Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA079251 Charles D. Sheldon, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Manu Kalekale appeals from the judgment entered following his convictions by jury on count 3 – attempted second degree robbery, count 4 – second degree commercial burglary, count 5 – second degree robbery, count 6 – second degree commercial burglary, count 7 – possession of a firearm by a felon, and count 8 – prohibited possession of ammunition, with findings as to each of counts 5 through 8 that appellant committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(B)), and with court findings that he suffered a “Three Strikes” law prior felony conviction, a prior serious felony conviction, and a prior felony conviction for which he served a separate prison term. The court sentenced appellant to prison for 29 years 4 months. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to the substantive offenses is undisputed, established as follows. On June 10, 2008, appellant and an accomplice burglarized a Long Beach 7-Eleven store (count 4), intending to commit robbery. Once inside, the two attempted to rob the cashier (count 3). On July 10, 2008, appellant and an accomplice burglarized another Long Beach 7-Eleven store (count 6), intending to commit robbery. Once inside, they robbed the cashier (count 5). On September 12, 2008, Long Beach Police Officer Jonathan Calvert found appellant in possession of a loaded.38-caliber revolver (counts 7 & 8). Appellant committed each offense for the benefit of a criminal street gang. We will present additional facts below. Appellant presented no defense evidence.
CONTENTIONS
Appellant claims (1) he was denied his right of self-representation, and (2) there was insufficient evidence to support the gang enhancements.
DISCUSSION
1. The Trial Court Properly Revoked Appellant’s Right of Self-Representation.
a. Pertinent Facts.
The record reflects as follows. On October 20, 2008, appellant was arraigned and represented by appointed counsel. At an October 28, 2008 pretrial conference, the court granted appellant’s request to represent himself. At a December 30, 2008 pretrial conference, the court revoked appellant’s right of self-representation because a sheriff’s department report indicated a deputy had found appellant in possession of a razor blade while appellant was en route to court. The court continued the matter for a hearing.
On January 13, 2009, the court conducted the hearing, explaining a razor blade had been found on appellant while he was “here in this building and was due to come into my courtroom[.]” During court questioning, Los Angeles County Sheriff’s Deputy Cecil Pruitt testified as follows. Pruitt worked in the lockup and, about 11:50 a.m. on December 29, 2008, during a search of appellant, Pruitt recovered an address book from appellant’s right front pocket. Pruitt flipped through the address book and saw a razor blade taped on the book’s middle page. The address book and razor blade were marked as court’s exhibit No. 1.
Pruitt asked appellant why he brought the razor into the courthouse. Appellant replied he had forgotten it was there and he was going to use it to sharpen pencils. Pruitt testified, “I also asked him if he knew he wasn’t allowed to have razors, break them down, that people use them as weapons. He said he knew. He said he just forgot.” The court stated, “[the razor blade] looks like a razor blade with a sharpened one edge. [¶] It looks to me like it has been taken out of a typical plastic holder somehow, probably the holder broken away. You’re not able to take the razor blades out easily.” The blade was about one and one-third inches by one-third of an inch.
Appellant, relying on People v. Carson (2005) 35 Cal.4th 1 (Carson), argued revocation of his right of self-representation was improper for the following reasons. Appellant’s mere pretrial possession of the razor blade would not impact the trial. This was appellant’s first possession of a razor blade, and the court could give him a warning. The court should consider alternative sanctions. Appellant suggested he could be handcuffed during trial.
The court indicated as follows. Not long ago, in the very same courtroom, a defendant brought a razor blade into the courtroom and slashed his attorney’s face during a jury trial. There was blood everywhere and the defendant might have murdered the attorney but for the fact the attorney was quickly taken to the hospital. Either someone taped the razor blade under the counsel table for the defendant or he brought the blade himself and taped it under the table about five minutes before he slashed the attorney’s face. The court in the present case was unwilling to jeopardize persons in the courtroom. A small razor blade was difficult to detect and was a very dangerous weapon. Moreover, sometimes defendants tried to escape.
The court indicated that in cases involving a disruptive self-representing defendant, courts considered warning the defendant, excluding the defendant from the courtroom, and appointing standby counsel. However, the present case was not a disruption case. The court reaffirmed its decision revoking appellant’s right of self-representation. On February 10, 2009, voir dire of prospective jurors commenced and a jury was sworn.
The parties do not discuss whether the court utilized any restraints on appellant during trial.
b. Analysis.
Appellant claims the trial court erroneously revoked his right of self-representation. We disagree.
(1) Applicable Law.
In Carson, supra, 35 Cal.4th 1, a trial court revoked a defendant’s right of self-representation based on a defendant’s out-of-court conduct relating to discovery matters. A jury convicted the defendant of, inter alia, murder, and he appealed. Carson held that, consistent with Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta), a trial court may revoke a defendant’s right of self-representation for misconduct that seriously threatens the core integrity of the trial, whether or not that misconduct occurs in the courtroom. (Carson, supra, at p. 6.)
Carson, quoting Faretta, stated the right of self-representation is not a license to abuse the dignity of the courtroom, or a license not to comply with relevant rules of procedural and substantive law. (Carson, supra, 35 Cal.4th at p. 8.) Carson observed that the relevant rules of procedural and substantive law are not limited to those relating solely to the trial itself. (Id. at p. 9.) In People v. Welch (1999) 20 Cal.4th 701, our Supreme Court noted that a condition precedent to a defendant’s exercise of the right of self-representation is the defendant is able and willing to abide by rules of procedure and courtroom protocol. (Id. at p. 734.) A self-representing defendant should not be allowed by disruptive conduct to “bring his trial to a standstill.” (Ibid.) “Ultimately, the effect, not the location, of the misconduct and its impact on the core integrity of the trial will determine whether termination is warranted.” (Carson, supra, 35 Cal.4th at p. 9.)
Carson observed that “[w]hen a defendant exploits or manipulates his in propria persona status to engage in [threatening or intimidating]... acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation.” (Carson, supra, 35 Cal.4th at p. 9.) Carson affirmed the appellate court’s reversal of the conviction and remanded the matter to the trial court for, inter alia, reconsideration in light of criteria which Carson articulated for use by trial courts deciding whether to revoke a defendant’s right of self-representation. (Id. at p. 13.)
In People v.Butler (2009) 47 Cal.4th 814 (Butler), a capital case, a defendant allegedly murdered two people. While in jail awaiting trial, he and his accomplices allegedly murdered a jail inmate by stabbing him. The court granted the defendant’s request to represent himself in the stabbing case and, while in jail, the defendant committed disciplinary infractions. These included possessions of razor blades and, on one occasion, the defendant’s concealing of a shank in his rectum just before he was taken to the courtroom in the stabbing case. At some point, the defendant was convicted and sentenced to death in the first murder case. (Id. at pp. 817-820.)
The defendant had always been respectful to the trial court in the stabbing case. (Butler, supra, 47 Cal.4th at pp. 821-822.) The trial court told the defendant that it was unconcerned about him in the courtroom because “ ‘we can handle you in the courtroom’ ” (Id. at p. 822) and he would be restrained in the courtroom whether or not he represented himself. (Id. at p. 826.) Nonetheless, based on the first murder case and the disciplinary infractions, the trial court in the stabbing case, in December 1996, revoked the defendant’s right of self-representation for the benefit of the defendant and the safety of deputies. (Id. at p. 821.)
However, after the defendant, in September 1997, renewed his Faretta motion in the stabbing case, the trial court in that case permitted the defendant to represent himself. The court later revoked his right of self-representation in October 1997, this time on the ground he could not adequately represent himself due to restrictions on his propria persona (pro. per.) privileges and, therefore, his ability to represent himself. (Butler, supra, 47 Cal.4th at pp. 822-823, 827.) Butler observed, “the sheriff was unlikely to allow him to exercise the privileges ordinarily available to pro. per. inmates.” (Id. at p. 827.) A jury trial later commenced in the stabbing case, and the jury convicted him of murder and returned a verdict of death. (Id. at pp. 823-824.)
Butler reversed the conviction. (Butler, supra, 47 Cal.4th at p. 817.) Butler stated, “[t]he court had ample reason to be reluctant about defendant’s self-representation. We agree with the dissent that defendant was an obvious security risk, and safety precautions were justified both in the jail and the courtroom. However, there was no showing that his pro. per. status increased the risk in any way. Self-represented or not, defendant was going to be housed in the jail, transported to and from court, and in attendance for his trial.” (Butler, supra, 47 Cal.4th at p. 826.)
Nonetheless, Butler expressly refrained from deciding whether the defendant’s out-of-court misconduct would have justified the revocation in December 1996 of the defendant’s right of self-representation, since the trial court had indicated it was not concerned about the defendant in the courtroom, the trial court ultimately had not relied upon said misconduct to revoke the right, and the court had permitted him to represent himself after he renewed his Faretta motion in September 1997, but before October 1997. (Butler, supra, 47 Cal.4th at pp. 826-827.) Instead, Butler concluded the trial court erred in October 1997 by revoking the defendant’s right of self-representation based on the jail limitations imposed on his ability to prepare for trial. (Id. at pp. 827-828.)
In a footnote, Butler observed, “[a] pro. per. defendant may be physically restrained during trial for security purposes. (People v. Jenkins (2000) 22 Cal.4th 900, 1042-1043...; People v. Superior Court (George) (1994) 24 Cal.App.4th 350, 355... [(George)].) Defendant and his codefendants wore stun belts during the trial.” (Butler, supra, 47 Cal.4th at pp. 825-826, fn. 5.)
George, supra, 24 Cal.App.4th 350, which Butler approvingly cited, was a capital case in which the defendant was charged with murder and other violent offenses. The defendant made a pretrial motion to represent himself. One of the defendant’s attorneys expressed concern about the defendant’s mental capacity, and the court ordered the defendant to undergo psychiatric examination. (Id. at pp. 352-353.)
At the hearing on the motion, the People presented testimony from a jail watch commander to show the defendant was a high-risk inmate (George, supra, 24 Cal.App.4th at p. 353), a classification which would restrict the defendant’s pro. per. privileges. The psychiatrist opined the defendant was mentally competent to waive his right to counsel, but would do so to gain privileges to enable him to escape. The trial court concluded the defendant was competent but the court did not take a waiver of his right to counsel, in part because he was an “ ‘extreme risk.’ ” (Ibid.) The trial court denied the defendant’s motion to represent himself, and did so on the ground he was a security and escape risk. (Ibid.)
The People, concerned the trial court had committed reversible Faretta error which would result in a retrial, filed a petition for a writ of mandate seeking an order vacating the trial court’s order denying the defendant’s request for self-representation. (George, supra, 24 Cal.App.4th at p. 353.) George stated, “[h]ere, the court improperly created a criterion of ‘extreme dangerousness’ to deny George his absolute right of self-representation. In so doing, the court acted in excess of jurisdiction. There is simply no authority to deny a defendant the right of self-representation because the defendant poses a real or perceived threat or harbors an ulterior motive. [¶]... [¶] We are mindful of the court’s concerns for the safety of persons in the courtroom and the prejudice in the minds of the jurors on viewing a defendant in physical restraints. The potential for violence in the courtroom is not uncommon and a showing of manifest need will justify physical restraints. [Citation.] However[, ] physical restrictions on a defendant do not preclude self-representation. [Citation.]” (Id. at pp. 354-355.) George granted the writ. (Id. at p. 355.)
(2) Application of the Law to This Case.
Appellant, relying heavily on Carson, Butler, and George, argues the trial court erred by revoking his right of self-representation. However, the present case is distinguishable from each of those cases, since in none of them was there evidence, as there is here, that the defendant knowingly violated jail regulations and committed felonies by secreting a deadly weapon inside an otherwise innocuous item which he was bringing into the courtroom.
If, as appellant claimed, he merely had intended to use the razor blade to sharpen pencils, there is no reason he should not have taped the razor blade to the outside of the address book where the blade would have been observable in plain view. The trial court reasonably could have concluded appellant taped the razor blade to the page in the middle of the book to secrete the blade as he brought it into the courtroom.
There was evidence appellant knowingly violated jail regulations and was committing felonies by his conduct. Pruitt testified he asked appellant if he knew he was not allowed “to have razors, break them down, that people use them as weapons” and appellant said he knew. There was evidence appellant was violating Penal Code sections 4574 and 4502.
“Even without a handle, a razor blade could be used to slice a victim’s throat, wrist, or other vital spot, and thus a detached razor blade has a reasonable potential of causing great bodily injury or death. Accordingly, a county jail inmate’s possession of detached razor blades violates [Penal Code] section 4574[.]” (People v. Pollock (2004) 32 Cal.4th 1153, 1178; see People v. Wallace (2008) 44 Cal.4th 1032, 1081-1082.) Penal Code section 4502, subdivisions (a) and (c), prohibit, inter alia, possession of a sharp instrument while at, being confined in, or being conveyed to or from, a county jail, or while under the custody of county jail officials.
There is no evidence appellant violated any jail regulations by possessing the address book. Pruitt did not testify he asked appellant why he brought the address book or if appellant knew he was not allowed to have it. The trial court reasonably could have concluded that appellant’s bringing of an address book into the courtroom was not prohibited, and that the address book provided a ready means to bring a concealed blade into the courtroom. Indeed, an address book, which can contain, e.g., addresses of potential defense witnesses, is the very type of item which a pro. per. defendant might be expected to utilize in an effort to present a defense; therefore, the possession of such an item presents a defendant with a unique opportunity to lull the court and courtroom security personnel into a false sense of security and to mask the security risk that the defendant presents.
We realize what appellant did is somewhat similar to what the defendant in Butler did by hiding a weapon in his rectum. However, an item hidden there is not as readily accessible by the defendant as an item inside a pocket, and retrieval of an item from a pocket would presumably attract less attention. Moreover, unlike in the present case, in Butler the trial court never complained about courtroom security and did not rely on that ground to deny the defendant’s right of self-representation. Further, unlike the present case, neither Carson, Butler, nor George was a case in which there was evidence of a weapon secreted inside an item capable of being used by a pro. per. during court proceedings, including a trial.
Appellant asserted he had forgotten that he was not allowed to have razors and break them down, that people used them as weapons, and that the razor blade was inside the address book. He also asserted he was going to use the blade to sharpen pencils. The trial court reasonably could have viewed appellant’s assertions as fabrications evidencing his consciousness of guilt of the jail regulations he was violating and the felonies he was committing.
More importantly, however, the trial court reasonably could have concluded that, unlike Carson, Butler, or George, this was a case in which appellant was exploiting his pro. per. status to bring a secreted deadly weapon into the courtroom to inflict great bodily injury upon, or to kill, one or more persons in the courtroom. The court already had experienced such an incident, although with a different defendant.
We are mindful appellant’s possession of the razor blade occurred on December 29, 2008, while his trial began in February 2009. Happily, in this case, an alert deputy discovered the razor blade on the former date. However, there was no guarantee of a recurrence of that outcome if appellant repeated his misconduct. We are also mindful appellant was not verbally disruptive in the courtroom. However, there was evidence appellant was using his pro. per. status as a subterfuge to secrete a deadly weapon into the courtroom with intent to commit a violent felony. If appellant had effectuated that intent, the resulting disruption might have brought not merely a trial, but a life, to a standstill. The trial court did not abuse its discretion by revoking appellant’s right of self-representation.
2. There Was Sufficient Evidence Supporting the Gang Enhancements.
a. Pertinent Facts.
Calvert testified in February 2009 as follows. Calvert was assigned to a directed enforcement unit assigned to handle violent crime, drugs, and gangs. Calvert had training and experience in gangs and gang activity. He gained such experience in 2003 at the academy, and later in the field, where he worked primarily on gang matters. He also learned about gangs from experienced detectives, and from gang members as he investigated crimes. Calvert had made over a 1, 000 contacts with gang members. He previously had testified twice as a gang expert.
Calvert was assigned to handle Pacific Islander gangs, and he had made a minimum of 200 contacts with members of those gangs. In Calvert’s opinion, Tongan for Life (Tongan) was a criminal street gang. Tongan was a subset of the Crips gang. Calvert testified Tongan “would participate in numerous crimes that other gangs do, to include robbery, carjacking, assault -- usually happens in groups -- murder, shootings, stabbings, [and] burglary.” There were about 50 documented Tongan members.
Calvert became familiar with Tongan when he began investigating it in about 2005, after a Samoan gang member told Calvert about the threat Tongan posed. Within about the last year and a half, Calvert had tried to ramp up his efforts because of an influx of crime for which Tongan was allegedly responsible. The prosecutor asked Calvert how recent this was, and Calvert replied that, during the last year, there were substantially more robberies and carjackings, “and then intelligence I received from other citizens and other gang members that Tongans and Tongan for Life were in and about a particular area jacking people, robbing people.”
We assume that by the word “Tongans” here, Calvert was referring merely to Tongan people and not to the Tongan for Life gang.
Gangs developed a reputation by committing violent, terrorizing crimes such as murders, stabbings, threats, and robberies. A gang member advanced in the gang in part by putting in work, meaning committing a shooting, stabbing, robbery, or burglary. Appellant’s moniker was Monster Psycho Animal. Calvert opined appellant was a Tongan member. The opinion was based in part on the fact that, when arrested, appellant had a firearm while he was in highly contested gang territory.
Documentary evidence established that in October 2007, Kelepi Vaioleti committed possession of a firearm by a felon; in January 2008, John Kalekale and Malakai Hopoi committed robbery; and in March 2008, Billy Tuipulotu committed attempted murder. Calvert opined Vaioleti was a Tongan member. Calvert based this on conversations with officers involved in the investigation of the October 2007 matter. Vaioleti had been with other Tongan members in a vehicle containing guns, and the vehicle had been across the street from an enemy gang. Vaioleti had been at a “major hot spot” for Sons of Samoa gang activity.
Calvert was familiar with John Kalekale and Hopoi because of Calvert’s conversations about them with other officers and experts. John Kalekale was a Tongan member. John Kalekale was appellant’s brother, and Calvert knew this because appellant told Calvert that appellant’s brother John was “looking at a robbery case[.]” Calvert opined Hopoi was a Tongan member. Hopoi had been in Tongan for the last two years, and his home was shot at during gang activity. Calvert was familiar with Tuipulotu because Calvert had conversed with a named officer who had been heavily involved in investigating Tongan. Calvert reviewed a 2008 case in which Tuipulotu had committed a gang retaliation shooting and had admitted he was a Tongan member.
A gang member who committed crime would be able to brag about it to his gang. Appellant had become notorious. Over a period of months, he had committed two robberies and a carjacking, and he had possessed a gun.
b. Analysis.
Appellant claims there is insufficient evidence to support the true findings as to the Penal Code section 186.22, subdivision (b) gang enhancement allegations pertaining to counts 5 through 8, because there was insufficient evidence that Tongan was a “criminal street gang” within the meaning of section 186.22, subdivision (f). He argues there was insufficient evidence of a “criminal street gang” because there was insufficient evidence of the “primary activities” element of subdivision (f). We reject appellant’s claim.
“The phrase ‘primary activities, ’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations.... [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony[.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 320, 323-324, last italics added.) We have recited the pertinent facts and have considered appellant’s arguments. We conclude there was ample evidence (including Calvert’s expert testimony) that Tongan members consistently and repeatedly committed criminal activity listed in the gang statute (i.e., Pen. Code, § 186.22, subd. (e)(1), (2), (3), (11), & (21)). We also conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that Tongan had “as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, ... of subdivision (e)” within the meaning of Penal Code section 186.22, subdivision (f).
None of the cases cited by appellant compel a contrary conclusion. This includes In re Alexander L. (2007) 149 Cal.App.4th 605, which is distinguishable. (People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. CROSKEY, J.