Opinion
E041247
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. SETH GYAMFI, Defendant and Appellant.
Chet L. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted defendant of transporting cocaine (Health & Saf. Code, § 11352, subd. (a)). In bifurcated proceedings, the trial court found true an allegation that defendant had suffered a prior conviction, for which he served a prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for five years and appeals, claiming the trial court erroneously denied him advisory counsel and appointed counsel, failed to properly advise him about self-representation and allowed him to represent himself, improperly dismissed a juror and abused its discretion in denying him California Rehabilitation Center (CRC) commitment. We reject all of his contentions and affirm.
The facts concerning defendants crime are irrelevant to this appeal.
ISSUES AND DISCUSSION
1. Denial of Advisory Counsel
Defendants public defender noted in an informal request for discovery to the prosecutor that the 60th day was to be May 7, 2006 and "[d]ef[endant] will not waive time." On May 1, 2006, the trial court announced that it would be absent on May 4th and 5th and it would begin jury selection that day and would proceed with trial over the next two days, then adjourn until May 9th, after an absence by defense counsel on May 8th. When the trial court advised the parties that a jury panel might be called up that morning, after defense counsel concluded her pretrial motions, the latter announced that defendant wanted a continuance to investigate additional information he had provided to his attorney and he was willing to waive time. The People objected, noting that defendant had refused to waive time previously, which had forced them to be ready for trial at that point. The prosecutor added that the new information that he provided to the defense would not have helped defendants case, therefore, there was no need for further investigation. Defense counsel retorted that defendant had given her new information that day that needed to be investigated. The trial court denied the continuance, reasoning that the defense had May 4th, 5th and 8th to investigate before it began its case on the 9th.
Then defendant said he wanted to represent himself. The trial court gave him the requisite advisements, including that he would not be given any extra time to prepare and that "this matter is going forward today and youre going to be required to proceed today." Defendant said he understood this. Defendant told the trial court that he had a college degree in electrical engineering, having taken a lot of science, Latin and literature classes. He acknowledged knowing that this was a serious charge and he was "fighting for his life" and, while his attorney had done a good job, she wasnt present at the time of the crime and he needed to tell the jury, himself, what had happened. The trial court told defendant to return after lunch, ready for jury selection.
We note that defendant wrote a very articulate letter to the trial court, which included a Latin phrase (although he misspelled one of the Latin words).
When court resumed after lunch, defendant successfully brought a motion to prohibit the prosecutor from impeaching his credibility with his priors when he testified. The trial court said it intended to start trial the next day. Voir dire began and consumed the rest of the afternoon.
The next day, after the prosecutor gave the trial court its proposed jury instructions, defendant asked the court, "[I]s it okay for me to have co-counsel?" The trial court stated it was not prepared to give defendant co-counsel. Defendant asked if he was entitled to it and the trial court responded that he was not.
Defendant here contends the trial court abused its discretion in summarily denying his request for advisory counsel. We disagree.
A trial court "may . . . [within] its discretion, upon what it may determine to be good cause shown, . . . appoint an attorney . . . to render . . . advisory services to a[] . . . defendant who wishes to represent himself. [Citation.] These matters are within the sound discretion of the trial judge, who is in a position to appraise the courtroom situation and determine what procedure will best promote orderly, prompt and just disposition of the case. The court, however, should not permit a litigant both to have counsel and to actively participate in the conduct of the case . . . unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the courts business will not thereby be substantially hindered, hampered or delayed." (People v. Mattson (1959) 51 Cal.2d 777, 797.)
The factors defendant claims are relevant are based on language in People v. Bigelow (1984) 37 Cal.3d 731, 743-744 which was a capital case in which the trial court incorrectly informed defendant, who was considering whether to represent himself, that he did not have a right to advisory counsel, then granted defendants motion to represent himself.
In People v. Pena (1992) 4 Cal.App.4th 1294, 1302, a case which defendant cites in support of his position, the appellate court held, "Where a defendant fails to show co-counsel status would serve the interests of justice and would not result in substantial disruptions, there is no basis for the exercise of the courts discretion, and the motion is properly denied. [Citations.] The burden is on the defendant to make the requisite showing. A trial court is not required to inquire further into the matter where the defendant has not first offered the `substantial showing. [Citations.]"
Defendants attempt to make this showing on appeal comes too late. Of course, his representation of himself throughout trial fell short of what any competent attorney could have done for him. This is the case for practically all self-represented defendants. However, defendant failed to make the requisite showing below, therefore, under the authority which defendant, himself, cites, there was no occasion for the trial court to exercise its discretion.
2. Denial of Appointed Counsel
In supplemental briefing, defendant called our attention to a case that has since been depublished. Therefore, we will not address it here.
Amongst the advisements the trial court gave defendant before allowing him to represent himself was the following, to which defendant acknowledged his understanding, "Do you understand . . . that if you change your mind in the middle of trial that the Courts not going to delay the trial while you try and obtain an attorney?" The next day, after the first prosecution witness had finished testifying and had been excused and the second was being examined on direct, defendant said, "I couldnt ask the questions right. I dont think I could do this by myself. So I request to have counsel." The trial court responded that any attorney appointed at this time would not have heard the testimony of the first prosecution witness and "I dont see how an attorney can step in and try and pick up the case when they wouldnt even know what has gone on before now." The court stated that it was within its discretion, considering all the circumstances, whether to grant defendants request for appointment of counsel. It cited People v. Gallego (1990) 52 Cal.3d 115 (Gallego) for its duty to examine the defendants prior history in the substitution of counsel and the desire to change from self-representation to appointed counsel and his reasons for requesting appointed counsel, the length and stage of the trial proceedings when the request was made, the disruption and delay that might reasonably occur as a result of the request and the likelihood of defendants effectiveness in defending himself if required to continue representing himself . It noted that defendant had been firm in his desire to represent himself, being a college graduate and feeling it was important to explain, himself, to the jury what had happened, and, despite his claim that he was unable to effectively question a witness, he was, indeed, effective in questioning him, therefore, the court believed he was able to proceed. It also noted that they were in the midst of trial, one crucial witness had already completed his testimony and been excused, they were "already a good way through" another witnesss testimony and any appointed attorney would have to have a transcript of what had occurred thus far, necessitating a delay. The prosecutor concurred in the trial courts assessment. The trial court denied defendants request as untimely.
Defendant here claims that the trial court failed to analyze the factors in Gallego in denying his motion to have counsel appointed. In fact, what he asserts is that some of the factors weighed in favor of granting his request. For example, there was no showing that defendant was using his request merely to delay trial or had a proclivity to change his mind about his representation. This is true. However, the trial court apparently believed that the other factors that militated in favor of denial of the request, i.e., the factors cited by it in its ruling, were weightier. As long as it may not be said that that conclusion was not arbitrary or unreasonable, it must be upheld on appeal. (People v. Smith (1980) 109 Cal.App.3d 476, 486.)
We disagree with defendants assertion that any delay would have been minimal. The last witness testified only a day and a half after defendants motion was denied. Had the motion been granted, proceedings would have had to have been suspended for at least a week, as the trial court was unavailable after the next court date and the courtroom was dark the first day of the following week. This is a substantial delay considering the presentation of evidence consumed less than three days of trial. The fact that defendants public defender had stated her willingness to "help" defendant if he got in trouble representing himself did not assure the trial court that she would be available to take over representation days after she had been excused. Moreover, there was still the matter of the preparation of a transcript of what had taken place since her excusal.
3. Faretta Advisement
Defendant contends he did not receive a proper advisement from the trial court concerning his waiver of counsel when he asked to represent himself in that the court failed to explicitly tell him that he was not entitled to help from appointed counsel after being granted pro per status. Defendant cites no authority holding that such an advisement is necessary. Moreover, the record before us does not support his assertion that he must have believed he was entitled to advisory counsel at the time he sought to represent himself, and because this belief was illusory, his waiver of his right to counsel was not knowing and intelligent.
Before it accepted defendants waiver of his right to counsel, the trial court told defendant it was "almost always unwise" for one to represent ones self, that in so doing, defendant "may conduct a defense which may aid the prosecutor," that he would be required to follow all the technical rules of law, procedure and evidence in presenting his defense, that the court "cant help [him] defend [him ]self [,]" that, due to the prosecutors skill and experience, the trial "will most likely not be a fair contest[,]" that he would not have extra time for preparation, as proceedings were going forward that day, that he would not have "staff [or] an investigator at [his] beck and call[,]" that, on appeal, he could not claim that he "[was] not effective in representing [him]self[,]" and that if he changed his mind in the middle of trial and wanted a lawyer, the court would not delay trial while he obtained one. [Italics added.] Defendant said he wanted to represent himself because, even though appointed counsel had done a very good job up to that point, he "want[ed] to have the closing statement . . . [as defense counsel] wasnt there when it happened and . . . [he] and the police officer ha[d] some relationship that need[ed] to come out. [¶] . . . [¶] [and he] th[ought] [he] should be the only one that could bring that out." Although, as defendant asserts, the trial court did not explicitly tell him he was not entitled to advisory counsel, the court clearly conveyed to defendant that he was on his own in defending himself.
Defendant contends that remarks he made during trial indicated that he believed he could have advisory counsel whenever he wished. First, was his request, discussed above, for such assistance during voir dire. Of course this was a request, in the form of questions whether it was "okay for [him] to have" or he was "entitled to" advisory counsel. Neither was an assertion of belief that he had such entitlement.
The second remark, also discussed above, was made when defendant requested the reappointmentment of counsel during the testimony of the second prosecution witness. When the trial court balked at his request, defendant asserted that he had been told by the trial court, or his attorney, or "somebody" that if he began having problems during trial, he should so indicate to the court and have counsel reappointed. He later amended this, alleging that the representation had been made by his attorney. However, having counsel reappointed is not the same as having advisory counsel appointed while continuing to act pro per. Defendants current assertion, that he "thought he was entitled to stop the proceedings and counsel would be able to come back to help with the case" totally ignores the advisements the trial court gave him before allowing him to represent himself.
The fact that the trial court told defendant that if he became disruptive during trial, the court would revoke his pro per status and reappoint counsel to represent him is, contrary to defendants assertion, not grounds upon which to base his belief that anytime he felt he was in over his head he could have advisory counsel. Moreover, the trial court explicitly warned defendant that if he changed his mind about representing himself during trial and requested appointment of counsel, it would not delay proceedings while defendant tried to obtain an attorney. This made a clear distinction between defendant forcing the court to appoint counsel due to his inappropriate behavior in the courtroom and defendant merely changing his mind about the status of his representation.
From a de novo examination of the entire record before us, we conclude that it demonstrates that defendant understood the disadvantages of self-representation, including the risks and complexities of his case. (See People v. Lawley (2002) 27 Cal.4th 102, 140; People v. Marshall (1997) 15 Cal.4th 1, 24.)
4. Removal of a Juror
Before the first prosecution witness testified, the trial court announced that the bailiff had been told by one of the jurors that he recognized the case agent as someone he had seen at the gym. The juror said he knew the case agent was a law enforcement agent, that they were not friends or work-out partners, but their relationship was cordial, the agent would say "Hello," "Whats up?" or "How you doing?" and "[p]eople may speak about him." When asked by the trial court if seeing the case agent at the gym might impair his ability to be fair and impartial, the juror replied, "The gym . . . [is] like a small community, as far as family type thing. People talk, converse with each other. I cant say, honestly . . . at this point." The juror then acknowledged being bound by the instructions the trial court had already given, which included the facts that he could "not allow anything that happens outside the courtroom to affect [his] decision[,]" that he could not "let bias . . . influence [his] decision[,]" that he must use only the evidence presented in the courtroom, that "[t]he testimony of each witness must be judged by the same standard . . . set[ting] aside any bias or prejudice[,]" and that "[i]n deciding whether the People ha[d] proven their case beyond a reasonable doubt, [he] must impartially compare and consider all the evidence that was received throughout the entire trial" and "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, . . . he . . . is entitled to an acquittal . . . ." The juror agreed to the trial courts directive that he would have to work out in an area of the gym away from the case agent during the trial because communication between them was prohibited. The trial court concluded that it was satisfied that the case agent was not a person the juror interacted with, but "just someone that happens to be there occasionally at the same time [the juror] is" at the gym, and based on his answers that he could be fair and impartial.
It is notable that the juror recognized the case agent by his appearance, rather than recognizing his name, and did so only after seeing him in the courtroom more than once.
Defendant here contends that the trial court abused its discretion in so ruling. He acknowledges that "[t]he jurors inability to perform must appear in the record as a demonstrable reality and the decision to . . . allow . . . [the juror] . . . to remain [must be] supported by substantial evidence." We do not agree with defendant that the record demonstrates that this juror was unable to perform his duties. Substantial evidence supports the trial courts ruling in that the juror acknowledged his duties to remain impartial, despite the casual relationship with the case agent. As the People correctly point out, the jurors equivocal response to the trial courts inquiry whether he could be fair is not, in and of itself, sufficient to establish an abuse of discretion. (People v. Hillhouse (2002) 27 Cal.4th 469, 488.) Moreover, here, it was followed up by the jurors assertion that he would follow the instructions of the court as to impartiality.
5. Denial of CRC Commitment
At the beginning of the sentencing hearing, defense counsel requested that the sentencing court impose probation so defendant could enroll in a two year residential drug treatment program. Alternatively, defense counsel requested a CRC commitment. The trial court denied both requests, saying to defendant, " . . . [Y]our problem appears to be a lot more that you want to sell drugs then use them." The court added that after defendant had served his time in prison, he could enroll in the residential drug treatment program. Defendant here contends that the sentencing court abused its discretion in denying him a CRC commitment because its reason for doing so is not supported by substantial evidence. We disagree.
Welfare and Institutions Code section 3051 requires a sentencing court to suspend execution of sentence and order the prosecutor to file a petition for commitment to CRC when a defendant appears to be addicted unless "in the opinion of the judge, the defendants record and probation report indicate such a pattern of criminality that he . . . does not constitute a fit subject for" such a commitment.
The 50-year-old defendant received his first conviction in 1994 for resisting a police officer, a misdemeanor. He was placed on probation. Within a few months, he had been convicted of two misdemeanor under the influence offenses, for which he received jail time. Later that year, he committed felony false personation, for which he was given probation with jail time. He was then convicted of petty theft. After a modification and extension of his felony probation, it was revoked in 1998 and he was sent to prison for two years. Between his release from prison and 2003, he violated his parole six times. Also during that time, he was convicted of misdemeanor being under the influence, misdemeanor falsely identifying himself to a police officer and felony being under the influence, the latter for which he was sentenced to prison for two years. The following year, 2004, he was convicted of misdemeanor trespass. This offense occurred on February 14, 2006, while defendant was on parole.
According to the probation report, defendant admitted having nine parole violations.
Excessive criminality includes the defendants performance on probation and parole. (People v. Masters (2002) 96 Cal.App.4th 700, 704.) Contrary to defendants contention, the record supports a finding of excessive criminality. Therefore, the trial court did not abuse its discretion in denying defendant a CRC commitment.
DISPOSITION
The judgment is affirmed.
We Concur:
GAUT, J.
MILLER, J.