Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. TA085481, Paul A. Bacigalupo, Judge
Laurie Buchan Serafino, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Quentin Deshaun Dimitris appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187, subd. (a)/189), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of ammunition by a felon (§ 12316, subd. (b)(1)). He contends that his constitutional rights to due process and counsel were violated by the trial court's denial of his motion for self-representation, juror bias, and ineffective assistance of counsel. He also claims sentencing error. We affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Patricia Pulliam was at a barbeque in a park located in the territory of the Carver Park Crips street gang. Members of that gang were at the barbeque. Dimitris, a member of the PJ Watts gang, was standing near a gate to the park. A Carver Park Crips gang member known as E-Mack and his sister got into a fight with Patricia Pulliam, claiming that the son of her cousin Johnnie Mae Pulliam was a "snitch." After the fight E-Mack's sister stated that she was going to look for members of the PJ Watts gang.
Approximately 15 to 20 minutes later, Johnnie Mae Pulliam arrived at the barbeque and talked to her cousin Patricia. As the two women were about to leave, Johnnie Mae Pullian was killed by gunshots. A witness heard the gunshots, and saw Dimitris running away from the area where the gunshots had been fired carrying a gun. Police arrested Dimitris hiding a few blocks from the murder scene. He was not carrying a gun, but one unfired bullet was in his pocket. Forensic tests established that the bullet found in Dimitris' pocket had been in the same gun as shell casings the police found at the murder scene.
A gang expert testified that Dimitris was a member of the PJ Watts gang and opined that the murder was committed for the benefit of that gang. His opinion was based on evidence that E-Mack's sister had called out the name of the PJ Watts gang during her altercation with Patricia Pulliam at the barbeque. The expert testified that a gang would be "disrespected" if it did not become involved in an incident that involved use of its name.
A jury convicted Dimitris of the charged offenses. In addition, the jury found true allegations that he personally used a firearm in the murder (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)), the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and he had served two prior prison terms (§ 667.5, subd. (b)). He was sentenced to three years four months plus 50 years to life. The sentence consisted of 25 years to life for the murder, 25 years to life for the section 12022.53, subd. (d) firearm enhancement, eight months for each of the other offenses, and one year each for the two prior prison term enhancements.
DISCUSSION
No Error in Denial of Faretta Motion
Dimitris contends that his rights to due process and counsel were violated when the trial court denied his motion for self-representation as untimely. He argues that the motion was denied because the trial court improperly refused to continue the trial date. We disagree.
A criminal defendant has a constitutional right to represent himself if the right is asserted within a reasonable time before trial begins. (People v. Doolin (2009) 45 Cal.4th 390, 453; see Faretta v. California (1975) 422 U.S. 806, 807.) There is no particular time when a Faretta motion for self-representation may be considered untimely. (Doolin at p. 453; People v. Clark (1992) 3 Cal.4th 41, 99.) That determination is left to the discretion of the trial court. (Ibid.)
In considering the timeliness of a Faretta motion, the trial court should consider the quality of counsel's representation, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay reasonably likely to occur if the motion is granted. (People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Windham (1977) 19 Cal.3d 121, 128.) A reviewing court must give considerable weight to the trial court's decision and the circumstances confronting the trial court at the time. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
The trial court did not abuse its discretion. The motion was brought seven days before the scheduled trial date and the record includes no showing of reasonable cause for its lateness. In addition, the motion was not unconditional. Dimitris explicitly conditioned his motion on "at least" a 60-day continuance of trial. California courts have repeatedly upheld the denial of a Faretta motion made close to trial when the motion is combined with a request for a trial continuance. (See, e.g., People v. Frierson (1991) 53 Cal.3d 730; People v. Rudd (1998) 63 Cal.App.4th 620, 625-626.)
Furthermore, the trial court expressly found that the Faretta motion was made for the purpose of delay. In so doing, the trial court considered Dimitris' demeanor, and noted that the prevalent view of defendants in gang-related trials was that the longer a trial is delayed, the greater the likelihood that witness intimidation will undermine prosecution of the case.
Also, the Faretta motion was heard moments after Dimitris' Marsden motion and, based on the record, was an impulsive and angry response to the denial of that motion rather than an unequivocal assertion of the right to self-representation. (See People v. Barnett (1998) 17 Cal.4th 1044, 1087-1088; People v. Marshall (1997) 15 Cal.4th 1, 21-22.) In his Marsden motion, Dimitris made various claims regarding his appointed counsel's competence and preparation. When the trial court expressed disagreement with these claims, Dimitris interrupted the court stating: "I want to represent myself."
People v. Marsden (1970) 2 Cal.3d 118. Appellant does not appeal from the denial of this motion.
Dimitris argues that the trial court abused its discretion based on factors set forth by the Ninth Circuit Court of Appeals. There is Ninth Circuit authority that motions for self-representation made before empanelment of the jury are deemed timely unless made for purposes of delay. (See, e.g., Avila v. Roe (9th Cir. 2002) 298 F.3d 750, 753; United States v. Flynt (9th Cir. 1985) 756 F.2d 1352, 1359; Armant v. Marquez (9th Cir. 1985) 772 F.2d 552, 557.)
As our Supreme Court has stated, however, the Ninth Circuit rule is not the law in California. (People v. Jackson (2009) 45 Cal.4th 662, 690.) Under California law, once a defendant has chosen to proceed to trial represented by counsel, the resolution of a pretrial demand for self-representation is addressed to the sound discretion of the court. (Ibid.; see also Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1061-1062 [California's rule that a request must be made a reasonable amount of time before trial is a reasonable application of Faretta].)
Moreover, there was no error even under the Ninth Circuit standard. In determining whether a motion is for the purpose of delay under that standard, courts consider the effect of a delay on the proceedings, the purpose of the delay, whether the motion was made as a good faith assertion of Faretta rights, and whether the defendant could reasonably be expected to have made the motion earlier. (Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784-785; United States v. Flynt, supra, 756 F.2d at p. 1359.) Here, the record shows the motion was the product of frustration, the delay was not required to assure adequate preparation for trial, and the delay would have significantly inconvenienced the court, counsel, and witnesses.
Dimitris Provided with Fair and Impartial Jury
1. No Error in Denial of Mistrial Based on Events During Voir Dire
Dimitris contends that he was denied trial by a fair and impartial jury when the trial court failed to declare a mistrial during voir dire. Dimitris argues that the comments of some prospective jurors revealed an unwillingness to follow the court's instructions on burden of proof and presumption of innocence. He claims these comments contaminated other prospective jurors in attendance and, accordingly, that the entire jury panel should have been discharged. We disagree.
A criminal defendant has the constitutional right to a fair and impartial jury. (See, e.g., People v. Wilson (2008) 44 Cal.4th 758, 778.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it"' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 294.)
The trial court has broad discretion to determine whether bias on the part of some prospective jurors requires the discharge of the entire jury panel or venire. (People v. Medina (1990) 51 Cal.3d 870, 889.) But, this remedy "should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant." (Ibid.) The trial court's ruling on such a request will be reversed only if there is a clear showing of abuse of discretion. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467; see People v. Thornton (2007) 41 Cal.4th 391, 414.)
Here, a panel of 18 prospective jurors, referred to as "group A," was called into the courtroom, sworn, and informed of the presumption of innocence and burden of proof. During voir dire, defense counsel asked how jurors would decide the case if asked to do so at that moment. One prospective juror stated he would probably find the defendant guilty because the crime was gang-related, and the burden of proof was not always fair. Another stated he understood the presumption of innocence and burden of proof but, if forced to decide before evidence was presented, would probably vote guilty based on the court's description of the charges. Another stated he could not answer the question without hearing the evidence but, based on the charges, would find Dimitris guilty.
During a break in voir dire, Dimitris moved for a mistrial and discharge of the entire panel. The trial court denied the motion. The record supports this ruling. One of the prospective juror statements cited by Dimitris on appeal showed bias, but the others indicated that their decisions would be based on the evidence.
Voir dire of prospective jurors in group A was then resumed. One admitted bias against Dimitris because of his gang affiliation and was discharged.
A new group of 25 prospective jurors, referred to as "group B," was then brought into the courtroom. The record indicates that prospective jurors in group B were not in the courtroom during voir dire of prospective jurors in group A.
During the group B voir dire, some prospective jurors admitted a bias against persons accused of gang-related crimes. One was reluctant to accept the presumption of innocence, and another asserted that he or she could not serve on the jury in any criminal case. These prospective jurors were excused. A jury was empanelled after completion of the group B voir dire. Dimitris did not renew his motion for mistrial.
On appeal, Dimitris contends the trial court erred in denying his motion for mistrial, and that his trial counsel's failure to make a second motion for mistrial after the voir dire of group B constitutes ineffective assistance of counsel. Dimitris claims the number of prospective jurors who expressed bias made it unlikely that an impartial jury could be obtained from either group A or group B, and that an entirely new pool of prospective jurors was required. Dimitris concedes that none of the prospective jurors expressing bias served on the jury, but argues that the trial court failed to conduct an adequate hearing or investigation of the state of mind of the seated jurors to determine whether they had been "poisoned" by the biased remarks made by others.
Dimitris has waived his claim to a further hearing by failing to make a request in the trial court. (People v. Stitely (2005) 35 Cal.4th 514, 538; see also People v. Avila (2006) 38 Cal.4th 491, 536.) We address the merits, however, because Dimitris also claims ineffective assistance of counsel. We conclude that there was no error by the trial court during voir dire, and the record does not show that defense counsel's performance was either objectively deficient or prejudicial as required to sustain an ineffective assistance claim. (See, e.g., Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
The trial court allowed counsel to question prospective jurors to elicit any potential bias and there is no indication in the record that any seated juror expressed any bias or was influenced or prejudiced by comments of other prospective jurors. When several prospective jurors voiced fear of gangs or a belief that gang members engaged in violent crime, the trial court and counsel inquired as to whether they could set aside their general opinions and make an impartial decision in the instant case. Ultimately, each prospective juror whom Dimitris alleged to be biased was discharged. No prospective juror indicated that he or she was influenced in any manner by the comments of others. In fact the group B prospective jurors were not in the courtroom during the voir dire of group A prospective jurors.
Moreover, the public at large generally has a negative opinion of gangs, and such opinions on the part of prospective jurors do not mean the person will be unable to evaluate a particular case solely on the evidence. The "purpose of voir dire is to provide counsel the opportunity to learn about a prospective juror's background, experiences, and philosophy as it relates to the matter to be heard." (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742; see also Mu'Min v. Virginia (1991) 500 U.S. 415, 431.) Here, the voir dire accomplished that purpose and permitted the court and counsel to select a fair and impartial jury.
2. No Error Regarding Juror Misconduct During Trial
Dimitris contends the trial court failed to conduct an adequate inquiry regarding events occurring during trial to determine whether Jurors Nos. 1, 7 and 8 could be fair and impartial, and that his trial counsel's failure to request such an inquiry constituted ineffective assistance of counsel. We disagree.
Generally, once a trial court has notice of possible juror misconduct during trial, it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged. (People v. Cleveland (2001) 25 Cal.4th 466, 477, 480.) Such a hearing is necessary whenever the court has information which, if proven true, would constitute "good cause" to discharge the juror. (Id. at p. 478.) Even if misconduct is shown, discharge of the juror is not required unless the juror's inability to perform his or her duty is shown to be a "demonstrable reality." (People v. Marshall, supra, 13 Cal.4th at p. 843; see also In re Hamilton, supra, 20 Cal.4th at pp. 293-294.) The trial court has discretion to determine the manner in which the investigation is conducted, and we will uphold its decision to retain or discharge a seated juror whenever the decision is supported by substantial evidence. (See People v. Farnam (2002) 28 Cal.4th 107, 141; People v. Keenan (1988) 46 Cal.3d 478, 539.)
We conclude that there was no abuse of discretion in this case. Substantial evidence supports the trial court's conclusion that Jurors Nos. 1 and 8 were able to perform their duties as impartial jurors, and Juror No. 7 was discharged for cause as a result of the court's inquiry.
After the first day of trial, Jurors Nos. 1, 7 and 8 asked the bailiff to provide an escort to their vehicles, and engaged in a conversation among themselves concerning that request. Also, Juror No. 8 had called in sick that morning and appeared only after the court ordered her to do so. The prosecutor expressed concern that, as a result of this conduct, the jury might convict Dimitris without regard to the evidence or acquit him out of fear of potential gang-related repercussions. In response to this concern, the trial court conducted an inquiry. The inquiry consisted of the court and counsel questioning each of three jurors separately and outside the hearing of other jurors.
Juror No. 1 confirmed that she asked "someone to walk us to our car[s]." She stated Jurors Nos. 7 and 8 were with her at the time and they discussed the subject of asking for an escort. Juror No. 1 stated that "[n]othing in particular" caused her action but that she was not "familiar with the area" and was concerned because of the nature of the case. She also stated that Juror No. 7 told her about a prior incident where Juror No. 7's purse was stolen while performing jury duty in another case. Juror No. 1 stated that she was more concerned about her personal belongings than her safety.
Juror No. 1 answered "no" when defense counsel asked if she was fearful of defendant or harm from "someone indirectly." She stated that she did not believe gang involvement in the case would affect her view of the evidence or deliberations, but was worried about being a juror in a gang case. She promised to report to the court if she felt her impartiality had been compromised at any time during trial.
Juror No. 7 confirmed the purse theft incident, and that she had requested an escort to her car with Jurors Nos. 1 and 8. She stated that she could not be an impartial juror due to the nature of the case and her attitude in general about crime, and was discharged from the jury for cause.
Juror No. 8 confirmed the request for an escort to her car, but revealed that the jurors did not want to wait and decided to walk to their cars without an escort. She confirmed Juror No. 7 told her about having her purse stolen, and stated that the purse theft incident made her fear that she might get "jumped" in the same manner. She stated that she had called in sick that morning because she had the flu and continued to exhibit symptoms of that ailment. She stated that neither her fear nor her illness would affect her ability to evaluate the evidence.
Dimitris argues that the court's inquiry was insufficient to determine whether the jurors had already decided his guilt. His failure to object in the trial court forfeits his claim on appeal. (People v. Holloway (2004) 33 Cal.4th 96, 124.) Again, we discuss the merits because Dimitris claims ineffective assistance of counsel in not requesting a more thorough inquiry.
We conclude that the trial court's inquiry was adequate. The court and counsel questioned the three jurors about the impact of the escort incident on their ability to perform their obligations fairly and impartially. This inquiry was sufficient to determine that good cause existed to discharge Juror No. 7, and to justify the retention of Jurors Nos. 1 and 8. Jurors No. 1 and 8 explained that their request for an escort was a precautionary measure and that, although they were concerned about gang involvement in the case, they could impartially and effectively evaluate the evidence to determine Dimitris' culpability. Juror No. 8 was clear in her statements regarding her ability to perform her duty as a juror and was more concerned with her health. Juror No. 7 was somewhat equivocal, but her promise to inform the court of any future problems showed how seriously she viewed her obligations as a juror. Also, although not explained in the record, Juror No. 7 was later discharged from the jury for cause.
For the same reasons, defense counsel's performance during and after the inquiry was neither objectively deficient nor prejudicial as required to sustain an ineffective assistance claim. (See, e.g., Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)
There was also no error by the court or ineffective assistance of counsel regarding the conversation among Jurors Nos. 1, 7 and 8. The record shows that the conversation was limited to their request for an escort and mention of Juror No. 7's prior purse theft incident. There is nothing in the record to suggest that the jurors talked about the pending case. Nothing in the conversation was likely to have influenced any of the jurors or affected the verdict. (People v. Danks (2004) 32 Cal.4th 269, 303.)
Moreover, a juror's expressed concerns for safety do not, without more, indicate the juror is biased against the defendant or that bias infected jury deliberations. (See People v. Jablonski (2006) 37 Cal.4th 774, 807; People v. Navarette (2003) 30 Cal.4th 458, 499-500.) What matters is whether the individual can separate feelings and emotions from his or her duties as a juror, and evaluate the evidence fairly and decide the case solely on the evidence presented at trial. (See People v. Farnam, supra, 28 Cal.4th at pp. 139-142.)
No Error in Prior Prison Term Enhancements
Dimitris contends that the trial court erred by imposing a section 667.5 subdivision (b) prior prison term enhancement on his alleged prior conviction in Los Angeles Superior Court case No. VA051775. He argues that a jury trial of that prior conviction was preserved but that the jury was dismissed without any jury finding on the prior conviction. We disagree.
The information alleged two prior convictions that resulted in prison terms, case Nos. TA076149 and VA051775. Prior to trial, Dimitris admitted the conviction and prior prison term in case No. TA076149, but trial of the prior prison term in case No. VA051775 was bifurcated. After the jury reached its verdict and the trial court was about to dismiss the jury, the prosecutor reminded the court that the prior prison term enhancement issue remained to be resolved. The court then proceeded with the prison term enhancement matter. After advisement by the court of his rights, Dimitris waived his right to a jury trial regarding the prior conviction and prison term. At sentencing, evidence was presented and the court found the allegation to be true. Accordingly, the section 667.5, subdivision (b) enhancement was properly imposed in case No. VA051775.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.