Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.Nos. INF047166, INF049868, INF050209 John J. Ryan and John H. Major, Judges.
Judge Ryan is a retired judge of the Orange Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution and denied defendant’s motion to recuse the Riverside County District Attorney’s office on November 4, 2005. Judge Major is a retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution, and made the remainder of the contested orders.
Charlotte E. Costan, 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, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant George David Huffman engaged in a crime spree that spanned over one year. Defendant committed petty theft, stole vehicles, possessed methamphetamine, obtained a fraudulent automated teller machine (ATM) card for another person’s account and used the card to take money from the account, and committed trespass. Defendant would be released on one crime and then commit another. Defendant was eventually convicted of 13 counts related to this crime spree.
Defendant now contends on appeal:
1. His rights to a speedy trial under the state and federal Constitutions and pursuant to Penal Code sections 859b and 1382 were violated.
All further references are to the Penal Code unless otherwise indicated.
2. The trial court erred by refusing to grant his motion to recuse the entire Riverside County District Attorney’s office or, in the alternative, the Indio branch.
3. The trial court improperly denied his Marsden motion on the ground it was untimely.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
4. Defendant’s federal constitutional rights were violated by the trial court’s denial of his Faretta motion.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
5. The trial court abused its discretion and deprived defendant of his right to a fair trial by admitting a 19-year-old prior conviction.
6. Defendant was improperly sentenced on the section 12022.1 on-bail enhancements.
7. By imposing the upper term on count 1, the trial court violated the principles stated in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
I
FACTUAL BACKGROUND
A. Count 1 — Petty Theft With a Prior at Stater Bros.
The parties stipulated that defendant had suffered a previous conviction of possession of stolen property for this count.
On April 17, 2004, loss prevention officer Richard Morales was working at the Stater Bros. store located in Desert Hot Springs. That morning, Morales observed defendant through a one-way security mirror in the delicatessen meat section of the store. Defendant took two packages of delicatessen meat out of the child seat portion of his shopping cart and placed them in his waistband.
Defendant met up with an unidentified male at the cashier. Defendant and the other man purchased some items (but not the delicatessen meat) and attempted to leave the store. Morales and two other security officers detained defendant outside the store. Defendant was handcuffed and brought back into the store.
When Morales asked defendant if he knew why he had been brought back into the store, he responded that it was because of cheese he had in his pocket. A block of cheese that belonged to the store was found in defendant’s pocket. Defendant had not paid for it. Defendant told Morales he took the lunch meat secreted in his waistband because he had bad lunch meat at home that he wanted to replace. Defendant was arrested.
B. Counts 2, 3 and 5 – First Theft of Mercury Cougar, Possession of That Vehicle, and Possession of Methamphetamine
George Douglas Sanders was a professional golfer who owned a vacation home located at 2700 Golf Club Drive in Palm Springs. Sanders owned a Mercury Cougar. In July 2004, Sanders parked the Cougar at his home and left town for a golf tour. While Sanders was gone, his friend, Neal Dubin, started the vehicle on occasion so that the battery would not die. In July 2004, Dubin called Sanders and told him that the Cougar was missing.
Christine Herron also helped Sanders by starting and driving the vehicle.
On July 8, 2004, Cathedral City Police Officer Daniel Mackie was driving an unmarked vehicle in the Thousand Palms area. About 8:00 p.m., he observed a Cougar being driven erratically and noticed that it had expired registration tags. Officer Mackie directed a marked patrol car to stop the Cougar. Defendant was in the driver’s seat. Defendant told Officer Mackie that his father had just purchased the vehicle and had not had time to register it. Defendant claimed the Cougar was in the process of being registered.
During a patdown search of defendant, a black film canister containing a white crystalline substance fell from what appeared to be defendant’s waistband. Officer Mackie tested the substance with a portable kit at the scene, and it tested positive for methamphetamine. Based on the weight of the methamphetamine, it was the equivalent of two uses and was valued at about $40. Officer Mackie opined this was a usable quantity. The substance was also later tested in a laboratory and determined to be 0.59 grams of methamphetamine.
Defendant was arrested. At this point, the Cougar had not been reported stolen and was impounded due to defendant’s arrest.
Palm Springs Police Sergeant Donald Crager investigated the theft of Sanders’s Cougar and discovered that the Cougar was being stored in a tow yard in Cathedral City. He contacted Officer Mackie and determined that defendant had been driving the Cougar the night it was impounded.
Sergeant Crager talked to defendant. Defendant told Sergeant Crager that a person named Sean Nicholson let him use the car; however, Nicholson had told Sergeant Crager that he did not own the vehicle. Sergeant Crager searched the car at the tow yard. Casino cards bearing defendant’s father’s and mother’s names were found.
Sergeant Crager indicated that a release of liability was filed with the Department of Motor Vehicles that showed the Cougar was transferred from Nicholson to Daniel Allen and Susan Cellier. Sergeant Crager attempted to get a handwriting sample from defendant, but he refused to provide one. Defendant stated that he turned in the paperwork for the change of ownership on the Cougar to the Department of Motor Vehicles on Nicholson’s behalf. Both Allen and Cellier told Sergeant Crager that they did not own the Cougar.
C. Counts 6, 7, and 8 — Theft of Ford Ranger, Possession of That Vehicle, and Possession of Drug Paraphernalia
John Rogers owned Desert Crane Service located at 68365 Perez Road in Cathedral City. John’s son, Erik Rogers, worked at his father’s business. In early July 2004, a Ford Ranger owned by the company was stolen sometime overnight. John reported it stolen.
About one week later, Erik saw someone driving the truck in Cathedral City. Erik called the police. Erik followed the truck to Palm Desert. The police arrived and pulled the truck over.
Riverside County Deputy Sheriff Kevin Cole was working patrol in Palm Desert on July 19, 2004, when he received a call about a possible stolen vehicle. Deputy Cole located the Ford Ranger truck being followed by Erik and initiated a traffic stop. Defendant was driving the truck. Deputy Cole interviewed defendant at the police station. Defendant denied that he had stolen the truck. He claimed that his friend “Gordo” had been too intoxicated to drive, so he let defendant use the truck. He never provided an address or phone number for Gordo. Defendant then spontaneously stated, “Did you notice how clean the vehicle was? It was parked around cranes, and it was muddy.” Deputy Cole had not told defendant where the vehicle had been stolen prior to this statement.
In the front seat of the truck, Deputy Cole found a fanny pack. Inside the fanny pack, Deputy Cole found a glass pipe used to smoke controlled substances. Defendant told Deputy Cole that the fanny pack belonged to him. A hidden key that John kept behind the bumper of the car was missing when he got back the truck. John was the only one who knew about it.
D. Counts 9 and 10 – Theft of the Hyundai
On August 28, 2004, William Manders, who lived in Toledo, Ohio, rented a Hyundai Sonata from Dollar Rent A Car. Manders was the sole driver listed on the rental contract. Manders drove the Hyundai to Palm Springs and stayed at the Exile resort.
On September 10, 2004, Manders parked the Hyundai in the resort parking lot. He went to his motel room for approximately two hours. During that time, he took a shower. After he was dressed, he looked for the keys to the car but could not find them. He noticed that the front door to his room was not locked. Manders’s car was gone. He called the police.
Riverside County Sheriff’s Deputy Spencer Dierks was assigned to the Palm Desert station and was on duty on October 14, 2004. About 6:00 p.m. that day, Deputy Dierks was called to the Oasis Country Club in Palm Desert to investigate a suspicious vehicle described as a silver Hyundai. Deputy Dierks observed the car in a driveway of a home at the location (which was later determined to be a home belonging to defendant’s girlfriend, Susan Cellier). Defendant exited the home and got into the Hyundai.
Defendant backed the car out of the driveway. Deputy Dierks followed him but did not activate his lights. Defendant drove around the corner, parked the car, and walked briskly away. Deputy Dierks called out to defendant, and defendant ran. Deputy Dierks was unable to find defendant during a subsequent search.
The license plates on the front and back of the Hyundai did not match. When Deputy Dierks ran the vehicle identification number on the car, he discovered it had been reported stolen and was owned by Dollar Rent A Car. During a search of the Hyundai, Deputy Dierks found casino cards in defendant’s name.
E. Counts 11 and 12 — Fraudulent Use of an ATM Card and Possession of a Stolen ATM Card
Robert Feldman lived in Palm Desert. In September 2004, he left town. While he was gone, he let a friend, Susan Cellier, stay at his house.
From September 7 through September 29, 2004, money was taken from a savings account Feldman had at Bank of America. An ATM card was used to make the withdrawals. The total withdrawals during that time period amounted to $6,911. Feldman had never applied for or received an ATM card. Feldman reported the unauthorized withdrawals to the police on October 20, 2004.
Bank of America maintains records of the times and dates that ATM withdrawals are made. Photographs taken at the ATM machines for withdrawals made on September 7 and 29, 2004, showed defendant making the withdrawals from Feldman’s account. On September 29 a withdrawal from Feldman’s account was made at a drive-up ATM by a person driving the Dollar Rent A Car Hyundai.
According to an investigator employed by Bank of America, the last fraudulent withdrawal from Feldman’s account occurred on October 5, 2004. A person could obtain an ATM card over the phone by giving the name, address, and Social Security number of the person whose name was on the account.
Deputy Spencer Dierks investigated Feldman’s complaint. Feldman advised Deputy Dierks that Cellier was living in his house and that he suspected her boyfriend (defendant) was the one who took his money. Deputy Dierks found several pieces of mail belonging to Feldman in the trunk of the Hyundai.
F. Counts 13 and 14 – Second Theft of Mercury Cougar and Trespassing
Sanders’s Cougar was again stolen in March or April 2005 while he was out of town. Dubin was starting the car on occasion for him. Herron also moved it on occasion in the parking lot of the condominium complex to make it appear that Sanders was home. The last time Herron saw the car was on March 27, 2005. Dubin called Sanders in April 2005 advising him that the car had been stolen again. Sanders reported it stolen to the police.
On May 22, 2005, Teresa Riddle arrived at her home located at 38-668 Wisteria Drive in the Palm Valley Country Club to find a strange car parked in the garage. She notified the security guard at her condominium complex. Riddle and the security guard knocked on the front door of her home. Defendant (whose mother cleaned Riddle’s house) opened the door. Riddle was surprised to see defendant and told him that he had to get out of the house. There was a second man in the house with defendant. Defendant went back into the house. Defendant then backed a Cougar out of the garage and drove away.
Deputy Cole went to an address in Bermuda Dunes where defendant’s mother lived. Sanders’s Cougar was parked in front of the residence. Deputy Cole made contact with defendant’s mother and told her that he needed to talk to defendant. Defendant’s mother pointed to her attic and told him that defendant was hiding in the attic. Defendant’s mother told Deputy Cole that she wanted defendant out of her house.
Deputy Cole went up to the attic and called defendant’s name. He did not answer. Deputy Cole had other officers go up into the attic. Deputy Cole heard running and the officers telling defendant to stop. The two officers and defendant fell through the attic onto the floor below. Defendant was arrested. Defendant spontaneously stated, “The car’s not stolen.” Up to that point, Deputy Cole had only been asking defendant about the trespass at Riddle’s house.
G. Defense
Defendant’s mother, Linda Huffman, testified that, in July 2004, defendant bought a Cougar from Sean Nicholson for about $2,000. At some point, Linda went to Nicholson’s apartment to see if the $2,000 check that defendant had given Nicholson for the car had cleared the bank because defendant was incarcerated and needed the money back to make bail. Linda had seen a pink slip to a car but had not read it. Linda claimed to have seen a bank account statement belonging to Nicholson that showed a $2,000 check had cleared.
Linda denied that she told Deputy Cole that defendant was hiding in the attic; she claimed he was “doing something” for her.
Defendant testified on his own behalf. He claimed he had gone to Stater Bros. to return some lunch meat that had previously been purchased at the store but had been expired. A woman in the store advised him to find a replacement for the lunch meat, which he could not find. Since he did not have a receipt for the expired lunch meat, defendant was told that he could not get a refund. He put the expired lunch meat in his waistband and left the store. Defendant was “tackled” by four or five security personnel and taken to jail. The cheese in his pocket was from another store.
As to John Rogers’s Ford Ranger, defendant denied that he stole the vehicle, but rather stated that he had borrowed it from Nicholson. Defendant had gone to Nicholson’s house to help him move furniture. When he arrived, defendant saw the Ford Ranger, but it was so dirty he refused to drive it. Defendant insisted that they wash the truck before doing anything else.
Defendant was driving the truck to the location where they were going to get furniture when he noticed he was being followed. He was subsequently stopped and arrested. He denied that the pipe found in the fanny pack belonged to him. He also denied that he told Deputy Cole that the Ford Ranger had been parked near cranes.
Defendant denied ever seeing or possessing the Hyundai that belonged to Dollar Rent A Car. On October 14, 2004, he was doing some work at a house located in the Mission Hills Country Club. His mother had dropped him off, and his brother had picked him up. Defendant did not know why the Hyundai was parked in Cellier’s driveway. He claimed Deputy Dierks was “mistaken” when he testified that he saw defendant driving the car. Defendant did not know how a casino card bearing his name got in the Hyundai.
Defendant admitted driving Sanders’s Cougar the first time he was arrested in it but claimed he was trying to buy it from Nicholson, who he believed was the owner of the car. Defendant claimed he gave Nicholson $2,000 for the Cougar but decided not to buy it because he needed bail money. He did not know it was stolen until after he decided he no longer wanted to buy it. Defendant did not know why Cellier’s and Allen’s names appeared on the registration of the Cougar. Defendant claimed that the passenger in the car threw the film canister containing methamphetamine on the ground; it was not in defendant’s waistband.
As to defendant’s possession of the Cougar on May 22, 2005, he claimed that in late April 2005, Nicholson brought the car to his house and asked defendant to give him more money for the car. Defendant had not received his $2,000 back from Nicholson. Nicholson left the car with defendant.
Defendant claimed that he had previously done handyman work for Riddle and left his tool box at the location. He was at her house on that day to pick up the tool box and was looking around at other things she wanted him to fix in the house. Defendant claimed he had keys to Riddle’s house and had permission to be there. He insisted he left her a message that he was going to be in the house that day.
Defendant claimed that he went back to his mother’s house and was doing electrical work for her in the attic. As he was working, two police officers came up to the attic with their guns drawn. As defendant tried to back out of the attic, he fell through the floor. Defendant went out the back door and was eventually handcuffed.
Defendant banked at Bank of America but denied ever obtaining an ATM card for or withdrawing money from Feldman’s account.
F. Rebuttal
Riverside County Deputy Sheriff Jeffrey Covington assisted in the stop of defendant on July 8, 2004. Officer Covington kept watch on the passenger. During this entire time, Officer Covington did not see the passenger throw anything from the vehicle.
Deputy Cole testified that Linda had whispered to him that defendant was “hiding” in the attic when he arrived at her house. Deputy Cole informed Linda that defendant had been seen at one of her cleaning clients’ homes. Linda then became “very angry” and said, “That’s it, I want him out of here.” After defendant fell through the attic floor, he got up and ran out of the house. When Deputy Cole tried to put handcuffs on defendant, defendant kept trying to pull away.
II
PROCEDURAL BACKGROUND
A jury found defendant guilty in count 1 of petty theft with a prior (§ 666); in count 2 of theft of the Mercury Cougar belonging to Sanders (Veh. Code, § 10851); in count 3 of possession of the Cougar (§ 496d, subd. (a)); in count 5 of possession of a controlled substance (Health & Saf. Code, § 11377); in count 6 of theft of John Rogers’s Ford Ranger (Veh. Code, § 10851, subd. (a)); in count 7 of possession of the Ford Ranger (§ 496d, subd. (a)); in count 8 of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364); in count 9 of theft of the Dollar Rent A Car Hyundai (Veh. Code, § 10851); in count 10 of possession of the Hyundai (§ 496d, subd. (a)); in count 11 of fraud of an ATM (§ 484g, subd. (a)); in count 12 of possession of a stolen ATM card (§ 496, subd. (a)); in count 13 of a second theft of Sanders’s Cougar (Veh. Code, § 10851); and in count 14 of misdemeanor trespass (§ 602, subd. (m)).
Count 4 was dismissed by the prosecution in the interests of justice (§ 1385) prior to going to the jury.
At a court trial, defendant was found to have served a prior prison term on count 1 (§ 667.5, subd. (b)) and have been out on bail on counts 1, 2, 3, 5, 6, 7, 9, 10, 11 and 12 (§ 12022.1). The trial court sentenced defendant to a total term of 20 years 8 months.
III
SPEEDY-TRIAL RIGHTS
Defendant contends that his statutory right to a speedy trial under section 1382 and his right to a timely preliminary hearing under section 859b were violated, and both his state and federal constitutional rights to a speedy trial were violated.
A. Analysis and Additional Factual Background
There are three sources of a criminal defendant’s right to a speedy trial, all of which the defendant claims have been violated. First, there is a federal constitutional right to a speedy trial. (U.S. Const., 6th & 14th Amends.; People v. Harrison (2005) 35 Cal.4th 208, 225.) Second, there is a state constitutional right to a speedy trial. (Cal. Const., art. I, § 15; Harrison, at p. 225.) Third and finally, there are statutory speedy-trial rights under section 1382 and a right to a timely preliminary hearing under section 859b.
1. Timely preliminary hearing
Defendant first complains that there was a delay in conducting the preliminary hearing. The proceedings leading up to the preliminary hearing were as follows.
On April 20, 2004, a felony complaint was filed against defendant for the violation of section 666 in count 1 for which he was arrested on April 17, 2004. Defendant was arraigned, pleaded not guilty, and was released from custody on May 10, 2004.
On May 4, 2004, defendant was represented by deputy public defender S. Cho. On that date, defendant waived time for the preliminary hearing plus 14 days. The matter was continued to June 8, 2004. On June 8, defendant again waived time for the preliminary hearing plus 14 days.
On August 4, 2004, defendant appeared in court and was now represented by deputy public defender E. Benjamini. Defendant again waived time plus 14 days. On September 8, 2004, defendant was arraigned on a new felony complaint, which added the prior prison term allegations pursuant to section 667.5, subdivision (b). Defendant again waived time, and the preliminary hearing was scheduled for September 29, 2004.
Between September 29, 2004, and January 4, 2005, defendant waived time at all of the proceedings and was represented by three different deputy public defenders. On January 4, a continuance was requested by the defense and was granted. On January 5, defendant waived time until January 19. At the next hearing, defendant waived time until February 23. The preliminary hearing was held on February 23, 2005. Defendant was represented by deputy public defender Beverly A. Barrett (Barrett).
Initially, we agree with the People that defendant has waived his claim on appeal that his rights were violated under section 859b. “The right to a speedy trial . . . will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss.” (People v. Wilson (1963) 60 Cal.2d 139, 146.) “The defendant must . . . move to dismiss . . . so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided.” (Id. at p. 147.) Section 859b is “supplementary” to the constitutional right to a speedy trial. (People v. Luu (1989) 209 Cal.App.3d 1399, 1404.)
Here, defendant did file a motion to dismiss based on the violation of his speedy-trial rights. However, he did not claim that his statutory rights to a timely preliminary hearing pursuant to section 859b had been violated. Since there are numerous grounds upon which defendant’s rights to a speedy trial could be violated, it was incumbent upon him to alert the trial court as to which rights he deemed violated. As such, his claim has been waived.
Nonetheless, the claim lacks merit. Section 859b provides, in pertinent part: “Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads . . . .”
Once a defendant waives the 10-day requirement, the preliminary hearing must be set within 60 days, “‘unless the defendant personally waives his or her right to a preliminary hearing within the 60 days.’” (People v. Alvarez (1989) 208 Cal.App.3d 567, 572, quoting section 859b; see also Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727, 730.)
Here, defendant waived time for the preliminary hearing. Once defendant waived the preliminary hearing requirements of section 859b, he was no longer protected by that section. (See People v. Love (2005) 132 Cal.App.4th 276, 284-286.) Regardless, as set forth herein, defendant waived time up until the time the preliminary hearing was held. Although defendant argues he was forced to waive time because he continued to be appointed different public defenders, as noted by the People, this change in counsel likely had to do with the fact that he continued to commit crimes during this period requiring further work by the public defender’s office in order to adequately prepare for this case. As such, even had defendant refused to waive time, there was good cause for the continuances. Hence, defendant cannot show that his rights to a timely preliminary hearing were violated pursuant to section 859b.
2. Section 1382
Defendant next contends that his rights to a speedy trial under section 1382 were violated. Section 1382 is triggered only after the defendant is either (1) “held to answer” (§ 1382, subd. (a)(1)) or (2) “arraign[ed] on an indictment or information” (id., subd. (a)(2)). Hence, the proceedings after defendant’s arraignment on the information were as follows.
On March 8, 2005, the original information was filed charging defendant with eight counts. On March 9, he was still represented by Barrett, and he was arraigned on the information. Defendant waived time for trial plus 30 days. At a hearing held on April 29, 2005, where defendant was still represented by Barrett, the prosecution’s motion to consolidate case Nos. INF047166 and INF049868 was granted.
Between June 10 and September 9, 2005, defendant waived time for trial. On August 5 the prosecution filed a motion to consolidate case Nos. INF047166 and INF050209. On August 19 defendant waived time for both cases, but the trial readiness conference was still set for September 9. Defendant was represented by deputy public defender D. Canty (Canty) at this time. On September 9, the prosecution’s motion was granted, and INF050209 was consolidated with case No. INF047166. There was no mention in the minute order that the defendant waived time, but the trial readiness conference was set for September 30, and the jury trial was then set for October 3. Defendant was still represented by Canty.
On September 9, 2005, a second amended information was filed. On September 30, the trial court found good cause for a continuance at defense request. Defendant was with a new deputy public defender.
On October 7, 2005, defendant objected to his counsel’s request for a continuance. The trial court found good cause for the continuance in order for defense counsel (Canty) to prepare for trial. The trial was continued to November 7. At the same hearing, the trial court appointed a doctor to examine defendant pursuant to Evidence Code section 1017.
On November 4, 2005, defendant’s recusal motion was heard and denied. Defendant (appearing with Canty) waived time for trial plus 20 days. Trial was set for November 28. On November 23, the jury trial date was continued to December 5, but there is no explanation for the continuance.
On December 2, 2005, the trial judge recused himself, and defendant was assigned to a new trial court. That trial judge declared a doubt as to defendant’s competency. The trial date was vacated, the proceedings were suspended, and defendant was ordered to be evaluated by a doctor.
On February 1, 2006, defendant (still represented by Canty) was found mentally competent to stand trial, and a jury trial was set for March 20. On March 17, the parties stipulated to continue the trial until March 24.
On March 24, 2006, defendant appeared for the first time with Deputy Public Defender J. Forth (Forth). Between that date and May 8, continuances were granted at the defense’s request, by stipulation, or on the court’s own motion. On May 8, Forth brought a motion for continuance of the trial date over defendant’s objection. The trial court found good cause to continue the trial because defense counsel was not prepared to start trial. Jury trial was set for June 19.
On June 13, 2006, defendant filed a motion to dismiss pursuant to section 1382 and requested that he be appointed as cocounsel in his own case. In the motion, he complained about his attorney’s performance. On June 16, the motion to dismiss was denied. The jury trial was trailed to June 20.
On June 20, 2006, jury trial commenced. On that day, the trial court again addressed defendant’s motion to dismiss for violation of his speedy-trial rights. The prosecution argued that many of the continuances in the case had been at the request of the defense and had not been opposed by the prosecution. The trial court noted that some of the continuances were due to the change in attorneys and the need to allow the defense to be prepared. The motion was denied by the trial court.
Pursuant to section 1382, the court must set a date for trial that is within 60 days of the defendant’s arraignment in the superior court unless there is a showing of good cause as prescribed in section 1050 or obviously if defendant waives time for trial. “A continuance granted at the request of counsel normally constitutes . . . good cause [citation], at least in the absence of evidence showing incompetency of counsel [citation] or circumstances where counsel’s request for a continuance is prompted only by the need to service other clients and the defendant himself objects to the delay. [Citation.]” (People v. Wright (1990) 52 Cal.3d 367, 389.)
Here, defendant agreed to a majority of the continuances requested after he was arraigned on the information. Furthermore, some of the delay in the proceedings was due to the trial court’s determination that defendant might have been incompetent to stand trial. Regardless, on the record before this court, defendant objected to only two of the continuances. On both occasions, they were granted due to counsel’s need to prepare for trial. Defendant has not shown that the failure to prepare was due to counsel’s incompetence. It is defendant’s pure speculation that his counsel was working on other cases that prompted the continuances in this case. Nothing to support that claim appears in the record. As such, we do not believe that defendant’s speedy-trial rights under section 1382 were violated, and therefore, the trial court did not abuse its discretion by refusing to grant his motion to dismiss.
However, even were we to consider that that there was error, “‘[o]nce a defendant has been tried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error,’ and so on appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice, even though the defendant would not be required to show prejudice on pretrial appellate review.” (People v. Martinez (2000)22 Cal.4th 750, 769.) As will be discussed, post, defendant has not shown prejudice.
3. State constitutional rights
Under both California and federal law, the right to a speedy trial attaches upon the arrest of a felony suspect. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504.) Here, defendant was initially arrested on April 17, 2004.
To make out a state constitutional violation, a defendant must show prejudice. (People v. Martinez, supra, 22 Cal.4th at p. 769; People v. Roybal (1998) 19 Cal.4th 481, 513.) “[A] court must weigh ‘the prejudicial effect of the delay on defendant against any justification for the delay.’ [Citations.] . . . [T]he defendant seeking dismissal must affirmatively demonstrate prejudice [citation].” (Martinez, at pp. 766-767, quoting People v. Hannon (1977) 19 Cal.3d 588, 608.) “The showing of actual prejudice which the law requires must be supported by particular facts and not . . . by bare conclusionary statements.” (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.)
Here, defendant has presented no actual prejudice. His claims of prejudice are merely speculative. He insists that there were witnesses who would have corroborated his story and that some of the witnesses suffered from “diminished recall . . . .” Initially, any witnesses who may have been unavailable had already been deemed by counsel, as will be discussed, post, to be more hurtful to defendant than helpful. Moreover, although defendant states that two witnesses who would have corroborated his story could no longer be found, it is unlikely that they would have corroborated his story based on the representations of counsel. Defendant fails to indicate which of the witnesses suffered from lack of recollection. Since defendant fails to show prejudice, we need not further address the justification of the delay. (See Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541 [“‘[i]f defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to “weigh” such justification against’”].)
4. Federal constitutional rights
In considering whether the federal constitutional right to a speedy trial has been violated, the United States Supreme Court has set forth a four-factor test: “ . . . Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Barker v. Wingo (1972) 407 U.S. 514, 530 [92 S.Ct. 2182, 33 L.Ed.2d 101], fn. omitted; see also People v. Harrison, supra, 35 Cal.4th at p. 227.) “[T]hey are related factors and must be considered together with such other circumstances as may be relevant.” (Barker, at p. 533.)
Although courts generally find postaccusation delay “‘presumptively prejudicial’” as the delay approaches one year, it does not constitute a per se Sixth Amendment violation. (Doggett v. United States (1992) 505 U.S. 647, 652 & fn. 1 [112 S.Ct. 2686, 120 L.Ed.2d 520].) Additionally, the relevant inquiry is whether the length of delay was “uncommonly” long. (Id. at p. 651.) In fact, decisions under Barker routinely have held delays exceeding one year do not establish a Sixth Amendment violation. (See, e.g., United States v. Colombo (1st Cir.1988) 852 F.2d 19, 24, 26 [24 months]; United States v. Davenport (11th Cir.1991) 935 F.2d 1223, 1240 [22 months].)
Defendant was arrested on April 17, 2004. His trial took place on June 20, 2006. Based on this alone, the delay was presumptively prejudicial. However, the reason for the delay clearly cuts against that presumption. Throughout this time, up until May 22, 2005, defendant was continuing to commit additional crimes that eventually were consolidated into the instant case. Moreover, defendant acquiesced in most of the delays, or they were the result of a request by his counsel in order to prepare. The trial court found good cause for the continuances, which were made for the most part so that counsel could prepare adequately for this 14-count case.
Defendant asserted his right to a speedy trial by objecting to continuances on only two occasions that appear in the record. Under Barker, the reviewing court may “weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.” (Barker v. Wingo, supra, 407 U.S. at p. 529.) Two objections over the course of two years can hardly be considered frequent.
Finally, defendant has not shown prejudice under the Barker analysis. As set forth, ante, in assessing the violation of defendant’s state constitutional rights to a speedy trial, defendant has failed to show prejudice to his case.
Based on the foregoing, defendant has failed to show under either the relevant statutes, or the federal or state Constitutions, that his speedy-trial rights were violated.
5. Due process
Finally, defendant claims that the due process clause protects his interest in a fair trial by preventing unjustified delays. The California Supreme Court has held that “a delay between the time a crime is committed and the defendant is charged is to be tested not by the rules applicable to speedy trials, but by whether the defendant has been denied due process of law.” (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505.) The ultimate question in determining a due process claim is whether the delay will deprive the defendant of a fair trial. (Id. at p. 507.) As set forth, ante, defendant has not shown prejudice and was not denied a fair trial.
IV
RECUSAL OF RIVERSIDE COUNTY DISTRICT ATTORNEY’S OFFICE
Defendant contends the trial court erred by refusing to recuse the entire Riverside County District Attorney’s office, or in the alternative the Indio branch, based on the fact that a public defender who had represented him during his preliminary hearing transferred to the Riverside County District Attorney’s office prior to his trial.
A. Additional Factual and Procedural Background
On February 23, 2005, Barrett, who was employed by the Riverside County Public Defender’s Office, represented defendant at his preliminary hearing. At that time, defendant had only committed the petty theft with a prior in count 1. In August 2005, Barrett took a job with the Riverside County District Attorney’s Office. Barrett spoke with Canty, the public defender who replaced Barrett, and advised him of the details of defendant’s case.
Defendant estimated that the Riverside County District Attorney’s Office employed between 150 to 200 deputies. In the Indio branch, there were 38 criminal prosecution deputies, of which only 18 handled felony criminal prosecutions. Barrett was employed in the felony prosecution unit.
On October 25, 2005, defendant filed a motion to recuse the entire Riverside County District Attorney’s office pursuant to section 1424, due to the conflict of interest created by his former counsel being employed by the prosecution. Defendant argued that such conflict of interest made it likely that he could not receive a fair trial. Defendant argued that the trial court should recuse the entire Riverside County District Attorney’s office unless the prosecution presented evidence that demonstrated that an adequate ethical wall had been created and maintained in the case. In the alternative, defendant asked that either the entire Indio branch office, the felony prosecution unit at the Indio branch, or Barrett herself be recused. Defendant provided a declaration from Canty in support of the motion.
The prosecution, through the Riverside County District Attorney’s office, filed opposition to the recusal motion. The prosecution presented a declaration from Deputy Victoria Weiss (Weiss), who had been assigned to defendant’s case since its inception. According to Weiss, Barrett had not handled any part of defendant’s case since she had joined the district attorney’s office. The prosecution had voluntarily created an ethical wall around Barrett. Weiss had never discussed defendant’s case with Barrett. According to a declaration from Supervising Deputy District Attorney Dianna Carter (Carter), Barrett had been advised by Carter that she was not to discuss defendant’s case or any knowledge that she had about the case with anyone in the Riverside County District Attorney’s office. Barrett had advised Carter that she had had no discussions regarding the case with anyone in the prosecution’s office.
The prosecution agreed that Barrett should be recused from handling any portion of defendant’s case but asserted that the Indio Branch office should remain as the prosecuting agency. The trial court denied the recusal motion.
B. Analysis
Section 1424, subdivision (a)(1) provides that a motion to recuse a district attorney “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” Recusal under section 1424 is required when (1) there is a conflict of interest, and (2) the conflict is so severe as to disqualify the district attorney from acting. (People v. Snow (2003) 30 Cal.4th 43, 86; People v. Choi (2000) 80 Cal.App.4th 476, 481.) “Our review, then, is limited to determining if the superior court abused its discretion, while assuming the court relied on any substantial evidence that tends to support its ruling.” (People v. Eubanks (1996) 14 Cal.4th 580, 595.)
The prosecution provided declarations from the prosecutor, Weiss, who had handled defendant’s case since defendant committed his first offense on April 17, 2004. Weiss attested that Barrett had never been involved in the case and that she would not become involved at a later date. Furthermore, Barrett’s supervising attorney also submitted a declaration attesting that Barrett had not been involved in the defendant’s case in any manner. Defendant presented no evidence either in the trial court or on appeal that contradicted that an effective ethical wall had been erected between the Indio branch of the Riverside County District Attorney’s office and Barrett. Substantial evidence supported the trial court’s determination that the ongoing prosecution was insulated from any prior confidential communications between defendant and Barrett to eliminate the danger of any bias or unfairness. (See People v. Hernandez (1991) 235 Cal.App.3d 674, 680.) We conclude that the trial court did not abuse its discretion in denying defendant’s recusal motion.
The reporter’s transcript does not contain the oral hearing on the motion to recuse the district attorney’s office, and neither party asked that the record be augmented with the proceeding. This court therefore cannot ascertain whether any additional evidence was presented by defendant at that hearing to contradict that the prosecution had effectively walled off Barrett from the prosecution. Regardless, the orders of the trial court are presumed valid, and it is defendant’s burden to provide an adequate record on appeal to support his arguments. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1427.)
V
MARSDEN MOTION
Defendant contends the trial court improperly found that his Marsden motion was untimely. The People concede that denying the Marsden motion as untimely was improper but nonetheless argues that the record supports that the trial court also considered the merits of defendant’s request to substitute counsel. We agree and find that defendant’s request to substitute counsel was properly denied.
A. Additional Factual Background
On June 20, 2006, defendant requested that he be appointed as cocounsel. He stated that he had been represented by three different public defenders and that he opposed many of the continuances that had been granted in the case. Defendant’s counsel, Forth, opposed the request. Defendant’s request to be appointed as cocounsel was denied by the trial court. Defendant then asked for a Marsden hearing.
At the Marsden hearing, defendant claimed that Forth had asked for continuances to review files, which defendant believed he did not do. Furthermore, Forth had discussed the case with another jail inmate, Brian Harwood, whom Forth also represented. Harwood had relayed to defendant that Forth told him that they had to figure out a way to keep defendant from stealing cars. Defendant insisted that their relationship was now adversarial because he had made a request to be appointed as cocounsel. Forth had not visited defendant in jail and had not informed him as to his theory of the case. Defendant felt that Forth and Forth’s office were overburdened with too many clients and duties.
The trial court did not believe defendant had presented anything that showed that Forth was not working in defendant’s best interest. Defendant also claimed that Forth had lost exculpatory evidence given to him by defendant’s prior public defender. Defendant claimed that Forth had “underhandedly spoken” that he was stupid for insisting on a trial. Defendant also mentioned that the case involved “bisexual culture issues,” with which Forth had a problem. Defendant claimed Forth was not interested in the case or the “truth.”
The trial court asked defendant why he had waited until the time of trial to bring the motion. Defendant claimed that the day before, Forth advised him for the first time that he did not intend to call any of his witnesses because he felt they would hurt defendant’s case.
The trial court then inquired why defendant was comfortable being cocounsel with Forth, but when that request was denied, he requested that Forth be replaced with another attorney. The trial court felt this was contradictory. Defendant denied that this was true and claimed he had always intended to bring a written Marsden motion.
Forth advised the trial court that this was the first time he was made aware that defendant was unhappy with him or the public defender’s office. Forth denied that he told Harwood anything about defendant’s case. Furthermore, Forth had visited defendant four to seven times in jail. Forth had agreed with defendant’s decision to testify. Forth had never called defendant stupid. Forth agreed that he had received defendant’s motion to have himself appointed as cocounsel and agreed to file it. Most of the letters Forth had received from defendant regarding the case addressed mitigating factors rather than his guilt or innocence. Forth did not intend to call defendant’s witnesses because they hurt defendant more than helped him.
The trial court ruled, “ . . . I don’t think the motion is, number one, timely. This case has been around a long time, and according to Mr. Forth, this is the first time he has heard from you that there is any problem with his representation of you. [¶] So I’m going to deny the Marsden motion.” (Italics added.)
B. Analysis
“‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’” (People v. Fierro (1991) 1 Cal.4th 173, 204.)
“The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant’s right to effective assistance of counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681, quoting People v. Smith (2003) 30 Cal.4th 581, 604.)
The People concede that the trial court erred by finding that defendant’s Marsden motion was untimely, citing to Roldan. In Roldan, the California Supreme Court held, “A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (People v. Roldan, supra, 35 Cal.4th at p. 681.) As such, the trial court’s finding of untimeliness in this case was improper.
However, in Roldan, the court also stated, “Because the trial court heard defendant’s complaints in connection with each of the three Marsden motions, however, any reliance on the purported untimeliness was harmless under any standard.” (People v. Roldan, supra, 35 Cal.4th at p. 681.) In addressing harmlessness, the Roldan court addressed whether there was sufficient evidence to support that defense counsel was providing adequate legal assistance. (Ibid.) Second, the court addressed whether the conflict between the defendant and his counsel was “‘“such an irreconcilable conflict that ineffective representation is likely to result.” [Citation.]’” (Id. at p. 682.)
Here, the trial court stated that it did not believe that defendant had presented anything that showed that Forth was not working in defendant’s best interest. Forth insisted that he had visited defendant four to seven times in jail. Furthermore, Forth had agreed with defendant that he should testify. Moreover, Forth had investigated defendant’s witnesses and found that they hurt defendant’s case. The record supports that Forth was providing adequate legal assistance to defendant. (People v. Roldan, supra, 35 Cal.4th at p. 681.)
Additionally, the record does not support that defendant and Forth were in such conflict that “‘“ineffective representation”’” was likely to be the result. (People v. Roldan, supra, 35 Cal.4th at p. 682.) As noted by the trial court, defendant was willing to be co counsel with Forth. Defendant did not state any type of irreconcilable conflict; rather, defendant appeared to disagree with counsel’s trial strategy. Disagreement over trial tactics and strategy is not sufficient to require a substitution of counsel. (People v. Stewart (1970) 6 Cal.App.3d 457, 464-465.) Based on review of the statements made by both defendant and Forth at the hearing, the trial court’s finding of untimeliness in denying defendant’s Marsden motion was harmless. No substitution of counsel was required.
VI
FARRETTA MOTION
Defendant additionally claims that the trial court erred by refusing to allow him to represent himself at trial.
A. Additional Factual Background
After conclusion of the Marsden hearing, the trial court reminded defendant that he had a constitutional right to represent himself. Defendant then stated that he wanted a Faretta hearing. Defendant affirmatively stated that he wanted to represent himself.
The trial court considered defendant’s request untimely. Defendant indicated that he thought he could better represent himself because he was more familiar with the facts and circumstances in the case. Defendant indicated that he had graduated from high school and had worked as a civil process server. Defendant claimed to have represented himself in a divorce case and in a landlord/tenant dispute.
The trial court admonished defendant that if he represented himself he would be held to the same standard as an attorney and would receive no assistance from the court. The trial court also informed defendant of the limitations he would encounter in representing himself. The trial court advised defendant that he would have to file a propria persona petition. The trial court strongly suggested that defendant keep the public defender’s office.
Defendant claimed to have prepared opening arguments and had been studying legal procedure while in custody. He then indicated that he had passed the high school equivalency test. The trial court noted that it had a jury panel waiting outside the courtroom.
After the lunch recess, the trial court indicated it had read three cases, including People v. Windham (1977) 19 Cal.3d 121 (Windham). Based on the court’s review of these cases, it believed it had discretion to denying the Faretta motion because it had been untimely made. It first noted that the case had been ongoing since 2004, and this was the first time defendant had asked to represent himself. It believed that defendant was intelligent and knowledgeable of the court system. Nonetheless, the trial court concluded that the motion was untimely and denied it.
The trial court revisited the issue the following day. It asked defendant if he was granted propria persona status whether he would be ready to start trial immediately. Defendant claimed that he would need additional time to subpoena the witnesses he would intend to call in his defense. He also needed to gather additional evidence. Defendant thought he would need another month to prepare for trial if he represented himself. Defendant indicated that he suspected that most of his witnesses would avoid subpoena or be unavailable due to the time that had transpired since the crimes.
The trial court believed, based on the fact that the case had been ongoing since 2004, that any further delay in the trial would not be in the interests of justice. It maintained its decision to deny defendant’s request for self-representation.
B. Analysis
A criminal defendant has a federal constitutional right to represent himself at trial only if he voluntarily and intelligently decides to do so. (Faretta, supra, 422 U.S. at pp. 835-836.) That right is unconditional if the request for self-representation is made “within a reasonable time prior to the commencement of trial.” (Windham, supra, 19 Cal.3d at p. 128, fn. omitted.) If trial has commenced, the motion is untimely and it is “within the sound discretion of the trial court” to either grant or deny the self-representation request. (Id. at p. 124.)
If the motion is untimely, in determining whether to grant or deny the motion the court should consider such factors as the “quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Windham, supra, 19 Cal.3d at p. 128.) The trial court should inquire sua sponte into the factors underlying the request to insure an adequate record. (Ibid.)
Here, the Faretta motion was untimely. Defendant’s case had been continued for over two years. On the day that the jury panel was sitting outside the courtroom in preparation for trial, defendant decided he wanted to represent himself. This clearly falls within the untimeliness specified in Windham. (See People v. Perez (1992) 4 Cal.App.4th 893, 901-903 [Faretta request made on day of trial and just prior to jury selection held untimely]; People v. Scott (2001) 91 Cal.App.4th 1197, 1205 [Faretta motions made “just prior to the start of trial” are untimely].) As such, it was within the trial court’s discretion to deny defendant’s request.
Initially, defendant contends that the trial court did not consider the Windham factors. However, prior to denying defendant’s request, the trial court stated that it had read Windham. Furthermore, the trial court addressed several of the factors. Even if it could be argued that the trial court did not address the Windham factors, explicit inquiry on the Windham factors is not required if the record supports the factors. (People v. Perez, supra, 4 Cal.App.4th at p. 904.) Here, as will be set forth, the factors were clearly supported by the evidence.
Initially, the previous denial of a Marsden motion indicates that the trial court found defendant’s counsel adequate and that the court was aware of the defendant’s proclivity to substitute counsel. (See Windham, supra, 19 Cal.3d at p. 128.) As discussed, ante, the court properly denied the Marsden motion.
Also, defendant failed to state adequate reasons for making his self-representation request. He claimed he was more aware of the facts of the case than Forth, but that is not supported by the record. In fact, it appears he only made the request because his Marsden motion was denied, and he was frustrated by the trial court’s refusal to substitute counsel. (See People v. Hines (1997) 15 Cal.4th 997, 1028; People v. Skaggs (1996) 44 Cal.App.4th 1, 5-6.)
Finally, there was no doubt that granting defendant self-representation would result in a delay of the proceedings. Defendant needed at least a one-month continuance.
Based on the foregoing, the trial court did not abuse its discretion in denying defendant’s request for self-representation.
Furthermore, even if the trial court erred in denying defendant’s motion to represent himself, such error was harmless. Erroneous denial of a timely Faretta motion is reversible per se regardless of prejudice. (People v. Joseph (1983) 34 Cal.3d 936, 945-948.) However, an erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Nicholson (1994) 24 Cal.App.4th 584, 594-595; People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.)
Here, the record clearly shows that defendant was represented by competent counsel, the evidence of guilt against defendant was overwhelming, and no tactical conflicts between defendant and his counsel existed. Although defendant claims he would have called witnesses on his behalf, he fails to specify what testimony of those witnesses would have been helpful to his defense. It is inconceivable that this evidence would have helped him based on counsel’s statements that these witnesses would cause more harm than good. Reversal on such speculation is unnecessary.
Finally, defendant’s guilt was overwhelming. In each instance he was caught red-handed. Defendant walked out of Stater Bros. without paying for delicatessen meat secreted in his waistband and was immediately apprehended. He was caught the first time driving Sanders’s Cougar and in possession of methamphetamine. He was driving John Rogers’s truck without permission and was in possession of drug paraphernalia. He was observed driving the Dollar Rent A Car Hyundai after it had been reported stolen. He was also observed via security cameras using Feldman’s fraudulently obtained ATM card to withdraw money from Feldman’s account. Finally, he was caught trespassing in Riddle’s home and was driving Sanders’s Cougar, which had been stolen for a second time. Defendant testified, and the jury found his explanations implausible.
Defendant relies upon People v. Nicholson, supra, 24 Cal.App.4th 584 to support that the error here was not harmless. In Nicholson, the codefendants requested self-representation nine calendar days before the start of jury selection in their joint trial. The appellate court concluded that the trial court’s denial of codefendants’ Faretta requests was an abuse of discretion because they were requested for legitimate reasons, there was no request for a continuance, and there was no reason to believe there would be any delay or disruption in the proceedings. (Nicholson, at pp. 591-593.) The instant case presents a far different factual situation. Unlike the defendants in Nicholson, defendant brought his motion for self-representation on the day that jury voir dire was set to commence. Moreover, defendant indicated that he would need a one-month continuance prior to starting trial. Clearly, there would have been a disruption in the proceedings.
We conclude that the trial court did not abuse its discretion in denying defendant’s untimely Faretta motion, and even if it did, any error was harmless.
VII
ADMISSION OF 19-YEAR-OLD CONVICTION
Defendant testified on his own behalf. During the course of his testimony, he admitted that he had suffered at least eight prior convictions. On appeal, defendant claims that one of those prior convictions — possession of forged checks committed in 1987 — was improperly admitted pursuant to Evidence Code section 1101, subdivision (b). Defendant claims that the prior conviction should not have been admitted because it was remote, irrelevant, and unduly prejudicial under Evidence code section 352.
A. Additional Factual Background
During defendant’s direct testimony, he stated that in the prior 10 years, he had been convicted of possession of stolen property and presenting false identification. Prior to cross-examination, the prosecution asked for a sidebar conference to discuss the prior convictions it intended to introduce.
The prosecution sought to admit the possession of a stolen vehicle to which defendant pleaded guilty on August 29, 1996, under Evidence Code section 1101, subdivision (b). The prosecution sought its admission because of the similarity to the instant charges.
The trial court then noted that defendant had pleaded guilty to possession of a check to defraud (Pen. Code, § 475, subd. (a)) on December 21, 1987. The prosecution argued this evidence should also be admitted under Evidence Code section 1101, subdivision (b) in regard to the ATM fraud charge. The trial court also noted defendant had pleaded guilty to forgery on December 21, 1987.
Defendant objected to the two 1987 priors being admitted on the ground of remoteness and under Evidence Code section 352. The trial court found that the probative value of the priors outweighed the prejudice. It also noted that there was a guilty plea to possession of a check to defraud in 1996 and possession of stolen property, a vehicle, in 1996. On August 29, 1996, defendant pleaded guilty to receiving stolen property, specifically, a handgun.
Defendant next objected to the admission of the prior convictions on grounds of notice of their use pursuant Evidence Code section 1101, subdivision (b). The trial court responded, “It goes to his credibility. You can ask questions have you ever been convicted, you know, yes or no, and then if he says no, then you use these things, but without going into the facts.” The prosecution asked, “Okay. What am I limited to, Your Honor, just ask him is it true you are convicted on such and such a date[?]” The trial court responded, “Just ask him if he had been convicted of a felony on a certain date.” The trial court found the recent priors could be used and the older ones also because, even though they were remote, they dealt with the conduct for which defendant was now charged.
Defendant was asked on cross-examination if he was convicted on December 21, 1987, of possession of checks to defraud. Defendant responded that he did not recall. The prosecution gave defendant a certified copy of the prior and asked if it refreshed his recollection. Defendant responded that it did not refresh his recollection of the circumstances surrounding the conviction but that he probably pleaded guilty in order to be released from custody. He also was asked about pleading guilty to a forgery in violation of section 470. Defendant did not recall the specifics of the conviction. Defendant insisted he had no recollection of what the incident involved.
Defendant admitted to convictions on August 29, 1996, for possession of a stolen vehicle and stolen property; possession of checks to defraud on February 26, 1996; and false impersonation of another person on September 9, 1999.
Later, the prosecution stated that it had marked the prior conviction documents shown to defendant. The trial court responded, “Those are the ones that I talked about, and I found that they were admissible to test the veracity of the defendant.”
B. Analysis
Initially, the parties are in dispute as to the purpose for which the 1987 prior conviction for possession of forged checks was admitted. Throughout defendant’s opening brief, he stated that the 1987 prior conviction was improperly admitted under Evidence Code section 1101, subdivision (b). The People conceded in their brief that the prior was not admissible pursuant to Evidence Code section 1101 but nonetheless argued that the prior was admissible for impeachment purposes, a purpose for which defendant did not object on appeal. In his reply brief, defendant claimed to be “at a loss to understand respondent’s argument,” claiming he had always objected to the admission of the prior for impeachment purposes.
Based on the record in this case, although the prosecution stated that it was seeking to admit defendant’s prior convictions pursuant to Evidence Code section 1101, subdivision (b), the trial court clearly only admitted the convictions for impeachment purposes. The trial court limited the prosecution to admission of the date and offense. The People are correct that defendant never stated in his opening brief that he was contesting the admission of the prior conviction for impeachment purposes. However, since the prosecution stated that it was seeking admission of the prior under Evidence Code section 1101, subdivision (b), even though the trial court only admitted it for impeachment, and since we find the admission of the 1987 possession of forged checks was properly admitted for impeachment purposes, we will address the claim.
If a felony involves moral turpitude, it is prima facie admissible for impeachment, subject to the exercise of trial court discretion. However, the court’s discretion is limited by the requirement that the court weigh the probative value of the prior conviction on the issue of the witness’s honesty against the likelihood that substantial prejudice to the defendant will result. (People v. Castro (1985) 38 Cal.3d 301, 315-316; Evid. Code, § 352.) Several relevant factors are considered but are not conclusive, including the relationship between the offense underlying the prior conviction and the credibility of the witness, remoteness of the prior conviction, similarity between the prior conviction and the current charged offense, and the impact it has on the defendant’s decision to testify. (Castro, at pp. 307, 312-313.)
First, the fact that defendant previously had been in possession of fraudulent checks clearly impacted defendant’s credibility. Furthermore, the conviction was not too remote in time. A conviction that occurs 10 to 20 years before the charged offense may be deemed too remote to be probative on the defendant’s current trait for honesty, if the defendant has subsequently led a “‘legally blameless life . . . .’” (People v. Beagle (1972) 6 Cal.3d 441, 453.) Defendant clearly did not lead a legally blameless life between 1987 and the time he committed the first offense in this case in 2004. Based on the probation report, which only covered convictions starting in 1996, defendant committed crimes in 1996 for which he served two years in prison; in 1999, he had three convictions and served another two years in prison; in 2003 he had three convictions and was placed on probation; and in 2004, he started committing the crimes that constituted the instant case. The records were not available prior to 1996, but defendant admitted to the probation officer that he had spent time in juvenile hall. Based on defendant’s failure to lead a blameless life, the conviction was not too remote.
Moreover, the two offenses — possession of fraudulent checks and a fraudulent ATM card — were undeniably similar. Finally, defendant chose to testify.
Additionally, the evidence of the prior conviction was not unduly inflammatory, time consuming, or confusing to warrant its exclusion under Evidence Code section 352. The evidence presented consisted of less than one page in the reporter’s transcript. The evidence was not unduly inflammatory, as evidence of other, more recent prior convictions, which defendant does not argue were improperly admitted, were already presented to the jury.
Defendant claims that the error in this case was compounded by the fact that the trial court failed to instruct the jury pursuant to Judicial Council of California Criminal Jury Instruction No. 375. However, since the evidence was admitted for impeachment purposes, the instruction was inapplicable. The jury was properly instructed to use the evidence as it related to defendant’s credibility.
Additionally, defendant complains that, had the prior conviction been excluded, he would have been convicted of fewer charges or even lesser included charges. Initially, this is pure speculation. Furthermore, prior to admitting the prior, the prosecution clearly stated that it was being admitted solely as it related to defendant’s possession of Feldman’s ATM card. The evidence that defendant obtained an ATM card for Feldman’s account without his permission was overwhelming. Defendant was seen at the ATM at the time money was taken from Feldman’s account, defendant’s girlfriend was living in Feldman’s house during the time Feldman’s account was emptied, and Feldman’s mail was found in a car that defendant had been seen driving.
The 1987 prior conviction was properly admitted to impeach defendant and was not unduly prejudicial or remote.
VIII
ON-BAIL ENHANCEMENTS
Defendant claims that the on-bail enhancement on count 1 must be permanently stayed, and the remaining on-bail enhancements on counts 2, 6, 9, 11, and 13 be stricken, based on his interpretation of the record that all of the on-bail enhancements were imposed for one primary offense in case No. SWF005885. Since that case was dismissed, only one permanently stayed on-bail enhancement could be imposed.
A. Additional Factual and Procedural Background
The on-bail enhancements were bifurcated from the jury trial, and defendant waived his right to a jury trial on them. In presenting evidence of the on-bail enhancements at a court trial, the prosecution noted, “And what I gave to the Court is all the certified copies of all the minutes and the cases that were active while he was committing — while he committed the other crimes, so I was trying — I was trying to tab places where he bailed out, so the Court could see he was on bail while he committed other crimes, so you have to cross reference to see the dates.” The trial court acknowledged receipt of the certified copies.
Although the People requested that the record on appeal be augmented with the certified copies submitted to the trial court, the clerk was unable to find the documents.
The prosecutor stated he had one more prior. “It . . . is the southwest case, however, SWF005885. On that case the crime was committed July 14th, ’03, however, I believe the minutes reflect, oh, here, I will give it to the Court. I believe this will show that he was on bail on this case when he committed the first crime on April 17th, ’04. That is the one prior that I needed.” The prosecution indicated, “And the only purpose of the southwest case there is I believe that shows that he bailed out on that case when he committed the first charge of the 666 . . . .”
The trial court stated that it would look through all of the certified documents and then make a ruling. The prosecution also advised the trial court that the SWF005885 case was still pending. No further findings appear in the record; however, the trial court sentenced defendant to six 2-year terms for the 12022.1 on-bail enhancements on counts 1, 2, 6, 9, 11, and 13.
The clerk’s transcript contains a minute order that indicates the trial court made its findings on the on-bail enhancements on July 11, 2006. There was no court reporter present. We believe, however, that the record before us supports the enhancements.
B. Analysis
Section 12022.1 provides for a two-year enhancement if it is determined a defendant committed the current felony offense while released from custody on bail or on his or her own recognizance prior to judgment on a prior felony offense. However, subdivision (d) of section 12022.1 provides: “Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense . . . . If the person is acquitted of the primary offense the stay shall be permanent.”
Defendant claims that all of the on-bail enhancements were based on the primary offense in case No. SWF005885. According to the augmented record provided by defendant, the primary offense in case No. SWF005885 was dismissed. Defendant claims that the on-bail enhancement for count 1 should be permanently stayed under section 120221, subdivision (d), and the remaining enhancements should be stricken.
The People concede that the on-bail enhancement for count 1 was based on case No. SWF005885. We agree and will order that defendant’s sentence be modified to reflect that the on-bail enhancement for count 1 is permanently stayed. However, as argued by the People, the record does support that the remaining on-bail enhancements were based on primary offenses that were committed in the instant case.
Defendant committed his first offense of petty theft (count 1), a felony, on April 17, 2004. He was arrested that day and posted bail on May 10, 2004. Defendant was then stopped on July 8, 2004, and was arrested for possession of methamphetamine (count 5), a felony, and immediately was released on bond. It was then discovered that the car he had been driving was stolen, and he was charged with vehicle theft and possession of stolen property (counts 2 and 3). According to the probation report, an arrest warrant was issued for defendant’s arrest, and he posted bail for counts 2 and 3 on October 1, 2004.
On July 19, 2004, after being released on count 5, defendant committed counts 6, 7, and 8. Counts 6 and 7 were felonies. He was released on those counts on August 23, 2004.
Defendant committed counts 9 and 10 on October 14, 2004. Defendant was not detained on that date. According to the probation report, defendant was released on his own recognizance after his arraignment on March 9, 2005.
Defendant committed counts 11 and 12 (both felonies) sometime between September 7 and September 29, 2004. He was not immediately arrested, and, according to the probation report, he was not released on bail on this charge.
Defendant committed count 13 sometime after March 27, 2005. He committed count 14 on May 22, 2005, and was detained on that date for both counts 13 and 14. He was not released.
Although the trial court found the on-bail enhancements true for all counts, it only imposed sentence on counts 1, 2, 6, 9, 11, and 13. Based on the record outlined above, each time defendant committed a new felony offense, he was released on bail for a prior felony offense. The prosecution clearly presented the offenses committed in the instant case to the trial court to support the on-bail enhancements. The record reflects for these on-bail enhancements that there were proper primary offenses to support the enhancements.
Defendant argued in his opening brief that, presuming only one primary offense was committed, i.e. this court concluded that the trial court could find the on-bail enhancement true based on case No. SWF005885, multiple enhancements could not be imposed for the subsequent secondary offenses regardless of the number of secondary offenses. Defendant based his argument on People v. Augborne (2002) 104 Cal.App.4th 362, 376.
Although there was more than one primary offense in this case, based on the language in Augborne, it is necessary to review the record to determine whether each on-bail enhancement was supported by a separate release from custody.
In Augborne, the defendant committed two secondary offenses while released from custody on one primary offense. The trial court sentenced the defendant to two section 12022.1 enhancements for the secondary offenses. The appellate court found that when only one primary offense has been committed for which the defendant is released on bail, regardless of the number of secondary offenses that are committed, only one on-bail enhancement can be imposed. (People v. Augborne, supra, 104 Cal.App.4th at pp. 375-377.)
However, another court has concluded that when there are multiple releases, multiple enhancements can be imposed. “[J]ust as section 1170.1 does not bar multiple enhancements for separate prior prison terms (§ 667.5), it does not bar multiple enhancements based on separate releases on primary offenses.” (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1262, fn. omitted.)
In the instant case, defendant had been released on bond on count 1 when he committed count 2. When defendant committed count 6, he had been released on bail on count 5. As such, the on-bail enhancements could be imposed on both counts 2 and 6.
At the time defendant committed count 9 on October 14, 2004, he had since been arraigned on October 1, 2004, on counts 2 and 3, and had been released out on bail. This was a new primary offense for which he posted bond. On count 13, which was committed sometime in late March 2005 or early April 2005, defendant had been released on his own recognizance on counts 9 and 10. Again, this was a separate release from custody on a new primary offense. As such, for counts 2, 6, 9, and 13, defendant was out on bail on different primary offenses.
We note that most of the bail release dates come from the probation report. In his reply brief, defendant faulted the People for relying upon the probation report because “[n]otations in probation reports are notoriously unreliable and are not a substitute for certified documents required to establish the basis for imposing an enhancement.” Despite the fact that the record is devoid of the oral findings of the trial court, and the certified records presented to the trial court were not located, defendant never argued in his opening brief that there was insufficient evidence presented to support the on-bail enhancements. Furthermore, defendant never objected to the statements made in the probation report, and he has provided nothing to show that the probation report was untrustworthy or unreliable. (See People v. Grayson (2007) 155 Cal.App.4th 1059, 1070.) Even if we were to consider defendant’s argument raised for the first time in his reply brief, it lacks merit.
More problematic is the enhancement on count 11. Defendant committed count 11 sometime between September 7 and September 29, 2004. At that time, there were no new primary offenses upon which defendant had posted bond. People v. McNeely (1994) 28 Cal.App.4th 739 is instructive. In McNeely, the defendant had been released on several burglaries and then committed two additional burglaries. Although the defendant had been released on several burglaries, the appellate court concluded that there was only one promise to reappear, and therefore only one enhancement could be imposed on the secondary offenses. (Id. at pp. 742-743; see also People v. Nguyen (1988) 204 Cal.App.3d 181, 195-196 [since the commission of a crime while on bail goes to the nature of the offender, and not the nature of the crime, only one enhancement may be imposed].)
Based on the foregoing, although defendant was out on bail when he committed count 11, an on-bail enhancement for that release had already been imposed on another count. We will order that the on-bail enhancement for count 11 be stricken.
Finally, defendant argues in the alternative that if this court determines that the on-bail enhancements for counts 2, 6, 9, 11, and 13 could be imposed, section 1170.1, subdivision (a) mandates that the consecutive on-bail enhancements terms in this case be imposed as one-third the midterm, or eight months. As stated by the People, defendant ignores the clear language in section 1170.1 that this restriction does not apply to section 12022.1 enhancements. (See § 1170.1, subd. (a).) The language of section 1170.1, subdivision (a) expresses the Legislature’s intention that section 12022.1 on-bail enhancements must be added as a component of the aggregate term after the principal and subordinate terms have been calculated in accordance with the other provisions of that section. On-bail enhancements, therefore, are not subject to the one-third limitation applied to subordinate terms.
Defendant was properly sentenced to consecutive two-year terms on the on-bail enhancements for counts 2, 6, 9, and 13.
IX
APPRENDI/BLAKELY/CUNNINGHAM
Under the Sixth Amendment, the trial court cannot impose a sentence above the statutory maximum based on any fact — other than the fact of a prior conviction — not found by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. 856; see also Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435].) Defendant contends that, by imposing the upper term on count 1, the trial court violated this rule.
Although defendant never raised this issue in the lower court, we find no waiver, because under the case law as it stood when defendant was sentenced, any objection below would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).)
At sentencing, the trial court noted that it had read the probation report. It denied probation on the ground that defendant had a prior record of criminal conduct that was increasing in seriousness and sentenced him to the upper term relying upon the fact that he had previously performed poorly on probation.
As the California Supreme Court has recently held, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) We conclude that there were at least two legally sufficient aggravating factors relied upon by the trial court that existed in the instant case: (1) defendant’s adjudications were numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), and (2) defendant had performed poorly on probation (Cal. Rules of Court, rule 4.421, subd. (b)(5)).
The probation report lists several other aggravating factors, but since we conclude that the two relied upon by the trial court are sufficient, we do not address them.
In Black II, the court held that the prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th at p. 819, fn. omitted.) Although the question of whether a defendant’s prior performance on parole or probation falls within the prior conviction exception was not directly presented in Black II, the California Supreme Court’s construction of the prior conviction exception leads us to conclude that our Supreme Court would consider a defendant’s performance on parole or probation to be a “fact that increases the penalty for a crime beyond the prescribed statutory maximum” (Apprendi, supra, 530 U.S. at p. 490) but that need not be submitted to a jury. (See also People v. Yim (2007) 152 Cal.App.4th 366, 371.)
The issue of whether a judge can evaluate a defendant’s performance on probation and parole is currently pending before our high court. (People v. Towne, review granted 7/14/04, S125677.)
The record supports the factor cited by the trial court in sentencing defendant to the upper term that defendant’s prior performance on parole and probation was unsatisfactory. Indeed, defendant violated his probation by committing the offenses in this case.
We also note that another legally sufficient aggravating factor qualified defendant for the upper term, which was the number of prior convictions and the increasing seriousness of defendant’s crimes. The Black II court specifically addressed the aggravating factor at issue here. It found, “The 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 II, supra, 41 Cal.4th at pp. 819-820.)
In the instant case, the sentencing court took into account the prior convictions, and noted that they were of increasing seriousness. Clearly, the record supports that finding. Based on a review of the probation report, defendant had a string of misdemeanor convictions in 1999 but since 2003 had committed felony offenses. There is no doubt that his prior convictions were numerous. Defendant was therefore eligible for an upper term sentence based on his prior convictions.
We reject defendant’s claim.
X
DISPOSITION
As set forth above, we order that the sentence be modified to reflect a permanently stayed section 12022.1 on-bail enhancement sentence on count 1 and to strike the on-bail enhancement on count 11. The trial court is directed to amend the abstract of judgment to reflect the modification and to send a copy of the amended abstract to the Department of Corrections. The judgment is otherwise affirmed.
We concur: HOLLENHORST,Acting P.J., MILLER,J.