Opinion
B162022.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DAMIEN DION SPRUIELL, Defendant and Appellant.
Alan Siraco, 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, Senior Assistant Attorney General, Mary Sanchez and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Damien Dion Spruiell, appeals from his convictions for two counts of second degree robbery (Pen. Code, § 211) during the commission of which he was found to have personally used a firearm. ( § 12022.53, subd. (b).) Defendant argues the trial court improperly: denied his self-representation request; imposed enhancements pursuant to section 12022.53; and awarded insufficient presentence credits.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On August 21, 2001, Jelani Hutchinson and Anthony Drake went to 125 Buckthorn Street in Inglewood to pick up a woman identified only as "Monique." Mr. Drake had previously met Monique at a nightclub. Monique had left three voice mail messages on Mr. Drakes phone, including her address. When they arrived at the apartment building, she was standing outside. She said she had to go inside to get a jacket. In the meantime, Mr. Drake turned his truck around. Monique came outside without a jacket. Mr. Hutchinson described what Monique said and did as follows, "She came to the passenger window, my window and reached over and was talking to [Mr.] Drake and said that her auntie wanted to meet him . . . ." Mr. Drake went inside with Monique. After Mr. Drake had walked about 10 feet beyond the entry gate, someone wearing a jacket with a hood put a gun to Mr. Drakes head. Mr. Drake was ordered to put his hands up. Mr. Drake was ordered "to walk to the back of the building." He was searched and ordered to his knees in front of a wall. Mr. Drake believed the gun was either a .32 or .38 caliber revolver. Mr. Drakes brother had both type of guns. Mr. Drake turned over a gold watch, a pager, and the few dollars in his pocket to the robber. The woman identified only as Monique was present as Mr. Drake walked toward the back of the building. The man with the gun told Monique to get Mr. Drakes friend from the truck. The gunman also left within seconds of Moniques departure. Mr. Drake jumped over the wall. Mr. Drake ran to a nearby phone booth on Market Street, where he telephoned the police.
Monique went to Mr. Drakes truck. Monique told Mr. Hutchinson that Mr. Drake would be out within five minutes. Shortly thereafter, defendant came to the door of the truck. Defendant pointed a gun at Mr. Hutchinson. Mr. Hutchinson testified: "He had the gun out and he asked me, where was I from. I told him no where and he said how much money did I have." Mr. Hutchinson knew the question about "where [he] was from" meant what gang was he affiliated with. Mr. Hutchinsons response meant he was not involved in gangs. Mr. Hutchinson was asked how much money he had. Mr. Hutchinson responded that he had $ 16. Mr. Hutchinson placed the money on the center console of the truck. Defendant reached inside the truck and grabbed the money, while directing Mr. Hutchinson outside. Mr. Hutchinson got out of the truck. As this was occurring, defendant took Mr. Hutchinsons pager. Mr. Hutchinson was ordered to get on his knees. Defendant searched the interior of the truck. Defendant threw his hands up in the air and waved toward the apartment building. Two police officers approached the truck. Defendant began to walk toward La Brea.
Inglewood Police Officers Jose Becerra and Neurit Guerrero responded to the emergency call. Officer Becerra saw a white sports utility truck with two men standing next to it. Officer Becerra saw defendant run away. Mr. Hutchinson said he had been robbed. Mr. Hutchinson identified the robber as the fleeing man. Mr. Hutchinson told the officers the man had a gun. Officer Becerra ordered defendant to stop. Officer Becerra chased the man for a block and a half. Officer Becerra used his radio to summon assistance. Another police unit arrived. Eventually Officers Kristopher Olin and David Burnett detained defendant. A search of defendant revealed three pagers, a watch, a black wallet or address book, and a ski mask or knit cap. Officer Becerra retraced defendants route. Officer Becerra found defendants identification and money. Officer Becerra also recovered a loaded gray or silver revolver at the corner of La Brea and Tamarack Streets.
Mr. Hutchinson was taken to where defendant was detained. Mr. Hutchinson identified defendant as the individual who committed the robbery. Defendant wore a beanie and hood. Mr. Hutchinson was positive defendant was the robber. Mr. Drake was also taken to where defendant had been detained. Detective John Barrow described Mr. Drakes reaction as follows, "He said he was positive in his mind that it was the man who robbed him." Mr. Drake told Detective Barrow the robber had used a silver revolver. Mr. Drake repeated those observations to Detective Barrow just prior to testifying at trial. At trial, Mr. Drake admitted identifying defendant at the field showup. But Mr. Drake described his field showup identification as follows, "I wasnt sure at the time . . . ." The following testimony was adduced at trial: "Q What, if anything, made you think that person might be the guy that robbed you? [P] A Because he had on dark clothes. [P] Q Like what? [P] A A heavyset jacket and thats really all I could remember."
First, defendant argues the trial court improperly denied his self-representation request as untimely. We disagree. Defendant was arrested on August 21, 2001. Following a preliminary hearing, defendant was held to answer on May 28, 2002. An information was filed and defendant was arraigned on June 11, 2002. On July 10, 2002, a pretrial conference was held. The trial date of August 12, 2002, was advanced and vacated. Defense counsel stated, "I talked to [defendant], as of this morning. What we agreed to is the defendants agreeable to go to August 9th and make that a zero of ten date or trial date. The last day would be the 19th." Thereafter, the trial court inquired: "[Defendant], youve a right to have a trial no later than August 12th, 2002. Do you waive that right and agree the case may be continued for trial to August 9th as day zero of ten?" Defendant responded, "Yes."
Thereafter, on July 10, 2002, defendant indicated that he wanted to proceed in propria persona in another case, which was set for probation and sentencing. The trial court verified that defendant had read and understood the trial courts "pro per policy." Thereafter, defendant was granted the right to proceed in propria persona in case No. YA048051. Defendant requested that the sentencing in case No. YA048051 be continued, because he intended to file a new trial motion at that time. The matter was continued to July 24, 2002. On June 10, 2002, defendant made no request to proceed in pro se in this case.
On August 9, 2002, defendant, still represented by counsel, appeared in this case for trial. Defense counsel indicated he was ready for trial. The trial court indicated the last day for trial was August 19 and set a status conference for August 16. Thereafter, on August 9, 2002, defendant indicated he wanted to represent himself in this case. The trial court asked, "Are you going to be ready to try this case by the 19th of August?" Defendant responded, "No." The trial court ruled, "The court finds the request to be untimely and will be denied." Trial commenced on August 19, 2002.
A defendant has a federal constitutional self-representation right. (Faretta v. California (1975) 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525; People v. Marshall (1996) 13 Cal.4th 799, 827, 919 P.2d 1280.) However, in this case, the parties dispute whether the assertion of the right to proceed without counsel was timely. Given the facts in the present case, defendants opportunity to proceed pro se was not an unqualified right because of his delay in seeking to represent himself. The California Supreme Court has held, "In order to invoke the right he must assert it within a reasonable time before the commencement of trial." (People v. Marshall, supra, 13 Cal.4th at p. 827; People v. Clark (1992) 3 Cal.4th 41, 98, 833 P.2d 561; People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal. Rptr. 184, 771 P.2d 1270; see also People v. Rudd (1998) 63 Cal.App.4th 620, 625.) In People v. Jenkins (2000) 22 Cal.4th 900, 959, 997 P.2d 1044, the Supreme Court described a trial courts duties in assessing a belated self representation request as follows: "In exercising this discretion, the trial court should consider factors such as "the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Burton [, supra,] 48 Cal.3d [at p.] 853 [], quoting People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal. Rptr. 8, 560 P.2d 1187 [].)" The California Supreme Court has held that self-representation motions made on the day preceding or on the trial date are considered untimely. (People v . Burton, supra, 48 Cal.3d at p. 852; People v. Moore (1988) 47 Cal.3d 63, 79-81, 252 Cal. Rptr. 494, 762 P.2d 1218; People v. Scott (2001) 91 Cal.App.4th 1197, 1205; People v. Rudd, supra, 63 Cal.App.4th at p. 626; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689; see also Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264-265.) If it appears that the defendants self-representation request is merely a tactic designed to cause delay, the trial court has the discretion to deny the motion to proceed pro se. (Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888; U.S. v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674-675.) Appellate courts review self-representation timeliness issues for an abuse of discretion. (People v. Clark, supra, 3 Cal.App.4th at p. 98; People v. Windham, supra, 19 Cal.3d at p. 128.)
The trial court did not abuse its discretion in denying defendants self-representation request as untimely. Defendant only requested pro se status on August 9, 2002, the date he previously agreed was the first of the 10-day trailing period. In fact, during the 10-day trailing period, the trial could have commenced at any time. Defendant indicated he could not be ready to proceed on August 19, 2002, the last day trial could commence consistent with section 1382. On July 10, 2002, defendant agreed to the August 9, 2002, trial date and that the trial must commence by August 19, 2002. In addition, the trial court had previously allowed defendant to represent himself in another matter pending sentencing, for which he immediately requested further delay. The facts demonstrate that the day of trial self-representation request was made for purposes of delay. (United States v. Mackovich (10th Cir. 2000) 209 F.3d 1227, 1237; People v. Clark, supra, 3 Cal.4th at pp. 100-101.)
Second, defendant argues the trial court improperly responded to the jurors questions regarding whether the actual gun had to have been introduced at trial in order to sustain a true finding on the section 12022.53, subdivision (b) allegation. Defendant further argues the trial courts error violated his due process and jury trial rights. During the course of deliberations in this case, the jurors sent a note to the trial court inquiring: "Is it necessary to prove that the gun presented in court was the actual gun used for the charge of use of firearm. Or— [P] [] Is it only necessary to prove that the victims believed a gun was used." The trial court called the jurors back to the courtroom and instructed them: "I would again direct you to the instructions that you were given. You were given instructions on the law that applies and you should review those. I would particularly refer you both as to question two and three to instruction No. 17.59. I believe that instruction gives you the law as it relates to that issue and should be sufficient to answer your question; but there are no other instructions that I can give you. Again, as I previously indicated, you are the judges of the facts, and its your task to analyze the evidence and the instructions and determine what the facts are." As can be noted, the trial court referred, obviously inadvertently, to CALJIC No. 17.59, a pattern instruction that does not exist. It appears the trial court was referring to CALJIC No. 17.19, which was given as follows: "It is alleged in counts 1, 2, and 3 that the defendant personally used a firearm during the commission of the crimes charged. If you find the defendant guilty of one or more of the crimes charged, you must determine whether the defendant personally used a firearm in the commission of those felonies. [P] The word firearm includes a handgun. The firearm needs not be operable. [P] The term personally used a firearm as used in this instruction means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it. [P] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. Include a special finding on that question in your verdict using a form that will be supplied for that purpose."
Preliminarily, defendants constitutional contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731, 123 L. Ed. 2d 508, 113 S. Ct. 1770; People v. Williams (1997) 16 Cal.4th 153, 250, 940 P.2d 710; People v. Vera (1997) 15 Cal.4th 269, 274, 934 P.2d 1279; People v. Padilla (1995) 11 Cal.4th 891, 971, 906 P.2d 388, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20, 885 P.2d 1; People v. Garceau (1993) 6 Cal.4th 140, 173, 862 P.2d 664; People v. Saunders (1993) 5 Cal.4th 580, 589-590, 853 P.2d 1093; People v. McPeters (1992) 2 Cal.4th 1148, 1174, 832 P.2d 146; People v. Walker (1991) 54 Cal.3d 1013, 1023, 819 P.2d 861; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10, 820 P.2d 214; People v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478.) In addition, defendants failure to object to the trial courts response to the jurors questions also constitutes a waiver of the issue on appeal and may be held to amount to tacit approval of its exercise of discretion. (People v. Boyette (2002) 29 Cal.4th 381, 430; see also People v. Rodrigues, supra, 8 Cal.4th at p. 1193; People v. Bohana (2000) 84 Cal.App.4th 360, 373.)
Notwithstanding those waivers, we find the trial court adequately answered the jurors inquiries. No due process violation occurred. In People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, 275 Cal. Rptr. 729, 800 P.2d 1159, the California Supreme Court held: "Section 1138, which requires the court to provide the jury any desired information on any point of law arising in the case[] . . . imposes a mandatory duty to clear up any instructional confusion expressed by the jury. (See People v. Gavin (1971) 21 Cal. App. 3d 408, 418, 98 Cal. Rptr. 518 []; People v. Malone (1959) 173 Cal. App. 2d 234, 244, 343 P.2d 333 [].) [P] . . . Where, as here, the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. (See People v. Rigney (1961) 55 Cal.2d 236, 246, 10 Cal. Rptr. 625, 359 P.2d 23 [].)" Section 1138 states in part, "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court."
We conclude the original instructions were complete. The trial court correctly referred the jurors to those instructions. As to the inadvertent reference to CALJIC No. 17.59, no prejudice resulted. A violation of section 1138 does not warrant reversal unless there is a showing of prejudice. (People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal. Rptr. 276, 806 P.2d 1311, citing People v. Kageler (1973) 32 Cal. App. 3d 738, 746, 108 Cal. Rptr. 235; see also People v. Moore (1996) 44 Cal.App.4th 1323, 1332.) In this case, there was substantial evidence that defendant used a gun in both robberies. Although Mr. Drake did not testify at trial that he saw the gun, he had previously testified at the preliminary hearing that the gun was silver, "I just seen the barrel, well, Im talking about the little circular part, the revolver part." Mr. Drake was a reluctant witness at trial, indicating he did not want to testify. When asked by the prosecutor, "Did you tell me that you didnt want to testify here in court and youd rather we handle it without you[]," Mr. Drake answered, "Yes, I did." Mr. Hutchinson specifically testified he saw defendant come up to the car with a chrome .32 or .38 caliber gun. Mr. Hutchinson recognized the gun admitted into evidence at trial as the one defendant used in the robbery. Defendants handgun was found by the police near where he was apprehended. Any error was harmless.
Third, defendant argues that he is entitled to one additional day of presentence custody credit. We agree. The failure to award an adequate amount of credits is a jurisdictional error, which may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15, 842 P.2d 100; People v. Serrato (1973) 9 Cal.3d 753, 763-765, 109 Cal. Rptr. 65, 512 P.2d 289, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal. Rptr. 855, 659 P.2d 1144.) Defendant received an incorrect award of presentence credits. ( § 2900.5.) He should have received 374 days of actual custody credit. We took judicial notice of the record in case Nos. YA048051 and YA049490. It is noted that defendant was sentenced in case No. YA049490 on October 3, 2002. The trial court in that case also awarded 373 days of presentence custody credit plus 56 days conduct credit covering the same time period as this case commencing September 26, 2001 (the arraignment date in case No. YA049490), up to August 29, 2002, when he was sentenced in this matter. Case No. YA049490 is currently pending appeal in this appellate district under case No. B162457. Because that matter is not within the jurisdiction of this division, we make no ruling on the credits awarded by the trial court in that case.
The superior court clerk is directed to correct the abstract of judgment to reflect defendants presentence credits of 374 days of actual credits. The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.