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People v. Dennison

California Court of Appeals, Sixth District
Feb 25, 2011
No. H034728 (Cal. Ct. App. Feb. 25, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DARREN JAY DENNISON, Defendant and Appellant. H034728 California Court of Appeal, Sixth District February 25, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC786821.

Duffy, J.

A jury convicted defendant Darren Jay Dennison of robbery. He admitted to being a habitual offender for punishment purposes. On appeal, he claims that the trial court improperly refused to let him represent himself at trial.

We find no error and will affirm the judgment.

PROCEDURAL BACKGROUND

A jury convicted defendant of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) Thereafter he admitted that he had seven prior convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12) and three prior convictions that qualified as serious felonies for sentence enhancement purposes (§ 667, subd. (a)).

All further statutory references are to the Penal Code.

The trial court sentenced defendant to 25 years’ to life imprisonment on the robbery conviction under the Three Strikes law, consecutive to a 15-year term for the prior serious felony enhancements.

FACTS

I. Prosecution Case

A store clerk testified that on November 11, 2007, defendant visited the store. Defendant had visited the store the day before and spoken with the clerk for about a half-hour, so the clerk recognized him without difficulty.

Defendant brought about 20 digital video discs (DVDs) and several magazines to the counter. Defendant asked the clerk to retrieve some DVDs defendant had placed on hold the previous day under his first name. (The clerk did not recall defendant’s name as written on the hold slip, but in his defense case, defendant testified that he gave his first name of “Darren.”) As the clerk was calculating the purchase amount, defendant displayed in a furtive manner an object that resembled a gun and told the clerk to open the cash register drawer. The clerk resisted at first, but complied when defendant said he would stab or shoot him. The clerk handed defendant approximately $250.

The store clerk identified defendant in court without equivocation. “I have never forgot” (sic) his face, the clerk testified. The clerk also testified that defendant was the man seen in two store surveillance video recordings that were played in court.

The police found DVDs that according to the store clerk came from the store or its nearby affiliate in defendant’s motel room. In defendant’s car they recovered an L-shaped metal air pump.

The implication of this testimony was that the air pump could have been used to simulate a gun.

II. Defense Case

Defendant testified in his own behalf, but only to concede his guilt. He apologized for committing the robbery and explained that he was unemployed, suffering from mental illness, unable to find work because of his criminal record, and financially desperate. He was intoxicated on methamphetamine when he robbed the store. He explained that the air pump found in his car was a bicycle air pump and denied displaying it or any other threatening object during the robbery.

DISCUSSION

I. Self-representation Claim

Defendant claims that the trial court abused its discretion in denying his motion to represent himself as untimely. We do not agree.

A. Procedural Background

On April 23, 2009, defendant declared that he wanted to make a Faretta motion, i.e., a motion to represent himself as authorized by Faretta v. California (1975) 422 U.S. 806 (Faretta).

This was defendant’s second Faretta motion. On April 4, 2008, a Faretta motion was granted. On February 25, 2009, defendant moved to revoke his self-representation because he wanted the trial court to declare a doubt about his competence to stand trial (§ 1368; see generally §§ 1367-1369) and the court responded that it could not undertake competence proceedings unless defendant agreed to be represented. Defendant thereupon asked the court to appoint counsel, which it did.

Respondent states that the motion whose denial forms the subject of this appeal was defendant’s third such motion up to that time, but we have not located any reference to a second prior motion in the record. There is a cryptic and fleeting reference in the record to self-representation that occurred prior to April 4, 2008, but in light of defendant’s numerous prior convictions, it may refer to self-representation in prior proceedings involving an entirely different prosecution. When the trial court denied the Faretta motion at issue on appeal, the court appeared to be aware of one prior motion.

At the closed hearing on the second Faretta motion, the trial court said, “it’s too late to represent yourself, to make that motion.” A discussion ensued:

“THE DEFENDANT: Why is that, sir?

“THE COURT: Because of case law that interprets what Faretta means. You have a constitutional right to represent yourself, but that constitutional right has to be exercised in what the cases say is a—within a reasonable time before the case commences. The case has commenced. So you can make the motion, but as a matter of law, I have to deny it.

“THE DEFENDANT: So you deny my right under the Sixth Amendment that I cannot represent myself?

“THE COURT: I denied your motion. I understand your motion under Faretta. And what I’ve told you is Faretta has been interpreted just the way I told you. The California Supreme Court held exactly what I just read you. That’s People against Clark. It’s a recent case in 3 Cal.4th. You can find it at page 98.

“And further, I would indicate to you that [defense counsel] is well known in the legal community as one of the very best counsel in this county.

“THE DEFENDANT: Is that law, your Honor?

“THE COURT: You have already had, as I read the record in this case, a prior motion granted and then you decided not to represent yourself. You’ve given me no reasons why you want to represent yourself. And of course, we have already started the trial. To do it now would obviously delay the trial, and we’ve already got a jury panel that’s shown up here to complete it.

“THE DEFENDANT: Your Honor?

“THE COURT: Yes.

“THE DEFENDANT: The reason why I’m asking to represent myself is because actually prior to this hearing here, prior to this hearing, when I asked for an attorney for assistance, it was because... under [sections] 1368 or 1370 I was actually asking the judge to help me with at the time, and he told me I could not declare myself incompetent. So then I asked for an attorney at the time. I didn’t ask for them to go and completely take over the case because I asked them to specifically deal with that one motion, but that motion ended up being taking over the whole case.

“When [defense counsel] did come over to see me, I gave him everything I had. I asked him and I mentioned to him specifically that I had an expert witness, two of them, I had an expert witness and then I had witnesses that I wanted to call. On this day today I am told that [defense counsel] says that there is no witnesses that he’s calling or my expert witness at all on my behalf. Under the identification—my expert witness is under identification, which is one of the number one aspects that the prosecution’s actually using to identify me as the culprit in this crime.

“Now, if I can’t have my expert identification, then that’s a constitutional violation of my right because I have that right to have any witnesses called on my behalf. If my attorney’s not doing that on my behalf, then he’s not representing me completely or satisfactory. And I do have the right under the Sixth Amendment to actually have him excused as my attorney.

“Prior to having—being my own attorney in the beginning does not relinquish the ability to go ahead and continue representing myself. If I’m not satisfied with this representation, then I should be able to go ahead and have self-representation under this, under the Faretta. And I agree with you under Clark and everything like that, under appropriate time. But stating for a fact, you know, I don’t have all my case law with me right now, but I know there are cases, your Honor, that state, in fact right on the 11th hour that, yes, I could represent myself.

“THE COURT: I just read you the case from the California Supreme Court. Now, maybe that case is wrongly decided, but it is the law of California. And I, as a judge, took an oath before I became a judge to support, protect, and defend the constitution of California and the constitution of the United States. So that court, the highest court in California has said just what I told you about the time Faretta motions must be made.

“Now, you’re also complaining about [defense counsel’s] representation, so I will allow him to respond.”

For the next few minutes, the trial court, defendant, and his counsel engaged in a discussion to consider defendant’s request to replace his current counsel with new counsel, as authorized by People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

After explaining his reasons for being dissatisfied with counsel, defendant said, “those are the reasons why I did not want him—I wanted to go Faretta. The reason why is because he is not participating in my case. Now, he might be a great litigator, and I’m not saying he isn’t. He might be a great litigator for other people. But when I have an attorney that tells me already you ain’t got a chance in hell, I’m sorry, then I don’t have that much faith in the attorney. Then I say to myself well, I’m better off representing myself.

“THE COURT: When did you make that determination?

“THE DEFENDANT: When is that, sir?

“THE COURT: When did you make the determination that in your mind you’re better off representing yourself?

“THE DEFENDANT: About four days ago.

“THE COURT: All right. Did you notify [defense counsel] of that?

“THE DEFENDANT: I could not. How can I? If he’s not answering me, your Honor, if he’s not answering his voice mail, if I can’t get to the courts in time, there’s no way I can address the issue until I come here before you. And like you said, the issue is really late. And the only reason why it’s late is because I haven’t been able to come here in front of you beforehand and talk to you about this. This is the first time.

“THE COURT: Sir, in leafing through part of the trial before we started, I noticed that you filed a number of motions.

“THE DEFENDANT: Yes, sir.

“THE COURT: On your own.

“THE DEFENDANT: Yes, sir.

“THE COURT: After you had made a successful Faretta motion; is that correct?

“THE DEFENDANT: Correct.

“THE COURT: So you knew how to make this motion beforehand.

“THE DEFENDANT: Yes, sir, I did.

“THE COURT: All right. To the extent that this is a Marsden motion, it’s denied. And the Faretta motion has been denied.

“In five minutes I’d ask you to get the jury in, and right now we’ll take a break.”

The court was referring to the assemblage of prospective jurors from the jury assembly room for voir dire. Voir dire of the prospective jurors was, however, not provided to us. The presentation of evidence began four days later, on April 27, 2009.

After the trial court denied the Faretta motion, defendant renewed it in an “emergency” motion filed in propria persona on the day of sentencing. Defendant withdrew that motion in open court.

B. Applicable Law

“Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta, supra, 422 U.S. 806, to represent themselves. [Citation.] However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. [Citation.] Faretta motions must be both timely and unequivocal.... [Citations.] Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001-1002.) Moreover, a trial court rarely should grant such a motion on the day set for trial. Our Supreme Court has “held on numerous occasions that Faretta motions made on the eve of trial are untimely.” (People v. Lynch (2010) 50 Cal.4th 693, 722.) A motion made that close to the day set for trial is “extreme” (id. at p. 723) and now is disfavored (see id. at pp. 722-723 [collecting cases]; but see People v. Windham (1977) 19 Cal.3d 121, 126-128 , fn. 5 [a “showing of reasonable cause” made the day before trial may justify granting a Faretta motion and ordering a continuance].)

C. Analysis

Because defendant’s motion for self-representation was not “a timely, unequivocal Faretta motion” (People v. Lawrence (2009) 46 Cal.4th 186, 191) and was made on the day set for trial, the trial court had discretion to decide to grant or deny it. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5 [when a defendant makes a Faretta motion on “the day preceding trial, ” granting or denying it rests within “the sound discretion of the trial court”].) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) Such discretion, it would seem in light of People v. Lynch, supra, 50 Cal.4th at pages 722 and 723, should seldom be exercised in favor of granting the motion, notwithstanding any contrary suggestion in the earlier Windham case.

Defendant argues that if a trial court fails to exercise discretion that is available to it, the failure to do so is an abuse of discretion per se. He is correct in principle that “[a] failure to exercise discretion also may constitute an abuse of discretion.” (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)

In our view, however, the trial court was exercising its discretion. To be sure, the court said, “you can make the motion, but as a matter of law, I have to deny it.” In almost the same breath, however, the court explained that it was relying on People v. Clark (1992) 3 Cal.4th 41, and specifically page 98 thereof. That portion of Clark specifies (1) “The right to self-representation, although constitutionally based, ‘must be initiated by a timely and unequivocal assertion by the defendant. [Citations.]’ ” (Id. at p. 98, italics added, original italics deleted.) Clark presaged and conforms to the Supreme Court’s recent statement that “Faretta motions made on the eve of trial are untimely.” (People v. Lynch, supra, 50 Cal.4th at p. 722.) That is the law and as a matter of law motions such as defendant’s are untimely. The same page of Clark duly notes that a Faretta motion made after “ ‘ “ ‘a reasonable time prior to the commencement of trial’ ” ’ ” “ ‘is addressed to the sound discretion of the trial court.’ ” (Clark, at p. 98.)

Thereafter, the trial court gave reasons for denying defendant’s Faretta motion, namely that (1) defendant was represented by one of the county’s top criminal defense attorneys, (2) defendant had already been accommodated under Faretta and then relinquished his right to self-representation, (3) the case was about to proceed to voir dire of prospective jurors, and (4) to that point, defendant had given the court no reason to grant the motion. We believe that the court was indicating that as a matter of law defendant’s motion was untimely—in the same hearing, the court said, “the highest court in California has said just what I told you about the time Faretta motions must be made”—but was not abdicating its duty to exercise discretion and evaluate the merits of the motion, because it did evaluate, then and there, the motion’s merits and found them wanting.

We discern no such possibility that an abuse of discretion occurred here. To repeat, the “right of self-representation is not a license to... disrupt the proceedings.” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1002.) Voir dire began immediately after the trial court denied defendant’s Faretta motion. The trial court could reasonably believe that the delay that defendant’s resumption of self-representation undoubtedly would entail would cause considerable disruption, involving inconvenience not only to the court and counsel but also to prospective jurors who were summoned to appear that day. As much is suggested by the court’s comment to defendant: “To do it now would obviously delay the trial, and we’ve already got a jury panel that’s shown up here to complete it.” The untimeliness of the Faretta motion militated against an exercise of discretion in favor of granting it, and certainly the court’s denial of it did not fall outside the bounds of reason (People v. Benavides, supra, 35 Cal.4th at p. 88).

Moreover, even if the trial court incorrectly believed it had no discretion to grant defendant’s Faretta motion, the error was harmless.

“The erroneous denial of a timely motion for self-representation is an error of constitutional magnitude and is subject to a rule of per se reversal. [Citation.] The erroneous denial of an ‘untimely’ motion is not.” (People v. Nicholson (1994) 24 Cal.App.4th 584, 594.) It is reviewed for prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Nicholson, at p. 595), i.e., whether there is a reasonable probability that, but for the asserted error, the outcome would have been more favorable to a criminal defendant absent error by the trial court. If we thought that the trial court here had misunderstood the scope of its powers, we would nevertheless find any resultant abuse of discretion harmless under Watson. The store clerk positively identified defendant as the robber. Video surveillance recordings evidently supported the reliability of the clerk’s identification. Material recovered from defendant’s motel room strongly suggested that he was the culprit. Even leaving aside defendant’s testimony confirming that he committed the crime—an action he might not have undertaken if representing himself—there is no reasonable probability of a different outcome if defendant had represented himself. Defendant reminds us that he told the trial court at the Faretta hearing that he had located two expert identification witnesses and wanted to have them testify. The record is bereft, however, of any suggestion that the testimony of any such experts, if they existed, would have been able to create a reasonable probability of a different outcome.

Defendant’s Faretta claim thus is without merit.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Mihara, Acting P. J., McAdams, J.


Summaries of

People v. Dennison

California Court of Appeals, Sixth District
Feb 25, 2011
No. H034728 (Cal. Ct. App. Feb. 25, 2011)
Case details for

People v. Dennison

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DARREN JAY DENNISON, Defendant…

Court:California Court of Appeals, Sixth District

Date published: Feb 25, 2011

Citations

No. H034728 (Cal. Ct. App. Feb. 25, 2011)