Opinion
B296154
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAWNTEL LAROY GRUBBS, Defendant and Appellant.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA064942) APPEAL from judgment of the Superior Court of Los Angeles County. Lisa Mangay Chung, Judge. Affirmed. Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
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On December 1, 2015, Shawntel Laroy Grubbs entered a plea of no contest and was convicted of one count of child abuse. (Pen. Code, § 273a, subd. (a).) The trial court suspended imposition of sentence and placed Grubbs on formal felony probation for a term of five years under specified terms and conditions. The court ordered various fines and fees, including a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)).
Undesignated statutory references are to the Penal Code.
On November 14, 2018, Grubbs was arrested for resisting a peace officer (§ 148, subd. (a)) and battery on a spouse (§ 243, subd. (e)(1)). The prosecution moved to revoke probation in lieu of filing a new case. Following an evidentiary hearing, the court found Grubbs in violation of probation. The court sentenced Grubbs to four years in state prison and reaffirmed the previously imposed fines and fees.
Grubbs appeals the revocation and termination of probation, contending: (1) the court erred by failing to consider his request to represent himself in probation violation proceedings; and (2) the probation revocation order is unsupported by substantial evidence of any probation violation. We disagree and affirm. We also reject Grubbs's contention that the matter should be remanded to allow the trial court to determine his ability to pay the fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
FACTUAL BACKGROUND
On November 14, 2018, around 6:00 p.m., Los Angeles Deputy Sheriff Kit Gruppie was on patrol in the City of Lancaster when he received an emergency call about an ongoing domestic violence incident outside a grocery store. The caller reported that "a male [was] attempting to beat a female." Upon arriving on the scene Deputy Gruppie saw appellant and Nicole Timmons, appellant's fiancée, arguing "in an aggressive manner" in front of the store.
Deputy Gruppie was in uniform and had arrived by himself in a marked patrol car. He approached the couple and told appellant to turn around and place his hands behind his back. Appellant refused. He began yelling at the officer and his body language became aggressive. Several times Deputy Gruppie repeated his commands to appellant to turn around and place his hands behind his back. Appellant responded by yelling, "No, man" and "I didn't do anything wrong." Appellant began aggressively moving his arms up and down as he continued to yell at the officer.
In light of appellant's hostile refusal to comply with orders, Deputy Gruppie requested backup. When Deputy Sheriff Parker Driscoll arrived on the scene, the two officers grabbed appellant's arms and attempted to place him in handcuffs. But appellant resisted by forcefully and aggressively ripping his hands from the deputies' grasp. Deputy Gruppie pulled out his taser and several times warned appellant that he would tase him if appellant did not turn around and place his hands behind his back. As appellant continued to struggle with the officers, Deputy Gruppie deployed his taser, and appellant fell to the ground. Deputy Driscoll then placed him in handcuffs.
Deputy Sheriff Michael Gelardo responded to the scene after appellant had been handcuffed. He viewed the surveillance video from the grocery store and saw the woman with whom appellant was arguing push appellant. Deputy Gelardo could not recall whether appellant had touched the woman.
Timmons testified that she and appellant were standing outside the store when the two sheriff deputies showed up together. One of them already had his taser drawn and he ordered appellant to turn around and " 'put your hands up.' " Appellant refused, saying, " 'I didn't do anything.' " The deputies grabbed appellant's arms, but appellant "stretched" his arm out. Deputy Gruppie then tased appellant.
Timmons testified that she began recording the incident with her cell phone as soon as deputies "walked up with the guns drawn." However, the cell phone recording (introduced as exhibit A) did not show the deputies approach, but started after the confrontation with the officers was already underway, seconds before Deputy Gruppie tased appellant.
Keven Brown, the store security guard, testified that he saw appellant and Timmons arguing, but he did not see any physical altercation. Brown saw one deputy arrive and the next one arrived "a minute or so after." The deputies told appellant to get on the ground. Appellant replied, " 'My hands are up. I didn't do nothing.' " Before Brown knew it, the deputies had tased appellant and he was on the ground. The entire incident lasted just two to three minutes.
DISCUSSION
I. Appellant's Self-representation Requests
In two separate proceedings before the probation violation hearing, appellant asserted his constitutional right to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). Appellant contends the trial court erred by failing to consider the requests. We disagree.
A. Relevant background
The November 16, 2018 proceeding
At appellant's first court appearance on November 16, 2018, he immediately advised the court he wished "to exercise [his] Faretta rights." The trial court attempted to explain the nature of the proceeding and the consequences of waiving his right to counsel, but appellant did not appear to listen and continued talking out of turn. When the court ordered appellant to "[s]top talking. Listen to me," appellant said, "I'm just so frustrated. [¶] . . . [¶] I'm trying to get them [appellant's fiancée and witnesses] on the phone and they're like, 'we're here,' but they are not here because they are downstairs in [courtroom] A2."
The court responded, "Mr. Grubbs, I would really, really, really strongly encourage you to stop talking and listen. [¶] . . . [¶] . . . I would like to inform you about what is going on, but I cannot do that if you don't stop talking and start listening. [¶] . . . [¶] . . . [T]o the extent that you are upset with [the public defender] let me explain to you she is not going to be your attorney. It's going to be assigned out in her office. Let me explain to you that when you are facing state prison and especially when you have this uncontrollable mouth where you feel that just saying things is going to help you when indeed it will not, I would strongly encourage you to continue being represented by the public defender's office because otherwise you are going to talk yourself into state prison sooner rather than later. [¶] Yes?"
Appellant responded, "I listen to you Miss Blanchard—Judge Blanchard," and attempted to discuss the facts of his case with the court. The court interrupted and told appellant he had a right to a hearing and would have an opportunity to call witnesses and testify, but he should "not speak at this point" in open court. The court then explained the next procedural steps in the case: "I'm going to order a supplemental report from probation so we can find out from them how you have otherwise been doing on probation. Once they have prepared that the judge can look at everything and give you an indicated, 'If you admit your violation, here's what I'm going to do.' At that point you can make the decision whether to take her indicated or whether to set it for a hearing; and as I said, at that point if you want to contest all of this you can do that, but this is not the point where that happens."
Appellant asked, "So I'm going to prison?" The court replied, "If it is found true and if that is what the judge decides to do, but I am not—" Appellant interrupted, "If what is found true? I'm not understanding." The court began to clarify, "If it is found that you have violated your probation—turn around. Turn around," but appellant seemed to pay no attention and declared, "They are going to send me to prison." The court responded that it had not said that. As the court discussed with counsel ordering the supplemental probation report and potential dates for probation violation setting, appellant continued to interrupt, prompting the court to remove him from the courtroom:
The Court: "I'm going to order a supplemental report. [¶] Counsel, do you want—sir, turn around. If I have to ask you again I'm going to remove you."
Appellant: "Judge Blanchard, I didn't even do nothing."
The Court: "Mr. Grubbs, someone from probation is going to come and speak with you. The purpose of [them] speaking to you is they are preparing a report for the judge telling her what they recommend if you are found in violation of your probation. To the extent that you have any information that is helpful to your case be sure to share it with probation so they can include it in the report."
Appellant: "I didn't even do nothing. I didn't even do nothing. I swear."
The Court: "I have lost my ability to have Mr. Grubbs respond to me at all. Please remove him from the courtroom."
Appellant: "I have been a model citizen, Judge. They are going to send me to prison for no reason. I have been doing what I'm supposed to do. I have been doing—"
The Court: "I have got to have him removed."
Appellant: "I shouldn't even be going to jail. I didn't even do nothing."
The December 6, 2018 proceeding
Appellant appeared at the next hearing on December 6, 2018, with a different deputy public defender, and immediately requested a Marsden hearing. After the court denied the Marsden motion, defense counsel advised the court that appellant wanted to hire private counsel, and appellant added that he wished to exercise his Faretta rights. The court responded, "Okay. And Mr. Grubbs, I need you to listen to me. If you want to represent yourself, then certainly, I will allow you to fill out the paperwork to do so." Noting that appellant had not conducted himself appropriately at the prior hearing and was giving mixed signals about representing himself versus hiring a private attorney, the court advised appellant to wait until the next court date to substitute private counsel for his appointed attorney. But appellant insisted, "I would like to go exercise my Faretta rights with co-counsel, please." The court stated it would not appoint co-counsel and explained the pitfalls of going pro. per. before hiring private counsel. Appellant reiterated, "I would like to exercise my Faretta rights."
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The court responded, "Then what I'm going to do is, I will have the deputy give you a form. Once you have completed the form, we'll bring you back out. I will go over everything with you at that time." At this point, appellant changed his mind and advised the court, "They are going to get me a lawyer," prompting the court to ask, "So at this point, are you asking to go pro per, or are you asking for another court date so that your family—" Appellant answered, "I'm asking for another court date so my family can give me a lawyer."
At the next court date, appellant appeared with another deputy public defender. He did not invoke his Faretta rights again.
B. Applicable law
"In Faretta, the United States Supreme Court made clear that a criminal defendant has a federal constitutional right to represent himself if he voluntarily and intelligently so chooses. (Faretta, supra, 422 U.S. at pp. 835-836.) A trial court must grant a defendant's request for self-representation if the request is timely and unequivocal, and the defendant makes his request voluntarily, knowingly, and intelligently." (People v. Johnson (2019) 8 Cal.5th 475, 499; People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch).) However, "Faretta itself and later cases have made clear that the right of self-representation is not absolute." (Indiana v. Edwards (2008) 554 U.S. 164, 171; Lynch, at p. 721.) "Unlike the right to representation by counsel, the ' "right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se." ' " (People v. Danks (2004) 32 Cal.4th 269, 295 (Danks); People v. Marshall (1997) 15 Cal.4th 1, 20-21 (Marshall).)
"Moreover, whether timely or untimely, a request for self-representation must be unequivocal." (People v. Doolin (2009) 45 Cal.4th 390, 453; Marshall, supra, 15 Cal.4th at pp. 22-23.) Thus, the Faretta right may be waived by abandonment of the request and acceptance of representation by counsel. (People v. Stanley (2006) 39 Cal.4th 913, 929 (Stanley).) A court may also deem equivocal, and subject to denial, a self-representation request "made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice." (Marshall, at p. 23; People v. Butler (2009) 47 Cal.4th 814, 825.) Further, the right to self-representation may be lost when a defendant disrupts court proceedings. (Lynch, supra, 50 Cal.4th at p. 721; Faretta, supra, 422 U.S. at p. 834, fn. 46 ["[t]he right of self-representation is not a license to abuse the dignity of the courtroom"].)
In determining on appeal whether the defendant unequivocally invoked, and did not waive the right to self-representation, we examine the entire record de novo. (People v. Dent (2003) 30 Cal.4th 213, 218 (Dent).) Further, we indulge every reasonable inference against a defendant's waiver of the right to counsel. (Brewer v. Williams (1977) 430 U.S. 387, 404; Marshall, supra, 15 Cal.4th at p. 23 ["courts must draw every inference against supposing that the defendant wishes to waive the right to counsel"].)
C. Analysis
1. The trial court did not err in refusing to consider the Faretta request after appellant was removed from the courtroom
After appellant was removed from the courtroom during the November 16, 2018 proceeding, the court stated, "The record should reflect that the defendant had to be removed from the courtroom based on his continuing to shout over me and not listening to anything that I was saying. He also did not listen to the deputies as they tried to escort him out of the courtroom. I wasn't able to consider his motion to represent himself based on his own conduct. He has now been removed from the courtroom. [¶] [Defense counsel], I'm just going to trail the arraignment over until the next court date . . . because I can't get him to even respond to a question. . . . [¶] The record should reflect that he continues to shout from my breach [sic] interfering with the court's ability to get anything done."
There is no question that the trial court properly removed appellant from the courtroom after appropriate warnings based on his disruptive behavior. (§ 1043, subd. (b)(1) [after warning from court, disruptive defendant who continues his disorderly, disruptive, and disrespectful conduct may be removed from courtroom]; People v. Bell (2019) 7 Cal.5th 70, 117.) But "Faretta requires advisements prior to a defendant's knowing and intelligent waiver of the right to counsel 'so that the record will establish that "he knows what he is doing and his choice is made with eyes open." ' " (People v. Trujillo (2015) 60 Cal.4th 850, 859-860, quoting Faretta, supra, 422 U.S. at p. 835.) Plainly, proper examination and a knowing waiver would be impossible in the defendant's absence. Here, appellant's own conduct, which resulted in his removal, prevented the trial court from engaging in the inquiry and advisements mandated by Faretta in considering the self-representation request.
2. The trial court could have properly denied appellant's request to represent himself at the November 16, 2018 proceeding
Even if the trial court should have considered appellant's Faretta request, on this record, denial of the motion was proper, and the trial court did not err in failing to allow appellant to pursue self-representation. (Dent, supra, 30 Cal.4th at p. 218 [even where trial court denies Faretta request for an improper reason, appellate court may uphold the ruling "if the record as a whole establishes defendant's request was nonetheless properly denied on other grounds"]; People v. Boyce (2014) 59 Cal.4th 672, 703.)
An accused's Sixth Amendment right of self-representation is conditioned on his ability and willingness "to abide by rules of procedure and courtroom protocol." (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.) Here, appellant's disruptive behavior, which included turning his back on the court, repeated interruptions, inattention, and refusal to answer the court's questions, provided ample grounds for a denial of his Faretta motion. (E.g., People v. Welch (1999) 20 Cal.4th 701, 735 [denial of Faretta request proper where defendant's obstreperous conduct demonstrated "his self-representation would be unacceptably disruptive"].)
Moreover, the trial court would have properly denied appellant's pro. per. request on the ground that appellant's invocation of his Faretta right was plainly borne of frustration and anger that his claims of innocence were not being heeded. Apparently, appellant believed that if only his witnesses could make it to the correct courtroom, he would immediately be released, and his attorney was ignoring his pleas to prove his innocence. Thus, denial of appellant's request to represent himself would have been appropriate on the ground that appellant had not expressed a genuine and unequivocal desire for self-representation. (See Danks, supra, 32 Cal.4th at p. 296 ["defendant's references to self-representation were equivocal, born primarily of frustration regarding the granting of counsel's requests for continuances and his desire to avoid further psychiatric examination"].)
3. Appellant abandoned his request to represent himself at the December 6, 2018 proceedings
A defendant's right to conduct his own defense, " 'once asserted, may be waived or abandoned,' " and "such waiver or abandonment may be inferred from a defendant's conduct." (People v. Trujeque (2015) 61 Cal.4th 227, 262-263.) Here, appellant expressly declined the opportunity to represent himself at the December 6, 2018 proceeding. Asked by the court whether he was "asking to go pro. per.," appellant said no. Rather, appellant stated that he was "asking for another court date so [his] family can give [him] a lawyer." Similarly, appellant abandoned his Faretta request by appearing at the probation violation hearing on January 18, 2019, represented by appointed counsel. Given his acquiescence to counsel's representation without further invocation of his Faretta rights, we conclude appellant abandoned his self-representation request. (E.g., Stanley, supra, 39 Cal.4th at p. 933.)
II. Substantial Evidence Supported the Trial Court's Probation Violation Finding
"A trial court may revoke mandatory supervision when it has reason to believe the person under supervision has committed another offense or otherwise has violated the terms of supervision. (Pen. Code, § 1203.2, subd. (a).)" (People v. Buell (2017) 16 Cal.App.5th 682, 687.) The standard of proof for the prosecution in a probation revocation proceeding is proof by a preponderance of the evidence. (Ibid.; People v. Rodriguez (1990) 51 Cal.3d 437, 447.) On appeal, we review the trial court's probation revocation decision for substantial evidence, according great deference to the trial court's decision, and "bearing in mind that '[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court." (People v. Urke (2011) 197 Cal.App.4th 766, 773 (Urke).) In our review of the entire record, we resolve all inferences and intendments in favor of the judgment, and all conflicting evidence in favor of the court's decision. (Buell, at p. 687.) And " '[i]f the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Rivera (2019) 7 Cal.5th 306, 331.)
" 'The discretion of the court to revoke probation is analogous to its power to grant the probation, and the court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]' [Citation.] 'Many times circumstances not warranting a conviction may fully justify a court in revoking probation granted on a prior offense. [Citation.]' [Citation.] ' "[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . ." ' [Citation.] And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant." (Urke, supra, 197 Cal.App.4th at p. 773.)
Here, substantial evidence supports the trial court's finding that appellant violated his probation. The elements of a section 148, subdivision (a)(1) violation—resisting a peace officer—are: " ' "(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." ' " (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.)
Although a violation of section 148 is often based on the physical acts of the defendant such as physical resistance, hiding, or running away, a section 148 offense " ' "is not limited to nonverbal conduct involving flight or forcible interference with an officer's activities. No decision has interpreted the statute to apply only to physical acts, and the statutory language does not suggest such a limitation." ' " (People v. Seijas (2005) 36 Cal.4th 291, 306, quoting In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330.) Thus, a section 148 offense may include any substantial interference with a peace officer's lawful duties, whether it be verbal or physical. Accordingly, a refusal to comply with an officer's order to "sit down and calm down" may constitute delaying or obstructing a peace officer. (In re J.C. (2014) 228 Cal.App.4th 1394, 1400.) So too, a defiant hand gesture may go beyond a "mere failure to respond" and constitute a section 148 violation. (Muhammed C., at p. 1330.)
Here, appellant resisted Deputy Gruppie's lawful commands made in the course of what the court found to be "a legitimate investigation . . . [into] potential domestic violence." Deputy Gruppie arrived in a marked patrol car, he was in uniform, and, responding to a 911 report of a physical altercation between a man and a woman, he was indisputably engaged in the lawful performance of his duties. Several times Deputy Gruppie ordered appellant to turn around and place his hands behind his back. But appellant refused to comply, aggressively yelling at the officer, tensing his body, violently moving his arms up and down , and "forcefully, aggressively . . . pulling his hands away."
In light of the foregoing, appellant's substantial evidence challenge to the trial court's probation violation finding fails.
III. Appellant Is Not Entitled to Remand to Determine His Ability to Pay the Fines and Fees
The trial court revoked appellant's probation and resentenced appellant on January 28, 2019. The court expressly declined to change the restitution fine, the criminal conviction fee, and the court operations assessment that were originally imposed when sentence was suspended and appellant placed on probation. Appellant contends the imposition of these fines and fees without a determination of his ability to pay them violated his constitutional rights under Dueñas. The claim is forfeited.
The opinion in Dueñas was filed on January 8, 2019, nearly three weeks before the trial court imposed the disputed fines and fees in this case. Appellant did not raise a Dueñas claim in the trial court, nor did he express any concern about his ability to pay the assessed sums, much less submit any evidence of an inability to pay. Accordingly, under the ordinary rules of appellate procedure, any challenge to the imposition of these fines and fees has been forfeited. (People v. Aguilar (2015) 60 Cal.4th 862, 864 [a defendant's failure to challenge fees in the trial court precluded doing so on appeal]; People v. Avila (2009) 46 Cal.4th 680, 729 [failure to argue and present evidence in trial court of defendant's inability to pay restitution fine in excess of statutory minimum forfeits challenge on appeal]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [same].)
That appellant was originally sentenced in December 2015—long before Dueñas was decided—does not alter this conclusion. Appellant appealed from the judgment rendered on January 28, 2019, not the 2015 judgment. Had appellant asked to reduce or eliminate the fines and fees at his resentencing hearing in January 2019 based on his inability to pay, the resentencing court could have considered the request under Dueñas. (See Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155.)
Moreover, any time during the term of appellant's probation, the court had the authority "to revoke, modify, or change its order of suspension or execution of sentence." (§ 1203.3, subd. (a); see also former § 1203.3, subd. (b)(5) ["Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation"].) Indeed, " '[t]here is no finality to an order granting probation, and the imposition of a fine as a condition of probation is not a judgment imposing a fine.' The clerk's transcript under the heading 'Sentence' sets forth an order for probation. It is not a sentence but is in effect a suspension of sentence. The defendant on his motion, or the court on its own motion, may modify or change the order of probation, or upon a proper and reasonable showing may proceed to sentence and judgment. Any person placed on probation may be brought before the court 'if the interests of justice so require.' " (People v. Labarbera (1949) 89 Cal.App.2d 639, 643.)
Section 1203.3 was amended in 2019 (Stats. 2019, ch. 573, § 1), effective January 1, 2020. The current version of subdivision (b)(5) underwent no substantive change: "This section does not prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation." --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.