Opinion
NOT TO BE PUBLISHED
Sacramento Super. Ct. No. 05F06007.
DAVIS, Acting P.J.
A jury convicted defendants Moisey Kelbatyrov and Michael Revell of identity theft, grand theft, tendering a bad check, and possessing a completed check with the intent to defraud (deadlocking as to defendant Revell on one count of identity theft). The trial court sentenced defendant Kelbatyrov to state prison for consecutive terms on three counts and for concurrent terms on the other two; it sentenced defendant Revell to state prison for four concurrent terms.
The People raise as a threshold issue the timeliness of the notice of appeal that defendant Revell filed. Defendant Revell on his own contests only the failure of the court to correct his probation report in response to his objection. In supplementary briefing, he joins in defendant Kelbatyrov’s arguments, which challenge the court’s decisions to grant defendants’ motion to represent themselves, deny requests for advisory counsel, and (in defendant Kelbatyrov’s case) impose consecutive sentences based on factors not subjected to a jury determination. They also challenge the adequacy of the efforts of their defense investigators. We shall affirm.
The nature of the appellate contentions does not implicate the circumstances underlying the offenses, so we will not relate them. We will incorporate the pertinent facts in the Discussion.
Discussion
I
The court sentenced defendant Revell, appearing in propria persona, on October 18, 2006, and immediately thereafter remanded him to the custody of the sheriff for transportation to the Department of Corrections and Rehabilitation. In handwritten letters dated December 12, 2006, defendant Revell told the trial judge and the “Appeals Court” of his desire to appeal his case. The clerk of the trial court endorsed the former as being filed on December 18; the latter was apparently received in the trial court’s appeals unit on December 19.
Looking solely at the latter document, the People contend the notice of appeal was untimely as more than 60 days after the entry of judgment. Not only was the former document a timely notice of his desire to appeal, either document would have been timely for the incarcerated defendant in any event because it would necessarily have a mailing or delivery date antecedent to December 18 (the clerk of the trial court not having included the envelope in which they were received, apparently because the court considered the notice to be timely). (Cal. Rules of Court, Rule 8.308(e).)
II
A
On the first day of trial, defendant Kelbatyrov moved for permission to represent himself at trial and asked for a one-week continuance in order to prepare. The court initially denied the motion as untimely. (Godinez v. Moran (1993) 509 U.S. 389, 399-400 [125 L.Ed.2d 321]; Faretta v. California (1975) 422 U.S. 806, 819 [45 L.Ed.2d 562]; People v. Marshall (1997) 15 Cal.4th 1, 20-21; People v. Windham (1977) 19 Cal.3d 121, 128.)
However, after determining that, between counsels’ calendar and his, the proceedings could not go forward until Wednesday of the following week, the court decided to entertain the motion. To this end, it counseled against the folly of self-representation against a trained attorney, warned him about the penal consequences he was facing, and informed him that he would be expected to comply with all the pertinent rules of evidence and criminal procedure without assistance or special treatment, and could not raise his own ineffectiveness as an issue on appeal. In the course of its advisements, the court determined that he did not have any legal training. The court then provided a written waiver form, which made the same points, for him to review with his interpreter. The defendant and the court executed the form later that day. At the next court session, defendant Kelbatyrov confirmed his decision.
As the court noted in a discussion about the need for the interpreter (since defendant Kelbatyrov was listening to the Russian translations but speaking in English), “he basically has gone to school his entire life in the United States and speaks well. As you can tell, he speaks English perfectly well. But he [has] indicated to the court that he feels a little bit more comfortable with the interpreter being present, certain words.” The probation report also indicates that he completed 15 credits in general education at a community college.
At this juncture, defendant Revell announced that he wanted to represent himself as well (having given some thought to the matter in the several days since his last appearance) despite his lack of legal training. The trial court went through the same advisements, after which he and the trial court executed the same written waiver form.
B
Defendant Kelbatyrov contends his request to represent himself was ambiguous and ambivalent. It is curious that he would invoke the standard for affirming the denial of a motion for self-representation. In any event, the record simply does not support this claim. There was nothing ambiguous in his communication to the court of his desire to represent himself.
Nor, for that matter, does the record support defendants’ claim that their waiver was not knowing and intelligent. The trial court’s oral and written cautions were adequate to convey the hazards ahead for defendants if they took this path. The court was not required to outline the nuances of the relevant theories and defenses for them as well.
Defendant Kelbatyrov directs us to certain points in the record where he had difficulties communicating in English. However, as we noted above, the court expressly found that defendant Kelbatyrov was fluent in English and only needed some help as to certain words. The record does not support a claim of an abuse of discretion in this respect.
Defendant Kelbatyrov also adverts to various points during trial where the record indicates his behavior was questionable and he did not display an understanding of the legal issues and principles involved in his trial. The trial court explicitly declined to institute a competency hearing, which precludes a claim that he was not competent to choose self-representation. (People v. Welch (1999) 20 Cal.4th 701, 732.) As for his lack of understanding of the legal complexities of his trial, this is the bed in which those insisting on representing themselves must lie. It is not an abuse of the court’s discretion to permit defendants to present a defense of their own choosing.
Defendant Kelbatyrov does not challenge this ruling.
Defendant Kelbatyrov also points to his posttrial remark that he had been a daily user of methamphetamine until a week before trial, and the statement in his probation report that he had been diagnosed with lung cancer in 2005. (Defendant Revell also stresses his habitual use of both methamphetamine and marijuana, which does not appear in the record other than in his own statement in his probation report). What neither of the defendants address is the absence of any indication that the trial court was aware of this purported drug use or illness at the time it exercised its discretion in allowing them to proceed without counsel. They also do not present any authority for a post hoc invalidation of the court’s decision to allow them to exercise their right of self-representation.
Finally, to the extent that defendant Kelbatyrov suggests that he was motivated out of pique to represent himself because the court refused his motion for substitute counsel (based on his feelings of being pressured into accepting a plea), the fact that he confirmed his decision after an interval of several days was sufficient for the trial court to conclude that he was not acting out of an emotional response but after due reflection. Again, this does not establish an abuse of discretion.
III
A
At the end of the first full day of testimony, defendant Revell asked the court if the defendants could “have an attorney to help.” The court denied the request. It stated, “Once you go pro per, you go pro per. I know that there is a . . . procedure someplace that allows for the appointment of advisory counsel. I don’t think it makes sense. I think it’s contradictory to what your request was, and I am not going to take another lawyer’s time to serve in that capacity. I think it is basically a waste of time. So if that’s your request, it’s denied.” Both defendants challenge this ruling.
B
The right of self-representation is not impeded if a trial court appoints advisory or standby counsel to assist or to be prepared to assume control of the defense; however, a defendant does not have any constitutional right to the appointment of counsel in either role. (McKaskle v. Wiggins (1984) 465 U.S. 168, 183-184 [79 L.Ed.2d 122]; People v. Bloom (1989) 48 Cal.3d 1194, 1218; see People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14 (Hamilton) [distinction between advisory and standby counsel].)
A failure to exercise any discretion in the decision of whether to make use of this power of appointment is reversible per se. (People v. Bigelow (1984) 37 Cal.3d 731, 743-744 [also stating in dictum that a failure to appoint advisory counsel in that capital case could amount to an abuse of discretion].) In the ordinary situation, however, there is no abuse in the actual exercise of discretion as long as there is at least a debatable justification for the ruling. (People v. Clark (1992) 3 Cal.4th 41, 111.) At least one court has noted that the repeated Supreme Court dicta that it could be an abuse of discretion under certain circumstances to fail to appoint advisory or standby counsel (see e.g., Hamilton, supra, 48 Cal.3d at p. 1164, fn. 14) do not take into account the fact that allowing a defendant to raise this issue can evade the bar against citing his ineffective self-representation on appeal as a basis for reversing the judgment. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1430-1431.) And Brookner v. Superior Court (1998) 64 Cal.App.4th 1390 mused at length about the difficulties that the status of advisory or standby counsel present to an attorney, as they are ill-defined roles in service to a former client that had terminated their relationship. (Brookner, supra, at pp. 1394-1396.) “It seems to us that a defendant either has an attorney or he is his own attorney--period. . . . He is routinely told that no special treatment will be provided simply because he has competently elected to represent himself . . . but . . . the court . . . is told by higher courts that it should[] provide just such a special treatment by appointing an advisory or standby counsel . . . .” (Id. at p. 1394.)
The case before us presents exactly the concerns of the courts that have attempted to express their qualms about the rote perpetuation of the idea that denial of advisory/standby counsel can be an abuse of discretion (and neither defendant has found any case actually finding such an abuse of discretion). At the time of defendant Revell’s request, it was early in the trial and as far as the court was aware, the two defendants were laymen of common intelligence with some college education. Although defendants insist the case presented “complex” issues, these were the result of defendants’ own financial machinations. There was no reason why the court should have known of any necessity to force their former attorneys (or a new attorney unfamiliar with the case) into the uncomfortable role of advisory counsel. They instead simply assert that their subsequent performance as their own advocates was so abysmal that we should deem the denial of their request to be an abuse of discretion post hoc (though, curiously, they do not in any respect attempt to identify what possible viable defense to the charges might have been missed as a result of their inadequacies).
We will not reverse on the basis of the ineffective efforts defendants made in their own behalf. Nor do we find an abuse of discretion in denying their request for advisory counsel on the facts known to the trial court at that time.
IV
Defendants contend their rights to self-representation and meaningful access to the courts were infringed because they did not receive ancillary services adequate to prepare a defense from their appointed investigators. (People v. Blair (2005) 36 Cal.4th 686, 732-733 (Blair).)
In support of this argument, however, they cite only the release of a defense witness purportedly without the knowledge of defendant Kelbatyrov, and the failure of their investigators to be present and available in the courtroom for their needs on a daily basis. They also speculate that their investigators did not interview all witnesses, because defendant Kelbatyrov did not seem familiar with the entire substance of the intended testimony of two proposed witnesses (one of whom was his brother).
With respect to the release of the defense witness, the trial court specifically found that in fact defendant Revell had told his investigator to release the witness after the latter had declared a hardship about coming to court. Therefore, any fault is not attributable to the investigators.
As for the presence of the investigators, defendants did not raise this until just before the final witness, when they asked why the prosecution’s investigating officer sat with the prosecutor throughout the trial. They noted that the supervisor of their investigators had said that the investigators could not sit with them, or be present among the spectators. The court noted that in fact the defense investigators had been among the spectators at times, though by no means constantly. However, defendants did not identify any task left undone as a result of the absences. Contrary to their unsupported premise, they are not entitled to reversal without a showing of prejudice. “[T]he crucial question underlying all of defendant’s constitutional claims is whether he had reasonable access to the ancillary services that were reasonably necessary for his defense.” (Blair, supra, 36 Cal.4th at p. 734.) Having failed to show the denial of reasonable access to the investigators, id est, that the investigators could not have been summoned to court to undertake any necessary task, defendants have failed to affirmatively demonstrate reversible error in this regard.
Finally, the portions of the record to which defendants cite regarding the purported failure to interview witnesses do not demonstrate the reason for the unfamiliarity with the gist of the testimony of the two proposed witnesses. There is not any express indication that the investigators failed to perform their tasks. We do not reverse judgments on the basis of speculation. We therefore reject this claim in its entirety.
V
Defendant Kelbatyrov contends that the court’s imposition of consecutive sentences based on judicially determined facts was a violation of his right to a jury trial under the principles of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. He acknowledges that this claim is foreclosed under the binding authority of People v. Black (2007) 41 Cal.4th 799, 823. He is now free to pursue “possible federal court review” on the issue.
VI
As the transcript of the trial reflects, neither defendant testified. At his sentencing, defendant Revell objected to a victim’s statement contained in his probation report, which asserted that the testimony of both defendants was arrogant and without remorse, and which also asserted a belief that both of the defendants were crafty. The court noted on the record (as reflected both in the transcript of the sentencing hearing and in its minutes) that this was an error, but did not order any physical change to the probation report.
Defendant Revell requests that we “take whatever steps [we] deem[] necessary to correct this error,” even though he admits that the failure to correct the probation report did not affect his sentence. He speculates that he may incur some future harm due to the misuse of the victim’s statement. In light of our expressed conclusion that the probation report is inaccurate, it is unlikely that Revell qualifies as a presently aggrieved party entitled to appellate redress. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 33, pp. 94-95.) If the People had opposed his argument, we would find that he should await some actual injury from the inaccuracy to which he lodged a timely objection. The People, however, do not have any objection to an order to correct the probation report, so we will include one in our disposition.
Disposition
The judgment is affirmed. The trial court is directed to make an appropriate correction to the probation report.
We concur: MORRISON, J., CANTIL-SAKAUYE, J.