Opinion
D057597 Super. Ct. No. SCS228494
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. EDWARD NOLAN COWARD, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.
A jury found Edward Coward, Jr., guilty of vehicle theft and receiving/withholding stolen property. (Veh. Code, § 10851, subd. (a); Pen. Code,§ 496, subd. (d).) Coward admitted the allegations that he had a prior strike conviction and a prior prison term enhancement. (§§ 667, subs. (b)-(i), 1170.12, 668, 667.5, subd. (b).) The court sentenced Coward to a five-year term.
All further statutory references are to the Penal Code.
Coward contends the trial court erred by: (1) denying his request for his trial transcript to prepare for a new trial motion; and (2) failing to properly advise him of his constitutional rights before he admitted to the prior allegations. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2009, a police officer responded to a report that Coward was harassing young females at a recreational center. Upon arriving, the police officer was told that Coward had been sitting inside a white Cadillac parked at the center. When the officer ran the plates of this vehicle, he learned the vehicle had been reported stolen. Coward was arrested and charged with vehicle theft and receiving/withholding stolen property.
Coward's first trial began on July 13, 2009. Before trial, defense counsel informed the court that Coward wished to waive a jury trial on the alleged priors, which included allegations that Coward served a prior prison term (§ 667.5, subd. (b)) and suffered a prior robbery conviction alleged as a prior strike (§ 667, subds. (b)-(i)). As detailed below, the court then advised Coward of his constitutional rights to a trial on the prior allegations, and Coward expressly waived each of those rights. He then admitted each of the alleged priors.
Two days later, the trial court declared a mistrial on the current charges because of a flu outbreak at the detention center where Coward was being held, and scheduled a new trial. Before the retrial, the court granted Coward's request to represent himself.
The retrial began on November 4, 2009. At the outset of the trial, the court noted that Coward had already admitted the prior allegations and asked Coward a series of questions seeking to determine whether Coward had that same understanding. As explained in more detail below, during this questioning Coward agreed he had "previously pled guilty" to the allegations and that he wanted to adhere to those admissions and did not intend to challenge the validity of the admissions. The court then granted Coward's request to bifurcate the trial so his admissions would not be before the jury at the trial on the current charges.
After the trial, the jury returned a guilty verdict on both charged counts (vehicle theft and withholding/receiving stolen property). The court later denied Coward's request for a copy of his trial transcript to assist him in presenting his new trial motion.
DISCUSSION
I. Denial of Trial Transcripts
Coward contends the trial court abused its discretion by denying his request for the trial transcript.
A. Background Facts
Shortly after the jury announced its verdict, Coward requested a copy of his trial transcript. The court advised him he needed to contact his legal runner and file the appropriate forms with the court. Coward indicated he wanted the transcript "for my own personal use and for an appeal."
Less than two weeks later, Coward filed a new trial motion, raising numerous arguments, including that the court erred in restricting his questioning of certain witnesses at trial and the prosecutor engaged in numerous acts of prosecutorial misconduct. Several weeks later, Coward filed a written motion for production of the trial transcript "for purposes of appeal."
On January 26, 2010, Coward appeared in court for a hearing on his new trial motion and sentencing. At the outset, Coward asked the court to continue the hearing because he needed a copy of the trial transcript to properly prepare the new trial motion. Coward said he "really need[ed]" the transcript to "point out the flaws, the lies, and the discrepancies of this case to push my motion forward and to support my motion."
The prosecutor responded that a continuance did not appear to be necessary, but deferred to the court's discretion in the matter. The prosecutor noted there did not appear to be any legal authority requiring the court to provide Coward with a trial transcript for purposes of his new trial motion.
The court then ruled that Coward was not entitled to a transcript, but granted Coward a continuance to provide him with additional time to prepare for the new trial motion. With respect to the transcript request, the court noted the transcript would take time to prepare and stated that its "recollection" was "that a person preparing a motion for a new trial is not legally entitled to a transcript." The court further noted that Coward was present at trial and the grounds for the new trial motion would be based primarily on "your recollection of what transpired at the trial. And I don't believe there's a need for a several hundred page transcript in order for you to do it. I don't think there's a legal basis for you to have it, nor do I think there's a due process violation for you not to have it."
After the continuance and a hearing, the court denied the new trial motion.
B. Legal Principles and Analysis
Generally, an indigent criminal defendant has a constitutional right to a free reporter's transcript for an appeal. (See Griffin v. Illinois (1956) 351 U.S. 12, 18-19.) However, this right does not automatically apply at the new trial motion stage. An indigent defendant preparing a new trial motion "is not entitled, as a matter of absolute right, to a full reporter's transcript of his trial proceedings." (People v. Lopez (1969) 1 Cal.App.3d 78, 83; accord People v. Bizieff (1991) 226 Cal.App.3d 1689, 1700; People v. Markley (2006) 138 Cal.App.4th 230, 241.) Instead, a transcript must be furnished for a new trial motion only when the defendant makes a showing that the requested transcript is necessary for an effective defense, i.e., to properly present and support arguments asserted in the new trial motion. (People v. Bizieff, supra, 226 Cal.App.3d at pp. 1700-1702; see People v. Markley, supra, 138 Cal.App.4th at p. 241.) "The court must decide each case on its own facts and circumstances in determining whether the defendant has made a sufficient showing of need" for the transcript. (People v. Markley, supra, 138 Cal.App.4th at p. 241.)
The trial court here had a reasonable basis to conclude Coward did not show he needed the transcript to effectively prepare his new trial motion. Coward's statement that he wanted the transcript to "point out the flaws, the lies, and the discrepancies of this case" was too general to establish the necessity for a transcript. Coward did not explain why the transcript was necessary to assert these perceived errors. As the court pointed out, Coward represented himself at trial, prepared his own new trial motion when the events were fresh in mind, and appeared at the hearings on the new trial motion. The trial judge who ruled on the new trial motion and the transcript request was the same trial judge who presided over the trial. The court did not abuse its discretion in concluding that based on Coward's direct knowledge of the proceedings, Coward had a sufficient basis to discuss and explain the claimed factual and legal errors without a trial transcript.
This conclusion is supported by the contents of Coward's written new trial motion. In his motion, Coward included numerous specific references to the evidence at trial in support of his legal arguments. For example, Coward discussed in detail the testimony of the witnesses who testified that they saw him in the Cadillac, and his belief that these witnesses "lied" and that the prosecutor " 'SUBORNED PERJURY'" from these witnesses to obtain a conviction. There is nothing in the record showing uncertainty as to what occurred at trial pertaining to these witnesses that would have required reference to the trial transcript. Although Coward now argues that he was "frustrated [at trial] by his inability to question various witnesses about prior statements they had made" and he believes the court erred at trial in restricting his questioning of these witnesses, he does not explain why a trial transcript was necessary to effectively present these arguments in his new trial motion.
In his appellate briefs, Coward focuses on the comments by the trial court and the prosecutor suggesting a defendant is not legally entitled to a trial transcript to prepare for new trial. However, viewed in context, the court's comments do not show the court erroneously believed it had no discretion to grant the transcript request if Coward had proffered a valid and specific need for the transcript. Instead, the statements appear to have been directed primarily at the court's (correct) understanding of the law that an indigent defendant does not have an absolute right to the transcript for a new trial motion. Absent an indication to the contrary, we are required to presume the court understood the applicable law and exercised its discretion consistent with that law. (People v. Fuhrman (1997) 16 Cal.4th 930, 944.)
Further, any error in failing to provide Coward with the trial transcript was harmless under any standard. On appeal, Coward has not identified any errors that could have been more effectively raised if he had a trial transcript or any additional arguments he was precluded from raising because of the absence of the trial transcript. On appeal, Coward and his appellate counsel have had the full benefit of the trial transcript and he has not asserted any errors occurred at trial, except for the absence of the transcript and the error pertaining to his admissions on the prior allegations.
II. No Reversible Yurko Error
Coward contends the trial court erred by failing to advise him of his constitutional rights before he admitted the truth of the alleged priors. (See In re Yurko (1974) 10 Cal.3d 857 (Yurko).)
A. Facts Relevant to Claimed Yurko Error
Before Coward's first trial, the court advised Coward of his constitutional rights to a jury trial on the alleged priors, including the right to a "speedy public jury trial," the right to remain silent, the right to confront and cross-examine witnesses, the right to present witnesses, and the right to a trial at no cost. Coward expressly waived each of those rights. Coward then expressly admitted the truth of each of the alleged priors. Shortly after, the trial court declared a mistrial because of a flu outbreak at the detention center where Coward was being held, and scheduled a new trial.
At the outset of the retrial and before the jury was called, the court stated it understood Coward had already admitted the two alleged priors (the prior strike and the prison prior). The court then asked Coward a series of questions to ensure this was also Coward's understanding:
"The Court: You've been charged with a prison prior in the information as well as a strike prior."
"The Defendant: Uh-huh."
"The Court: It's my understanding . . . in . . . the last trial, you engaged in a full, constitutionally valid change of plea, as I understand it, by waiving your constitutional rights to a trial and all the rights associated with a trial for those two charges, the prison prior and the strike prior, and you admitted that. So my question to you is, is that an issue now in your mind? In other words, whether or not you admitted those. And if it's not, we'll just . . . bifurcate the trial, and when we get to the point of the priors, we'll deem them already admitted, because you already pled guilty to them. Do you understand what I 'm saying?"
"The Defendant: Yes. It's not an issue."
"The Court: All right. So it's your intent to not challenge the fact that you previously pled guilty to those charges? You don't want these charges, obviously, to be before the jury in this case this time, right?"
"The Defendant: Yes."
"The Court: You want to bifurcate?"
"The Defendant: Yes."
"The Court: All right. So your motion to bifurcate is granted. [¶]
And you intend to submit on the fact that you've previously pled guilty to them, so we don't need a trial on them later, right?"
"The Defendant: Yeah."
[¶]. . . [¶]
"The Court: All right. So that issue, I believe, is addressed. In the event that the defendant is convicted of the principal charges, we will just revisit the fact that you've already pled guilty to the prison prior and the strike prior, and we'll set a sentencing date for the whole thing put together. In the event that you're not found guilty, clearly it doesn't matter. Do you understand?"
"The Defendant: Yes." (Italics added.)
B. Legal Principles and Analysis
In Yurko, our high court held trial courts are constitutionally required to advise defendants who intend to admit prior convictions of their Boykin-Tahl rights, which include the right to a jury trial, the right to confront and cross-examine witnesses, and the right against self-incrimination. (In re Yurko, supra, 10 Cal.3d at pp. 861-865; see People v. Mosby (2004) 33 Cal.4th 353, 356; People v. Howard (1992) 1 Cal.4th 1132, 1178-1179.)
In this case, the record shows Coward was given a complete advisement before he admitted the priors in the first trial. The court specifically advised him of his right to a jury trial, the right to confront and cross-examine witnesses, and the right against self-incrimination. Immediately after the court's advisement, Coward expressly waived each of these rights and admitted the prior allegations.
On appeal, Coward argues the court was required to readvise him of each of these rights in the renewed trial. The argument is without merit. Coward had already admitted these same priors after voluntarily and intelligently waiving his constitutional rights. In the second trial he affirmatively stated he intended to adhere to those admissions and wished to waive his rights to a trial on the priors. On this record, there was no Yurko error because there was a full advisement before Coward waived his constitutional rights and admitted the prior allegations in the first trial. These admissions did not become ineffective merely because there was a mistrial on the current charges.
Moreover, even assuming the court was required to fully readvise Coward in the second trial, there was no prejudicial error. If the record shows an incomplete advisement, an appellate court must affirm if the record affirmatively shows a voluntary and intelligent waiver under the totality of the circumstances. (People v. Mosby, supra, 33 Cal.4th at p. 356.)
The record in this case supports that Coward's waiver in the second trial was voluntary and intelligent. In the first trial, the court expressly gave Coward notice of each of his Boykin-Tahl rights, and Coward expressly waived each of those rights. Coward was represented by counsel at that time. Coward then requested to represent himself in the second trial, and was found competent to do so. In the second trial, the court raised the issue of the prior admissions, and Coward affirmatively expressed his desire to stand by his admissions and thus continue to waive his right to a trial on the priors. Further, because Coward represented himself at trial and had an extensive criminal record, the record reflects that Coward had an understanding of the meaning of a jury trial and the consequences of waiving that right with respect to the priors.
Coward nonetheless argues his case should be reversed because the case falls under the "no advisement category" which requires reversal without a harmless error analysis. (See People v. Mosby, supra, 33 Cal.4th at pp. 361-362; People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421; People v. Johnson (1993) 15 Cal.App.4th 169.) However, in Mosby, our high court made clear that truly silent-record cases are only those that show no express advisement and waiver before a defendant admits the truth of a prior conviction. (People v. Mosby, supra, at p. 361.) These cases involve situations where the court failed to include any reference to the defendant's constitutional rights. (Ibid.)The defendants in such cases are not told of their right to trial to determine the truth of a prior conviction allegation and there is no express waiver of this right. (Id. at p. 362.)
For example, in People v. Carroll (1996) 47 Cal.App.4th 892, this court held that the trial court gave no advisements, when it asked the defendant if he wanted to waive his "right to a trial" and admit that his prior allegations are true. (Id. at p. 896.) We categorized Carroll as a silent-record case. (Ibid.)However, in distinguishing silent-record cases from incomplete advisement cases, the California Supreme Court impliedly disagreed and placed Carroll in the incomplete advisement category. (People v. Mosby, supra, 33 Cal.4th at pp. 362-363.)
Similarly, this case cannot be categorized as a silent-record case. Not only did Coward receive a full constitutional advisement before his first trial, but the court specifically asked him before retrial whether his prior admission would be an issue and Coward made clear that there was no need for a trial on the priors because he had already admitted the truth of the priors and he intended to stand by these prior admissions.
Coward alternatively argues the constitutional advisement in the first trial was deficient because four days before he admitted the allegations, the trial court "voiced concerns over whether Coward was actually mentally tracking the proceedings and whether he needed psychotropic medication in order to continue." Coward's argument is unavailing.
At a hearing in the first trial, the court inquired whether Coward was following the proceedings, and Coward responded "I want to know what's going on." The court then questioned Coward about whether he was receiving appropriate psychiatric treatment and/or medications. Four days later, Coward admitted the prior allegations after he was advised of his constitutional rights. There is nothing in this record showing that on the date of these admissions, the court continued to have any concerns about Coward's medications or whether Coward was following the proceedings. Coward was represented by counsel at the time, and counsel did not raise any objections or set forth any facts showing Coward was unable to understand his constitutional rights and could not voluntarily and intelligently waive those rights.
DISPOSITION
The judgment is affirmed.
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HALLER, J.
WE CONCUR:
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NARES, Acting P. J.
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MCINTYRE, J.