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People v. Correll

California Court of Appeals, Second District, Third Division
Mar 20, 2008
No. B193454 (Cal. Ct. App. Mar. 20, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. THOMAS DEAN CORRELL, Defendant and Appellant. B193454 California Court of Appeal, Second District, Third Division March 20, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. SA058814.

Robert P. O’Neill, Judge. Affirmed.

Jeanine G. Strong, 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, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

KLEIN, P. J.

Defendant and appellant, Thomas Dean Correll, appeals from the judgment entered following his conviction, by jury trial, for assault with a deadly weapon, with prior serious felony convictions and prior prison term enhancements (Pen. Code, §§ 245, 667, subd. (a)-(i), 667.5). Sentenced to state prison for 10 years, Correll claims there was trial and sentencing error.

All further statutory references are to the Penal Code unless otherwise specified.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.

On December 25, 2005, Majadi Pruitt, Donna Remble, Remble’s fiancé Brian, and their 10-year-old daughter, were eating Christmas dinner at a Sizzler restaurant in Culver City. Defendant Correll and a male companion were sitting nearby. Correll started shouting at Pruitt’s party, saying “Stop looking at my bitch, stop looking at my bitch,” over and over. Correll’s “my bitch” comment apparently referred to his male companion, and he seemed to be directing his anger at Brian. Correll got up and approached Pruitt’s table, still repeating “Stop looking at my bitch.” Pruitt told Correll, “[N]o one is talking to you. We’re trying to have a dinner here.” Correll returned to his own table.

Pruitt testified Correll then picked up a knife, came back to her table and pointed the knife at her chest. “[H]e was standing there with the knife right there. I’m talking to him. The other guy [i.e., David McClenton, another patron] is talking to him, and I’m telling him, you’re not going to cut me.” Correll’s companion “kept telling him . . ., relax. Calm down. Stop. Let’s get out of there.” Pruitt told Correll she “could tell he had been drinking alcohol because [she] could smell it coming out of his pores.”

David McClenton, another restaurant patron, had been sitting nearby. When he initially became aware something was going on, he got up to make sure everything was okay. He went over to Pruitt’s table and asked if they were all right. By this time, Correll had gone back to his own table. Pruitt’s group said they were okay, it was just that Correll had been bothering them. McClenton testified: “Shortly after I returned to my table, I heard a loud noise. I turned around. Mr. Correll was back at their table with something in his hand. [¶] Q Could you see what was in his hand? [¶] A It was either a knife or a fork. [¶] Q What was he doing with that item? [¶] A He was being aggressive with it.” McClenton saw that Pruitt “was now standing up blocking [Brian as] Mr. Correll was trying to move towards him.” Correll was within a foot of Pruitt. He had the knife or fork “in his hand, and he was moving forward with it (indicating [that Correll’s arm was extended]).” “Q How close would you say the knife was away from [Pruitt’s] body? [¶] A Within a foot.”

On cross-examination, McClenton testified the utensil Correll had in his hand could have been a spoon: “Logically, because I didn’t have a good view of it. I just saw it was something with a handle and silver. So it could have been a spoon. [¶] Q Did it look like the steak knives that they give to you at Sizzler? [¶] A All the silverware pretty much resemble [sic] each other. Again, I saw an object in his hand pointed towards the party. I wasn’t trying to necessarily identify it.”

Remble testified Correll had come “rushing” over to their table. “Once he was . . . at the table, he was standing over the table. I can’t recall what was said. [¶] I stood up out of the mother’s love for my daughter because I was in fear of his presence with my daughter. [¶] So that’s what happened. His presence frightened me.” “Q Why were you frightened? [¶] A He charged. He rushed towards the table.”

A restaurant employee asked Correll to leave the premises, but he refused. At one point, Correll took his shirt off, as though he wanted to fight. Eventually, Correll left the restaurant and waited outside. The police subsequently arrived and arrested him.

Correll did not put on any evidence.

CONTENTIONS

1. The trial court erred by denying Correll’s request to represent himself.

2. The trial court erred by refusing to instruct on brandishing as a lesser related offense.

3. The trial court erred by refusing to order a diagnostic evaluation pursuant to section 1203.03.

DISCUSSION

1. Correll’s Faretta motion for self-representation was properly denied.

Correll contends the trial court erred when it denied his motion under Faretta to represent himself. This claim is meritless.

Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

a. Proceedings below.

On April 26, 2006, both sides announced ready for trial, and the trial date was set for May 3, 2006. On the morning of May 3, the following colloquy occurred:

“The Defendant: Your Honor, I would like to request pro per status at this point.

“The Court: All right. Well, the matter is set for trial. We’re going to trial tomorrow morning.

“The Defendant: I would like, if possible, to have a couple weeks to prepare for myself a continuance [sic].

“[The Court:] No. It’s untimely. This matter has been pending trial now for some time. The arraignment in this matter occurred back in December of ’05. [¶] Before the preliminary hearing, you were arraigned in this court in January. So we’re five months down the road. [¶] The matter is set and has been set for trial in this court before I sent the matter out to the master calendar for trial. [¶] You have the right, if you wish and if I find that it’s appropriate, to represent yourself, but you’re not getting a continuance. [¶] So unless you tell me you’re ready to start picking a jury tomorrow, this request is untimely.

“The Defendant: The reason – there are some new witnesses apparently that I would like a little bit of time also to be able to get the new witnesses who have been contacted.

“The Court: You’re requesting a continuance in conjunction with a request to represent yourself. It’s denied. It’s untimely. [¶] . . . [¶] I assume you’ve had no experience in representing yourself, but if you’re ready to start trial tomorrow, then I’ll consider that request. [¶] That’s what’s going to happen. We’re going to start picking a jury tomorrow morning.

“(The defendant and his counsel conferred soto [sic] voce.)

“The Defendant: What I’d like to do is just maintain my attorney until this point until tomorrow, and then I’ll have a better perspective on things.

“The Court: Okay. We will order a jury panel for tomorrow morning.” When court proceedings resumed the next morning, Correll did not say anything about wanting to represent himself.

b. Legal principles.

“A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. [Citation.] [¶] . . . [¶] . . .‘[U]nlike the right to be represented by counsel, the right of self-representation is not self-executing. In Faretta, . . . the court held that a knowing, voluntary, and unequivocal assertion of the right of self-representation, made weeks before trial by a competent, literate defendant, should have been recognized [citation]; subsequent decisions of lower courts have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation. [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 20-21.)

“ ‘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.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959.) “In exercising that discretion, a trial court is required to consider (1) the quality of counsel’s representation, (2) the defendant’s prior proclivity to substitute counsel, (3) the reasons for the request, (4) the length and stage of the proceedings, and (5) the disruption or delay which might reasonably be expected to follow the granting of such a motion. (People v. Windham (1977) 19 Cal.3d 121, 128 . . . .)” (People v. Scott (2001) 91 Cal.App.4th 1197, 1204.) “When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, a reviewing court must give ‘considerable weight’ to the court’s exercise of discretion and must examine the total circumstances confronting the court when the decision is made. [Citation.]” (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)

c. Discussion.

Correll’s Faretta motion was untimely because it was not made until the eve of trial: one day before jury selection was to begin. (See People v. Clark (1992) 3 Cal.4th 41, 99 [Faretta request made during 10-day trailing period was, in effect, made on the eve of trial and, therefore, was untimely even though trial did not begin until almost a month later]; People v. Burton (1989) 48 Cal.3d 843, 853 [Faretta motion made “after the case had been called for trial, both counsel had answered ready, and the case had been transferred to a trial department for pretrial motions and jury trial” was untimely]; (People v. Scott, supra, 91 Cal.App.4th at p. 1205 [Faretta motion untimely because “made just prior to the start of trial”]; People v. Rudd (1998) 63 Cal.App.4th 620, 626 [“motions for self-representation made on the day preceding or on the trial date have been considered untimely”].)

Although “the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors.” (People v. Scott, supra, 91 Cal.App.4th at p. 1206.) The trial court did expressly consider the length and state of the proceedings, as well as the delay that would result from Correll’s request for a two-week continuance, by noting the lateness of his request, the imminent commencement of jury selection the next day, and the fact the case had already been pending for some time. There was no indication defense counsel had been providing inadequate representation. There was no indication defense counsel would have been unable to interview any new witnesses, if there actually were any.

Moreover, “even had the motion been timely, it was still equivocal – and that was sufficient reason for denying it.” (People v. Scott, supra, 91 Cal.App.4th at p. 1206.) After the trial court said it would consider Correll’s request for self-representation if he agreed to start trial the next day, Correll said he wanted to “just maintain my attorney until this point until tomorrow, and then I’ll have a better perspective on things.” This showed his Faretta request was ambivalent, not unequivocal. Indeed, when Correll appeared in court on the following day, he said nothing about representing himself.

The trial court did not abuse its discretion by denying Correll’s request for self-representation.

2. Trial court did not err by refusing to instruct on lesser related offense.

Correll contends the trial court erred by denying his request to instruct the jury on brandishing (§ 417) as a lesser related offense. This claim is meritless.

Section 417, subdivision (a)(1), provides: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.”

Correll concedes, as he must, that a trial court is no longer required to instruct on lesser related offenses (People v. Birks (1998) 19 Cal.4th 108, 136 [defendant does not have “a unilateral entitlement to instructions on lesser offenses which are not necessarily included in the charge”]), and that brandishing is a lesser related offense of assault with a deadly weapon (cf., People v. Steele (2000) 83 Cal.App.4th 212, 218 [“it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victim’s back”].)

Nevertheless, Correll argues the trial court should have given a brandishing instruction because it was “key to the jury’s understanding that appellant’s conduct . . . did not rise to the level of an assault with a deadly weapon.” However, precisely this claim was rejected in People v. Valentine (2006) 143 Cal.App.4th 1383: “[A] defendant has no right to instructions on lesser related offenses even if he requests the instruction and it would have been supported by substantial evidence. [Citation.] California law does not permit a court to instruct on an uncharged lesser related crime unless agreed to by the prosecution. [Citing People v. Birks, supra.] Here, the prosecution objected to the instruction.” (Id. at p. 1387) “In essence, Valentine contends that he has a right to have the jury instructed on the elements of a crime not charged in order to urge the jury that he is not guilty of the charged offense but that he is guilty of something else. It has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged. Although it was the law of this state from 1984 to 1998 that an accused was entitled to have the jury instructed on ‘lesser related offenses,’ the rule was abolished in [Birks].” (Id. at p. 1387, fn. omitted.)

Correll argues Valentine was incorrect because “nothing in Birks supports Valentine’s conclusion that Birks does not ever permit, and completely forecloses, an instruction on a lesser related offense.” But Valentine did not say a lesser related offense instruction could never be given. Rather, Valentine properly applied the following rule announced by Birks: “[O]ur decision does not foreclose the parties from agreeing that the defendant may be convicted of a lesser offense not necessarily included in the original charge. When the parties consent to such a procedure, with or without formal amendment of the pleadings, neither can claim unfairness, and the prosecution’s role in determining the charges is not improperly compromised. Indeed, there may be many cases in which both parties are persuaded that their best interests lie in such a procedure.” (People v. Birks, supra, 19 Cal.4th at p. 136, fn. 19.) There was no such joint consent by the parties in Valentine because the prosecutor objected to giving a lesser related offense instruction.

As Birks explained: “[T]he prosecution undertakes no duty to prove uncharged, nonincluded offenses, and such proof may well be overlooked in the presentation of the prosecution’s case. The defense has no duty to prove any crime by any standard. Thus, and particularly when the prosecution does not consent, the giving of instructions on lesser merely related offenses invites the jury to convict the defendant of a crime that no party may have attempted to establish beyond a reasonable doubt.” (People v. Birks, supra, 19 Cal.4th at p. 132, italics added.)

Nor was there such joint consent in the case at bar. Correll acknowledges this, but complains “the prosecution did not object on the record to the brandishing instruction.” But Birks does not require a record objection in order to prevent a lesser related offense instruction from being given; rather, Birks requires joint consent before the trial court can give a lesser related offense instruction. There was no such consent here and, therefore, the trial court did not err by refusing to give the instruction.

3. Trial court did not err by failing to order a diagnostic evaluation.

Correll contends the trial court erred by refusing to have a diagnostic evaluation done pursuant to section 1203.03. This claim is meritless.

Section 1203.03, subdivision (a), provides that the court has the discretion to order a defendant to be temporarily placed in a diagnostic facility prior to sentencing, if ‘it concludes that a just disposition of the case requires such diagnosis and treatment services. . . .’ Placement in a diagnostic facility ‘is warranted where the court concludes a diagnostic study is essential to a just disposition of the case. The trial court abuses its discretion in ruling on a particular matter only where such ruling exceeds the bounds of reason.’ [Citation.]” (People v. Lawrence (172 Cal.App.3d 1069, 1075.)

Correll argues his “memorandum in mitigation contained only a vague statement that [he] suffered from ‘severe mental and emotional disorders for which he has been and currently is receiving treatment.’ The psychiatric problems are attributed to a childhood car accident that placed him in a coma for over two weeks. The memorandum also mentions that appellant is a recovering alcoholic and has been a member of AA for the past five years. [¶] Although the memorandum in mitigation put the court on notice . . . of appellant’s mental illness and additional problems, the vague and undocumented statements were not adequate. . . . [A] diagnostic study would have provided the court with a detailed, documented and useful explanation of appellant’s childhood head trauma, his psychiatric disorders, addiction problems, the treatment he has received, and the medication he was prescribed but may not have been taking. The trial court’s failure to order a diagnostic exam under these circumstances was an abuse of discretion.”

At the sentencing hearing, the trial court said it had read the probation report and the brief in mitigation filed by Correll. The trial court said: “ . . . I don’t feel that a 1203.03 is appropriate nor would it assist this court in determining what is an appropriate sentence for Mr. Correll. [¶] I don’t find that probation is a viable alternative for him in light of the circumstances in this offense, all his prior convictions, and the fact that he was on parole at the time of this particular offense.” In sentencing Correll to a low term on his aggravated assault conviction, the trial court said: “Mr. Correll, this is a terrifying experience for the ladies involved. There was a ten-year-old daughter that was with one of the women. [¶] Although you may have had some psychological problems at the time and perhaps some alcohol-related influences to your behavior, it is totally unacceptable, and it was not only aggressive but terrifying for the people involved . . . .”

According to the probation report, Correll’s adult criminal history included the following convictions: burglary (1983), selling drugs (1987), vehicle theft (1989), burglary (1989), burglary (1991), unauthorized entry of a dwelling (1992), possession of burglary tools (1993), vehicle theft (1994), battery (2002), and petty theft with a prior (2003).

It is clear the trial court concluded a section 1203.03 evaluation was not essential to a just disposition of Correll’s case. We cannot say the trial court abused its discretion by doing so. (See People v. Lawrence, supra, 172 Cal.App.3d at p. 1075 [no abuse of discretion where trial court said: “ ‘This Court has listened to the evidence. I took my notes, my personal notes on the matter, and I reviewed it on several occasions. The Court feels the verdict should stand and that the 1203.03 is not going to help the Court or anyone. The Court feels under the law that the defendant should be sent to the state prison.’ ”]; People v. Myers (1984) 157 Cal.App.3d 1162, 1169 [“[Defendant’s] emotional instability was argued by defense counsel in a written statement in mitigation and at sentencing. The probation report extensively discussed, and the sentencing court acknowledged, Myers’ emotional problems. However, the court determined a psychological examination was not necessary because Myers had previous intensive psychological counseling for approximately 42 months which did not prevent his recidivism. The sentencing court did not abuse its discretion in concluding a psychological report was unnecessary to fairly sentence Myers to his fourth prison term.”].)

The trial court did not abuse its discretion by refusing to order a diagnostic evaluation.

DISPOSITION

The judgment is affirmed.

We concur: CROSKEY, J., ALDRICH, J.


Summaries of

People v. Correll

California Court of Appeals, Second District, Third Division
Mar 20, 2008
No. B193454 (Cal. Ct. App. Mar. 20, 2008)
Case details for

People v. Correll

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS DEAN CORRELL, Defendant…

Court:California Court of Appeals, Second District, Third Division

Date published: Mar 20, 2008

Citations

No. B193454 (Cal. Ct. App. Mar. 20, 2008)