Opinion
A142663
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD VERNON CUPP & ELIAS STAVRINIDES, Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR620455)
After a jury trial, appellants Ronald Vernon Cupp (Cupp) and Elias Stavrinides (Stavrinides) were both found guilty of possessing more than 28.5 grams of marijuana. (Health & Saf. Code, § 11357, subd. (c).) They now argue on appeal that the trial court erroneously refused to suppress evidence improperly obtained pursuant to a defective search warrant and prejudicially failed to instruct the jury regarding the special consideration that must be accorded accomplice testimony. Cupp additionally contends that the trial court committed several errors under Faretta v. California (1975) 422 U.S. 806 (Faretta) with respect to his intermittent self-representation throughout the proceedings below. Finding none of the arguments presented persuasive, we affirm.
All statutory references are to the Health and Safety Code unless otherwise specified.
I. BACKGROUND
This case began with the execution of a search warrant (Search Warrant) for, among other locations, 4640 Arlington Avenue, a rural property located in Sonoma County with a main structure, a warehouse, and a shed (Arlington Property). The affidavit requesting the Search Warrant sought documents and electronic devices containing evidence of mortgage fraud, as well as any indicia of occupancy of the searched premises and/or of ownership of the referenced materials. In support of this request, the affidavit detailed the existence of an ongoing mortgage fraud investigation involving Cupp and a number of other individuals.
When the Search Warrant was executed, however, officers found evidence related to other criminal activity at the Arlington Property. Specifically, the main structure of the property "was completely gutted. It was only studs and wood inside." However, in the converted garage—where Cupp was living—officers found medical marijuana recommendations for Cupp and another individual. Officers had to use a battering ram to open the door to the warehouse, as it was secured with an abnormally strong padlock. Inside, they found five separate rooms, each containing growing marijuana plants: nearly 1500 "clone" plants in the first room; 30 plants in the second room; 121 plants in the third room; 99 plants in the fourth room; and 92 plants in the fifth room. The plants were growing under "high-powered lighting systems" and were surrounded by netting designed to maximize flower growth. The warehouse also contained another medical marijuana recommendation for Cupp. In the shed, officers found a digital scale, glass jars containing concentrated cannabis, several ounces of dried marijuana, instructions on how to make "hash," and materials used in the manufacture of concentrated cannabis. Finally, a Pacific Gas & Electric representative viewed the power meters at the Arlington Property and opined that one had been tampered with, resulting in a failure to register all of the power being used. At some point during the execution of the warrant, Cupp arrived at the Arlington property, his vehicle was searched, and certain checks, paperwork, and keys were seized. Stavrinides also arrived at the Arlington Property during the search, but was released after he indicated that he was not involved with the marijuana because he did not smoke it.
That same day, Detective Hepp interviewed Randall Cupp, appellant Cupp's brother. Randall and Cupp owned the Arlington Property and operated Cupp Brothers Construction from it. Randall had lived in the main residence at the Arlington Property, but had moved out so that the home could be renovated. Randall identified himself, Cupp, and Stavrinides as the persons involved in the marijuana grow at the Arlington Property, although Stavrinides was the most involved. Stavrinides, Cupp, and Randall all had keys to the grow area. According to Randall, Stavrinides and Cupp had already had a few harvests when he first got involved. Cupp handled all the bills, including the electric bill. Randall helped out by watering the plants. He had discussed with his brother his concerns that they were not receiving a sufficient return on the harvests from Stavrinides. Randall conceded that the hash materials at the Arlington Property were his. He opined that he likely needed only four or five of the big marijuana plants for his personal use. He sold excess "shit" to supplement his income. Randall's cell phone had messages from Stavrinides' phone number discussing marijuana sales.
Given that appellant Cupp and his brother share the same last name, we refer to Randall Cupp as "Randall" throughout this opinion.
When further interviewed, Stavrinides reported that he owned a legitimate nursery operation and had various plants stored at the Arlington Property. However, officers thereafter searched Stavrinides' home in Rohnert Park (Mercedes Residence) and discovered marijuana paperwork for Stavrinides, marijuana plants growing in two bedrooms, and various firearms. Evidence also suggested tampering with the power meter at the Mercedes Residence.
As a result of this investigation, the Sonoma County District Attorney ultimately filed an amended information charging appellants with unlawfully cultivating marijuana (Count 1) (§ 11358), a felony; unlawfully possessing marijuana for sale (Count 2) (§ 11359), a felony; and felony conspiracy to commit the aforementioned crimes (Count 3) (Pen. Code, § 182, subd. (a)(1)). The amended information additionally alleged for each of these counts that a principal was armed with a firearm. (former Pen. Code, § 12022, subd. (a)(1)). Finally, the amended information also charged Cupp, alone, with theft of utility services (Count 4). (Pen. Code, § 498, subd. (b).)
At trial, Randall confirmed on direct examination that he had been convicted of possessing marijuana for sale after entering a plea in these proceedings. He further testified—contrary to his prior statements to Detective Hepp—that he alone was responsible for the marijuana in the warehouse on the Arlington Property. Although appellants were not involved, he had given Cupp three pounds of marijuana on two occasions at his request for medicinal purposes. Randall claimed that he couldn't remember his previous interview with Detective Hepp, except that it was "a bunch of lies" which he had told because he was "jonesing" to get high on methamphetamine. A recording of the interview was played for the jury. Detective Hepp provided expert testimony that the marijuana at both the Arlington Property and the Mercedes Residence was being cultivated unlawfully and was possessed for sale. At the conclusion of the trial, the jury found both appellants not guilty of unlawfully possessing marijuana for sale, but guilty of the lesser included offense of possessing more than 28.5 grams of marijuana (§ 11357, subd. (c)). Further, Cupp was found not guilty of Count 4, and the trial court declared a mistrial as to Counts 1 and 3. As a result, the trial court placed appellants on court probation for three years and ordered them to spend 30 days in county jail. This appeal followed.
II. DISCUSSION
A. Search Warrant Issues
On appeal, Cupp and Stavrinides challenge the admissibility of the evidence seized from the Arlington Property on several bases. First, they contend that the trial court erroneously denied their motion to quash the Search Warrant covering the Arlington Property because the supporting affidavit failed to establish a reasonable belief that evidence of criminality would be found in Cupp's home. Next, they argue that the description of the Arlington Property for purposes of this initial Search Warrant was materially misleading in that it failed to disclose that the warehouse was part of a separate nursery operation which should have been excluded from the search of Cupp's residence. Finally, appellants claim that the trial court wrongfully denied their suppression motions because officers acted beyond the scope of the Search Warrant when they searched the warehouse containing the marijuana. None of these arguments have merit.
We address first appellants' claim that the trial court should have granted the motion to quash the Search Warrant because the supporting affidavit failed to establish any reasonable belief that evidence of mortgage fraud would be found in Cupp's home. A defendant moving to quash a warrant asserts that the affidavit supporting the warrant fails as a matter of law to set forth sufficient competent evidence to find probable cause. (People v. Hobbs (1994) 7 Cal.4th 948, 975.) "In Illinois v. Gates (1983) 462 U.S. 213, 238, the court reaffirmed the 'totality-of-the-circumstances' analysis for probable cause determinations by a magistrate. 'The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed.' " (People v. Lieng (2010) 190 Cal.App.4th 1213, 1228-1229, italics added.) Moreover, " '[t]he magistrate's determination of probable cause is entitled to deferential review.' " (Id. at p. 1229.)
Here, appellants cite a number of cases for the proposition that "[a] defendant's commission of alleged criminal activity does not alone provide a reasonable basis to believe evidence of criminality will be found in a defendant's home." (See, e.g., People v. Gonzalez (1990) 51 Cal.3d 1179, 1206 ["Mere evidence of a suspect's guilt provides no cause to search his residence"], superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) Even if this is true, however, we believe the affidavit in the instant case was sufficient to establish that there was a fair probability that evidence of mortgage fraud would be found in Cupp's home. (See People v. Gonzalez, supra, 51 Cal.3d at p. 1206 [" '[a] number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect's residence is a logical place to look for specific incriminating items' "].) Specifically, the affidavit underlying the Search Warrant included the following relevant information: (1) the affiant had been a police officer for almost 20 years, had worked in the Economic Crime detail for a number of years (conducting over 200 investigations involving counterfeit credit cards, checks, embezzlements, and "paper" crimes), had specific training in mortgage and foreclosure fraud as well as a law degree, and had prepared and executed over 20 fraud-related search warrants and over 100 search warrants related to other criminal activity ; (2) the affiant had been contacted by a mortgage fraud investigator from Wells Fargo Bank (Wells Fargo) with documents listing Cupp as principal which appeared to be "Sovereign Citizen" documents; (3) Sovereign Citizen is an extremist anti-government group which maintains that it is not governed by federal or state law; (4) an investigator from the Secretary of State informed the affiant that she was familiar with these type of "protest" documents and that some of them could not legally be notarized; (5) a Santa Rosa woman reported to a detective that Cupp had offered to get rid of her mortgage for her in return for cash—claiming he had done so for others—and that she paid him money and signed a power of attorney and deed of trust at his direction; (6) the Santa Rosa documents were similar to those Cupp filed with Wells Fargo and appeared to have been created with boilerplate templates; (7) documents received from a related bank search warrant showed checks executed by Cupp and deposits into Cupp accounts relevant to the mortgage fraud investigation; (8) the bank documents also showed that Cupp was operating under at least three DBAs, including North Bay Trust Services, Sonoma Fidelity Title, and Santa Rosa Trust and Title; (9) the Sonoma County Recorder's Office reported that Cupp had filed a fictitious business statement for a title company named Sonoma Fidelity Title and had become a Notary Public, filing a notary bond with the Recorder's Office; (10) Cupp's notary application listed his home address as the Arlington Property; (11) Cupp had also filed a fictitious business statement for Marin Trust & Title and Corte Madera Fidelity & Title in Marin County, listing his mother's address as both his residence and business address; (12) Cupp and an associate had represented in written instruments that they had the authority to sign and record documents for entities such as Wells Fargo, the Secretary of Housing and Urban Development (HUD), and J.P. Morgan Chase, in violation of the law; (13) the Arlington Property was listed in Cupp's DMV records and his truck was spotted at the residence; and (14) based on her experience, the affiant believed that the evidence of mortgage fraud she was seeking (including paper and electronic documents) "[would] be found at the premises, vehicles and/or persons listed," including the Arlington Property. The trial court in this case concluded that this information was sufficient to support the search of the Arlington Property and we agree. In particular, we note that the evidence showed Cupp was using multiple entities with multiple addresses in connection with his alleged mortgage fraud scheme, including one address—his mother's—as both a business and residence address. Thus, it seems fairly probable that evidence of his suspected criminal activities could have been located at any business or home address he had designated.
Specifically, the trial court opined: "[C]ertainly there was sufficient ties to that property, and looking for a paper case, fictitious, fraudulent documents, which could be found on small data devices, computers, file cabinets, writings, they could be located anywhere. And certainly it is very reasonable to believe with a small business or those that are loosely organized and operated, that, in fact, it is probably more likely that you will find evidence within the private residence of the subject of the search warrant than you would actually at the . . . business location." (See also People v. Gallegos (2002) 96 Cal.App.4th 612, 626 ["Because the warrant authorized a search for documents, the officers could properly search anywhere documents might reasonably be found. Documents may be stored in many areas of a home, car, motor home or garage"].)
We are equally unpersuaded by appellants' argument that the description of the Arlington Property for purposes of the initial Search Warrant in this matter was "recklessly false" because it treated the property as a single unit, instead of as a property "occupied by different persons and entities" with no relationship to each other. In particular, they claim that Stavrinides operated a nursery at the Arlington Property "within a locked fence area" which also contained the warehouse; that there was a banner reading "Gorilla Nursery" and vehicles with related logos around the nursery area; and that the Search Warrant affidavit should thus have included a description of the nursery area as separate from Cupp's residence.
"A search warrant must 'particularly describe[e] the place to be searched' " in order to "limit the search authorization to things and areas for which probable cause exists and avoid exploratory searches." (People v. Amador (2000) 24 Cal.4th 387, 392 (Amador).) Moreover, "[a] defendant can challenge a search warrant by showing that the affiant deliberately or recklessly omitted material facts that negate probable cause when added to the affidavit." (People v. Eubanks (2011) 53 Cal.4th 110, 136.) Appellants' attempts to traverse the warrant in this case as materially misleading were rejected by the trial court. On appeal, we review independently the question of whether a search warrant's description was sufficient. (Amador, supra, 24 Cal.4th at p. 393.) However, "the trial court determines the underlying facts, which determination is subject to the deferential substantial evidence standard of review." (Ibid.) Further, warrants are presumed valid and "[a] defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions." (Ibid.)
Here, the Arlington Property was described for purposes of the Search Warrant as "a single-story, single-family residence painted tan in color with white trim," that was "surrounded by a wooden fence" on which address tiles were posted. The description of the premises also expressly included "all rooms, attics, and other parts therein, the surrounding grounds, garages, storage rooms, trash containers, and outbuildings of any kind located thereon." (Italics added.) Thus, assuming the Arlington Property was reasonably viewed as a single unit, this language clearly encompassed the warehouse, an outbuilding located on the premises.
The trial court concluded that there was "certainly" no evidence that the Arlington Property "was anything but a single residence . . . and that it comprised three to four acres of rural property." In this regard, the trial court noted that it was "common" in Sonoma County to have rural properties with multiple structures. The court further found that there was an exterior fence surrounding the entire parcel; that there were interior fences of many different types all over the property; that there was "quite a bit of clutter to put it mildly" at the property; that any business banners that might have been located at the property were down and not visible; that the property was identified as a single parcel in Santa Rosa property records; that a single driveway gave access to the parcel; and that Stavrinides' business addresses were elsewhere. Under these circumstances, the trial court queried whether law enforcement should have known "someone else was using" the Arlington Property, and found it not "very compelling that they should have." The court therefore determined "that based on the totality of the testimony of the photographs, the overheads, the description of the property, this is clearly a single rural property and the officers were directed to search all the outbuildings."
Giving due deference to the trial court's factual findings, we agree that there was no materially misleading description of the Arlington Property in this case. Moreover, this analysis is also fatal to appellants' final contention—that the marijuana evidence should have been suppressed because the officers on scene acted beyond the scope of the warrant when they searched the warehouse. Specifically, appellants argue that the officers saw the physical separation between Cupp's residence and the locked nursery area containing the warehouse and thus it was unreasonable for them to assume that the entire property comprised a single unit. (Cf. Maryland v. Garrison (1987) 480 U.S. 79, 86-87 [noting that once officers recognized that there were two separate apartment units in the area designated to be searched they were obligated to discontinue their search of the second unit, having been "put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant"].) However, as elaborated above, the trial court found in this case that the evidence did not support the conclusion that law enforcement should have known someone else was using the warehouse, a conclusion with which we agree. Thus, we uphold the trial court's denial of the motion to suppress on these same grounds. (See People v. Glaser (1995) 11 Cal.4th 354, 362 [on motion to suppress we defer to the trial court's factual findings where supported by substantial evidence, but exercise our independent judgment with respect to whether the search was reasonable under the Fourth Amendment].)
Having reached this conclusion, we need not consider Stavrinides' additional argument that the search of the warehouse could not be justified as a protective sweep. Nor need we linger on Cupp's assertion that the good faith exception to the exclusionary rule is not applicable on these facts.
B. Need for Accomplice Instruction
Appellants next contend that the trial court erred by failing to instruct the jury that Randall's statements—both in court and to Detective Hepp—constituted "accomplice testimony" that required corroboration and should be viewed with caution. An accomplice is defined in this context as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Pen. Code, § 1111.) When sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice, the trial court has a sua sponte duty to instruct the jury regarding the perils of accomplice testimony. (People v. Brown (2003) 31 Cal.4th 518, 555 (Brown); see CALCRIM Nos. 334 & 335.) Given that Randall had previously pled guilty to possession of marijuana for sale based on the same circumstances for which appellants were being prosecuted, it seems reasonably certain that he was an accomplice to the marijuana scheme at issue in this case.
Pursuant to Penal Code section 1111, "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." This rule is based on the notion that "an accomplice has a natural incentive to minimize his own guilt before the jury and to enlarge that of his cohorts; accordingly, the law requires an accomplice's testimony be viewed with caution to the extent it incriminates others." (Brown, supra, 31 Cal.4th at p. 555.) Moreover, " 'testimony' " for purposes of this statute includes not only trial testimony, but also " 'all out-of-court statements of accomplices . . . used as substantive evidence of guilt which are made under suspect circumstances.' " (People v. Williams (1997) 16 Cal.4th 153, 245.) And, " '[t]he most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police.' " (Ibid.) Thus, it is also fairly clear here that any inculpatory statements made by Randall while being interrogated by Detective Hepp constituted "testimony" for purposes of the accomplice rule.
We are nevertheless unpersuaded that an accomplice instruction was required in this case. As noted by the Supreme Court in Brown, " '[t]he usual problem with accomplice testimony—that it is consciously self-interested and calculated—is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.' " (Brown, supra, 31 Cal.4th at pp. 555-556.) In Brown, the accomplice's out-of-court inculpatory statements were also declarations against his penal interest and thus "sufficiently trustworthy to permit their admission into evidence despite the hearsay rule." (Id. at p. 556; see also Evid. Code, § 1230 [allowing for admission of a hearsay statement that subjected the declarant to the risk of criminal liability such that a reasonable person in his or her position would not have made the statement unless he/she believed it to be true].) Under these circumstances, the Brown court concluded that "no corroboration was necessary, and the court was not required to instruct the jury to view [the accomplice's] statements with caution and to require corroboration." (Brown, supra, 31 Cal.4th at p. 556.) Similarly, in this case, Randall's many statements to Detective Hepp must all be understood as having been made against his penal interest, as they implicated not only appellants in the large, illegal marijuana operation taking place at the Arlington property, but also Randall, himself. Indeed, as the Attorney General correctly points out, Randall was arrested at the conclusion of the police interview. Thus, the trial court was not required to specifically instruct the jury with respect to accomplice testimony.
Conversely, Randall's trial testimony—elicited after he had resolved his own criminal culpability by entering a plea—was all intended to take personal responsibility for the marijuana growing operation and minimize appellants' involvement. Thus, it was not inculpatory. For example, Randall's identification of Stavrinides as someone he knew who was not involved with the marijuana gave a noncriminal explanation for Stavrinides' connection to the Arlington property and the Cupp brothers. Similarly, Randall's statement that Cupp used marijuana was hardly news given the discovery of Cupp's medical marijuana recommendations on the property and was, again, intended to distance Cupp from the cultivation of the drug for other than personal medicinal use.
Further, even if the trial court erred by failing to give a specific accomplice instruction in this matter, any error was harmless. " 'A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] "Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]" . . . The evidence "is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." ' " (Brown, supra, 31 Cal.4th at p. 556.) Here, Randall's out-of-court statements implicating Cupp in the marijuana operation were amply corroborated by the facts that: Cupp lived on the Arlington property, in close proximity to a warehouse containing hundreds of marijuana plants and a shed filled with tools for manufacturing hash; he possessed a distinctive key identical to one found in Stavrinides' truck that fit the unusually strong padlock securing the warehouse; and medical marijuana recommendations for Cupp were found both in his residence and inside the warehouse. Randall's out-of-court statements regarding Stavrinides' culpability were even more compellingly supported by: his lease of an area on the Arlington property for a nursery business; his arrival at the Arlington property during the execution of the search warrant; his possession of the distinctive key described above; the later discovery of marijuana plants at his house which were supported by netting identical to that in use at the Arlington property; and the discovery of identical stickers on the altered power meters at the Mercedes Residence and at the Arlington Property, both of which were registered to him. In short, reversal is not warranted in this case due to instructional error.
We note in this regard that the trial court did instruct the jurors that "[e]xcept for the testimony of Randall Cupp, which requires supporting evidence, the testimony of a single witness can prove any fact." (Italics added.) Additionally, the jurors were instructed regarding various factors they should consider when evaluating witness testimony generally, including: whether the witness was influenced by "bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided"; how reasonable the testimony was in light of all the other evidence in the case; and the witness' character for truthfulness. Arguably, these instructions were sufficient to inform the jury that Randall's statements required corroboration and should be viewed with caution, even without a specific reference to accomplice testimony. (People v. Tate (2010) 49 Cal.4th 635, 696 [ "In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled"].)
C. Alleged Faretta Errors
Finally, Cupp alleges two violations of his Faretta rights. First, he claims that the trial court "erroneously required [him] to accept representation by counsel over his objection." Second, Cupp asserts that, when he was later permitted to again represent himself, the trial court failed to obtain a valid waiver from him because it did not advise him "of the possible penalties associated with the charged crimes." We address each contention in turn.
The Sixth Amendment to the United States Constitution gives a criminal defendant the right to represent himself or herself. (Faretta, supra, 422 U.S. at p. 819.) Thus, "[a] trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers." (People v. Valdez (2004) 32 Cal.4th 73, 97-98 (Valdez).) Once granted, however, a trial court may revoke a defendant's right to proceed without counsel if he or she "deliberately engages in serious and obstructionist misconduct." (Faretta, supra, 422 U.S. at p. 834, fn. 46; see also People v. Carson (2005) 35 Cal.4th 1, 10 (Carson) ["Whenever 'deliberate dilatory or obstructive behavior' threatens to subvert 'the core concept of a trial' [citation] or to compromise the court's ability to conduct a fair trial [citation], the defendant's Faretta rights are subject to forfeiture"]; ibid. [intent to " 'disrupt and delay' " trial may be sufficient to warrant revocation].) Moreover, " '[t]he trial court possesses much discretion when it comes to terminating a defendant's right to self-representation and the exercise of that discretion "will not be disturbed in the absence of a strong showing of clear abuse." ' " (People v. Williams (2013) 58 Cal.4th 197, 253.) Indeed, our review for abuse of discretion in this context must "accord due deference to the trial court's assessment of the defendant's motives and sincerity as well as the nature and context of his [or her] misconduct and its impact on the integrity of the trial." (Carson, supra, 35 Cal.4th at p. 12.) And, in conducting our deferential review, we recognize that "the extent of a defendant's disruptive behavior may not be fully evident from the cold record" and that the trial court "is in the best position to judge a defendant's demeanor." (People v. Welch (1999) 20 Cal.4th 701, 735.)
Here, Cupp initially asked to represent himself in the trial court and filled out a related waiver form. After asking Cupp a number of questions—including whether he understood that he had been "charged with five felony matters that could lead to [a] substantial amount of time in prison or county jail"—the trial court expressly found that Cupp had voluntarily and intelligently chosen to represent himself and granted his request. The court then continued the matter for one month for the taking of a plea. While this hearing was pending, however, Cupp filed a pleading indicating, among other things, that his Faretta waiver had been "signed on the spot under duress" and seeking to revoke it.
This pleading also indicated that Cupp was returning the complaint in this matter to the court because it was a "Sham Pleading" which Cupp "refused for cause because it lacks proof of a Bona Fide Claim, no Affidavit of Probable Cause, no Corpus Delecti, no Mens Rea, it is Unsworn and Unsubscribed under Oath and it puts Fraud upon the Court."
Thereafter, at the continued hearing, Cupp indicated that he still had "questions" regarding his Faretta waiver and continued to maintain that he had not received a "proper" complaint, despite the fact that he had been given a copy of the complaint at the prior hearing and had attached a copy of it to his request to revoke his Faretta waiver. The court provided him with a copy of the signed page of the complaint and asked Cupp if he intended to hire an attorney since the offenses with which he was charged were "serious." Cupp responded by stating: "[I]t is my understanding I should get a complaint that's signed with an affidavit from an injured party." The court pressed forward, asking Cupp how much time he needed to get an attorney to come in and set a date for preliminary hearing. Cupp responded by asking if he was "going to get a complaint with a sworn affidavit." The court said he would not, to which Cupp replied: "I can't plea at this time, I simply do not understand the nature and cause of the accusation with regards—" At that point, the court interrupted, stating: "Right. I certainly don't find that you are capable of representing yourself . . . . I mean, it is completely unfair to all the other defendants in this case to delay these proceedings further." Cupp then refused to retain an attorney "until such time as I am presented with . . . something that I can understand the nature and cause of the accusations with regard to subject matter, jurisdiction, personal venue, personal jurisdiction and the nature of the action." In response, the trial court revoked Cupp's Faretta status and appointed counsel for him.
Although Cupp argues on appeal that his conduct was not so disrespectful or disruptive that revocation of his Faretta status was warranted, we see no abuse of discretion in the trial court's decision on this issue. Cupp sought to revoke his signature on the Faretta waiver mere weeks after he had been extensively questioned by the trial court regarding his desire for self-representation and had been found competent to proceed without counsel. Although he had waived reading of the complaint at his initial appearance, he thereafter repeatedly raised perceived issues with its sufficiency, ultimately refusing to enter a plea or retain counsel until a host of questionable, technical issues were addressed to his satisfaction. Under these circumstances, the trial court could reasonably conclude that Cupp's intent was to disrupt and delay his trial and that he could not or would not conform his conduct to the rules of procedure, thereby justifying termination of his right to self-representation.
About a year after this incident, however, Cupp again asked to represent himself. Cupp's attorney informed the court that Cupp was facing a 22-count mortgage fraud case in another department in which the trial judge had allowed Cupp to represent himself. Noting that the case was "starting to age" and that "someone objectively looking at these files could begin to think that parties were deliberately dragging their feet so that it would not go to trial," the trial court indicated that Cupp would not be allowed to hire a new attorney if it impeded trial scheduling. It then granted Cupp's request. Appellant thereafter moved for a continuance. The trial court, however, stated it would not allow any further delay and offered to have Cupp's attorney remain. Indeed, the court had concerns that Cupp's Faretta request "was a deliberate subterfuge to vacate this pending trial." However, after Cupp again explicitly requested to represent himself, the court allowed it.
As stated above, "[a] trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers." (Valdez, supra, 32 Cal.4th at pp. 97-98.) On appeal, Cupp now claims that his second Faretta waiver was invalid because he was not informed of his maximum potential sentence in the case. However, "[n]o particular form of words . . . is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. ' "The test of a valid waiver of counsel is not whether specific warnings or advisements were given but 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." ' " (People v. Lawley (2002) 27 Cal.4th 102, 140; see also People v. Burgener (2009) 46 Cal.4th 231, 241 [reaffirming test]; People v. Sullivan (2007) 151 Cal.App.4th 524, 546 (Sullivan).) Moreover, a defendant bears the burden of demonstrating that his or her waiver was not knowingly and intelligently made. (Sullivan, supra, 151 Cal.App.4th at p. 547.) We review the entire record on appeal to determine de novo whether the defendant's waiver of the right to counsel was knowing and voluntary. (People v. Conners (2008) 168 Cal.App.4th 443, 454.)
It is true that several appellate cases have suggested that, for a Faretta waiver to be knowing and intelligent, the defendant should be advised regarding the possible penal consequences of conviction. (See People v. Jackio (2015) 236 Cal.App.4th 445, 454-455 [concluding a defendant must be advised of the maximum punishment that could be imposed]; Sullivan, supra, 151 Cal.App.4th at p. 545 [citing a 9th Circuit case in a general discussion of Faretta waivers for the proposition that the trial court must insure that a defendant seeking to represent him or herself understands " 'the possible penalties' "]; People v. Noriega (1997) 59 Cal.App.4th 311, 319 [finding that a trial court had given no specific warnings or advisements regarding the risks and dangers of self-representation, including no advisement regarding "the potential penal consequences if he lost at trial"]; see also People v. Ruffin (2017) 12 Cal.App.5th 536, 544 [concluding that, even if a court is not required to "advise of possible penal consequences," the total absence of such an advisement is "certainly a factor to consider in determining whether the defendant's waiver was knowingly made"].) However, we recently considered this issue at length, and, after an exhaustive review of relevant precedent, concluded that a Faretta waiver could be valid even if "the court did not specifically advise the defendant of all possible penal consequences of the charged offenses." (People v. Bush (2017) 7 Cal.App.5th 457, 473 (Bush); see also People v. Harbolt (1988) 206 Cal.App.3d 140, 149-151.) Instead, we applied the more general test articulated above—" ' " '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.' " ' " (Bush, supra, 7 Cal.App.5th at p. 474.) We do so again here.
In this case, before his initial Faretta request was granted, Cupp was warned that he had been "charged with five felony matters that could lead to [a] substantial amount of time in prison or county jail." Later in the colloquy with the trial court, Cupp indicated that he was "aware of the charges," understood they were "felony charges that could lead to [a] substantial amount of time in custody," and knew that the "risk [was] high" he would be convicted if he represented himself. In addition, Cupp was questioned regarding his educational background and informed the court that he had previously represented himself in court in several civil litigations. He was advised at length—both orally and in writing—regarding the general pitfalls of self-representation, including that he would get no special treatment and would need to follow the rules of procedure applicable to lawyers. The trial court then found that Cupp had "voluntarily, intelligently, and with full understanding as to the disadvantages of self-representation" chosen to represent himself. After Cupp's initial Faretta status was revoked, he was represented in this matter by both appointed and then retained counsel for almost a year, attorneys who presumably advised him on the issues involved in the case. When Cupp later renewed his request to represent himself, the trial court at that time reviewed the record of Cupp's previous waiver, admonished Cupp again regarding the dangers of foregoing legal representation, stated that the charges Cupp faced were "serious," and confirmed that another judge—after questioning in an attempt to "dissuade" Cupp from doing so—was currently allowing Cupp to represent himself in a different matter. Considering the record as a whole, we conclude that Cupp's Faretta waiver was knowing and intelligent, and therefore valid.
Indeed, even if an advisement regarding the possible penal consequences of conviction was required, we would conclude on these facts that Cupp was sufficiently advised on this issue.
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------