Opinion
NOT TO BE PUBLISHED
Super. Ct. of the City & County of San Francisco No. 199476
DONDERO, J.
Defendant was convicted following a jury trial of two counts of first degree robbery (Pen. Code, § 212.5, subd. (a)), three counts of second degree robbery (§ 212.5, subd. (c)), and assault with a firearm (§ 245, subd. (a)(2)), with associated enhancements for personal use of a firearm (§ 12022.53, subd. (b)), personal discharge of a firearm (§ 12022.53, subds. (c), (e)(1)), and personal use of a revolver (§ 12022.5, subd. (a)(1)), in the commission of the offenses. In his appeal he argued that the trial court erred by denying his motion to represent himself at trial, and claimed that the jury committed misconduct by conducting an experiment with physical evidence offered at trial. We determined that the trial court improperly denied defendant’s timely Faretta motion, and reversed the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
The California Supreme Court thereafter granted defendant’s petition for review, and has now remanded the case to us for reconsideration in light of People v. Lynch (2010) 50 Cal.4th 693 (Lynch), an opinion issued after our reversal of the judgment in the present case. We conclude that under the principles enumerated in Lynch, defendant’s Faretta motion was untimely, and the trial court did not abuse its discretion by denying defendant the right to represent himself. We further conclude that no jury misconduct occurred. We therefore affirm the judgment.
STATEMENT OF FACTS
Defendant was convicted of a series of robberies committed in San Francisco within the span of a few days in early November of 2005. We will separately recite the evidence pertinent to each of the robberies, according to the established standards of appellate review of a judgment of conviction, which require that we view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendant was also charged in Counts 1 and 2 with robbery and assault with a knife of a Yellow Cab Company driver, Leonardo Perez, that occurred on October 29, 2005, but the jury was not able to reach a verdict on those charges. We will therefore not discuss the evidence that relates to those crimes.
The Robbery of Said Hasan at the Hilltop Market (Count 5)
At 12:45 p.m. on November 4, 2005, Said Hasan was working in the Hilltop Market he owned on Broderick Street in San Francisco. A man Hasan had never seen before entered the store and “asked for change for $20.” The man left the store after Hasan gave him the change he requested, but returned about 15 minutes later. The man approached the counter with a box of cookies in one hand and a small silver revolver in the other. He pointed the gun at Hasan and demanded “all the money” in the cash register. Hasan gave the man $250 in cash from the cash register, along with ATM receipts, food stamps and checks. The man then directed Hasan to the back of the store. After the man left the store Hasan called the police.
Hasan described the robber as “a Black man, ” between six feet and six feet, three inches tall, 280 to 300 pounds, 28 to 35 years old, wearing a black beanie over half of his face, and a white T-shirt. He viewed a videotape lineup on November 14, 2005, and selected “number 2, ” defendant, as “similar to the person, but not 100 percent.” Hasan testified at the preliminary hearing in August of 2006, that defendant was “not the guy” who robbed him. At trial, Hasan described defendant as the “same height, ” but “darker” and “20 pounds heavier” than the robber. He testified: “I cannot say 100 percent, but I have a deep feeling he is not the man who robbed me.”
The box of cookies left by the robber on the counter was not touched by anyone until it was processed by a crime scene investigator. A latent fingerprint taken from the cookie box was subsequently identified as a match for defendant’s left thumb print.
The Robberies and Assault with a Firearm of Jong Kook Kim and Chung Sook Kim at the Drink Liquor Store (Counts 6 through 8)
Jong Kook Kim (Kim) and his wife Chung Sook Kim owned Drink Liquor, a grocery and liquor store on Second Avenue in San Francisco. Just before 5:00 on the afternoon of November 4, 2005, a large, tall “Black man” appeared in the store, took a Snapple from the refrigerator, and placed it on the counter. He said something that Kim and his wife did not understand, then pulled out a small gun and shot at the floor. Kim told his wife to open the cash register and “give the money” to the man. Mrs. Kim placed all the money from the cash register into a paper bag along with the Snapple, and gave it to the man. The man then walked out of the store, turned left, and headed toward Balboa Street and Third Avenue.
Steven Jue, the owner of an aquarium shop next to Drink Liquor, who was on the street in front of his store talking with a customer, testified that he noticed the “African-American man” walk past him “going westbound” toward Balboa and Third. He described the man as mid-twenties, “five-ten, five-eleven, ” about 280 pounds, wearing a white T-shirt, black pants, and a black “do-rag on his head.”
Kim and his wife followed the man out of the store. They encountered Jue, who characterized them as “very hysterical, ” and told him they had been robbed. They all watched as the man walked to the corner, then turned around and proceeded to a car parked on the street. Jue testified that the car was a “late ’70’s Chevy Caprice Classic, bluish-greenish color, ” with tinted windows and an “out-of-state license plate, ” the first three numbers of which “were 733.” Mrs. Kim asked Jue to remember and “write down” the license number of the car. The man got into the car and drove away.
Kim returned to the store to look for evidence of the gunshot. He discovered a small “piece of metal” on the floor that was not present before the robbery, which he later gave to a police officer.
Kim and his wife subsequently viewed a video lineup: Kim identified defendant as the robber by placing an X on subject number 2; Mrs. Kim “wasn’t able to” make an identification. Neither Kim nor his wife identified defendant as the robber at trial, although Mrs. Kim testified that defendant “might be him.” Jue identified defendant in the video lineup, at the preliminary hearing, and at trial.
Kim and his wife and Jue were taken to a police vehicle impound yard to separately “look around” and see if they recognized the car driven by the robber. They all recognized and pointed out a blue “ ’80’s Chevy Caprice” with an “out-of-state plate” that read 773LSS that had been towed to the impound lot from the Westside Housing Projects on Post and Broderick after defendant’s arrest there. When the Caprice was seized the police found a black “do-rag underneath the seat, ” a small knife under the driver’s seat back rest, and “indicia” related to defendant and his home address at 2011 Delta View, Bay Point.
The Robbery of Myles Kilroy (Count 3)
Myles Kilroy was working as a cab driver for Yellow Cab Company when he received a dispatch at 10:15 a.m. on November 7, 2005, for an address on Ingalls Street in the Bayview Hunters Point area near Candlestick Park. When Kilroy reached Ingalls Street he noticed a man running toward the cab. The man got in the right rear passenger seat of the cab, and asked Kilroy to “go down to the next block and hang a right.” After Kilroy made two right turns as directed, the man asked him to stop the cab. Kilroy pulled over to the side of the road in front of a residence. He then turned around and realized that the passenger had pulled out a gun and was pointing it at him. The man ordered Kilroy to hand over his money. Kilroy extracted his billfold from his breast pocket and gave it to the man. Kilroy was also ordered to give the man his wallet, cell phone, and car keys, and he did so. The man returned the wallet and cell phone, “saying, ‘I don’t want this shit.’ ” He then walked away, but as he did so he threw the keys to the cab in the street.
Kilroy described the man who robbed him as “African-American, ” late 20’s to early 30’s, a “big guy, ” at least 200 pounds, who wore a black do-rag tied tightly around his head. Three days later, Kilroy viewed a video lineup. He selected subject number 2, defendant, as someone who strongly resembled the “person who robbed” him, and subject number 5, a person who “lightly resembled the person” Kilroy remembered. Kilroy testified in court that defendant “looks a lot like” the robber; he was “fairly certain” of his identification.
The Robbery of Joel Lipkins (Count 4)
At 10:50 on the morning of November 7, 2005, cab driver Joel Lipkins arrived at an address on Velasco Street in the Sunnydale Projects in San Francisco to pick up a fare. Lipkins discovered “there was no such address, ” but a minute later heard a man yell, “Pull around the corner. My wife will be out in a minute.” The man then got into the back seat of the cab and directed Lipkins around the corner. Lipkins testified that the man was “Black, ” 30 to 35 years old, about 6 feet tall, and 300 pounds.
After Lipkins drove around the corner the man “pulled out a gun and said, ‘Give me all your money.’ ” Lipkins reached in his left side shirt pocket “and gave him all of the money.” The man also demanded Lipkins’s wallet. Lipkins replied that he did not keep money in his wallet. The man “said, ‘Okay, ’ ” took the money and got out of the cab. From outside the cab the man told Lipkins, “Give me your keys.” Lipkins complied, whereupon the man took the cab keys and threw them down the street. The man then entered an old, maroon or brown “boxy-type car, ” like an Oldsmobile, Pontiac or Buick, and drove away.
Lipkins viewed a video lineup on November 10, 2005. He placed a mark on “Number 2, ” defendant, as the man who robbed him. He identified defendant at the preliminary hearing and again at trial as “the one that did it.” He had “no question” of the accuracy of his identifications. Lipkins also identified three photographs taken by the automated “FareView” camera system mounted in his cab: one of himself and the robber, another of just the robber, and a third of the robber “with a gun.” Lipkins testified that he was positive the photos were accurate and depicted the man who robbed him the morning of November 7, 2005.
The Arrest of Defendant and the Police Investigation
Defendant was arrested by plain clothes officers of the San Francisco Police Department on the evening of November 8, 2005, at the Westside Housing Projects on Baker Street in San Francisco. He was wearing a white “do rag, ” a white T-shirt, and blue jeans. Defendant gave the officers his name and a residence address of 2011 Delta View Lane in Bay Point, the same address specified on the registration documents for the blue Chevrolet Caprice found near the location of defendant’s arrest. He was subsequently questioned at the robbery detail interview room. When defendant was shown a photograph taken by the FareView camera system in Lipkins’s cab, he imprudently remarked, “That’s me.” An examination of the records of a cell phone seized from defendant revealed that numerous calls were made from that phone to the Yellow Cab Company on the morning of October 29, 2005, and again on the morning of the robberies of cab drivers Lipkins and Kilroy.
The date of the charged robbery of cab driver Leonardo Perez.
DISCUSSION
I. The Denial of Defendant’s Motion to Represent Himself.
Defendant complains that the trial court erred by denying his Faretta motion to represent himself. He asserts that the “Faretta motion was timely made at least 26 days before trial could possibly have begun, ” and was “unequivocal.” Defendant also submits his Faretta motion was not made “for the purpose of delaying the trial” or otherwise obstructing the proceedings. He therefore argues that the court was required to conduct the requisite inquiry into the voluntariness of his request, and grant him the right of self-representation upon a finding that his waiver of the right to counsel was knowing and voluntary. He points out that the erroneous denial of the constitutional right to self-representation is “prejudicial per se, ” and necessitates reversal of the judgment. (People v. Sohrab (1997) 59 Cal.App.4th 89, 99.)
Before discussing the issues of this case, a few introductory remarks regarding the Faretta decision need mentioning. The case holds an accused has an independent constitutional right of self-representation, guaranteed by the Sixth Amendment. The notion of self-representation was acknowledged and appreciated during colonial times and is integral to the Bill of Rights. (Faretta, supra, 422 U.S. 806, 833–834.) When an accused, after asserting an unequivocal desire for self-representation, is compelled to accept counsel, the constitutional error taints the criminal trial process to the core. “[W]here the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him.... The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.” (Id. at p. 834.)
Of course the exercise of this right of self-representation must be knowingly and intelligently manifested, hence the trial court record will establish the choice was made with “ ‘eyes open.’ [Citation.]” (Faretta, supra, 422 U.S. 806, 835.) This election must be unequivocal, a feature the reviewing court can find from review of the trial court colloquy with the defendant. And the application must be timely, which in the Faretta case was “weeks before trial.” (Ibid.; see also id. at p. 808 [Also “[s]everal weeks... but still prior to [the] trial” the hearing on self-representation occurred.].)
A narration of the protracted procedural history of the present case is also essential to our review of the trial court’s ruling on the Faretta motion. The crimes were committed in November of 2005, and the information was filed on August 23, 2006. Thereafter, the case proceeded unhurriedly as pretrial motions were heard, trial dates were repeatedly set, and numerous continuances were granted at the request of both the prosecution and defense. Defendant made a Marsden motion to relieve his appointed counsel, Phong Wang, that was heard and denied on November 17, 2006. By April of 2007, in light of defendant’s complaints with his appointed counsel the public defender’s office decided to “substitute public defenders” rather than face a formal Faretta motion or another Marsden motion. Mark Jacobs was substituted as counsel of record for defendant. Additional continuances of the scheduled trial dates were granted.
People v. Marsden (1970) 2 Cal.3d 118.
By January 15, 2008, a date set for trial, defense counsel again requested a continuance due to a scheduling conflict with another trial and the need to present defense motions. The case was continued to the next day.
On January 16, 2008, defendant appeared, still represented by Jacobs, and through counsel moved for release on his own recognizance and for severance of charges. A possible negotiated disposition was also discussed, which included another pending robbery case charged against defendant in Contra Costa County. Defendant then stated: “I’d like to file a Faretta motion so I could represent myself.” Defendant explained that he “wasn’t too happy” with his two appointed attorneys, and wanted “a better deal” of 20 years with the potential for “halftime” served based on sentence credits. He also wanted the sentence to include a pending Contra Costa County felony where the defendant faced an additional punishment of 25 years for robbery and the personal discharge of a firearm during the robbery, a result beyond the control of the San Francisco trial court. Defendant added that he faced “a lot of time, ” and would rather study and present the case himself. He felt this way especially because he could not receive the package “deal” he wanted to resolve all his matters. He also requested his “own investigator” to “look into” the case and “run the errands” necessary to discover information, as well as additional “access to the law library.” When the court inquired as to the time necessary for defendant to prepare for trial, he replied “at least four or five months.” The court asked defendant for the reason for the delay in seeking self-representation. Defendant responded that as the case began “getting close to going to trial” he realized that he was “still not happy with a different person representing” him, and felt he could better represent himself.
Defense counsel advised the court that the other case to which he was assigned was a “no-time-waiver” trial “on calendar” the next day, and would take “no more than about two weeks” to complete. Counsel announced that he was prepared to begin trial in the present case immediately upon the conclusion of his other trial.
The trial court acknowledged to defendant that he had a “constitutional right” to represent himself, but denied the Faretta motion for lack of timeliness. The court expressed concern with the “enormous delay” in the case that was “already more than two years old, ” and was “ready to start trial within a matter of weeks.” Defendant asserted that he was not aware of his right to represent himself until “a month ago, ” and was “not trying to inconvenience the court.” Defense counsel interjected that he had not advised defendant of his right of self-representation. The court found, in light of the pertinent factors articulated in “the Windham case, ” including the “disruption and delay” that would attend according defendant the right to represent himself, that the “motion is untimely.”
People v. Windham (1977) 19 Cal.3d 121 (Windham).
The court proposed to hear a severance motion on January 23d, then “put the matter over until February 4th” to start trial if defense counsel was available. The case ultimately proceeded to trial with defendant represented by counsel, but not until May 6, 2008, due primarily to the court’s scheduling conflicts.
The starting point for our inquiry into the denial of the Faretta motion in the present case is recognition of the fundamental rule that the federal constitutional right of self-representation is “unconditional, ” but “not self-executing.” (Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529; see also People v. Bradford (1997) 15 Cal.4th 1229, 1365.) “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.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001–1002; see also People v. Roldan (2005) 35 Cal.4th 646, 683.) “The right of self-representation is absolute, but only if knowingly and voluntarily made and if asserted a reasonable time before trial begins.” (People v. Doolin (2009) 45 Cal.4th 390, 453; see also People v. Stanley (2006) 39 Cal.4th 913, 931–932.)
As we recognized in our prior opinion, on appeal we conduct an independent examination of the record to determine if a Faretta motion has been knowingly, timely and unequivocally asserted. (People v. Doolin, supra, 45 Cal.4th 390, 453; People v. Stanley, supra, 39 Cal.4th 913, 931–932.) We undertake our assessment “ ‘based on the “ ‘facts as they appear at the time of the hearing on the motion rather than on what subsequently develops.’ ” [Citations [and fn.] omitted.]’ [Citation.]” (People v. White (1992) 9 Cal.App.4th 1062, 1072.)
We are presented in this appeal with the issue of timeliness. “[T]he timeliness of one’s assertion of Faretta rights is critical.” (People v. Halvorsen (2007) 42 Cal.4th 379, 433.) “If a request for self-representation is unequivocally asserted within a reasonable time before the commencement of the trial, and if the assertion is voluntarily made with an appreciation of the risks involved, the trial court has no discretion to deny it.” (People v. Bloom (1989) 48 Cal.3d 1194, 1219; see also People v. Halvorsen, supra, at p. 434; People v. Dent (2003) 30 Cal.4th 213, 217.) “ ‘When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.’ [Citation.] In exercising this discretion, the trial court should consider factors such as ‘ “the quality of counsel’s representation of the defendant, 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 which might reasonably be expected to follow the granting of such a motion.” ’ [Citations.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959; see also Windham, supra, 19 Cal.3d 121, 128; People v. Lawley (2002) 27 Cal.4th 102, 149.) “ ‘The “reasonable time” requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.’ [Citation.]” (People v. Percelle (2005) 126 Cal.App.4th 164, 175.)
The evidence clearly shows that defendant’s Faretta motion was unequivocal, and the Attorney General does not argue otherwise. Upon finding the request untimely, the trial court did not reach the competence and voluntariness elements of the right of self-representation. In determining the issue of timeliness, the trial court’s decision is based on the facts as they appear at the time of the hearing on the motion, not on what develops subsequently in the case. (People v. Moore (1988) 47 Cal.3d 63, 80.)
Whether a Faretta motion has been made a reasonable time prior to the commencement of trial presents a calculation “Windham left unresolved.” (People v. White, supra, 9 Cal.App.4th 1062, 1071; see also id. at p. 1072.) Recently, the court in Lynch elucidated and expanded upon the rudimentary standard of a reasonable time prior to commencement of trial, and for the first time definitively articulated the principles and factors that must be evaluated to determine the timeliness of a defendant’s assertion of the right of self-representation. Lynch dispensed with a more inflexible examination of timeliness in favor of scrutiny of the particular circumstances associated with the defendant’s Faretta motion.
The court in Lynch noted that the United States Supreme Court “has never delineated when a motion may be denied as untimely. Nor has this court fixed any definitive time before trial at which a motion for self-representation is considered untimely, or articulated factors a trial court may consider in determining whether a self-representation motion was filed a reasonable time before trial.” (Lynch, supra, 50 Cal.4th 693, 722.)
As a starting point, the court in Lynch observed that “Faretta nowhere announced a rigid formula for determining timeliness without regard to the circumstances of the particular case.” (Lynch, supra, 50 Cal.4th 693, 724.) Rather, “timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made.” (Ibid.) The court declared “that a trial court may consider the totality of the circumstances in determining whether a defendant’s pretrial motion for self-representation is timely. Thus, a trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation.” (Id. at p. 726.)
In our examination of the timeliness of defendant’s Faretta motion in the present case, we perceive a striking similarity with the set of facts the court considered in Lynch. This of course is not a capital case, as was Lynch, but in many other respects the cases are factually analogous. First, the time frame is somewhat comparable. In Lynch, four years after the case had been initiated, and following the denial of the defendant’s Marsden motion, the case was assigned to a judge for trial on September 11, 1991, and the parties stipulated “to have the case put over until October 7 for either trial setting or reassignment to a different judge.” (Lynch, supra, 50 Cal.4th 693, 713.) The statutory time to bring the defendant to trial was set to run on November 1, 1991. (Id. at p. 714.) The defendant filed Faretta motions on September 27, and October 16, 1991, along with another Marsden motion. The trial court denied the Faretta motions as untimely, and the case was continued for pretrial motions. (Lynch, supra, at pp. 714, 719, 721.) Upon consideration of the pertinent factors the California Supreme Court concluded “the trial court properly denied as untimely defendant’s September 27, 1991, and October 16, 1991, motions for self-representation.” (Id. at p. 726.)
When denying the first Faretta motion the trial court “observed that defendant had been represented by Mr. Ciraolo for over four years, and that ‘because of the advanced age of the victims, ’ and ‘because of the possible delay in the proceedings which might arise in the event I granted Mr. Lynch his pro per status, the Court’s going to rule that this motion is not timely made. We’re on the eve of the trial. The trial is to begin within two weeks. There was a time waiver [sic]. The Court’s made space and time available for the trial of this case. Both sides are prepared to proceed. And so it’s the Court’s feeling that it’s not timely made, so the petition to proceed in pro per will be denied for the reasons I’ve stated on the record.’ The court then informed counsel that it expected to begin pretrial motions on October 21, 1991, which it understood would take approximately three weeks, and that afterward jury selection would begin.” (Lynch, supra, 50 Cal.4th 693, 719.) Many of the same reasons were given in support of the decision to deny defendant’s second Faretta motion, which was “essentially identical to his first motion.” (Id. at pp. 719, 721.)
The court in Lynch observed that when the case was sent out for trial on October 7th, although no firm trial date was set, the parties understood that “they would be given a trial date about ‘two weeks’ ” thereafter. (Lynch, supra, 50 Cal.4th 693, 727.) “Pretrial motions were expected to begin two weeks later, and trial to commence about three weeks after that. A case that had endured significant delay was finally nearing resolution.” (Ibid.) While the lengthy delay in the prosecution of the Lynch case was not attributed to the defendant, the court recognized that he failed to provide a credible explanation “why he had waited nearly four years, or until the parties were prepared to proceed to trial, to seek self-representation.” (Ibid.)
The court discounted as “feeble” the defendant’s assertion that recent observations of his representation “ ‘[make]... me want to exercise my Sixth Amendment rights[ ] [¶]... [¶]... to represent myself, ’ ” and considered his announcement that “because his life was ‘on the line, ’ he should be in charge, ” as a “circumstance of which he was aware well before the filing of his first motion on September 27, 1991....” (Lynch, supra, 50 Cal.4th 693, 727.)
The complexity of the case and the numerous potential witnesses who were scheduled to appear were also considered as factors that militated against the timeliness of the defendant’s motion in Lynch. The court pointed out that the case presented multiple serious charges, each of which “involved a separate incident, ” and with them separate witnesses. (Lynch, supra, 50 Cal.4th 693, 726.) “Discovery was voluminous, and trial preparation inherently complex.” (Ibid., fn. omitted.) The court added: “Moreover, this case involved crucial witnesses, as well as victims, who were elderly. The victims and the prosecution had a right to a speedy trial. (Cal. Const., art. I, § 29; see Morris v. Slappy [(1983)] 461 U.S. [1, ] 14 [‘[I]n the administration of criminal justice, courts may not ignore the concerns of victims.’].)” (Id. at p. 727.)
Moreover, and critically for purposes of our examination of timeliness in the case before us, the court in Lynch also considered the delay associated with granting the motion. Under the more rigid “reasonable time prior to commencement of trial” standard in place under the former law as stated in Windham, the delay that would result from affording the defendant the right to self-representation was not recognized as a legitimate consideration if the Faretta motion was otherwise timely. The court in Lynch pointed out, however, that when moving for self-representation the “defendant did not dispute that he would need time to investigate and prepare, and replied both ‘Yeah’ and ‘not sure’ when asked if he was ‘talking about months’ of time to do so. Indeed, he said he needed time to review the discovery and other materials before he could tell the court how much additional time he would require, expressed confusion that ‘everyone beside[s] myself is... ready as of now... to go to trial, ’ and characterized his self-representation motion as ‘vacat[ing]’ his recent withdrawal of his time waiver.” (Lynch, supra, 50 Cal.4th 693, 728, italics omitted.) The court explained: “The reasonable import of these comments is that if the self-representation motion had been granted, defendant would have required an undetermined amount of time to investigate and prepare for trial. A trial court may properly consider the delay inherently caused by such uncertainty in evaluating timeliness.” (Ibid.)
Under Windham, if the Faretta motion was found untimely then “ ‘the disruption or delay that might reasonably be expected to follow the granting of such a motion’ ” was subject to consideration as part of the trial court’s exercise of discretion to grant or deny the motion. (People v. Barnett (1998) 17 Cal.4th 1044, 1105; Windham, supra, 19 Cal.3d 121, 128.) It is to be noted that Windham dealt with a request for self-representation on the third day of a trial, and the Windham factors were considered accordingly. The court explained: “When such a midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors [so-called Windham factors] underlying the request....” (Windham, supra, at p. 128, first italics added.) The Windham court made a critical distinction regarding timing of the motion. “The experience of other jurisdictions in dealing with the procedural implementation of a constitutionally based right of self-representation demonstrates that the requirement of a pretrial motion to that effect is a workable and appropriate predicate to the exercise of the Faretta right. We hold therefore that in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of [the] trial.” (Id. at pp. 127–128, italics added.) The court only introduced the so-called Windham factors when discussing the self-representation request “once a defendant has chosen to proceed to trial represented by counsel” and later seeks self-representation during trial. (Id. at p. 128.)
Upon examination of the enumerated factors, the court in Lynch concluded: “In light of all these circumstances, defendant’s self-representation motions were properly deemed untimely. Thus, the trial court had discretion to deny the motions, and acted well within its discretion in doing so on the grounds that certain witnesses including the surviving victims were elderly, the parties were otherwise prepared to proceed, defendant had offered no justification for his untimely request to represent himself, and granting the motion was reasonably likely to result in substantial delay and disruption of the proceedings.” (Lynch, supra, 50 Cal.4th 693, 728.)
Here, the time between the initiation of the proceedings and the Faretta motion was also quite protracted. The proceedings languished after the crimes were committed in November of 2005 and the information was filed in August of 2006, with many trial dates set and continued. Defendant’s Marsden motion had been denied, but he was subsequently granted substitute counsel when he voiced further complaints with his representation. As in Lynch, although no firm date for the beginning of the trial was set, the case had been assigned out for trial “forthwith” before the Faretta motion was made on January 16, 2008. Defendant sought to represent himself the day after the tentative trial date was set. The trial date in the present case was provisional – contingent upon determination of a few motions, along with availability of a courtroom and defense counsel – but Lynch instructs us that an indefinite future trial date does not inevitably render a Faretta motion timely. In Lynch, a date for trial was not definitively scheduled; trial was at least five weeks away, dependent upon the resolution of pretrial motions and other matters. For purposes of assessing timeliness under Lynch, the factual context in the case before us is comparable: over two years lapsed from the commission of the crimes to defendant’s invocation of his right to self-representation; the parties were prepared to try the case after extensive pretrial procedures; a certain trial date was not set, but commencement of trial was positively contemplated upon consideration of the severance motion, receipt of witness lists, and the conclusion of defense counsel’s no-time-waiver case. All of the contingencies to commencement of trial were expected to be resolved within a shorter time span than the court was presented with in Lynch.
Defendant also did not furnish a reason that adequately justified his delay in pursuing the Faretta motion. He had been represented by his current attorney for many months and was aware of his right to seek substitute counsel – having exercised it in the past. He gave no reason why he waited to express displeasure with his counsel’s representation. Defendant merely conveyed that he “wasn’t too happy” with his appointed attorneys, wanted “a better deal, ” and faced “a lot of time, ” so he preferred to present the case himself. His only articulated basis for the delay in seeking to represent himself was lack of awareness of the right of self-representation, not any recent development in the case that unexpectedly compelled him to dispense with counsel. And although he became aware of his right to self-representation a month before, he waited until January 16 to make his Faretta motion, when he was faced with the realization that the case would not settle on terms advantageous to him and trial was forthcoming. The reasons defendant offered to support his Faretta motion, while perhaps not feeble, were hardly more persuasive to us than those found deficient in Lynch, and did not excuse defendant’s tardiness in moving to represent himself. And like the defendant in Lynch, he cannot escape the “responsibility for timely invoking his right to self-representation.” (Lynch, supra, 50 Cal.4th 693, 727.)
In addition, the case against defendant was multifaceted and elaborate. Defendant was charged with numerous and very serious offenses: three counts of first degree robbery, three counts of second degree robbery, and two counts of assault with a firearm, along with gun use enhancements. The case involved at least four different incidents, five different victims, and many additional witnesses. Some of the victims did not speak English, so interpreters were required. The prosecution had already waited over two years from the commission of the offenses to present the case. The record also illustrates that the court as well as the parties were not only ready but anxious to proceed. The concerns of the victims and prosecution to obtain a speedy trial cannot be ignored. (Lynch, supra, 50 Cal.4th 693, 727.)
Finally, a postponement of the commencement of the trial, of an unknown but quite extended duration, would have been necessitated by granting defendant the right to represent himself. Following the decision in Lynch, the “delay inherently caused” by the amount of time a defendant needs to investigate and prepare for trial may be balanced against the defendant’s right to counsel “in evaluating timeliness.” (Lynch, supra, 50 Cal.4th 693, 728.) When defendant made his Faretta motion the prosecution was ready to proceed to trial immediately. Defense counsel represented that he too was prepared to begin trial directly upon the conclusion of a “no-time-waiver” trial in another case, approximately two weeks. In contrast, when defendant was asked for the contemplated duration of the continuance he required to prepare for trial, he replied “at least four or five months.” He also requested an investigator to conduct discovery and “run the errands” for him, as well as additional “access to the law library.” Thus, the disruption of the proceedings necessitated by affording defendant the right to self-representation, which far exceeded the projected trial date, heavily disfavors a finding that the Faretta motion was made within a reasonable time prior to commencement of trial, particularly when we consider that the case had already endured significant delays but was finally nearing completion. (Id. at p. 727.)
Under the authority of Lynch, which is both valuable in its expression of governing legal principles and factually very apposite in the appeal before us, we find that defendant’s motion for self-representation was untimely. The trial court therefore had discretion to deny the motion, and did not abuse that discretion by doing so. (Lynch, supra, 50 Cal.4th 693, 728.)
II. The Claim of Jury Misconduct.
We turn to defendant’s claim that the jury committed misconduct. He argues that the jury improperly conducted an “experiment” with a purported “bullet fragment” found on the floor of the Drink Liquor store, that was introduced as People’s exhibit 31 at trial. Defendant maintains that “the jury’s experiment introduced extrinsic evidence into the jury’s deliberations” and denied him “his Sixth Amendment rights to confrontation and cross-examination.” He therefore contends that the trial court erred by denying his motion for a new trial on the ground of jury misconduct.
The context of the jury experiment is as follows. Kim, the owner of the Drink Liquor store, testified that during the robbery a large, tall “Black man” discharged a firearm at the floor. A small, flat metal fragment was discovered by Kim on the floor of the store after the robbery, and admitted as an exhibit at trial. The prosecution claimed that the metal fragment was “consistent with a bullet, ” and proved that defendant fired a “real gun” during the robbery. The defense pointed out that no ballistics evidence or expert testimony was adduced to prove the “piece of metal” was a bullet, and “no damage” to the store was inflicted during the robbery. Consequently, defense counsel argued that it “doesn’t make any sense and it’s physically impossible” for the metal fragment to be a bullet fired inside the store.
Kim identified the man in a lineup as defendant, but made no identification at trial.
Following the verdict, defendant moved for a new trial on the ground of jury misconduct. Defendant asserted that during deliberations the jurors rubbed the metal fragment “against a piece of paper. The metal piece made a mark, so the jurors concluded that the metal piece was made out of lead. Because they concluded it was made out of lead, they subsequently concluded that the metal piece was a bullet.” The prosecution did not dispute the contention of the defense that a juror “made a mark on the paper with the metal object, ” but argued that the “jury experimentation” did not constitute misconduct. The trial court found that the jury’s use of the piece of metal, while an experiment, did not invade “new fields, ” and thus was not misconduct.
In our review of the trial court’s denial of defendant’s motion for new trial on the basis of jury misconduct, “We first determine whether there was any juror misconduct. Only if we answer that question affirmatively do we consider whether the conduct was prejudicial.” (People v. Collins (2010) 49 Cal.4th 175, 242 (Collins).)
Our obligation on appeal is “to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred.” (People v. Ault (2004) 33 Cal.4th 1250, 1261–1262; see also People v. Hill (1992) 3 Cal.App.4th 16, 40.) “ ‘It is the trial court’s function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct. [Citations.] A denial of a motion for new trial grounded on jury misconduct implies a determination by the trial judge that the misconduct did not result in prejudice. [Citation.] Consistent with the principle that a trial judge has wide discretion in ruling on a motion for new trial, an appellate court should accord great deference to a trial judge’s evaluation of the prejudicial effect of jury misconduct. [Citation.] However, in reviewing an order denying a motion for new trial based on jury misconduct, as distinguished from an order granting a new trial on that ground, a reviewing court has a constitutional obligation (Cal. Const., art. VI, § 13) to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. [Citations.]’ [Citation.]” (People v. Adams (1993) 19 Cal.App.4th 412, 426–427, italics omitted.)
“Under [Penal Code] section 1181, items 2 and 3, the trial court may grant a new trial when ‘the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property’ (§ 1181, item 2), or the jury ‘has been guilty of any misconduct by which a fair and due consideration of the case has been prevented’ (§ 1181, item 3).” (Collins, supra, 49 Cal.4th 175, 242.) “ ‘ “A jury’s verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters.”... A juror commits misconduct if the juror... engages in an experiment that produces new evidence [citation].’ [Citation.]” (People v. Redd (2010) 48 Cal.4th 691, 742; see also People v. Wilson, supra, 44 Cal.4th 758, 829.)
“However, not every experiment constitutes jury misconduct.” (People v. Cumpian (1991) 1 Cal.App.4th 307, 316.) “ ‘ “ ‘[J]urors must be given enough latitude in their deliberations to permit them to use common experiences and illustrations in reaching their verdicts. [Citations.]’ [Citation.]” [Citation.]... [Citation.]’ [Citations.]” (People v. Baldine (2001) 94 Cal.App.4th 773, 778.) The fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him governs the use of exhibits by jurors. “ ‘They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.’ ” (Collins, supra, 49 Cal.4th 175, 243, quoting from Higgins v. L. A. Gas & Electric Co. (1911) 159 Cal. 651, 656–657 (Higgins).)
The term “ ‘field, ’ ” as defined in the case law, “does not mean one specific fact. A ‘field, ’ instead, is an area of inquiry, ” that includes the credibility of a witness. (People v. Bogle (1995) 41 Cal.App.4th 770, 779.) “Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and improper jury conduct turns on this difference. The jury may weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly different context as long as that evaluation is within the ‘ “scope and purview of the evidence.” ’ [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted.” (Collins, supra, 49 Cal.4th 175, 249.) Misconduct is found in “situations where the experiments were performed by one or several jurors outside of deliberations using items not introduced into evidence, resulting in outside influences or extrinsic evidence permeating the jury’s deliberations.” (People v. Cumpian, supra, 1 Cal.App.4th 307, 314.) “An evaluation of a misconduct claim ‘must necessarily focus on whether the experiments were based on evidence received in court.’ [Citation.]” (Collins, supra, at p. 246.)
We find that the jury’s use of the metal fragment fell within the scope of proper experimentation. The jury did not enter into any new field of discovery by merely drawing with the metal fragment on a piece of paper. The metal fragment was introduced to corroborate with physical evidence the robbery victim’s testimony that defendant fired a shot while in the Drink Liquor store, and thereby to establish his use of a gun. During trial, the parties presented argument on whether the fragment was the remnant of a bullet, or some other innocuous piece of metal. By testing the fragment on paper, the jury did not receive any extraneous facts or matter subjected to an outside influence, and used the evidence according to its nature. (People v. Bogle, supra, 41 Cal.App.4th 770, 778; People v. Cumpian, supra, 1 Cal.App.4th 307, 315–316.) The jury only considered material that was in evidence, and that defendant had an opportunity to contest or confront during trial. (People v. Baldine, supra, 94 Cal.App.4th 773, 779–780.)
On two occasions, first in Higgins, supra, 159 Cal. 651, 658–659, and again in Collins, supra, 49 Cal.4th 175, the California Supreme Court expressly approved of a Virginia case, Taylor v. Commonwealth (1893) 90 Va. 109 [17 S.E. 812] (Taylor), in which a factually similar claim of jury misconduct was presented. As described in Collins, the defendant in Taylor “was charged with murder, evidence showed that expended cartridges at the scene had been fired from a Winchester rifle of a given caliber and that defendant had such a rifle. The defendant responded by introducing his rifle and four empty shells that had been fired from it. He contended that his gun was not the murder weapon because the marks made by the firing pin on the four shells were different from the marks on the expended cartridges recovered at the scene. During trial the rifle was exhibited, but not taken apart. In deliberations the jurors dismantled the rifle, examined the firing pin, and concluded it had been tampered with. The Higgins court agreed with the Virginia Supreme Court that the jurors’ examination was proper. The jury examined the rifle to weigh the evidence that had been given. The question of whether defendant’s rifle had fired the shells recovered at the scene was squarely raised. Their examination of the gun did not invade a new field and fairly fell within the scope and purview of the evidence received. The Higgins court observed: ‘A more acute prosecuting attorney might have caused the examination to have been made in open court and thus have demonstrated the trick and fraud, but his failure to do so afforded no ground for overthrowing the verdict of an intelligent and scrutinizing jury which, making its own examination of the evidence admitted to prove or disprove the very fact, discovered that the [firing pin] “had been... tampered with and fixed for the occasion of the trial.” ’ (Higgins, supra, 159 Cal. at pp. 658–659, quoting Taylor v. Commonwealth, supra, 90 Va. 109.)” (Collins, supra, at pp. 243–244.)
Here, as in the Taylor case, the prosecutor may have, but did not, introduce evidence of a thorough investigation of the metal fragment to establish its condition and nature. The jury merely conducted an experiment which amounted to a slightly more assiduous examination of the evidence presented in court. The jury’s use of the metal fragment to draw on a piece of paper, like the dismantling of the rifle and inspection of its firing pin in Taylor, neither probed into a new field of inquiry nor resulted in the consideration of additional evidence. “[N]umerous cases have reiterated the distinction between an experiment that results in the acquisition of new evidence, and conduct that is simply a ‘more critical examination’ of the evidence admitted. The former is misconduct; the latter is not.” (Collins, supra, 49 Cal.4th 175, 244; see also People v. Baldine, supra, 94 Cal.App.4th 773, 778; People v. Bogle, supra, 41 Cal.App.4th 770, 779; People v. Cumpian, supra, 1 Cal.App.4th 307, 316–317; People v. Cooper (1979) 95 Cal.App.3d 844, 853–854.) The jury’s scrutiny of the metal fragment was merely an experiment directed at proffered evidence. We therefore agree with the trial court that no jury misconduct occurred.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.
The court in Windham also cautioned that the “imposition of a ‘reasonable time’ requirement should not be and, indeed, must not be used as a means of limiting a defendant’s constitutional right of self-representation.” (Windham, supra, 19 Cal.3d 121, 128, fn. 5, italics omitted; see also People v. Miller (2007) 153 Cal.App.4th 1015, 1021.) The court declared, however, that when “a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by a reasonable standard.” (Windham, supra, at p. 128, fn. 5; see also Miller, supra, at pp. 1021–1022.) We noted in our prior opinion that nothing in the record suggests defendant acted for the purpose of obstructing or delaying the proceedings, and the trial court neither engaged in a colloquy designed to inquire into defendant’s motivations nor made a finding on the record regarding the issue of obstruction.