendant’s Marsden motion, it is not clear why she decided she could hear the conflict issue, since both related to the relationship between defendant and his attorney.
Defense counsel informed the court that the accident reconstruction expert he had consulted was of the opinion that defendant was driving the car at the time of the accident. Counsel further informed the court that based on a conversation he had had with defendant over the weekend, “If he takes the stand, I can’t argue a thing he has to say.” Both defense counsel and the court acknowledged that defendant had an “absolute right to take the stand,” but counsel complained that “[i]f he does, I can’t make a single solitary comment about a thing he has to say.”
After further discussion, the court took both matters under submission, but stated it was “inclined to deny the Faretta as untimely and . . . inclined to look for an alternate resolution than relieving [defense counsel] on the conflict.”
The next morning, the court ruled defendant’s Faretta motion was untimely, but inquired into the reasons for the motion to determine whether to exercise its discretion to grant the motion anyway. Defendant explained that he preferred to have “no counsel as opposed to have inadequate, ineffective counsel at all” and that he felt he could better defend himself because he “underst[ood] the situation better” and had “more of a[n] involvement in it.” Defendant also reiterated his complaint that his attorney declined to call witnesses he believed should be called.
The court advised defendant he had an “absolute right” to testify on his own behalf, despite any contrary advice from his attorney. The court then refused to revisit “the quality of Counsel’s representation,” which Judge Garber had addressed in the Marsden hearing, and instead sought the prosecutor’s input on whether “the People . . . would object to the Faretta and the continuance of the trial.” The prosecutor did object, noting, “This is an old case. We have the witnesses, they have been subpoenaed several times. This jury trial date has changed several dates. . . . [¶] . . . [¶] And so there was ample opportunity to address this.” After confirming that defense counsel had been in the case for over three months -- since February 7, 2005 -- the court denied defendant’s Faretta motion and, following a second in camera hearing, found no conflict between defendant and his attorney that would allow defense counsel to withdraw from the case.
The trial court properly explained that if defendant insisted on testifying and defense counsel believed he was going to commit perjury, defense counsel could simply allow defendant to testify in a narrative manner. (See People v. Johnson (1998) 62 Cal.App.4th 608, 624-625, 629.)
The case proceeded to trial. Despite testimony from two police officers, one witness, and the only surviving passenger in the car confirming that defendant was driving at the time of the incident, defendant testified it was Anthony “Pooter” Porter, his friend and one of the victims of the crash, who was behind the wheel.
Ultimately, counsel did not elect to have defendant testify in a narrative manner.
The jury returned a verdict of guilty on all three counts and found true the allegation that defendant proximately caused great bodily injury to the three deceased victims.
At sentencing, the court treated defendant’s written request to the court to exercise its discretion regarding the prior convictions as a Romero motion. After a hearing on the matter to determine whether defendant could “be deemed to be outside the spirit of the three strikes law,” the court denied defendant’s motion and sentenced him to the upper term of 10 years for vehicular manslaughter, tripled to 30 years for defendant’s prior strikes, plus an additional consecutive term of two years for the multiple victim enhancement. The court sentenced defendant to a term of 25 years to life for driving under the influence causing injury, to run concurrently with the manslaughter sentence. The court also imposed a term of 25 years to life for driving with .08 percent blood alcohol with injury; however, the court stayed that term pursuant to Penal Code section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Faretta Motion
“[I]n a criminal trial a defendant has a federal constitutional, unconditional right of self-representation[; however,] in order to invoke that right, he or she must make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. [Citations.] When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.” (People v. Bradford (1997) 15 Cal.4th 1229, 1365.)
The first issue here is whether defendant’s Faretta motion was timely because it was made “within a reasonable time prior to the commencement of trial.” We agree with the trial court that it was not.
We begin with the issue of when trial commenced. Defendant asserts that in People v. Windham (1977) 19 Cal.3d 121, the Supreme Court “equated the prosecutor’s opening statement with ‘the start of trial.’” He argues that since the prosecutor delivered his opening statement on May 25, the Faretta motion on May 23 was made two days prior to the commencement of trial.
Defendant is mistaken. The court in Windham did not “equate[] the prosecutor’s opening statement with ‘the start of trial.’” Indeed, since Windham involved a Faretta motion made in the middle of trial -- “[p]rior to the commencement of the third and final day of testimony” (People v. Windham, supra, 19 Cal.3d at p. 125) -- the Windham court had no occasion to determine when trial commences for the purpose of judging the timeliness of a Faretta motion.
Later cases, however, clearly suggest that jury selection is when a trial commences for this purpose. For example, in People v. Hall (1978) 87 Cal.App.3d 125, the court determined that a Faretta motion made when “the case [had been] sent out to a trial court for trial ‘forthwith’” and when both attorneys were expecting to begin picking a jury “was made at the last possible moment before trial began.” (Id. at p. 131.) Thus, when defendant made his Faretta motion on May 23, it was only one day before trial was scheduled to commence.
The next question is whether one day before trial was “a reasonable time prior to the commencement of trial” for defendant to make his Faretta motion. We conclude it was not.
Our Supreme Court has not fixed “any particular time at which a motion for self-representation is considered untimely, other than that it must be a reasonable time before trial” (People v. Clark (1992) 3 Cal.4th 41, 99), nor has it “adopted a rigid rule that any Faretta motion made before the actual commencement of trial is deemed timely,” despite invitations to do so (Clark, at p. 99). The “reasonable time” requirement is intended to prevent a defendant from “misus[ing] the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; see also People v. Burton (1989) 48 Cal.3d 843, 852.)
Defendant contends the trial court erred in finding his Faretta motion untimely because “it was brought on the first court day after [he] learned that there was a serious problem with his being defended by [defense counsel].” Thus, he contends, he showed “reasonable cause for the lateness of [his] request.”
It does appear from the record that defendant made his Faretta motion at virtually the first opportunity he had on Monday, May 23, following his conversation with his attorney over the weekend -- a conversation that led his attorney to declare a conflict of interest because of his fear that defendant would perjure himself on the witness stand. What does not clearly appear from the record, however, is that defendant’s professed desire to represent himself stemmed from issues that developed over the weekend. When the trial court asked defendant why he wanted to represent himself, he said only that he preferred to have “no counsel as opposed to have inadequate, ineffective counsel at all” and that he felt he could better defend himself because he “underst[ood] the situation better” and had “more of a[n] involvement in it.” He also reiterated his complaint that his attorney declined to call witnesses he believed should be called. He did not tell the court he wanted to represent himself because of what had occurred over the weekend. Under these circumstances, the trial court did not err in determining defendant’s motion was untimely.
The question remains whether the trial court abused its discretion in declining to grant defendant’s untimely request to represent himself. We conclude it did not.
In ruling on an untimely Faretta motion, the trial court must consider, among other factors, “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (People v. Windham, supra, 19 Cal.3d at p. 128.)
Here, defendant contends “the trial court did not attach proper weight to ‘the reasons for the request.’” This argument, however, is essentially the same as the argument we have already rejected regarding the timeliness of defendant’s motion. When invited to tell the court the reason he wanted to represent himself, defendant did not tie his request to what had occurred over the weekend. Rather, his explanation suggested general dissatisfaction with his attorney that could have been raised at an earlier point in the proceedings. Given that Judge Garber had already denied defendant’s Marsden motion -- thereby determining that defense counsel’s representation of defendant was adequate -- and that granting defendant’s Faretta motion the day before the trial was scheduled to commence would have necessitated a continuance of a trial that had been continued already, the trial court did not abuse its discretion in denying defendant’s untimely motion.
II
Romero Motion
Defendant next contends that the court abused its discretion in denying his motion to dismiss “at least eight of his nine prior ‘strike’ convictions.” We disagree.
A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the “Three Strikes” law. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.)
The trial court’s “failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss.” (Id. at p. 378.) In reviewing for abuse of discretion, we are “guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
Thus, only in “an extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ” -- would the failure to strike be an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
In support of his motion to strike the strike priors, defendant submitted a statement in mitigation that spoke to his background and character, noted the fact that he “had no involvement with the criminal justice system since his release on parole,” and argued that the events leading up to the multiple prior convictions “were contained in a brief period of aberrant behavior.” He addressed the court at the sentencing hearing, as did his son. His counsel argued, among other things, that the victims had some control over their destiny, given that they “had the opportunity to get out of the vehicle and not go,” and further argued that, until this incident, defendant lived a crime-free life after being released on parole.
The People argued against striking any of the prior strikes, noting defendant’s prior criminal history and listing a number of circumstances in aggravation of the current offense, including that: (1) the crime involved great violence and great bodily injury; (2) the victims were vulnerable because they were passengers in the car driven by defendant; (3) defendant “was in a position of leadership and control over the lives of the passengers”; (4) defendant’s prior convictions “are numerous and of consistent seriousness”; (5) defendant took advantage of a position of trust as the driver of the car; and (6) defendant served a prior prison term of 14 years. The People further argued that defendant had “been involved in the criminal justice system for over 12 years of his 20 years as an adult,” and instead of showing remorse, he “took the stand and attempted to mislead the jury and this court by pointing the finger at one of his victims.”
The court made the following findings with regard to defendant’s prior convictions: although defendant’s prior strikes were 18 years old, it had only been 10 years since he was released from prison; the prior convictions were robberies, at least three of which involved the use of a knife; they occurred over a two-week period; and they were separate acts occurring on at least five different days, with some involving multiple victims. As for the current offense, the court found “[i]t is not violent by nature, but it is violent by result”; it is serious, given that it resulted in three deaths; it is different from the prior offenses; and defendant did not cooperate with the police or acknowledge guilt early on, and instead “took the stand and committed perjury in this case.” The court also commented that, following his release from prison, defendant “lived a fairly productive life,” obtaining his truck driver’s license in 1997 and working for eight different trucking companies between 1994 and 2002. It was also noted that, at the time of the incident, defendant was not working but was “attending MTI Business College.” Although the court acknowledged letters and comments from defendant’s family that he “was a good husband, was a good brother, was a good father, and a good provider,” and had “no doubt at heart he is a good person” who “did not wake up that morning intending to kill three people,” the court also pointed out that defendant acknowledged having a drinking problem that began in 2000 and admitted he was snorting methamphetamine “twice a day from 2002 until the time of his arrest.”
Finally, the court noted that although defendant might not have intended to kill the three victims and injure another passenger that night, he “chose to drink alcohol to the point where [his] blood alcohol level was over twice the legal limit,” “chose to get behind the wheel of a car,” and “chose to drive that vehicle over 50 miles an hour into a curve that is posted for 25 miles an hour.”
The record reflects that the court carefully considered all of the relevant facts and circumstances surrounding both the prior convictions and the current offense and only after doing so denied the motion to strike any of defendant’s prior strikes. We are not persuaded the court abused its discretion in so ruling.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., CANTIL-SAKAUYE , J.
Frankly, this statement is inexplicable, since it has always been the province of the trial judge to hear and decide a defendant’s request for a new attorney under Marsden. Indeed, in Marsden itself, our Supreme Court expressly rejected a complaint similar to Judge Fox’s from the trial judge in that case: “We are unmoved by the rationale of the trial judge for his unwillingness to hear the defendant’s basis for dissatisfaction with counsel. An expressed concern that defendant’s evidence might ‘prejudice you before me as to the case,’ lacks substance. In a jury trial it is difficult to comprehend how a defendant’s statement made out of the presence of the jury to support his claim that his counsel is inadequate could adversely affect a judgment on the merits of the case. During most trials, judges hear numerous motions and argument in chambers dealing with prior convictions, the voluntariness of confessions, the admissibility of evidence, and other procedural matters, without permitting such proceedings to jaundice their views on ultimate conclusions. Furthermore, if there were some remote prejudicial effect, it would be outweighed by the importance of replacing an incompetent attorney.” (People v. Marsden, supra, 2 Cal.3d at p. 125.)