Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA056750. Francis J. Hourigan III and John Vernon Meigs, Judges.
John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Bill Lockyer, Attorneys General, Robert R. Anderson, Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Michael C. Keller, and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Wiley Gill (Gill) was convicted of felony possession of cocaine and misdemeanor possession of paraphernalia used for smoking a controlled substance. Gill appealed, contending: he should not have received two separate enhancements for prior prison terms that were served concurrently; and his right to a jury trial was violated when Judge Francis J. Hourigan III made findings of fact to impose the upper term on the conviction for felony possession of cocaine. In a supplemental brief, Gill argued that Judge John Vernon Meigs erred when he terminated Gill’s self-representation. In the People’s brief, the People urged us to affirm the judgment but to modify it to add another year to Gill’s sentence. According to the People, Gill’s sentence was illegal because Judge Hourigan neglected to impose a one-year enhancement for Gill’s prior prison term in case No. A953996.
We filed our original opinion in this matter on July 19, 2006. The United States Supreme Court granted Gill’s petition for writ of certiorari and, on March 19, 2007, it vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham). We requested supplemental briefing. On October 3, 2007, the People filed a supplemental brief to discuss Cunningham, People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Gill informed us that he would not file a responsive brief.
We affirm the judgment.
The matter is remanded to the trial court with directions to either impose a one-year enhancement for Gill’s prior prison term in case No. A953996 or strike that prior and articulate the basis.
FACTS
The information
In the People’s two count information, Gill was charged with the crime of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a), a felony, and the crime of possession of a smoking device in violation of Health and Safety Code section 11364, a misdemeanor. Pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667 subdivisions (b) through (i), the People alleged that Gill suffered two prior convictions. With respect to Health and Safety Code section 11370, subdivisions (a) through (c), it was alleged that Gill suffered convictions under Health and Safety Code sections 11350, 11351.5, and 11352. Finally, the People alleged that Gill served separate prison terms for purposes of section 667.5 in case Nos. A953996, A989647, VA014101, PA024033 and BA214211 and that within five years of serving those terms he committed an offense resulting in a felony conviction and failed to remain free of prison custody.
All further statutory references are to the Penal Code unless otherwise indicated.
Gill’s self-representation
On July 16, 2004, after receiving representation from the public defender’s office for eight months, Gill informed Judge Meigs that he wanted to act as his own attorney and needed 60 days to prepare and investigate. Judge Meigs expressed concern that Gill was attempting to delay trial, and that he did not understand the issues that would be at the heart of the litigation. In Judge Meigs’s view, Gill’s lack of understanding of the issues was what led to discord with Diane Wiseman (Wiseman), the attorney assigned to Gill’s case by the public defender’s office. Nonetheless, Judge Meigs granted the motion, but not before explaining that “if you are not ready to proceed to trial in 60 days and there is not an adequate showing, I’m going to probably make a finding that this entire episode has been a delaying tactic and reinstate the public defender as the attorney.”
On July 30, 2004, Gill obtained the discovery documents in Wiseman’s possession. Gill complained, “This ain’t what I wanted” and that Wiseman did not give him the full file, that a forensics report and a “psych report” were missing. Next, Gill requested all transcripts from the municipal court and superior court. In response, Judge Meigs stated: “[Wiseman] provided you with the transcript of the preliminary hearing. That is the only transcript that has been prepared.” Gill then asked: “Are you going to appoint my investigator?” When Judge Meigs asked if Gill had filed a motion, he indicated that he had not. Judge Meigs told the court clerk to give Gill a list of approved investigators that he could contact.
At the August 17, 2004 pretrial conference, Gill requested that the conference be continued to August 30, 2004.
On August 30, 2004, at the continued pretrial conference, Gill moved to renew a prior motion to suppress evidence under section 1538.5. Judge Meigs denied the motion, ruling that it was improper because Gill had already litigated the matter after he was arraigned on the information.
When Gill was asked if there were any other motions, he and Judge Meigs had the following exchange of questions and answers:
“[Gill]: No. Can I set another court date for tomorrow?
“[Judge Meigs]: And what are we doing tomorrow?
“[Gill]: File another motion.
“[Judge Meigs]: And what motion are you filing tomorrow?
“[Gill]: We’ll see tomorrow.”
After being pressed, Gill indicated that he wanted to file a section 995 motion. Judge Meigs told Gill that he would be transported from jail to the court to file his motion the following day.
Gill asked Judge Meigs if he had received responses to Gill’s subpoenas for records. Judge Meigs looked at the subpoenas for records and discovered that one was served on the Los Angeles Police Department and the other was served on the Men’s Central Jail. Because Gill’s case involved the Inglewood Police Department, Judge Meigs found that those two subpoenas for records were irrelevant and constituted a misuse of the trial court’s subpoena power. Both subpoenas were recalled and quashed. Judge Meigs informed Gill that he would have to get court clearance for any future subpoenas for records. Finally, Judge Meigs recalled and quashed a subpoena for records Gill served on the Inglewood Police Department. Judge Meigs told Gill that any information that he wanted from the Inglewood Police Department had to be requested from the prosecutor.
At this point, the following exchange ensued:
“[Judge Meigs]: Now, if this [improper use of subpoenas] continues, it may result in [your] losing your pro per status.
“[Gill]: You give me an investigator and you tell me to have him bring this shit down to the courtroom. I’m trying to find out what is going on.
“[Judge Meigs]: Mr. Gill, you’re addressing the court.
“[Gill]: Exactly.
“[Judge Meigs]: And you just used profanity which will not be tolerated. If it’s used again I will hold you in contempt. Do you understand that? You’re not in your jail cell talking to another inmate.
“[Gill]: I understand . . . .”
The hearing concluded with Judge Meigs telling Gill to meet with the prosecutor to discuss discovery.
On September 14, 2004, Judge Meigs called Gill’s case for trial. The trial court indicated that it was going to trail the case a day in order to read Gill’s motion pursuant to section 995. At that point, Gill stated: “I want to ask for the burden of proof.” Judge Meigs did not understand, so Gill stated that he wanted to know if there was something he was supposed to receive that explained the elements of the burden of proof. He was told that as his own attorney, he had to determine the law for himself.
The following day, the parties convened again. On calendar were Gill’s motion to dismiss pursuant to section 995, his nonstatutory motion to dismiss based on insufficiency of the evidence at the preliminary hearing, and a discovery motion. His motions were denied.
Gill told Judge Meigs “it would be best if I get a counselor.” He then stated: “I ain’t going to be able to represent myself at trial. I’m not accepting Ms. Wiseman back.” Judge Meigs explained that if Gill wanted an attorney, the public defender would be appointed and that the public defender’s office could assign anyone, including Wiseman. When he was informed that Wiseman would be reassigned to the case by the public defender’s office, Gill stated that he wanted to continue representing himself.
At the readiness hearing on September 23, 2004, Gill wanted to submit some evidence. Judge Meigs explained that the evidence would be part of what Gill presented during his defense. Gill told Judge Meigs: “I really don’t even think I’m ready right now, your honor, to tell you the truth. I would like to have an attorney represent me.” After Gill was reminded that the public defender indicated that it would assign Wiseman, Gill once again opted to continue representing himself and go forward with the trial.
On September 24, 2004, the case was again called for trial and Gill was asked if he was ready. Because he requested time to listen to the tapes of calls made to the Inglewood Police Department, the trial was continued. After having a chance to listen to the tapes, Gill complained that he was not given the tape of the call alerting officers to drug activity. Once Judge Meigs determined that Gill was correct, he ordered the tape produced, obtained a waiver of Gill’s speedy trial rights, and continued the trial date.
At a pretrial and discovery compliance hearing, the prosecutor gave Gill a redacted tape of the call in which names, addresses and other identifying information had been removed. Gill requested an opportunity to inspect the pipe and cocaine. Judge Meigs stated: “We already informed you that that would be provided on the day of trial. The officer will bring the evidence items on that day so you can examine them prior to selecting the jury.” Shifting his focus, Gill asked for an expert and indicated that he had filed a motion. The motion, however, only asked for an investigator and had already been granted. Judge Meigs told Gill: “You will have to file the appropriate motion[,] which hasn’t been filed.” In rejoinder, Gill averred: “This is an appropriate motion.” After Judge Meigs explained why the motion was not appropriate, Gill asked for a list of experts. Next, he submitted a motion to get a transcript from a prior hearing and asked for a form so that his legal runner could get paid. According to Judge Meigs, he never received a request to appoint a legal runner and never authorized a legal runner. Judge Meigs ordered the requested transcript.
On October 19, 2004, Gill filed a motion to disqualify Judge Meigs under the auspices of Code of Civil Procedure sections 170.1 and 170.3. Judge Meigs indicated that he would file an answer to the disqualification motion and that the matter would be heard by a judge agreed to by all parties or a judge appointed by the chairman of the Judicial Council. When asked, Gill stated that there was no judge in the courthouse he would agree to. Judge Meigs filed an answer on October 20, 2004. The same day, Judge Meigs entered an order striking the statement of disqualification because it was legally deficient; i.e., it failed to disclose legal grounds for disqualifying a judge.
Two weeks later, Gill filed a motion to disqualify based on Code of Civil Procedure section 170.6. Judge Meigs denied the motion on the grounds that is was untimely.
Gill did not accept the ruling, which led to this pivotal conversation:
“[Gill]: How is my motion untimely? On what grounds is it untimely?
“[Judge Meigs]: It doesn’t meet the statutory requirement. Once the court has heard a contested matter, in this case the [section] 1538.5 motion, the [Code of Civil Procedure section 170.6 challenge] would have had to have been filed at least five days prior to the date set for hearing of that motion.
“[Gill]: From the what?
“[Judge Meigs]: I’ve made my ruling. The case is here for trial.
“[Gill]: You don’t have a right to make no ruling. You don’t have no right to make that ruling.
“[Judge Meigs]: Mr. Gill, I have made my ruling. [¶] The case is here today for trial. Are you ready to proceed to trial?
“[Gill]: No, I’m not ready.
“[Judge Meigs]: When are you going to be ready?
“[Gill] When? I don’t know when I’m going to be ready. When you give me my stuff is when I’ll be ready.
“[Judge Meigs]: Okay, at this point, Mr. Gill, based on the representations you’re making and also the confrontational attitude that you have today[,] I’m removing your pro per status[.] The public defender is reappointed.
“[Gill]: She is not going to be my public defender.”
The trial and sentence
After two mistrials, Gill was finally tried and found guilty as charged. Gill waived his right to a jury trial as to the prior conviction and prison term allegations. Following testimony and the introduction of evidence, Judge Hourigan found one prior conviction enhancement and five prior prison term enhancements to be true.
Judge Hourigan considered the prior conviction and related prior prison term in case No. A953996 in selecting the high term of three years for the count of felony possession of cocaine. Pursuant to section 1170.12, the three-year high term sentence was doubled. Gill was given one year enhancements for four of his five prior prison terms, which augmented his sentence to 10 years. Because Judge Hourigan considered the prior conviction and its related prior prison term in case No. A953996 in setting the base term on the felony possession count, he did not impose an enhancement for the fifth prior prison term.
This timely appeal followed.
STANDARD OF REVIEW
When a statute such as section 667.5, subdivision (b) is applied to undisputed facts, an appellate court reviews that application on an independent basis. (See People ex rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 543.) Conversely, a trial court’s decision to terminate a defendant’s self-representation “‘will not be disturbed in the absence of a strong showing of clear abuse.’ [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 735.) Finally, “[a] claim that a sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. [Citations.]” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
DISCUSSION
1. The prior prison term enhancements.
Gill contends that because his prison terms in case No. A949647 and case No. VA014101 were concurrent and overlapping, he served only one prison term for purposes of section 667.5, subdivision (g). As a result, he contends that one of his one-year enhancements was improper.
We disagree.
a. The law.
Where a new offense is “any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.” (§ 667.5, subd. (b).) “A prior separate prison term . . . shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison.” (§ 667.5, subd. (g).) If sentences on multiple, prior convictions are served concurrently, then there is only one prior prison term for enhancement purposes. (People v. Cardenas (1987) 192 Cal.App.3d 51, 55–56.) “Generally, the number of separate prison terms available for enhancement is determined by identifying the ‘continuous completed’ terms of prison incarceration served. [Citations.]” (Id. at p. 56.) In other words, the number of convictions is not part of the equation.
Special considerations pertain when there has been a parole revocation.
The California Supreme Court held that a prior separate prison term is determined by looking at the “time period a defendant has spent actually incarcerated for his offense prior to release on parole. In addition, if the defendant has violated his parole and has been sent back to prison, but has not received a new commitment, that time block is deemed to be continuing. If [the] defendant has been returned with the addition of a new commitment, however, the time block is not continued, and only that portion of prison time spent prior to release on parole constitutes the prior separate prison term.” (In re Kelly (1983) 33 Cal.3d 267, 270–271 (Kelly) [overruled on other grounds in People v. Langston (2004) 33 Cal.4th 1237, 1246].) When there is a new commitment, “‘the revocation time is severed from the old term and the prisoner begins serving what will eventually become a new separate prior prison term’ in the event he suffers a subsequent felony conviction for which he is sentenced to prison.” (People v. Espinoza (1979) 99 Cal.App.3d 59, 71.)
b. The two enhancements were appropriate.
The People’s evidence showed that Gill was sent to prison in case No. A949647 on September 20, 1989, and paroled on December 24, 1991. On February 20, 1992, he was arrested in case No. VA014101 for violating, among other statutes, section 12020, subdivision (a) and Health and Safety Code section 11351. He was sentenced to four years in prison. On March 6, 1992, Gill violated the terms of his parole in case No. A949647. The California Department of Corrections revoked parole and ordered that the prison term in case No. A949647 be completed. On September 29, 1992, Gill was returned to prison to serve his sentence in case No. VA014101 and to finish his sentence in case No. A989647 following his parole revocation.
Because Gill was sent back to prison on September 29, 1992, with a new commitment, there were two prior prison terms for purposes of section 667.5, subdivision (b).
2. The right to a jury trial.
In his opening brief on appeal, Gill cited Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and argued that his due process right to a jury trial was violated when the trial court imposed the upper term on the possession of cocaine conviction based on facts neither admitted by him nor found by a jury.
We disagree.
a. The law.
The right to a jury trial guaranteed by the federal Constitution prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S.__ [127 S.Ct. at p. 860] (citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).) The relevant statutory maximum is the maximum a judge may impose without any additional findings. Our Supreme Court clarified that as long as a single aggravating circumstance renders a defendant eligible for the upper term sentence, additional factfinding by the trial court in selecting a sentence among the available options does not violate the defendant’s right to jury trial. (Black, supra, 41 Cal.4th at p. 812.)
In particular, Black noted that the right to a jury trial does not extend to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 819.) Moreover, “[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black, supra, 41 Cal.4th at pp. 819–820.)
The prior conviction exception permits a trial court to determine whether a defendant served a prior prison sentence. (Black, supra, 41 Cal.4th at p. 819.) Indeed, the exception applies to “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.)
b. The challenged ruling.
At sentencing, Judge Hourigan stated: “I’ve looked at the offense. I’ve looked at the individual considerations pointed out by defense counsel concerning perhaps some mental deficits. Perhaps caused by substance abuse. [¶] The most telling factor the [trial court] has to consider is [Gill’s] prior record. . . . [T]he strikes—the 220, which is not being used, but on the record, was when [Gill] was a younger man. Perhaps a little more wild. [¶] The 211, also 1987, 18 years ago. [¶] However, as [the prosecutor] pointed out, there are other entries on [Gill’s] record which suggest he is not violence-free. When you have a 243(c) and weapon in a jail, those are not light offenses. [¶] [Gill] is a recidivist. He’s done poorly on parole. He’s only completed successfully once. He was on parole when this offense occurred.” Based on those factors, the trial court denied Gill’s motion to strike a strike.
Next, the trial court stated the reasons for the selecting the high term. “In determining the appropriate sentence in this case, the [trial court] is bound by the rules of court. I’m also cognizant of the Blakely decision. [¶] Current case law . . . allows a judge without submitting it to a jury[] to consider a defendant’s prior record in determining whether to set the high, mid, or low-base term. [¶] Again, as is reflected in the probation report, which is the court file, [Gill’s] record starts when he’s a juvenile, 1980. Continues continuously up until today. [¶] Some of his crimes do involve sale of drugs or possession for sale. I have considered what [the defense attorney] has said. A lot of possession for sale[] cases are close. They could be a heavy user who just has more drugs. [¶] But this record is relentless, and goes on and on. Again, I’m not trying to speak without some compassion[] here. But [Gill] has had the opportunity I think to engage in drug counseling, drug treatment. He’s been on parole. There’s endless programs in the community. For some reason, he keeps going back to using drugs.” The trial court then stated: “At this point, the [trial court] believes in this case the factors in aggravation far outweigh favors in mitigation. [¶] I’m going to set the high term. [¶] I’m going to double it. [¶] . . . [¶] . . . I’m imposing six years for the crime, doubled, and four years consecutive for each of the one-year priors. [¶] And the [trial court] believes [that Gill] earned this sentence by a long and continuous record. [¶] The community has to be protected.”
c. The trial court did not violate Gill’s right to a jury trial.
California Rules of Court, rule 4.42(b)(2)-(b)(5) establishes that in choosing the high term, a trial court can consider whether the defendant’s prior convictions are numerous or of increasing seriousness; the defendant has served a prior prison term; the defendant was on probation when the crime was committed; and the defendant’s prior performance on probation was unsatisfactory. The trial court found each of these aggravating circumstances at the sentencing hearing. In our view, there is no basis for reversal.
Gill waived his right to a jury trial regarding the prior conviction and prior prison term enhancements. Also, the right to a jury trial does not extend to prior convictions and prison terms. Gill served a prior prison term, and that he had numerous priors, made him eligible for the high term. Under Black, any additional factfinding did not violate Gill’s right to a jury trial.
3. The right to self-representation.
According to Gill, Judge Meigs committed reversible error when he terminated Gill’s right to self-representation. This contention lacks merit.
a. The law.
A defendant in a criminal action has a right to represent himself. (Faretta v. California (1975) 422 U.S. 806, 821 (Faretta).) Still, no trial judge is required to sit idly by while a defendant representing himself abuses the dignity of the courtroom, ignores the rules of procedural and substantive law, disparages the court or opposing counsel, or disrupts the orderly presentation of the trial. (Id. at pp. 834–835, fn. 46; People v. Davis (1987) 189 Cal.App.3d 1177, 1200.) The trial court may terminate self-representation if a defendant “deliberately engages in serious and obstructionist misconduct” (Faretta, supra, at pp. 834–835, fn. 46) that “‘threatens to subvert ‘the core concept of a trial’ . . . or to compromise the court’s ability to conduct a fair trial.” (People v. Carson (2005) 35 Cal.4th 1, 10.) In making its decision, a trial judge should consider whether alternative sanctions are available, whether the defendant has been warned that the particular misconduct will result in termination of self-representation, whether the defendant intentionally sought to disrupt or delay the trial, and whether the defendant is likely to undermine the fairness of the trial. (Ibid.) The decision to terminate is left to the trial court’s discretion, but termination of self-representation “is a severe sanction and must not be imposed lightly.” (Id. at p. 7.)
b. Termination of Gill’s self-representation was not a clear abuse of discretion.
We note in brief that Judge Meigs’s ruling withstands appellate scrutiny. The record reveals that Judge Meigs warned Gill that his failure to be ready for trial in 60 days, and his misuse of subpoenas, would probably result in revocation of his pro. per. status. At one point, Judge Meigs told Gill he would be held in contempt if he continued to use profanity before the court. On several occasions, Gill indicated that he could not represent himself and needed a lawyer. The only reason he refused representation was that he did not want Wiseman. Gill filed a series of improper motions and constantly made improper requests, all of which wasted court time. Even from the cold record, it is apparent that Gill was flippant and disrespectful to Judge Meigs. Gill said, “We’ll see tomorrow,” when asked what motion he wanted to file. After Judge Meigs explained that the subpoenas Gill served on the Los Angeles Police Department and Men’s Central Jail were improper, Gill replied: “You give me an investigator and you tell me to have him bring this shit down to the courtroom. I’m just trying to find out what is going on.” The main problem was that Gill consistently attempted to delay the trial. On the last occasion that Judge Meigs attempted to find out when Gill would be ready for trial, Gill said: “When? I don’t know when I’m going to be ready. When you give me my stuff is when I’ll be ready.” In short, Gill abused the dignity of the courtroom and ignored the rules of procedural and substantive law. On this record, it is clear Judge Meigs did not abuse his discretion.
4. Gill’s sentence was illegal.
A trial court has a duty to impose sentence as required by law. (People v. Bradley (1998) 64 Cal.App.4th 386, 390.) Judge Hourigan was required to choose between imposing or striking the section 667.5, subdivision (b) prior prison term enhancement related to case No. A953996. (People v. Bradley, supra, at p. 390 [“To neither strike nor impose a prior prison term enhancement is a legally unauthorized sentence”].) He failed to do so. This case must be remanded to the trial court, at which time the trial court may impose or strike the enhancement. If the trial court exercises its power to strike the prior prison term enhancement, section 1385, subdivision (a) requires the trial court to set forth the reasons for its decision in the minutes.
Except for our discussion of the constitutionality of the trial court’s imposition of the upper term sentence on the felony count, the opinion we now file is substantially the same as our opinion of July 19, 2006.
DISPOSITION
The judgment is affirmed. The matter is remanded for resentencing so that the trial court can either impose or strike the prior prison term enhancement related to case No. A953996.
We concur: BOREN, P. J., DOI TODD, J.