Opinion
B160419.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY HOBLEY, Defendant and Appellant.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Timothy Hobley appeals from a judgment entered after a jury found him guilty of assault with a deadly weapon, by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) (count 1)); assault with a deadly weapon, by means likely to produce great bodily injury (§ 245, subd. (a)(1) (count 2)); the lesser included crime of assault (§ 240 (count 3)); and making criminal threats (§ 422 (counts 4 and 5)). The jury found true the special allegations that appellant personally used a deadly and dangerous weapon during the commission of counts 4 and 5, within the meaning of section 12022, subdivision (b), causing the offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(23). The trial court found true the allegations that appellant had suffered two prior convictions of serious or violent felonies within the meaning of section 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the three strikes law). The trial court also found true that appellant had suffered two prior convictions of serious felonies pursuant to section 667, subdivision (a)(1). Moreover, the trial court found that appellant had suffered three prior prison terms, within the meaning of section 667.5, subdivision (b).
CONTENTIONS
Appellant contends that: (1) the trial court erred in denying appellants motion under Faretta v. California (1975) 42 U.S. 806 (Faretta); (2) the trial court erred in denying appellants motion for a mistrial; and (3) the 36-year-to-life sentence constitutes an abuse of discretion and violates the constitutional prohibition against cruel and unusual punishment.
FACTS
On July 4, 2001, Theresa Horne was at home with her five children, one of whom appellant had fathered. The family members told police that the following events occurred that night. Appellant, who had been drinking, got into an argument with Shirley, Theresas daughter, who was being "smart" with him. Appellant kicked the stool on which Shirley and her boyfriend Marcus had been sitting. At around 10:00 p.m., Shirley asked her 17-year-old brother Jonathan to come home from a friends house because she was afraid of appellant. Later, the household was awakened by screams from Shirley and Marcus. Appellant had a butcher knife and was threatening to kill Shirley and Marcus. Theresa told Shirley to call 911, but canceled the request for deputies when appellant left.
Theresa went back to sleep, but was awakened later by screams and the sound of breaking glass. According to Jonathan, appellant broke the window to Shirleys room by throwing a chair through it. Jonathan told appellant to get back, threatening him with a bat to protect his family. Appellant entered the house, threatened to stab everybody with a butcher knife, said he was going to kill them, and shouted that he did not care about the police. At 2:50 a.m., Theresa called 911, reporting that appellant was breaking her windows and she thought that he had a knife. She also stated that he had tried to kill her before, was trying to kill her now, was drunk, and had previously been abusive to her. Upon being informed that the children were scared, and Theresa would protect them any way she could, the operator told Theresa to get into a back room and to lock the door. When the police came, Theresa told them that appellant had a history of violence and drug abuse, and she was in fear for her life. In a follow-up interview, Theresa stated that appellant had once tried to stab her with a screw driver. Another child, Darell, told police that Shirley awakened him that night and told him to get into the back room. He saw that glass had been broken in Shirleys room and told police that appellant had smashed out Shirleys window with a concrete stepping stone. Appellant was arrested at the scene.
At trial, the children and Theresa recanted what they had told the police, denying that appellant had smashed the window or that he had threatened them with a knife. Theresa refused to testify against appellant, saying that she was afraid then, but that she did not now want appellant to be locked up in jail, because he loved her. She continued to state on the stand that she did not want to be in court. From the record it is clear that she was reluctant to testify. Jonathan said that he, and not appellant, got the knife from the kitchen. Shirley stated that she did not talk "smart" to appellant and denied telling police that appellant had a butcher knife and threatened to kill her family. When Shirleys tape-recorded call to 911 was played at trial, she covered her ears. Darell also testified that he would try to help appellant so that appellant would not have to go to jail. He stated that he wished he had not talked to the policemen previously.
Gail Pincus, the executive director of the Domestic Abuse Center in Northridge, testified in court as an expert on domestic violence. She stated that a battered woman is usually unwilling to talk about her situation with others. However, when a battered woman is threatened by violence, there is a small window of time when she may be willing to talk about the situation. Frequently, a 911 tape or officers responding to an incident will get a truthful picture from a battered woman. After that window closes, the battered woman becomes reluctant to confront the perpetrator and minimizes or denies his behavior. Typically, the battered woman blames herself for the perpetrators behavior.
PROCEDURAL BACKGROUND
On December 24, 2001, the day set for trial, the trial was continued at the Peoples request. The trial court denied appellants pretrial request to represent himself at trial under Faretta and his motion to substitute attorneys under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (Marsden). Jury trial commenced on January 2, 2002. The jury convicted appellant on counts 1, 2, 4, and 5, and found the section 12022, subdivision (b)(1) allegation to be true. The jury found appellant not guilty of committing assault with a deadly weapon on Marcus, but guilty of the lesser offense of misdemeanor assault. Appellant waived jury trial on the prior conviction allegations. On March 15, 2002, the trial court denied appellants request to represent himself on the prior conviction allegations. However, after finding the priors to be true, the court granted his request to represent himself at his sentencing hearing and on the motion to strike one or more of his prior strike convictions.
On June 3, 2002, the trial court denied appellants motion to strike his prior convictions, and sentenced him to serve 36 years to life in prison, imposing 25 years to life on count 4, plus five years for each of the two section 667, subdivision (a)(1) priors and one year for the weapon use allegation under section 12022, subdivision (b)(1). Terms of 25 years to life were imposed concurrently as to counts 1, 2, and 5. As to count 3, the trial court imposed a concurrent six-month term to be served in any penal institution. The court struck the section 667.5, subdivision (b) prior under section 1385, imposed $ 7,200 in fines, and awarded 400 days in credits for time served.
This appeal followed.
DISCUSSION
I. Whether the trial court properly denied appellants Faretta motion
Although a criminal defendant has a constitutional right to represent himself at trial, the defendant must make a timely and unequivocal assertion of the right of self-representation. (People v. Clark (1992) 3 Cal.4th 41, 98, 833 P.2d 561.) A motion made after a reasonable time prior to the commencement of trial is addressed to the sound discretion of the trial court. (Ibid.) The trial court considers factors such as the quality of counsels representation, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or the delay which might reasonably be expected to follow the granting of such a motion. (Id. at pp. 98-99.)
On December 24, 2001, the day set for trial, the People requested a one-week continuance because one of the police officers, on disability for a back injury, was unable to testify. At that time, appellant claimed a conflict of interest between himself and his attorney, based on his belief that his attorney was not representing his interest. The trial court prepared to hear a motion under Marsden, when appellant stated that he wanted to represent himself. The trial court then conducted a Faretta hearing.
Our review of the record shows that the trial court did not abuse its discretion in refusing to grant appellants motion. The record shows that the trial court considered the disruption or delay which might follow the granting of such a motion on the trial. When asked by the trial court if he would be ready to go to trial within the next 10 days, appellant replied in the negative. The People objected to a further continuance on the basis that appellant had objected to the last continuance, and that six witnesses were scheduled, some of whom were from out of state. Moreover, the court noted that the request was made on the day set for trial, and had previously been set for trial several times before. Yet, appellant had never raised any issue regarding self-representation in any previous appearances, and in fact, had made representations that he wanted to go to trial quickly. We conclude that the trial court did not abuse its discretion in concluding that the sole purpose of appellants motion was to delay the case.
Nor are we convinced otherwise by appellants argument that his motion was made on a timely basis because the trial had to be continued due to an injured witness. As previously noted, appellant had stated he would not be ready to proceed within 10 days. In fact, the trial commenced nine days after the court made its rulings. Appellant also urges on appeal that the trial court abused its discretion because the quality of counsels representation was implicated based on the three Marsden motions made by appellant. We disagree. Our review of the record, appellants arguments in the Marsden motions, and the trial courts ruling on the Marsden motions, indicates that counsels representation was more than adequate. Appellant also claims that there was no showing of a proclivity to substitute counsel, which is belied by his repeatedMarsden motions. We also disagree with appellants argument that his reasons for the request were reasonable and that granting of the motion would not be disruptive or cause delay.
Appellants citation toPeople v. White (1992) 9 Cal.App.4th 1062, 1072 does not avail him. In that case, the trial court was found to have erroneously denied a timely motion for self-representation because the motion was made four weeks before trial was to begin, defense counsel had not announced ready, and the trial court had expressly contemplated a continuance in the event defense cocounsel had to be replaced due to a calendar conflict. (Id. at p. 1074.) The facts in that case are very different from the instant case.
Finally, we disagree with appellants further argument that because the trial court ultimately granted appellant the right to represent himself at the sentencing hearing and on his motion to strike the prior convictions, his initial Faretta motion was not made for the purpose of delay. Appellants initial Faretta motion was made on the day set for trial. His subsequent motion for self-representation was made at the sentencing hearing and did not cause a disruption in the proceedings or impact the Peoples case and witnesses. We conclude that the trial court did not err in denying appellants Faretta motion.
II. Whether the trial court erred in denying appellants motion for a mistrial
"When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias." (People v. Nesler (1997) 16 Cal.4th 561, 578, 941 P.2d 87.) Bias may be shown: "(1) If the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not inherently prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was actually biased against the defendant." (Id. at pp. 578-579.) Outside information creates a presumption of prejudice which, if not rebutted, requires a new trial. However, if a review of the entire record demonstrates that the defendant suffered no prejudice from the misconduct, a reversal is not compelled. (People v. Zapien (1993) 4 Cal.4th 929, 994, 846 P.2d 704, superseded by § 190.41 on other grounds.) The trial court may dispel the presumption of prejudice by an admonition to disregard the improper information. (People v. Zapien, at p. 996.)
Appellant complains that the trial court erred in denying his motion for mistrial on the basis that the jurors were influenced by extrajudicial information indicating that the witnesses were victims of domestic violence. Apparently, two jurors witnessed a loud discussion in the hallway between a bailiff, Theresa, and some of the child witnesses. Moreover, the children had left messages on the chalkboard in the jury room which essentially stated that the children wanted appellant to come home. The record shows that upon being advised of the situation, the trial court ordered the chalkboard removed, ordered a photograph taken of the board, and questioned the two jurors who witnessed the discussion between the witnesses and the bailiff. The first juror represented to the trial court that he or she did not hear the witnesses discussing the case, but heard them arguing with the bailiff who was asking them to keep their voices down. The juror also stated that he or she would be able to be fair and impartial and that his or her judgment would be based solely on the evidence heard in court. The next juror said that he or she witnessed the witnesses arguing with the bailiff, but stated that he or she had tried to tune out the argument. The juror stated that he or she would be able to decide the case based solely on what was heard in court.
Appellant made a motion for mistrial, arguing that the chalkboard messages and hallway discussion would lend credence to Ms. Pincuss testimony that the witnesses were rallying around appellant. The trial court denied the appellants motion for mistrial.
We conclude that the trial court did not abuse its discretion in denying the motion for mistrial. The discussion in the hallway was not inherently prejudicial because the witnesses were not discussing the facts of the case, but were being told by the bailiff to be quiet. The record shows that the trial court carefully questioned the two jurors who represented that they would be able to render judgment based solely on the facts of the case heard in court, and admonished them not to consider what they had heard in the hallway in reaching their verdict. Both jurors indicated that they would be able to decide the case based solely on what was seen and heard in the courtroom, and the trial court found their statements to be credible. Finally, the trial court stated that it did not believe the notations on the chalkboard were detrimental to appellant, but in any event, the trial court would admonish the jury that they were not to consider those statements for any purpose. Moreover, the trial court admonished the rest of the jurors not to consider the statements on the chalkboard. Finally, the trial court gave extensive jury instructions which included admonitions not to consider evidence received from any other source. We presume that the jury followed the admonitions of the trial court. (People v. Zapien, supra, 4 Cal.4th at p. 996.)
Nor are we convinced by appellants argument that the statement by one juror that he or she had tried to tune out the argument was an equivocal representation of whether or not he or she could be impartial. On the contrary, our review of the record shows that the juror, in describing the heated discussion between the witnesses and the bailiff, was trying to maintain impartiality by not listening to the discussion. Furthermore, we are not convinced that the presumption of prejudice cannot be rebutted because there was a substantial likelihood that the hallway discussion created a bias in the jurors because the discussion bolstered Ms. Pincuss theory that the witnesses were recanting their testimony, based on battered womens syndrome. The messages on the chalkboard asking that appellant come home, could have been taken with the sympathetic view toward appellant. The trial court took the effect of the messages into consideration when it made its ruling, and we conclude that it did not abuse its discretion.
III. Whether the 36-year-to-life sentence imposed constitutes an abuse of discretion and the violation of the constitutional prohibition against cruel and unusual punishment
A. Whether the trial court abused its discretion in denying appellants motion to strike his prior convictions
In determining whether or not to strike a prior conviction, the trial court exercises its discretion in considering whether "in light of the nature and circumstances of his present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161, 948 P.2d 429.)
On review, "the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Alvarez)) (1997) 14 Cal.4th 968, 977-978.) The appellate court cannot substitute its opinion for that of the trial court. (Ibid.)
Our review of the trial courts reasons for making its ruling shows that the sentencing decision was not irrational or arbitrary. In making its ruling, the trial court stated that it considered the facts and circumstances of the current case, which involved a conviction for four separate serious felony convictions. The court noted that this was not a situation where the current offense was relatively minor and the priors were serious. Moreover, the victims were particularly vulnerable and threatened with a dangerous weapon, a knife. The trial court considered the fact that appellants robbery conviction in 1985 was fairly old, but that appellant violated parole for that crime and had to return to prison. Appellant was on parole for the relatively recent 1995 conviction before the commission of the current offense. According to the trial court, the prior convictions were numerous and of increasing seriousness; appellants performance on parole was unsatisfactory; and there were no significant factors in mitigation. The trial court concluded that it would be an abuse of discretion to strike the two priors.
On appeal, appellant reiterates his arguments before the trial court that in the commission of both the present and past offenses, appellant did not harm any of his victims, and the bulk of his past misdemeanor offenses were drug and alcohol related. However, appellant has not shown us that the trial courts ruling was so arbitrary and capricious that it fell outside the bounds of reason. (People v. Williams, supra 17 Cal.4th at p. 162.) We cannot substitute our judgment for that of the trial court.
B. Whether the sentence violates the constitutional prohibition against cruel and unusual punishment
We find that appellant has not shown that his punishment was cruel and unusual according to the three prongs set forth in In re Lynch (1972) 8 Cal.3d 410, 105 Cal. Rptr. 217, 503 P.2d 921, superseded by statute on other grounds as stated in People v. Caddick (1984) 160 Cal. App. 3d 46, 51, 206 Cal. Rptr. 454. The three guidelines used in measuring the relationship between the crime and the punishment are: (1) the nonviolent or violent nature of the offense and the offender; (2) a comparison of the challenged penalty with punishments prescribed in the same jurisdiction for different offenses that are more serious; and (3) a comparison of the challenged penalty with punishments prescribed for the same offense in other jurisdictions with similar constitutional restraints. (In re Lynch, supra, 8 Cal.3d at pp. 425-426.)
Without giving us a comparison of similar crimes in other jurisdictions, appellant merely urges on appeal that "it is [his] position that, when compared with sentences imposed for similar crimes in other jurisdictions, the 36 year-to-life sentence he received in this case violates the California and United States constitutional prohibitions against cruel and/or unusual punishment." Arguing that the Ninth Circuit has disapproved three strikes application to a case where a petty theft was the current offense, appellant improperly cites to Andrade v. Attorney General of State of California (9th Cir. 2001) 270 F.3d 743, which was reversed by the United States Supreme Court in Lockyer v. Andrade (2003) ___ U.S.___ [123 S. Ct. 1166, 155 L. Ed. 2d 144]. Appellant does not persuade us that the three prongs were met by again urging that the present and past offense did not cause injury; that he sustained only two prior serious or violent felony convictions; and that the remainder of his record comprises drug— and alcohol-related convictions.
We conclude that appellant has not shown that the punishment was cruel and/or unusual under In re Lynch, supra, 8 Cal.3d at pages 425-426.
DISPOSITION
The judgment is affirmed.
We concur: BOREN. P.J., and DOI TODD, J. --------------- Notes: All subsequent code section references are to the Penal Code unless otherwise noted.