Opinion
B159075.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DENNIS MICHAEL CROOKES, Defendant and Appellant.
George A. Hunlock, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Dennis Michael Crookes of one count of first degree burglary (Pen. Code, § 459). Appellant admitted two prior strike convictions for burglary and attempted burglary. The trial court dismissed one strike conviction and sentenced appellant to the high term of six
All further references to statutes are to the Penal Code unless otherwise stated.
years, doubled to 12 years because of the remaining strike. The court imposed consecutive five-year terms for each prior serious felony conviction pursuant to section 667, subdivision (a)(1), for a total sentence of 22 years in state prison.
On appeal, appellant contends: (1) the trial court erred in reading CALJIC No. 17.41.1 to the jury, and (2) the conviction must be reversed because the trial court improperly denied appellants request for a continuance in order to prepare to represent himself.
FACTS
We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) In November 2001, Daniel Silver left his Beverly Hills home and drove down Clark Drive. He heard an alarm sounding from a residence at 264 Clark Drive and saw a man coming out of the driveway of the house carrying a plastic trash bag. Silver drove forward and pulled over, watching the man in his mirrors. Silver saw the man, later identified as appellant, enter an alley. Silver drove around the neighborhood looking for a police officer, and promptly found one.
Officer Gary Henrichs was waved down by Silver. Silver told him what he had observed and Henrichs went to the alley and saw appellant walking along with a plastic bag in his hand. Henrichs asked appellant if he could speak to him, and appellant replied, "I didnt do anything wrong." When Henrichs asked appellant to stop, appellant ran. Henrichs gave chase in his car and eventually on foot. He chased appellant through several yards. In the first yard, appellant jumped over a masonry wall. Henrichs found a plastic bag at the bottom of the wall as he chased appellant. Henrichs continued the chase until he caught hold of appellant as he attempted to jump over another masonry wall. After a scuffle, Henrichs was able to handcuff appellant.
Another officer found several items along appellants path that were identified by the resident of 264 Clark Drive as his property. Among the items were jewelry, jewelry bags, and foreign coins. A window in the home had been broken and the house had been ransacked. Police dusted for fingerprints at the home.
DISCUSSION
I. Reading of CALJIC No. 17.41.1
Appellant argues that CALJIC No. 17.41.1 violated his state and federal constitutional rights to a jury within the meaning of the Sixth Amendment, to jury unanimity, and to due process. He alleges the instruction infringed on the secrecy of jury deliberations and prohibited the jurors from discussing notions of justice, oppression, and fairness as applied to his case. Appellant contends that the error in giving the instruction is reversible per se.
The trial court read the instruction as follows: "Integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediate — immediately advise the court of the situation."
In its recent decision, People v. Engelman (2002) 28 Cal.4th 436 (Engelman), the California Supreme Court held that CALJIC No. 17.41.1 did not infringe upon the defendants federal or state constitutional right to trial by jury, the state constitutional right to a unanimous verdict, or the right to due process of law. (Engelman, at pp. 439-440, 442.) In Engelman, as in the instant case, the jury did not indicate in any way that a problem had developed during deliberations. (Id. at p. 441.)
In Engelman, the California Supreme Court was not persuaded that CALJIC No. 17.41.1 constituted a violation of a defendants federal or state constitutional rights or other error under state law simply because it might cause a juror to unnecessarily reveal the content of deliberations in the belief that misconduct had occurred. (Engelman, supra, 28 Cal.4th at p. 444.) The court also pointed out that other instructions fully informed the jury of the duty to reach a unanimous verdict. (Ibid.)
The Engelman court was concerned, however, that CALJIC No. 17.41.1 had the potential to create an unnecessary risk of intrusion on the deliberative process. (Engelman, supra, 28 Cal.4th at pp. 446-447.) Therefore, it used its supervisory power to direct that the instruction not be given in future trials. (Id. at p. 449.) Because there was no evidence that the instruction had affected the jury deliberations in Engelmans trial, the Supreme Court upheld the Court of Appeals decision affirming the judgment of conviction. (Id . at pp. 439-440, 442-445.)
Likewise, we are not persuaded by appellants constitutional arguments. In the instant case, there was no evidence of jury deadlock, juror intimidation, or of a juror refusing to follow the law. The jury deliberated for approximately one-half hour and made no queries or requests for readback of testimony. There was no indication the use of CALJIC No. 17.41.1 affected the verdict in any way. Appellants arguments based on the giving of this instruction are without merit.
II. Denial of Continuance in Context of Faretta
Faretta v. California (1975) 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (Faretta).
Appellant argues that the denial of a reasonable continuance for preparation for trial after he asserted his Sixth Amendment right to self-representation deprived him of due process of law.
The record shows that, after granting the defense motion to bifurcate the proceedings and prior to jury selection, the following exchange occurred:
"THE COURT: . . . [P] In regard to this matter on behalf of your client, its my understanding defense is ready to proceed?
"MS. MILLER: Yes.
"THE DEFENDANT: Actually, Id like to break — break in here and request a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (Marsden).
"THE COURT: A Marsden hearing. You want your attorney fired?
"THE DEFENDANT: Yeah, basically, yes, I do.
"THE COURT: Okay. Are you going to be prepared to represent yourself starting today?
"THE DEFENDANT: I mean basically I am not going to be able to represent myself today. I mean, um
"THE COURT: Im not —
"THE DEFENDANT: The bottom line is
"THE COURT: Yeah.
"THE DEFENDANT: — Im not trying to hold off proceedings here or anything, but Im trying — Im fighting for my life. I mean basically 18 years in prison for this crime
"THE COURT: Okay. Lets — Lets deal with the issue. Lets not argue about the (overlapping)
"THE DEFENDANT: Well, the bottom line is Id rather fight for myself than have someone fight for me that thinks that shes going to lose it anyway. You know? The bottom line is Id rather look through all this stuff and have a chance to fight for my life.
"THE COURT: Okay. Rather than getting into the issue of a Marsden hearing, what you believe at this point in time is not that your attorney is not doing a competent job for you representing you, but its your determination because you dont believe that she can win the case or that you believe (overlapping)
"THE DEFENDANT: I dont think she is competent to do the job, to tell you the truth."
At that point, the court asked the prosecutor to leave so that a Marsden hearing could be conducted.
During the Marsden hearing, appellant set forth his complaints about his counsel and argued his case to the court. Appellant apparently believed he would have a better chance if he fought for himself. The court reiterated appellants complaints in order to ensure it had understood them correctly.
The court informed appellant that the claims he raised were not sufficient to justify firing appellants current lawyer and appointing a new one. Appellant said he was not seeking a new lawyer but wished to "go pro per."
The court then advised appellant that his potential exposure was for a sentence of 35 years to life. The court told appellant that, if he chose to represent himself, he had to be prepared to proceed that day. The court had 33 jurors sitting outside because the court was advised that the case was ready to begin trial. The court stated: "Therefore, Im not going to continue the case, I will require counsel to turn over all of her materials to you, and I will not appoint a co-counsel to assist you. Youre going to act as your own lawyer. If you act as your own lawyer, I cant help you in terms of how youre going to present your case."
The court reiterated that it would not continue the case because it was set for trial on that day and appellants attorney was competent counsel who was ready to proceed. The court told appellant that, if he represented himself, he would not be able to appeal on the basis that he was inexperienced or that he was not prepared. Appellant continued to argue that his counsel was not competent because she had asked him how he would defend his case.
Appellant complained that the court was telling him that he lost either way. His attorneys did not know what they were going to do, and he had no time to prepare his own case. The court told appellant that his attorneys were obliged to tell him what the facts were based on their experience. The court then asked appellant to decide whether he was asking the court to relieve his attorney to defend the case on his own. Appellant asked the court what was in his best interest. The court clarified that appellant was asking for his advice and then told appellant that it was in his best interest to have a lawyer and not represent himself, which is what it would advise any defendant without legal experience. Appellant said he would like to look into some laws himself if it were possible, but he guessed that it was not, and he said he was being pressured out of his constitutional right.
Appellants attorney responded to appellants complaints. She acknowledged that she told him it was not a very good case and she had strongly advised him to take an 18-year plea bargain.
Appellant argued to the court that the 18-year deal was exaggerated for a robbery case. The court reiterated that appellants attorney was ready, willing, and capable of putting on a defense. Appellant requested that the record show he wanted to represent himself but that he was pressured out of doing so because he was not competent to start the trial that day. The court stated for the record that if appellant had received a continuance, he would have acted as his own lawyer.
A defendant has the right to represent himself if he voluntarily and intelligently chooses to do so. (Faretta, supra, 422 U.S. 806.) He or she must opt to do so, however, "within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal. Rptr. 8, 560 P.2d 1187, fn. omitted (Windham).) "The reasonable time requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. (People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal. Rptr. 184, 771 P.2d 1270.)
There is no fixed time before trial when a Faretta motion is considered untimely. (People v. Clark (1992) 3 Cal.4th 41, 99, 833 P.2d 561 (Clark).) The motion is untimely, however, if made on the "eve of trial," or when the case is being continued on a day-to-day basis. (Id. at pp. 99-100; see also People v. Scott (2001) 91 Cal.App.4th 1197, 1205 (Scott).) As noted in Windham, "a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court." (Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
In the instant case, appellant waited until the parties were ready to impanel a jury and commence trial to request self-representation. His request therefore was untimely. (Windham, supra, 19 Cal.3d at p. 128, fn. 5.) Appellants complaint centers on the trial courts denial of a continuance, which, he claims, "effectively denied him his constitutional right to self-representation."
"In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, "particularly in the reasons presented to the trial judge at the time the request [was] denied." [Citations.]" (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) "Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (Ibid .) A request for a continuance must demonstrate good cause. (Ibid.)
The California Supreme Court stated in People v. Jenkins (2000) 22 Cal.4th 900, 1039, 997 P.2d 1044 (Jenkins) that the trial court in that case "correctly noted that it had authority to deny the [Faretta] motion if self-representation required a continuance . . . ." Jenkins noted that in Clark, supra, 3 Cal.4th 41, it had stated that " a necessary continuance must be granted if a motion for self-representation is granted," but that, on the other hand, "it also is established that a midtrial Faretta motion may be denied on the ground that delay or a continuance would be required." (Jenkins , supra, at p. 1039.) Jenkins also pointed out that in Clark, the court sanctioned the trial courts decision to condition the granting of a Faretta motion on the defendants waiver of a continuance. (Jenkins , at p. 1039; see Clark, supra, at p. 110.)
Here, defendant made no showing of good cause for the granting of a continuance so that he could represent himself. As the court stated, and as the record shows, the People, appellants counsel, and a jury panel were waiting and ready for trial to begin. There had been several opportunities for appellant to make an unequivocal request to represent himself, but he had not done so. The record shows that appellants preliminary hearing was held on November 20, 2001, and he was arraigned on December 5, 2001. He subsequently appeared in court six times with his public defenders before trial began on April 15, 2002. Therefore, the trial court did not err or abuse its discretion in denying the motion to continue.
Moreover, the trial court could properly have denied appellants untimely request to represent himself in any event. Appellants request followed an unsuccessful Marsden motion in which he complained that certain witnesses were allowed to stay in the courtroom during testimony at his preliminary hearing and that his attorney had indicated appellant would lose the case. Appellants attorney acknowledged that she had encouraged appellant to take the 18-year plea bargain because the facts of the case went against appellant. She had asked him rhetorically how he himself would defend the case. Appellants dissatisfaction with his counsels frankness and candid assessment of his chances is tantamount to a disagreement over trial tactics, and a defendants disagreement with his counsel over trial tactics is not a sufficient reason to grant an untimely Faretta motion. (Scott, supra, 91 Cal.App.4th at p. 1205.)
Additionally, any request for self-representation, whether timely or untimely, must be unequivocal. (People v. Marshall (1997) 15 Cal.4th 1, 22-23, 931 P.2d 262; accord, Scott, supra, 91 Cal.App.4th at p. 1206.) Appellants request cannot be said to be unequivocal. Throughout the hearing on the Faretta motion, appellant principally complained about the long sentence he was offered and the seeming injustice of that sentence in light of his current offense. At one point, he asked the trial courts advice as to whether he should represent himself or not. A motion made in passing frustration may be properly denied. (People v. Marshall, supra, at p. 23.) The court could reasonably have denied appellants motion in light of his vacillation.
Even if the denial of a continuance were erroneous, appellant suffered no prejudice. Denial of an untimely Faretta motion does not require reversal per se, but is subject to the "harmless error" test of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) In the face of the overwhelming evidence of appellants guilt, it is not reasonably probable the outcome of the trial would have been more favorable to appellant had he been granted a continuance to prepare his own defense. (Watson, supra, at p. 836.) Therefore, we conclude that the trial court did not abuse its discretion or deny appellant his right to self-representation and due process by denying his motion for a continuance.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P.J., NOTT, J.