Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA070469 Andrew C. Kauffman, Judge.
G. Martin Velez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Jorge A. Cerda of unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). Defendant admitted that he suffered a prior felony conviction for which he served a term in state prison within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to four years in state prison.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court violated his constitutional right to counsel by permitting him to represent himself, violated his constitutional rights to counsel and due process by denying him a continuance to prepare for trial, and abused its discretion by denying his mid-trial motions for appointment of advisory counsel and for reappointment of counsel. Defendant also contends that his constitutional rights to self-representation and due process were violated when he was not provided with access to the law library. We affirm.
BACKGROUND
About 6:00 to 6:30 p.m., on November 27, 2007, Rudy Gutierrez parked his black Super Sport Chevrolet pickup truck in the T.G.I. Friday’s parking lot on Hawthorne Boulevard in Torrance. An hour and a half or two hours later, when Gutierrez left the restaurant, he saw that his pickup truck was gone. Gutierrez had not given defendant or anyone else permission to take his pickup truck.
Although Gutierrez paid for and drove the pickup truck, it was registered in his grandfather’s name.
That evening, Jesus Gomez and Michelle Nguyen drove to T.G.I. Friday’s and parked in the restaurant’s parking lot. Before Gomez and Nguyen got out of the car, a burgundy colored car pulled into the parking lot and parked near a black pickup truck, about 35 feet from Gomez and Nguyen. Two men, who appeared to be Hispanic, exited the car. Gomez was about to get out of his car, but paused because he believed the men were acting suspiciously and that something was about to happen.
One of the men stood at the back of the truck and acted as a “lookout.” The second man had something in his hand and appeared to bang on the keyhole or keyhole area of the truck’s driver’s door. In a couple of seconds, the man opened the door and jumped in the truck. The man leaned over, causing Gomez to believe that the pickup truck was going to be stolen. As a family walked towards the truck, the man acting as the lookout banged on the truck. The man inside the truck got out, and he and the “lookout” walked over to and stood in front of a nearby car. When the family drove away, the two men resumed their activities.
According to Gomez, the two men switched roles when they resumed their activities. The man who had served as the lookout got inside the pickup truck, and the man who had banged on the “key lock” area went to the back of the truck. Within 10 seconds, the truck’s engine started and the truck drove away. The other man got into the burgundy car and also drove away. As the burgundy car drove away, Gomez made eye contact with the car’s driver. Gomez took down the license plate number of the burgundy car. Gomez called 9-1-1, reported the vehicle theft, and provided the license plate number of the perpetrators’ vehicle.
About 6:50 p.m. on November 27, 2007, Torrance Police Department Officer Paul Sanderson arrived at T.G.I. Friday’s. Officer Sanderson spoke with Gomez. Gomez told Officer Sanderson what he had observed. Gomez stated that the man who was hitting the keyhole area of the driver’s door drove away in the burgundy car.
About 8:00 or 9:00 p.m. that night, Torrance Police Department Detective Charlie Fisher was assigned to investigate the theft of Gutierrez’s truck. Detective Fisher ran the license plate number of the suspect vehicle (burgundy vehicle) through the Department of Motor Vehicles (DMV). The DMV identified “Jorge Cerda” – defendant – as the registered owner with an address on Agra Street in Bell Gardens.
The vehicle was also registered to Anna Martinez.
Detective Fisher used the information from the DMV to obtain a DMV photograph of “Cerda.” Detective Fisher placed that photograph in a six-pack photographic lineup that he showed to Gomez about 10:00 or 10:30 p.m. that night. Gomez examined the lineup for five minutes and identified defendant from the lineup. Gomez circled defendant’s photograph and wrote on the photographic lineup that he was “95 percent sure.” At trial, Gomez testified that the person about whom he had been 95 percent sure was the person who had banged on and opened the door and, with whom he made eye contact, and who drove away in the burgundy car.
On December 3, 2007, Torrance Police Department Detective Mark Underwood showed Nguyen a six-pack photographic lineup with defendant’s picture in it. Nguyen identified defendant’s photograph and stated that she was positive that the person she identified was the person she saw hitting the pickup truck’s door and later driving away in a red vehicle. Defendant was arrested. At trial, Nguyen identified defendant as the person she identified in the photographic lineup.
In his defense, defendant called Dr. Mitchell Eisen, an expert on eyewitness memory. Dr. Eisen testified that the longer a person takes to select a person from a photographic lineup, the greater the chance that the identification is inaccurate. Dr. Eisen testified that a person’s expressed confidence in an identification is not a good indicator that the identification is accurate. Dr. Eisen also testified that studies consistently show that people more successfully identify members of their own race rather than members of other races.
DISCUSSION
I. The Trial Court Properly Permitted Defendant To Represent Himself
Defendant contends that the trial court erred in permitting him to represent himself because the record does not demonstrate an effective waiver of his constitutional right to counsel under Faretta v. California (1975) 422 U.S. 806 (Faretta). The trial court did not err.
A. Background
At a hearing on May 13, 2008, defense counsel informed the trial court, the Honorable Eric C. Taylor, that defendant wanted to represent himself. Defense counsel stated that he had advised defendant of all the reasons that self-representation might be a mistake. The trial court determined from the prosecutor that defendant faced a potential four-year sentence in the case. The trial court then asked defendant if he had previously represented himself. Defendant responded that he had not. The trial court asked defendant if he could read and write and if he had graduated from high school. Defendant responded yes. The trial court asked defendant if he understood that he would be treated as any other counsel in the case, that he would be expected to know the law, and that the trial court would not assist him. Defendant stated that he understood.
Defense counsel stated that if he were to try the case, he would be ready for trial in one month. Defendant stated that he too would be ready for trial in one month. Defendant stated that he needed an investigator, and the trial court told him that he needed to fill out a request. To give defendant additional time to fill out a pro per waiver form, the trial court continued the matter to May 20, 2008. At the hearing on May 20, 2008, defense counsel informed the trial court that defendant had changed his mind about representing himself.
On July 31, 2008, the trial court informed defendant that because defense counsel was then engaged in another trial, defendant had three options. Defendant could keep defense counsel and have his trial continued until defense counsel’s other trial concluded, defendant could represent himself and begin trial the next day, or defendant could hire his own attorney. Defendant asked if there were any way to “get another lawyer.” The trial court responded that it would not provide another lawyer, but that defendant could hire his own counsel. The trial court advised defendant that new counsel would need approximately 60 days to prepare for trial and that retaining his present counsel would get him to trial faster. Defendant stated that he would contact his family to hire an attorney who would try the case the next day. The trial court stated that no attorney would try the case the next day.
Defendant stated that he had been in custody for six months and that he would be ready. The trial court stated that it would order a jury for the next day and that if defendant did not have a lawyer, defendant would try the case himself. The trial court asked defendant if he would try the case if he did not have a lawyer. Defendant responded that he would. The trial court asked defendant if he could select a jury, cross-examine witnesses, and question himself if he testified. Defendant said that he could.
On August 1, 2008, defense counsel was engaged in trial, and defendant appeared with substitute defense counsel. Substitute defense counsel asked the trial court if it knew the estimated length of defense counsel’s trial. The trial court stated three or four days. The trial court stated that it would be willing to continue defendant’s trial a short time to allow defense counsel to complete his trial.
Substitute defense counsel stated that she could not convince defendant to waive time and that defendant insisted on representing himself. Substitute defense counsel asked the trial court to “talk some sense” into defendant. The trial court told defendant “if you go pro per and you start this trial today yourself, you are making a huge mistake, a huge mistake. You can do it if you want, but I’m going to call 35 jurors in this courtroom. You are going to have to pick a jury. You are sitting here in county blues. We can maybe scrape up some clothes for you. You don’t know anything about – you don’t have the police reports. You are not ready to do this case.”
The trial court continued, “This is a bad idea and you said you were going to bring another lawyer in. Another lawyer couldn’t even be ready on this case today. Somebody who’s experienced couldn’t do this case today and wouldn’t. They would refuse to do this case. Be patient. Wait for [defense counsel] if you can.” The trial court told defendant that it was willing to trail his matter day to day so that as soon as defense counsel concluded his trial, defendant’s trial would start. Defendant agreed to waive time through August 7, 2008. On August 4, 2008, defendant agreed to waive time through August 14, 2008.
On August 13, 2008, the trial court, the Honorable Andrew C. Kauffman, discussed with the parties a two-year prison sentence as a possible resolution of the case. Defendant wanted a 16-month sentence. The trial court informed defendant that he was charged with driving without the owner’s consent, which carried a sentence range of 16 months, two years, or three years in state prison. The trial court also informed defendant that he was also alleged to have previously been convicted of a prior felony for which he served a state prison term, which could add another year to his term.
The trial court informed defendant that if he wanted a trial, it would guarantee that he received a fair trial, “But from what I understand, the People have two witnesses that are going to testify that they saw you break into the man’s truck and drive away in it. They are going to be able to identify you. They’re going to find the vehicle. There’s going to be evidence that you got out of the car. There is going to be evidence that the vehicle was registered to you.” Defendant stated that he wanted a trial.
In further discussions, defense counsel stated that he had explained to defendant that the jury would want an “explanation for the car... an alternative to the People’s theory.” Defense counsel stated that defendant thought that the identifications were “problematic,” but that he had explained to defendant that the identifications did not have to be “as close” if other things tied him to the scene. Defendant insisted upon a 16-month sentence.
On August 14, 2008, defense counsel declared that he had a conflict of interest based on a conversation he had that morning. The trial court relieved the Office of the Public Defender and stated that it was going to appoint the Office of the Alternate Public Defender. The trial court noted its understanding, however, that defendant preferred to represent himself. Defendant stated that he had been in custody for eight months, and “they came with the idea no conflict of interest.” Defendant stated that he wanted to represent himself and begin trial that day.
The trial court asked defendant if he had a legal background. Defendant stated that he did not go to law school and that he had no knowledge of the law. The trial court asked defendant about his education generally. Defendant stated that he did not finish high school. The trial court and defendant then engaged in the following discussion:
“The Court: You know how to question a prospective juror?
“The Defendant: Not a lot.
“The Court: Do you know how to question a witness?
“The Defendant: Kinda. Not really.
“The Court: Do you know anything about the rules of evidence?
“The Defendant: Some of them.
“The Court: Okay. [¶] What rules of evidence do you know about?
“The Defendant: What kind of what?
“The Court: What rules of evidence do you know about?
“The Defendant: What kind of rules of evidence?
“The Defendant: Yes. [¶] Against me or?
“The Court: Rules of evidence are in the Evidence Code. You know anything about the Evidence Code?
“The Defendant: Oh, the thing they have to – to charge – charge me with? Charge you or what?
“The Court: Do you know how to make objections?
“The Defendant: Not really.
“The Court: Do you know what the difference is between direct and circumstantial evidence?
“The Defendant: No.
“The Court: You don’t really know what you’re doing, do you? [¶] Do you?
“The Defendant: Not really.”
The trial court then discussed the “Advisement and Waiver of Right to Counsel (Faretta Waiver)” form that defendant had signed, certifying that he had read, understood, and considered all of the warnings in the form and still wanted to represent himself. Through the form, the trial court advised defendant that there are many dangers and disadvantages in representing himself. Among the identified dangers of not having attorney representation were the following: (1) that he would have to “follow all the technical rules of substantive law, criminal procedure, and evidence”; (2) that the case against him would be “handled by a prosecutor who is an experienced trial attorney, and that [he would] not be entitled to special consideration or assistance by the Court during the course of the trial”; (3) that he would have to conduct his “own trial consisting of, but not limited to: making pretrial motions; selecting a jury; making an opening statement; cross-examining the witnesses for the prosecution; subpoenaing and presenting [his] own witnesses; making appropriate objections and motions during the course of the trial; preparing and presenting proposed jury instructions to the Court; making the final argument; making appropriate motions after trial; representing [himself] at the time of the probation and sentencing hearing in the event of conviction”; (4) that he could not and would not receive any help or special treatment from the trial court; (5) that because of his custody status it would be difficult for him to contact witnesses and investigate his case; (6) that he would have limited access to a telephone and would not have greater access to the law library than other pro per inmates; (7) that continuances would not be allowed without a showing of good cause and that requests for continuances just before trial most likely would be denied; and (8) that depending on the stage of his case, a request to give up his pro per status and be represented by an attorney might be denied and he would have to proceed to trial without an attorney.
On the Faretta waiver, defendant answered “no” in response to questions that asked if he knew the crime he was charged with, if he knew whether the crime he was charged with was a general or specific intent crime, if he knew what facts had to be proved before he could be found guilty of the charged offense, and if he knew the legal defenses to the charged offense. The trial court reviewed the Faretta waiver and noted that defendant had answered “no” to these questions. The trial court did not inquire further concerning the questions. The trial court then stated to defendant, “You might as well jump off the top of this building if you are going to represent yourself. It’s a ticket to a guilty verdict and right into prison.”
The trial court might have questioned defendant about his answers on the Faretta waiver form to create a clear record of defendant’s knowing and voluntary waiver of his right to counsel, but the failure to do so did not necessarily invalidate the defendant’s waiver. (People v. Blair (2005) 36 Cal.4th 686, 709, fn. 7.) As we discuss below, defendant’s waiver was knowing and voluntary.
The trial court then told defendant that it was ready to start his trial right then, if that was what defendant wanted. The trial court expressed its belief that the jury would find him guilty based on the evidence and stated that it would send him to state prison. The trial court further advised defendant:
“The Court: The reason we’re having this conversation, [defendant], is the law says you can represent yourself if you want, but I’m obligated to try and talk you out of it. And I’m trying to talk you out of it in the most persuasive way I can.
“We had a discussion yesterday about you making a stupid decision and by representing yourself. You’re compounding it. That’s the message I’m trying to give you.
“Is that your dad there in the audience, [defendant]?
“The Defendant: Yes, it is, Your Honor.
“The Court: Would you take a couple of minutes and talk to your dad about it, the advisability of making this decision?
“The Defendant: I mean I don’t see no point. It’s just me in this chair. It’s not him. He’s not in custody. It’s me.
“The Court: That is true.”
The trial court stated that it would bring in the prospective jurors and asked defendant if he had the “slightest idea” about how to pick a jury. Defendant responded that he “kinda” had an idea. When the trial court asked defendant how he would decide if someone would be a good juror for him, defendant responded, “I got no idea. [¶] Just guess.”
In response to further questions from the trial court, defendant stated that he would make an opening statement and demonstrated some understanding of the purpose of an opening statement. Defendant stated that he did not think he could make an opening statement as well an attorney. The trial court asked defendant if he knew how to question witnesses. Defendant responded, “Just a little bit on what they seen.”
The trial court advised defendant that he would have to follow the same rules and procedures as a lawyer. Defendant stated that he understood. The trial court stated that defendant would not get any special breaks because he did not know what he was doing. Defendant nodded affirmatively. The trial court asked defendant if he would do a summation at the conclusion of the case. Defendant responded, “Like I said, the only thing I can do is try. I’m not a lawyer. I didn’t go to school for it and just try the best I know. Little bit I know, I think I know.”
The trial court asked defendant if he was sure he wanted to represent himself. Defendant responded, “At this time I do.” The trial court advised defendant that he could not claim that he “was stupid in representing” himself on appeal. The trial court further advised defendant that if he decided during trial that he needed a lawyer, it might be too late. The trial court then found that defendant made a knowing, voluntary, and intelligent waiver of his right to counsel. The trial court asked defendant if he was ready for the prospective jurors. Defendant stated that he was ready. Shortly thereafter, the parties began jury selection.
B. Application of Relevant Legal Principles
“‘A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 835-836; People v. Bradford (1997) 15 Cal.4th 1229, 1363 [65 Cal.Rptr.2d 145, 939 P.2d 259].) A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation].” (Faretta, supra, 422 U.S. at p. 835.) “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070 [119 Cal.Rptr.2d 859, 46 P.3d 335].) Rather, “the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140 [115 Cal.Rptr.2d 614, 38 P.3d 461]; People v. Marshall (1997) 15 Cal.4th 1, 24 [61 Cal.Rptr.2d 84, 931 P.2d 262].)’ (People v. Blair (2005) 36 Cal.4th 686, 708 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) Thus, ‘[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.’ (People v. Pinholster (1992) 1 Cal.4th 865, 928-929 [4 Cal.Rptr.2d 765, 824 P.2d 571]; accord, U.S. v. Lopez-Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [‘the focus should be on what the defendant understood, rather than on what the court said or understood’].) [¶] On appeal, we independently examine the entire record to determine whether the defendant knowingly and intelligently waived the right to counsel. (People v. Doolin (2009) 45 Cal.4th 390, 453 [87 Cal.Rptr.3d 209, 198 P.3d 11].)” (People v. Burgener (2009) 46 Cal.4th 231, 240-241.)
It is manifest from a review of the proceedings in this case that defendant “understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Koontz, supra, 27 Cal.4th at p. 1070.) In addition to the exhaustive advisement concerning the disadvantages of self-representation in the Faretta waiver form—which defendant signed certifying that he had read, understood, and considered all of the warnings—two Superior Court judges and defense counsel fully advised defendant of what he faced if he represented himself. All attempted to talk defendant out of representing himself.
In connection with one of defendant’s earlier pro per elections, Judge Taylor asked defendant if defendant could select a jury, cross-examine witnesses, and question himself if he testified. Defendant stated that he could. Later, Judge Kauffman informed defendant that he was charged with driving without the owner’s consent, an offense for which the state prison sentencing range was 16 months, two years, or three years. Judge Kauffman also informed defendant that he was alleged to have suffered a prior felony conviction for which he served a state prison term, thus potentially adding an additional year to his term.
Judge Kauffman explained to defendant what he, Judge Kauffman, apparently perceived as the problems in the evidence that defendant faced. Judge Kauffman explained, “from what I understand, the People have two witnesses that are going to testify that they saw you break into the man’s truck and drive away in it. They are going to be able to identify you. They’re going to find the vehicle. There’s going to be evidence that you got out of the car. There is going to be evidence that the vehicle was registered to you.”
Defense counsel explained to defendant what he apparently saw as a problem in the evidence that the defense would have to address. Defense counsel explained to defendant that the jury would want an “explanation for the car... an alternative to the People’s theory.” Defense counsel further explained to defendant that while defendant might believe that there were problems for the prosecution with the witness identifications, defense counsel did not believe that the identifications had to be “as close” given the corroborating evidence at the scene.
Defendant had the Sixth Amendment right to represent himself at trial. That defendant exercised that right despite the best advice of defense counsel and the trial court is not grounds for reversal. Because we hold that the trial court did not err in granting defendant’s motion to represent himself, we need not consider whether the absence of a knowing and intelligent waiver of the right to counsel is reversible per se, reversible when the People are unable to show beyond a reasonable doubt that the defendant would have waived counsel even with the proper advisements, or reversible under some other standard. (See People v. Burgener, supra, 46 Cal.4th at p. 245 [acknowledging a split in California Courts and declining to decide the standard for reversible error].)
II. The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s Mid-Trial Motion For A Continuance
Defendant contends that the trial court abused its discretion when it denied his mid-trial motion for a continuance. The trial court did not abuse its discretion.
A. Background
On August 14, 2008, defendant moved to represent himself. Defendant stated that he wanted to start the trial that day. Defendant stated, “I would like to now represent myself and not continue the trial.” The trial court granted defendant’s motion to represent himself. The trial court, defense counsel, and the prosecutor discussed redacting certain information from documents, including the defense case file, that would be turned over to defendant. At the conclusion of that discussion, the trial court asked defendant if he was ready for it to summon prospective jurors. Defendant responded that he was ready. The trial court asked defendant, “Even if [defense counsel] turns over this material to you right now, you ready to start the trial?” Defendant responded, “Ready.” Voir dire then commenced.
At the end of the day, after the jury panel had been excused, the prosecutor informed the trial court, “there are documents I just – I couldn’t finish redacting. I’ll give it to the deputy. They just need to be copied prior to giving.” Defendant stated that he did not have certain police reports. The prosecutor stated that he would provide defendant with redacted copies.
The next morning, the trial court asked the prosecutor about the status of redacting documents. The prosecutor informed the trial court that it had been completed the previous day and given to the bailiff to give to defendant. The prosecutor stated that he had made copies of all of the police reports for defendant and had given them to the bailiff to give to defendant. Defendant stated that he received the police reports.
After a discussion about jury selection and other trial matters, defendant stated to the trial court, “One thing, Your Honor. [¶] I was willing to look through my paperwork yesterday, and I just wanted to ask the court, based upon me having picked the jury, you know, pick the jury, no jury has been picked to ask the court – to ask for a continuance so I can go over my discovery because this stuff that raises so far, when I went back to my unit, and some things I would like to go over my report. [¶] Would that motion be granted?”
The trial court stated, “I thought you indicated yesterday that you wanted to proceed immediately to trial and that’s why you didn’t want to have a lawyer.” Defendant responded, “Yeah. But you still haven’t – have anything. I have my report. There is still....” Defendant then complained about difficulty he was having contacting the investigator from the Public Defender’s Office. The trial court informed defendant that because he was no longer represented by the Public Defender’s Office, he could not use that investigator. Defendant stated that he would hire his own investigator. The trial court stated that defendant could ask the trial court to appoint an investigator, but that the trial was starting. Defendant stated that he was “asking for the motion.” The trial court and defendant then engaged in the following discussion:
“The Court: Well, I guess I’m not understanding why it was you were so insistent on proceeding immediately to trial yesterday but now you are not.
“The Defendant: Why? Because I – when I see the police report, I read some stuff that, you know, kinda will help me in my case.
“The Court: And didn’t I discuss this with you yesterday when you were insisting on going forward with your trial?
“The Defendant: No, Your Honor. Until I went through my discovery and find some stuff, you know, that would be useful for my trial.
“The Court: Like what?
“The Defendant: Huh?
“The Court: Like what?
“The Defendant: Like just the report, the police go over the report.
“The Court: I can’t understand what you
“The Defendant: Just some stuff that the police wrote in my report and just they say one thing and then they say another one.
“The Court: Is there anything else on your motion to continue?
“The Defendant: No, Your Honor, just that.”
The trial court denied defendant’s motion for a continuance and asked defendant if there was anything else he wanted to discuss before jury selection resumed. Defendant responded, “I would like to get – to get – to get the court to my discovery. I haven’t had a chance to get my discovery. I don’t know where my paperwork says; right? And I would like to ask for a continuance.” The trial court stated that it had already ruled on defendant’s motion.
B. Application of Relevant Legal Principles
“‘Continuances shall be granted only upon a showing of good cause.’ (Pen. Code, § 1050, subd. (e).) ‘The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge.’ (People v. Howard (1992) 1 Cal.4th 1132, 1171 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) ‘The burden is on [the defendant] to establish an abuse of discretion....’ (People v. Rhines (1982) 131 Cal.App.3d 498, 506 [182 Cal.Rptr. 478].) ‘[A]n order of denial is seldom successfully attacked.’ (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2502, p. 3002.)” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) An important factor for a trial court to consider in ruling on a motion for a continuance is whether the continuance would be useful. (Ibid.)
Defendant moved to represent himself for the asserted purpose of avoiding any further continuances. Explaining to the trial court his motion to represent himself in light of defense counsel’s assertion of a conflict of interest, defendant stated, “Because I want to continue the trial. I want to start the trial today. I’ve been in custody for eight months for this case, and now they came up with today, 10 of 10, and they came with the idea no conflict of interest. [¶] So at the time I would like to now represent myself and not continue the trial.” Shortly thereafter, at the conclusion of a discussion of other trial matters, the trial court asked defendant if he was ready for it to summon prospective jurors. Defendant responded that he was ready. The trial court asked defendant if he was ready to start trial even if defense counsel then turned over certain documents to him. Defendant stated that he was ready.
In context, it is clear that defendant misspoke when, at the beginning of his explanation he said, “Because I want to continue the trial.”
In light of defendant’s representation at the time of his motion for self-representation that he wanted to start trial immediately without a continuance, even though he might not have all of the relevant documents in the case, the trial court did not abuse its discretion in denying defendant’s request for a continuance after trial commenced and when defendant received those documents. Moreover, the record demonstrates that a continuance would not have been necessary or useful because defendant had many of the pertinent documents in the case, including the police report, for months prior to the request for a continuance. (People v. Beeler, supra, 9 Cal.4th at p. 1003.) In connection with defendant’s May 13, 2008, request to represent himself, defense counsel informed the trial court that he previously had given defendant a redacted copy of the police report. On May 20, 2008, when defendant withdrew his request to represent himself, defense counsel informed the trial court that he was giving defendant “materials which I have. It’s a prelim transcript, transcript of the 9-1-1 call, probation report and other motions and investigation that was done. I personally blacked out all the names and numbers of the witnesses.” Defense counsel stated that he was giving the materials to defendant to review and to have in case defendant changed his mind and wanted to represent himself.
It has been said that “a necessary continuance must be granted if a motion for self-representation is granted.” (People v. Clark (1992) 3 Cal.4th 41, 110; see People v. Valdez (2004) 32 Cal.4th 73, 103) and that when a “defendant who was granted the right to represent himself was entitled to a reasonable time to prepare for trial if necessary.” (People v. Clark, supra, 3 Cal.4th at p. 110.) Under the circumstances, the trial court had justification for impliedly finding that such a continuance was not necessary.
C. Prejudice
In addition to showing that a trial court abused its discretion in denying a mid-trial request for a continuance, a defendant must also show prejudice to be entitled to a reversal. (People v. Samayoa (1997) 15 Cal.4th 795, 840.) Defendant has failed to show prejudice.
As discussed above, defendant had many of the pertinent documents in the case, including the police report, months prior to the trial and defendant’s request for a continuance. Moreover, there was substantial evidence of defendant’s guilt. Two eyewitnesses identified defendant as one of the perpetrators. Defendant also was the registered owner of the car that drove the perpetrators to the parking lot and in which one of the perpetrators fled. Accordingly, even if the trial court abused its discretion in denying defendant a mid-trial continuance, defendant suffered no prejudice.
III. Defendant’s Mid-Trial Motions For Advisory Counsel And Reappointment Of Counsel
Defendant contends that the trial court abused its discretion in denying his mid-trial motion to reappoint counsel. Alternatively, defendant contends that if we construe his motion as seeking the appointment of advisory counsel, the trial court’s denial of advisory counsel was an abuse of discretion. Plaintiff’s contentions fail.
A. Background
1. Motion for advisory counsel
On Monday, August 18, 2008, after the prosecution had rested its case, defendant stated that he was ready to proceed with the presentation of his case. Defendant then had the following discussion with the trial court:
“The Defendant: But, for the record, Your Honor, I would like to notify the court right that I’m still in my regular module. I – I haven’t moved to the – for the pro per module since I went pro per on what was it?
“The Court: Thursday.
“The Defendant: Thursday. [¶] Which will be what date?”
“The Court: That would have been the14th.
“The Defendant: 14th. So I haven’t got no access to the law library, no research at all about my case. And I – at this time I would like to get a pro per counsel to be next to me because I really don’t know what I’m doing right now at this time.
“The Court: Well, you knew that at the outset that you don’t know what you were doing. We talked about that.
“The Defendant: Uh-huh.
“The Court: So you’re asking for advisory counsel?
“The Defendant: Yes, Your Honor.
The Court: Motion is denied.”
2. Motion for reappointment of counsel
After the conclusion of the defense case and before the beginning of the prosecution’s rebuttal case, the trial court advised defendant that if he gave a closing argument he would not be permitted to raise certain issues including any claim that he was being forced to represent himself. Defendant responded, “I asked for that before we started this court day, and you denied it, even on Friday before the jury got picked.” The trial court asked defendant if he wanted the trial court to take away his pro per status “right now.” Defendant responded, “Yes, Your Honor. [¶] This time I don’t even know what I’m doing. Since Friday I told you before – before we picked the jury, before we go any further, I wanted to study my case, 30 days. I brought that motion. You deny it.” The trial court stated, “Yes. We already went through all of that.”
After a brief recess, the trial court and defendant had the following discussion:
“The Court: [Defendant], let’s take a few minutes to review what’s taken place so far in this trial because you have made a number allegations that are unsupported by what actually didn’t happen. [¶] You were originally represented in this case by a public defender. You spent a number of hours discussing a potential settlement of the case. You declined to accept settlement which, of course, was your right.
“Your lawyer, then, based on various things that took place during the course of settlement discussions, did determine that there was a conflict of interest between his office and you. And accordingly, the public defender’s office declared a conflict. The court then appointed the office of the alternate public defender. [¶] You indicated that at this time – and this would have been, I believe, the 14th – that you did not want to continue the case for your new attorney but insisted on proceeding immediately to trial and representing yourself, even though you were completely unprepared to proceed to trial.
“We then proceed to commence jury selection. I then ruled on a motion in limine. Actually, that took place before your lawyer was relieved. [¶] We then commenced jury selection. And then the following morning you mentioned – you raised for the first time the issue of a continuance. [¶] The trial had already begun at that point, [defendant].
“The Defendant: I also suggest before we go any further in picking a jury because the jury just came in on the 14th.
“The Court: [Defendant], we had – the trial had already commenced. You already commenced jury selection, as you recall. [¶] At any rate, we’re going to complete this trial now. At such time as the jury retires to deliberate, then, if you still want to give up your pro per status, I will then reappoint the alternate public defender.
“The Defendant: I want to do it right now. I want to deal with my rights.
“The Court: We’re not going to. We’re not going to delay this trial any further.
“The Defendant: So you deny me – I don’t understand what you are saying, Your Honor. You ask if I want to give up my rights after, and I say I want to give them up now. I don’t know what I’m doing since Friday – since Thursday. [¶] And I’m just – at least deny the motion. I give you a motion. [¶] You say no. [¶] Then, I want to get a counsel. [¶] You say no. [¶] Then by the end of jury
“The Court: [Defendant], one minute. [¶] You wanted a trial. The next minute you want a lawyer. Next minute you don’t. It appears to me you have been playing games. [¶] You’re not going to play any more games at this point. As I indicated, you’re going to complete this phase of the trial.
“Once the jury retires to deliberate, if you still want to give up your pro per status, I’ll reappoint the alternate public defender. The alternate public defender can handle the second phase of the trial, can make any appropriate motions, can represent you for sentencing, if there even is a sentencing.
“The Defendant: How come you can’t do it right now before sentencing?
“The Court: Because we’re not going to do that.
“The Defendant: So you’re denying that?
“The Court: I am.”
When the jury retired to deliberate, the trial court asked defendant if he still wanted the trial court to reappoint the alternate public defender’s office. Defendant indicated that he did. The trial court reappointed the alternate public defender’s office and terminated defendant’s pro per status.
B. Application of Relevant Legal Principles
1. Advisory counsel
A defendant does not have a Constitutional right to advisory counsel. (People v. Clark, supra, 3 Cal.4th at p. 111.) “California courts have discretion to appoint advisory counsel to assist an indigent defendant who elects self-representation.” (People v. Crandell (1988) 46 Cal.3d 833, 861, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Thus, as with other matters left to the trial court’s discretion, “‘as long as there exists “a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside....” [Citations.]’” (People v. Crandell, supra, 46 Cal.3d at p. 863.)
Defendant argues that the record does not reflect that the trial court exercised its discretion in not appointing advisory counsel. The failure to exercise discretion in denying a motion for advisory counsel is error. (People v. Crandell, supra, 46 Cal.3d at p. 863 [after a summary denial].) If there is any absence of an exercise of discretion, we determine whether the denial of a motion for advisory counsel would have been an abuse of discretion. (Id. at pp. 862-863.) If the denial would not have been an abuse of discretion, then we review the trial court’s error under People v. Watson (1956) 46 Cal.2d 818, 836. (Id. at pp, 864-865.) “The factors which a court may consider in exercising its discretion on a motion for advisory counsel include the defendant’s demonstrated legal abilities and the reasons for seeking appointment of advisory counsel.” (Id. at p. 863.) If the record supports an inference that the motion for advisory counsel is manipulative, then the motion may be denied. (Ibid.; People v. Clark, supra, 3 Cal.4th at p. 112.)
The record does not reflect that the trial court exercised its discretion in denying advisory counsel. When defendant requested the appointment of advisory counsel, he stated that he did not know what he was doing. The trial court, in what could be viewed as a summary denial, denied the motion stating that defendant knew from the “outset” that he did not know what he was doing, a matter that the trial court and defendant had discussed.
The record supports the inference that defendant’s motion for advisory counsel was for inappropriate purposes, and, therefore, assuming the trial court failed properly to exercise its discretion, if the trial court had exercised its discretion in denying the motion, such exercise would not have been an abuse of discretion. (People v. Clark, supra, 3 Cal.4th at p. 112.) The trial court observed in connection with its denial of defendant’s motion for the reappointment of counsel, that defendant appeared to be engaged in “game playing” with the trial court. Throughout the early proceedings in this case, defendant twice requested to represent himself only to subsequently withdraw his request. When defense counsel declared a conflict of interest, defendant made his third request to represent himself. This time, defendant insisted on representing himself and proceeding to trial that day without a continuance. The next court day, defendant requested a continuance, which the trial court denied. The following court day, defendant first requested the appointment of advisory counsel and later requested the revocation of his pro per status and the reappointment of counsel. There is sufficient evidence to support the trial court’s conclusions.
2. Reappointment of counsel
“[O]nce defendant has proceeded to trial on a basis of his constitutional right of self-representation, it is thereafter within the sound discretion of the trial court to determine whether such defendant may give up his right of self-representation and have counsel appointed for him.” (People v. Elliot (1977) 70 Cal.App.3d 984, 993; People v. Gallego (1990) 52 Cal.3d 115, 164; People v. Lawley (2002) 27 Cal.4th 102, 149.) Among the factors a trial court should consider in ruling on a mid-trial request for appointment of counsel are, “(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. Elliot, supra, 70 Cal.App.3d at pp. 993-994; People v. Gallego, supra, 52 Cal.3d at p. 164.) Although useful, the Elliot factors are not absolutes. (People v. Gallego, supra, 52 Cal.3d at p. 164.) “‘[I]n the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.’” (Ibid.) A trial court does not abuse its discretion in denying a mid-trial motion for the appointment of counsel when the request is an attempt to “control the proceedings.” (People v. Clark, supra, 3 Cal.4th at p. 112; People v. Trujillo (1984) 154 Cal.App.3d 1077, 1086-1087.)
As we discuss above, there is sufficient evidence that defendant’s motion for the reappointment of counsel was for the purpose of manipulating the court system. As such, the trial court did not abuse its discretion in denying the motion. (People v. Trujillo, supra, 154 Cal.App.3d at pp. 1086-1087.)
C. Prejudice
Even if the trial court erred in denying defendant’s motion for advisory counsel or motion for reappointment of counsel, there was no prejudice. As noted above, when a trial court errs in failing to exercise its discretion in denying a motion for advisory counsel, but the exercise of its discretion to deny the motion would not have been an abuse of discretion, we review the trial court’s error under People v. Watson, supra, 46 Cal.2d at page 836. (People v. Crandell, supra, 46 Cal.3d at pp. 864-865) Likewise, when a defendant has exercised his Constitutional right to represent himself at trial but moves, mid-trial, to be represented by counsel, a trial court’s error in denying such a motion is reviewed for prejudice under People v. Watson. (People v. Elliot, supra, 70 Cal.App.3d at p. 998.) The evidence of defendant’s guilt was substantial. As we discuss above, two eyewitnesses identified defendant as one of the perpetrators and defendant was the registered owner of the car that drove the perpetrators to the parking lot and in which one of the perpetrators fled. Accordingly, in the absence of any purported error by the trial court, it is not reasonably likely that the outcome would have been more favorable to defendant. (People v. Watson, supra, 46 Cal.2d at p. 836.)
IV. Defendant’s Access To The Law Library
Defendant contends that he was denied access to the law library thus violating his Sixth Amendment right to self-representation and Fourteenth Amendment right to due process. Defendant’s contention fails.
A. Background
Shortly after 3:15 p.m., on Thursday, August 14, 2008, the trial court granted defendant’s request to represent himself. The trial court began jury selection, and then adjourned for the day.
In the morning on Friday, August 15, 2008, when defendant asked for a continuance, the trial court stated to defendant, “I thought you indicated yesterday that you wanted to proceed immediately to trial and that’s why you didn’t want to have a lawyer.” Defendant responded, “Yeah. But you still haven’t – have anything. I have my report. There is still – I don’t got no access. [¶] Yesterday I couldn’t get to the – to the – the private investigator to view the case. So I don’t know. He should be coming. I got the number, but I can’t call him by the time I get back to my unit now.” The trial court and defendant further discussed defendant’s apparent complaint that he did not have access to a private investigator before the trial court denied defendant’s motion for a continuance.
After the trial court denied defendant’s motion to continue, the parties completed jury selection and the prosecution presented its case and rested. The trial court and defendant then discussed how the remainder of the case would proceed, including defendant’s witnesses, the prosecution’s rebuttal, jury instructions, and closing arguments. In the discussion, defendant said nothing about his housing status at the jail and did not complain that he did not have access to the law library.
When defendant’s trial resumed on Monday, August 18, 2008, defendant stated that he had interviewed his expert witness, had decided not to give an opening statement, and was ready to proceed. Defendant added, “But, for the record, Your Honor, I would like to notify the court right that I’m still in my regular module. I – I haven’t moved to the – for the pro per module since I went pro per” the previous Thursday. Defendant stated, “So I haven’t got no access to the law library, no research at all about my case” and made a request for advisory counsel that, as discussed above, the trial court denied.
B. Application of Relevant Legal Principles
The California Supreme Court has recognized “[a]s for the Sixth Amendment,... that depriving a self-represented defendant of ‘all means of presenting a defense’ violates the right of self-representation. [Citation.] Thus, ‘a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’ [Citation.]” (People v. Blair, supra, 36 Cal.4th at p. 733.)
Nevertheless, “Institutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense.” (People v. Jenkins (2000) 22 Cal.4th 900, 1040.) “In the final analysis, the Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances. [Citation.]” (People v. Blair, supra, 36 Cal.4th at p. 733.) In considering a claim of lack of access to the ancillary services necessary to present a defense, the “crucial question” is whether a self-represented defendant has had “reasonable access to the ancillary services that were reasonably necessary for his defense. (Id. at p. 734.) To prevail on a claim that a self-represented defendant was denied access to ancillary services, the defendant must show not only error, but also resulting prejudice. (Id. at p. 736.)
Apart from defendant’s sole claim on Monday, August 18, 2008, that he was not being housed in the pro per module and thus had no access to the law library, there is no information in the record concerning this issue. A hearing was not held on the issue, apparently because defendant only “notified” the trial court “for the record” that he did not have access to the law library; he did not request a continuance so that he could have access to the law library or ask for other relief. Thus, the record does not contain evidence disclosing whether defendant was being housed in the pro per module, whether he had access to the law library, or whether defendant was denied access to the law library due to an institutional or security concern (see People v. Jenkins, supra, 22 Cal.4th at p. 1040).
Defendant’s assertion on Friday, August 15, 2008, that “I don’t got no access,” read in context, is fairly interpreted only as referring to “access” to a private investigator.
Assuming, without deciding, however, that defendant has established a factual basis for his claim that he was denied access to the law library, defendant’s claim that such denial violated his rights to self-representation and due process fails because he has not demonstrated prejudice. Defendant claims that his lack of access to the law library prejudiced his case because on his Faretta waiver form he left blank the area that listed the charged offense, and he answered “no” to questions concerning whether he knew if the charged offense was a general or specific intent crime, if he knew the facts needed to be proved before he could be found guilty of the charged offense, and if he knew the legal defenses to the charged offense. Defendant argues that his failure to cross-examine Gomez and Nguyen, even though their eyewitness identifications were “problematic,” and his failure to give a closing argument in which he could have pointed out conflicts in Gomez’s and Nguyen’s testimony underscores the prejudice caused by a lack of access to the law library.
Defendant’s defense was that the two eyewitnesses – Gomez and Nguyen – misidentified him and that he was not one of the perpetrators. Defendant understood that his best chance to defend against the charge lay in challenging the testimony of those two witnesses – defendant’s sole witness was an expert on eyewitness memory. Defendant does not point to anything in the record that would suggest that additional legal research would have a led to a different result. As defendant’s prejudice argument makes clear, this case turned on Gomez’s and Nguyen’s eyewitness identifications and their credibility. Those are factual, not legal matters. It may be that defendant failed to attempt to discredit Gomez’s and Nguyen’s identifications and credibility through cross-examination and closing argument. If his performance was inadequate, however, it resulted from defendant’s lack of skill as a trial advocate and not from lack of time in a law library. More time in a law library likely would not have turned defendant into a better trial advocate. Defendant does not identify any legal issue that he could have presented had he been given access to a law library that would have overcome the substantial evidence of his guilt.
DISPOSITION
The judgment is affirmed.
I concur: ARMSTRONG, J.,
TURNER, P. J.
I concur in the judgment.
First, I agree with the Attorney General that defendant has forfeited the right to raise any issue concerning access to a law library. As explained by the Attorney General, defendant waited until after the prosecution rested and the beginning of the day jury deliberations commenced to raise this issue. This issue has not been preserved for review. Our Supreme Court holdings regularly require prompt and timely objections in connection with a whole host of constitutional and statutory issues. (E.g. People v. Frye (1998) 18 Cal.4th 894, 969, overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [prosecutorial misconduct]; People v. Dennis (1998) 17 Cal.4th 468, 521 [prosecutorial misconduct]; People v. Alvarez (1996) 14 Cal.4th 155, 186 [Sixth Amendment confrontation claim]; People v. Jackson (1996) 13 Cal.4th 1164, 1235 [admissibility of gun under Pen. Code, § 190.3, subd. (b)]; People v. Turner (1994) 8 Cal.4th 137, 177 [Fourth Amendment claim]; People v. McClellan (1993) 6 Cal.4th 367, 376-377 [misadvisement by the judge as to the consequences of a guilty plea]; People v. Clark (1993) 5 Cal.4th 950, 994, overruled on a different point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [conflicted representation in violation of the Sixth Amendment]; People v. Saunders (1993) 5 Cal.4th 580, 589 [statutory violations of Pen. Code, §§ 1025 and 1164 by prematurely discharging the jury]; People v. Welch (1993) 5 Cal.4th 228, 235 [improper probation conditions]; People v. Visciotti (1992) 2 Cal.4th 1, 48 [improper voir dire questions]; People v. Wright (1990) 52 Cal.3d 367, 411 [judicial misconduct]; People v. Gallego (1990) 52 Cal.3d 115, 179 [delay in objecting to destruction of evidence]; People v. Carrera (1989) 49 Cal.3d 291, 317 [improper questioning of witnesses].) The delay in the raising the issue until after the prosecution rested and the day the jury commenced deliberating constitutes waiver, forfeiture, and procedural default of all of defendant’s constitutional law library access claims.
Second, defendant has failed to establish a factual basis for his law library contentions. No witnesses testified. No declarations were submitted. The trial court was entitled to disbelieve defendant’s self-serving unsubstantiated allegations. Statements of attorneys are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414 [“It is axiomatic that the unsworn statements of counsel are not evidence”]; accord People v. Wallace (2004) 33 Cal.4th 738, 754, fn. 3 [same].) The same is true of the statements of convicted car thieves.
Third, I do not agree with defendant’s contention that the trial court failed to exercise discretion in refusing to appoint advisory counsel. After a discussion about law library privileges and defendant’s acknowledged inability to understand what he was doing, the following occurred: “THE COURT: So you’re asking for advisory counsel? [¶] THE DEFENDANT: Yes, Your Honor. [¶] THE COURT: Motion is denied.” It is presumed the trial court was aware of its discretion. As we explained in People v. Mosley (1997) 53 Cal.App.4th 489, 496: “The general rule is that a trial court is presumed to have been aware of and followed the applicable law. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443 [‘[A]n appellate court must presume that the decision of the trial court is correct.’]; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321 [‘An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.’]; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645 [‘Neither party requested findings of fact from the trial court. In the absence of such findings, an appellate court must presume that the facts would support the trial court's judgment.’]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [‘“A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’]; Evid. Code, § 664.)” Here, there is no basis to defendant’s argument that the trial court was
unaware of its powers to appoint advisory counsel. When an experienced judge says, “Motion denied,” that is not the equivalent of, “Motion denied because I do not have the slightest power to grant your request.”