Opinion
D057591 Super. Ct. No. FMB900279 Super. Ct. No. FMB800412
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES JAY LANE et al., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from judgments of the Superior Court of San Bernardino County, Rodney A. Cortez, Judge. Affirmed.
A jury convicted James Jay Lane and Steven Michael Jakul of attempted auto theft (Pen. Code, § 664; Veh. Code, § 10851, subd. (a); count 1); petty theft with a prior related offense (§ 666; counts 3 and 5 as to Lane and counts 2 and 4 as to Jakul), and conspiracy (§ 182, subd. (a); count 6). In a subsequent proceeding, the jury found Lane had suffered a prior first degree burglary conviction (§ 459), and a robbery conviction in Nevada. The jury also found Jakul had suffered prior convictions for sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), possession of a controlled substance (twice) (Health & Saf. Code, § 11377); possession of a deadly weapon (§ 12020, subd. (a)), and receiving stolen property (§ 496).
Statutory references are to the Penal Code unless otherwise specified.
As to Lane's current conviction for conspiracy, the court sentenced him to prison for a term of 25 years to life under the "Three Strikes" law (§ 667, subds. (b)-(i)), and imposed, but stayed, under section 654, 25-year-to-life sentences for the remaining counts. Jakul's conviction was his second strike, and the court sentenced him to a total of 13 years, consisting of (1) three years, doubled to six years, for petty theft with a prior related offense (count 4); (2) eight months, doubled to 16 months, for the other petty theft with a prior related offense (count 2); (3) four months, doubled to eight months for the attempted auto theft; and (4) five years for the prior prison terms. Under section 664, the court stayed Jakul's 16-month sentence for conspiracy.
In case No. FMB-800412, Jakul was sentenced to prison for a term of eight years eight months consisting of (1) three years for first degree burglary (§ 459), (2) eight months for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and (3) five years under section 667.5, subdivision (b). Jakul does not appeal this sentence.
Both Lane and Jakul appeal. Lane contends his Fourth Amendment rights were violated when the court denied his motion to suppress evidence. He also contends the court abused its discretion when it refused to dismiss one of his two prior serious felony convictions under the Three Strikes law. In addition, Lane argues that the imposition of the 25-year-to-life sentence for his current offenses violates the Eighth Amendment.
The People contend the abstract of judgment for Lane creates some confusion about the actual sentencing date for Lane. It does not. The abstract of judgment indicates a sentencing hearing date of February 19, 2010, which is consistent with the reporter's transcript of the hearing, the clerk's minutes, Lane's motion to strike priors, and the prosecutor's opposition to that motion. Lane's notice of appeal filed February 23, 2010 was timely, and there is no need to correct the abstract of judgment.
Jakul contends the court violated his Sixth and Fourteenth Amendment rights when it denied his motion to represent himself. Jakul also maintains his sentence on petty theft (count 2) must be stayed under section 654.
In addition, Lane joins the arguments made by Jakul. We affirm.
FACTS
We begin by briefly describing Lane's and Jakul's current offenses. Because the claims of error are numerous and the facts related to each claim are different, we primarily report the facts pertinent to each claim of error in the discussion section of this opinion.
On June 10, 2009, around 10:00 p.m., Lane and Jakul broke into Sammy Holloway's van, which was parked outside the Joshua Tree Saloon in San Bernardino County, and stole several items, including a computer, a GPS unit, and Holloway's personal papers and passport. A few hours later, in the early morning hours of June 11, they went into Rose Bradham's yard, broke into her car and were preparing to steal it, but were interrupted when she awoke and turned on the outside lights. Though unsuccessful in stealing the car, they took some coins from the car's ashtray.
DISCUSSION
I
SEIZURE OF LANE'S SHOES
Lane asserts the court violated the Fourth Amendment by denying his motion to suppress evidence seized in a trailer where Jakul was living. Specifically, Lane argues the seizure of his tennis shoes, which were on the ground next to a bed in one of the trailer's bedrooms, was unreasonable. We disagree.
A. Facts at the Suppression Hearing
Lane joined Jakul's motion to suppress all evidence seized from the trailer where Jakul was living. At the hearing on the motion, the parties stipulated that the trailer was searched without a warrant. The parties also had three witnesses testify to the following facts.
Detective James Thornburg and Deputy Sheriff Jeffrey Dieckhoff responded to a 911 call from Bradham, arriving at her home located at 5191 Sunburst Avenue in Joshua Tree at about 3:30 a.m. on June 11, 2009. Bradham told Thornburg she saw a male on her property who should not have been there. Thornburg investigated Bradham's car, which was parked on the property. The car had been ransacked, and the steering column disassembled as if someone had tried to steal it. While inspecting the car, Thornburg noticed two sets of fresh tennis shoe prints coming and going from the gate on the property. Thornburg and Dieckhoff tracked the tennis shoe prints from Bradham's house to a trailer located at 61912 Begonia in Joshua Tree. They arrived at the trailer at about 5:30 a.m. The trailer was 42 feet long with two bedrooms.
There was a house on the same property as the trailer. Thornburg knocked on the front door of the house, and a woman named Jennifer Gunderson answered the door and told Thornburg that her boyfriend's friend Steve (Jakul) was staying in the trailer.
Thornburg then walked to the door of the trailer, but before he could knock, he met an older man, George Earl. Earl was Gunderson's boyfriend. He knocked on the trailer door and said, "Steve, the cops are here to talk to you." Thornburg saw Jakul through the open door lying on the couch, and Jakul sat up and then stood up. Thornburg asked Jakul if he was on parole or probation. Jakul stated that he was on parole. Thornburg asked Jakul if anyone else was in the trailer, and Jakul responded that a woman named Monica was in the trailer. Thornburg then took Jakul out of the trailer and Dieckhoff took custody of him. He went back into the trailer to conduct a parole search.
Earl recently had surgery and returned from the hospital; thus, he was "out of it" and everything was "foggy" that morning. The court found Earl's testimony mostly unreliable.
There was conflicting testimony regarding whether Earl was Gunderson's husband or boyfriend. The distinction is immaterial for the issues on appeal.
Thornburg walked into one of the trailer's bedrooms and found Lane lying in bed with Monica. Thornburg located a pair of tennis shoes on the floor in front of the couch where Jakul had been sitting. He determined these shoes had the same tread patterns as one of the tennis shoe prints he followed from Bradham's house. Thornburg also seized a pair of tennis shoes that were next to the bed in the bedroom where he found Lane and Monica. These shoes also had the same tread pattern as one of the tennis shoe prints Thornburg followed from Bradham's house.
In denying the motion to suppress, the court found Lane lacked standing to object to the search of the trailer or seizure of Lane's shoes without a warrant. The court further found that even if Lane had standing, the search and seizure were a reasonable part of the parole search of the trailer.
B. Lane Had No Reasonable Expectation of Privacy in the Trailer
In reviewing the trial court's ruling on the suppression motion, we consider the record in the light most favorable to the People because "all factual conflicts must be resolved in the manner most favorable to the [trial] court's disposition on the [suppression] motion." (People v. Martin (1973) 9 Cal.3d 687, 692.) But while we defer to the trial court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Camacho (2000) 23 Cal.4th 824, 830.)
The trial court found that Lane lacked standing to claim a violation of his Fourth Amendment rights in the search of the trailer and seizure of his tennis shoes. At the outset, we note "[t]he United States Supreme Court has largely abandoned use of the word 'standing' in its Fourth Amendment analyses. [Citation.] It did so without altering the nature of the inquiry: whether the defendant, rather than someone else, had a reasonable expectation of privacy in the place searched or the items seized." (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3 (Ayala).) Thus, we interpret the trial court's standing determination as a finding that Lane did not have a reasonable expectation of privacy.
"The Fourth Amendment guarantees '[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures' by police officers and other government officials. (U.S. Const., 4th Amend.) The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy, that is, whether he or she has manifested a subjective expectation of privacy in the object of the challenged search that society is willing to recognize as reasonable." (People v. Robles (2000) 23 Cal.4th 789, 794-795.) " 'The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. [Citations.]' [Citations.]" (People v. Moreno (1992) 2 Cal.App.4th 577, 582.) Thus, the moving party must show" ' " . . . an actual (subjective) expectation of privacy," . . . [and the] subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' " . . .' [Citations.]" (Ibid.)
Here, Lane offers only cursory arguments in his opening brief regarding whether he had a reasonable expectation of privacy. First, he argues he had a reasonable expectation of privacy in his shoes because they were next to him while he was lying in bed. Second, Lane contends he had a reasonable expectation of privacy because he was an overnight guest in Jakul's trailer. (See Minnesota v. Olson (1990) 495 U.S. 91, 96-97 (Olson).)We reject both contentions.
The People did not address this issue in their respondent's brief.
As a threshold matter, we analyze Lane's expectation of privacy in the trailer. While Lane had a personal property interest in his tennis shoes, he could not have an expectation of privacy in his shoes if they were left in an area (the trailer's bedroom) in which he had no expectation of privacy. (See Ayala, supra, 24 Cal.4th at p. 279 [holding the defendant had no expectation of privacy in containers left at an automobile body shop because he had no expectation of privacy in the premises].)
In determining whether a defendant has a legitimate expectation of privacy in a searched premises, "[t]he pertinent factors to consider include whether the defendant has a property or possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that the place would remain free from governmental invasion; whether he took normal precautions to maintain his privacy; and whether he was legitimately on the premises. [Citations.]" (People v. Thompson (1996) 43 Cal.App.4th 1265, 1269-1270.) "While generally one of these factors alone is insufficient to establish [a legitimate expectation of privacy] of a third party on the premises of another [citations], the greater the number of these factors and the greater their strength shown by the facts of a particular case, the more likely a protectable expectation of privacy will be found." (People v. Koury (1989) 214 Cal.App.3d 676, 686.)
Lane does not explain how he satisfied any of the above factors. He merely claims he had an expectation of privacy in the shoes because they were on the floor next to the bed in which he was lying. Moreover, the evidence offered at the suppression hearing to establish Lane's subjective expectation of privacy in the trailer was minimal at best. For example, during the preliminary hearing, Lane's counsel asked him only one question:
"Q: Mr. Lane, on the night you were arrested in this incident, were you staying at the trailer with the permission of Mr. Jakul?
"A: Yes."
However, Thornburg testified that when he asked Jakul if anyone else was in the trailer, Jakul only identified a woman named Monica. He said nothing about Lane. Thus, Thornburg's testimony casts doubt whether Jakul knew Lane was in the bedroom with Monica.
During cross-examination, Lane testified he had hung out at the trailer all night with Jakul and they "were both inside and outside the trailer at different times." However, Lane's testimony was again contradicted by Thornburg's testimony, which implied Jakul and Lane were away from the trailer in the very early morning on June 11, 2009, when they attempted to steal Bradham's car.
As the finder of fact in a proceeding to suppress evidence, the trial court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Lawler (1973) 9 Cal.3d 156, 160.) Here, it appears the court found Thornburg's testimony credible and disregarded the testimony of Earl and most likely, Jakul. Lane does not challenge the court's credibility determinations, and we are not in a position to second guess the trial court on this issue. Without reliable evidence of Lane's authority to be in the trailer or purpose for being in the trailer (see Minnesota v. Carter (1998) 525 U.S. 83, 91), the court could not have found Lane had a reasonable expectation of privacy in the trailer. If he had no expectation of privacy in the trailer, it logically follows he would have no expectation of privacy in his shoes that were on the floor of the trailer. (See Ayala, supra, 24 Cal.4th at p. 279.) Simply put, Lane did not carry his burden of proving he had a subjective expectation of privacy and his subjective expectation of privacy is one that society recognizes as reasonable. (See People v. Moreno, supra, 2 Cal.App.4th at p. 582.)
We also conclude the record does not support Lane's argument that he was an overnight guest in the trailer. Lane merely testified that he was staying at the trailer with Jakul's permission. This testimony was contradicted by Thornburg's testimony. Also, Earl testified he did not know Lane and did not give him permission to stay in the trailer. Further, Lane did not offer any additional evidence supporting his contention that he was an overnight guest. For example, there was no evidence that Lane had a key to the trailer or kept a change of clothes there. (See Jones v. United States (1960) 362 U.S. 257, 259, overruled on other grounds in U.S. v. Salvucci (1980) 448 U.S. 83, 84-85.) Nor did Lane offer credible evidence that he spent the entire night at the trailer with Jakul's permission and had a change of clothes with him. (See Olson, supra, 495 U.S. at p. 97, fn. 6.) Indeed, the record is not clear that Lane had spent the night at the trailer when Thornburg searched the premises.
We realize some courts have interpreted Minnesota v. Carter, supra, 525 U.S. 83 to imply that all social guests, regardless if they are overnight guests, have an expectation of privacy, and thus a reasonable expectation of privacy in their host's home. (See People v. Magee (2011) 194 Cal.App.4th 178, 186-187.) However, we do not need to address this proposition because the record does not establish Lane was anyone's social guest at the trailer.
In summary, Lane did not carry his burden in proving that he had a subjective expectation of privacy. Because Lane did not have a reasonable expectation of privacy in the trailer, he could not have a reasonable expectation of privacy in shoes found on the floor in the trailer. As such, the search of the trailer and seizure of Lane's shoes from the trailer did not violate Lane's Fourth Amendment rights.
C. The Search of the Trailer and Seizure of Lane's Shoes Were Reasonable
Even if Lane did have a reasonable expectation of privacy in the trailer, we are satisfied that the seizure of Lane's tennis shoes was reasonable. Lane and the People concede Thornburg conducted a parole search of the trailer. A parole search, even if conducted without reasonable suspicion, does not violate the Fourth Amendment. (Samson v. California (2006) 547 U.S. 843, 847 (Samson); see People v. Reyes (1998) 19 Cal.4th 743, 751 (Reyes).)
A parolee, however, is not without protection. A parole search may not be arbitrary, capricious, or harassing. (See Samson, supra, 547 U.S. at p. 856; Reyes, supra, 19 Cal.4th at 754.) In addition, "[a] parole search could become constitutionally 'unreasonable' if made too often, or at an unreasonable hour, or is unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer." (People v. Clower (1993) 16 Cal.App.4th 1737, 1741.) Lane does not question Thornburg's motives in conducting the search of the trailer. Instead, he asserts the seizure of his tennis shoes was unreasonable because the scope of the parole search could not include his shoes. We disagree.
Here, Thornburg had followed tennis shoe prints from a crime scene to the trailer. He was informed Jakul was on parole and living in the trailer. The trailer was 42-feet long and consisted of two bedrooms. While it may be the case that the search of the entire trailer was reasonable merely because Jakul was on parole, under the circumstances facing Thornburg, the search of the entire trailer became imperative. The purpose of a parole search is to further "society's interest both in assuring the parolee corrects his behavior and in protecting its citizens against dangerous criminals." (Reyes, supra, 19 Cal.4th at p. 751, quoting In re Tyrell J. (1994) 8 Cal.4th 68, 89, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 139.) This purpose was achieved by Thornburg's search of the entire trailer.
Jakul told Thornburg that a woman named Monica was in the trailer. We find nothing in the record, however, leading us to believe that Monica actually lived in the trailer. In addition, Monica does not challenge the search of the trailer or seizure of the shoes.
Further, more invasive searches have been determined reasonable under a parole search. "When executing a parole . . . search, the searching officer may look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee . . . . [Citations.]" (People v. Baker (2008) 164 Cal.App.4th 1152, 1159 (Baker); see People v. Smith (2009) 172 Cal.App.4th 1354, 1364 ["reach-in" search of parolee's underwear reasonable].) There is nothing in the record convincing us Thornburg had any reason to believe Jakul did not have at least joint control of the entire trailer. Accordingly, we conclude Thornburg's search of the entire trailer, including the bedrooms, was reasonable.
Having determined the search of the trailer was reasonable, we next address Thornburg's seizure of Lane's shoes. "If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy." (Horton v. California (1990) 496 U.S. 128, 133.) The Supreme Court has further clarified the rationale of the plain view doctrine:
"The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation
of privacy and thus no 'search' within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point." (Minnesota v. Dickerson (1993) 508 U.S. 366, 375.)
Because Thornburg had a right to be in the bedroom where he found the shoes, he also had the right to seize the shoes if they were within his plain view. (See People v. Gallegos (2002) 96 Cal.App.4th 612, 622-623.) An officer may seize an item if its status as either contraband or evidence is "immediately apparent." (Horton v. California, supra, 496 U.S. at p. 136.) The phrase, "immediately apparent," does not connote certainty; all it means is that the officer must have probable cause to believe the plain view item is either contraband or evidence. (Texas v. Brown (1983) 460 U.S. 730, 742.) "[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief,' [citation], that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false." (Ibid.)
Here, Thornburg had followed two sets of tennis shoe prints from a crime scene to the trailer, and in the trailer found two men and a woman. There was a pair of tennis shoes next to Jakul, who was on the couch, and a pair of tennis shoes next to a bed where Lane was lying. A "man of reasonable caution" would believe the shoes "[might] be . . . useful as evidence" linking the men to the crime. (See Texas v. Brown, supra, 460 U.S. at p. 742.) Indeed, the tennis shoe prints were the only pieces of evidence that lead Thornburg and Dieckhoff to the trailer. Logically, Thornburg would have been looking for tennis shoes when he searched the trailer. Thus, we are satisfied there was probable cause to seize the shoes, and the seizure of Lane's tennis shoes, which were in plain view, was reasonable under the Fourth Amendment. (Ibid.; see Horton v. California, supra, 496 U.S. at p. 136.)
Lane also argues Thornburg unreasonably searched Lane's tennis shoes because he turned them over to inspect their tread pattern. We are not persuaded by this argument for two reasons. First, there is no support in the record for the proposition that Thornburg had to turn the shoes over. Second, assuming Thornburg did turn the shoes over, we are satisfied he already had probable cause to seize the shoes upon seeing them. He had tracked tennis shoe prints to the trailer. Thornburg found tennis shoes near Jakul and Lane. Even if Thornburg had not viewed the tread pattern of the shoes, he had probable cause to seize them.
Although Lane refers to a search of the shoes, we analyze his argument as a seizure of the shoes. According to Lane, Thornburg only seized the shoes after he turned them over to look at the tread pattern. Thus, under Lane's theory, had the tread pattern not matched one of the shoe prints Thornburg followed to the trailer, Thornburg would not have seized the shoes, and there would be no alleged Fourth Amendment violation. Because the shoes were taken, we review the seizure of the shoes and do not draw a distinction between the search of the shoes and the seizure of the shoes as it does not impact our analysis. (See Texas v. Brown, supra, 460 U.S. at p. 738.)
Finally, we are not convinced, as Lane urges, his shoes are the same as the defendant's purse in Baker, supra, 164 Cal.App.4th 1152. In Baker, a police officer conducted a parole search of the defendant's friend's car and found a purse on the floorboard of the front passenger's seat. (Id. at p. 1156.) The defendant was the only passenger in the car, and her friend, a male, was the driver. (Ibid.) The officer opened the purse and found methamphetamines and arrested the defendant. (Ibid.) The Court of Appeal reversed the trial court's denial of the defendant's suppression motion because it was clear the driver had no control over the purse and the distinctively female purse belonged to the defendant. (Id. at pp. 1159-1160.)
Lane's shoes are not analogous to the purse in Baker, supra, 164 Cal.App.4th 1152. The shoes themselves were contraband and in plain view. They were not hidden in a bag that Thornburg had to open. Further, the law has recognized the special characteristics of a purse in regard to the Fourth Amendment. (See Wyoming v. Houghton (1999) 526 U.S. 295, 308 [conc. opn. of Breyer, J.] [purses are "repositories of especially personal items that people generally like to keep with them at all times"]; Baker, supra, at p. 1159 [a purse is an "inherently private repository for personal items"]). There is no authority decreeing shoes are similarly protected under the Fourth Amendment. In short, a shoe is not a purse and Baker is distinguishable from the instant matter.
We therefore are satisfied that Thornburg's search of the trailer and seizure of Lane's shoes were reasonable.
II
LANE'S SENTENCE
A. The Court's Refusal to Strike One of Lane's
Prior Serious Felonies Was Not an Abuse of Discretion
Lane requested the court to strike one of the two serious prior felony convictions the jury found he suffered. The court, noting Lane's consistent criminal behavior since 1991, declined in a thorough ruling and imposed a 25-year-to-life sentence under the Three Strikes law. Lane maintains the trial court abused its discretion. We disagree.
We review a trial court's decision not to strike a prior conviction pursuant to section 1385 under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) Under this standard, adecision will not be reversed merely because reasonable people might disagree . . . " ' "; rather, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances [, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible facts in declining to dismiss [citation], [or where] 'the sentencing norms [established by the Three Strikes Law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]" (Carmony, supra, at pp. 377-378.)
A trial court must also " 'consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies' [citation]" before exercising its discretion to strike a felony conviction. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial judge in this case was clearly aware of his discretion and offered a thorough explanation of the limits of his discretion and the requirements of section 1385. Further, the judge provided an extremely detailed ruling wherein he explained that he considered the nature and circumstances of Lane's prior convictions, the fact that Lane's strikes occurred after the enactment of the Three Strikes law; Lane's history of violence and nonviolence; Lane's drug addiction; the nature and circumstances of the new offenses; and Lane's background, character, and prospects. Ultimately, the judge believed Lane's long and dismal criminal history did not justify the exercise of his discretion to strike any of Lane's prior serious felonies. The trial court's opinion is amply supported by the record.
Lane's pattern of criminal behavior has been consistent since 1991 when he was placed on probation as a juvenile at the age of 14 for burglary. At the age of 18, he was convicted of first degree burglary and was sentenced to prison for six years in 1995. Then while on parole, he was convicted of robbery in 2000 and sentenced to prison for 36 to 156 months. Lane admits that he served nine years for the robbery. Again, soon after his release from prison, Lane committed the current offenses. He has spent most of his adult life in prison or on parole. Further, Lane's robbery conviction involved violence as Lane beat up the victim, took his wallet and chain, drove him to the desert, and left him there. In short, Lane is the type of recidivist criminal that can reasonably be found to be wholly within the "spirit" of the Three Strikes law. (People v. Williams, supra, 17 Cal.4th at pp. 162-163.)
Moreover, it is not our role to reweigh the sentencing factors or substitute our evaluation for that of the trial court. Because Lane has not shown the trial court considered any impermissible facts in declining to strike one of his serious felony prior convictions, nor has he established that the imposition of the Three Strikes law here warrants departure from the legislatively preferred sentencing scheme, we cannot conclude the court abused its broad sentencing discretion. (Carmony, supra, 33 Cal.4th
at pp. 377-378.)
B. Lane's 25-Year-To-Life Sentence Was Not Cruel and Unusual Punishment
Lane next contends his 25-year-to-life sentence shocks the conscience and therefore violates the provisions against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We reject his arguments and conclude the sentence imposed in this case does not constitute cruel and unusual punishment.
To the extent Lane relies on the California Constitution, his challenge must be considered in light of In re Lynch (1972) 8 Cal.3d 410, and People v. Dillon (1983) 34 Cal.3d 441 (Dillon). Lane does not directly challenge the general facial constitutionality of the Three Strikes law, but argues its application to him is unconstitutional. He thus urges us to vacate and remand the case for resentencing.
Lane's arguments fail to appreciate that his punishment under scrutiny here is not only the result of his current offenses. From our independent review of the record in light of the pertinent law, we conclude application of the Three Strikes law to Lane in this case is not cruel and/or unusual.
As to California's separate constitutional prohibition against cruel or unusual punishment, we note the power to define crimes and prescribe punishment is a legislative function and we may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate that constitutional prohibition. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, however, the test whether a specific punishment is cruel or unusual is whether it is " 'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676, and citing In re Lynch, supra, 8 Cal.3d at p. 424.)
As we noted in In re DeBeque, the analysis developed in In re Lynch, supra, 8 Cal.3d 410 and Dillon, supra, 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criterion depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200 (Weddle); People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, at p. 1196.)
Here, Lane has not met that burden. Lane compares his sentence with the statutory penalty for second degree murder. Lane's comparison misses the mark. "Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [Lane's] punishment for his 'offense,' which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons. [Citation.]" (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) As noted above, Lane's punishment is controlled in the first instance by his committing the current offenses while having previously been convicted of two serious felony offenses. That the Legislature saw it necessary to enact such statutes and sentencing schemes to impose harsher punishment for recidivist offenders like Lane does not shock our conscience.
Lane also failed to provide any evidence similar offenses in other states do not carry punishments as severe. Lane merely contends "because California's three strikes laws are among the most extreme in the nation[,] . . . the majority of the states would not have imposed such a harsh sentence." Lane's argument is a legal conclusion, not supported by the record. Further, "[t]hat California's [Three Strikes] punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Lane's prior convictions coupled with his present conduct qualified him for punishment under the Three Strikes law. We believe mandatory imposition of the legislatively required term was proper absent a showing Lane falls outside the spirit of the Three Strikes law, which he does not.
Even if we review the matter by analyzing the factors under the first prong of In re Lynch, supra, 8 Cal.3d 410 (nature of the offense and/or offender), as refined in Dillon, supra, 34 Cal.3d 441, we reach the same conclusion that the total 25-year-to-life term imposed does not constitute cruel or unusual punishment. Unlike the youthful 17-year-old first-time offender in Dillon, Lane was 32 years old at the time he committed the current offenses and had served two prior prison terms before the current conduct.
Further, in light of the holdings in Harmelin v. Michigan (1991) 501 U.S. 957, Rummell v. Estelle (1980) 445 U.S. 263, 284-285, and the more recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11, 24-30 and Lockyer v. Andrade (2003) 538 U.S. 63, 66-77, which held lengthy indeterminate life sentences imposed under California's Three Strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment would likewise be unsuccessful. As already noted, Lane suffered two prior serious felony convictions before the offenses in this case. He had served two separate prison terms and had been recently released from prison when he committed the current crimes.
Given all the relevant considerations, the fact Lane will serve 25 years to life for his most recent felony conviction simply does not shock the conscience or offend concepts of human dignity. We therefore conclude Lane has failed to establish his sentence is so disproportionate to his "crime," which includes his recidivist behavior, and that the indeterminate term imposed for that crime does not violate the constitutional prohibitions against cruel and/or unusual punishment.
IV
RIGHT TO SELF-REPRESENTATION
Jakul contends that his Sixth and Fourteenth Amendment rights were violated when the court refused his request, on the court day before trial, to represent himself. We disagree.
A. Jakul's Request to Represent Himself
Trial was set for Monday, November 2, 2009. On Friday, October 30, Jakul's lawyer sought a continuance to investigate possible grounds for a motion for supprssion of evidence. The court denied the continuance. Jakul then requested to represent himself, and the court and Jakul had the following exchange:
"The Court: Mr. Jakul, you have a request?
"Defendant Jakul: Yes.
"The Court: What is that?
"Defendant Jakul: If I can go pro per.
"The Court: Why is that?
"Defendant Jakul: So I can go study everything about this myself.
"The Court: Why are you waiting until the day of assignment calendar to ask to go pro per?
"Defendant Jakul: I feel I'm strong enough to do it.
"The Court: That you're better equipped than a lawyer that's been defending defendants for over 30 years?
"Defendant Jakul: Not at this point, but eventually I hope so.
"The Court: You've been to law school?
"Defendant Jakul: No, sir.
"The Court: Been to undergrad?
"Defendant Jakul: No.
"The Court: Studied the law?
"Defendant Jakul: I've looked into it.
"The Court: Have you ever examined witnesses in court?
"Defendant Jakul: No, I haven't.
"The Court: Have you ever given an opening statement or closing argument or prepared jury instructions?
"Defendant Jakul: No.
"The Court: Have you ever prepared a suppression motion?
"Defendant Jakul: No.
"The Court: Sounds like you are ready to defend yourself.
"Defendant Jakul: I'd like to be given the opportunity.
"The Court: I'm not going to send you to law school.
"Defendant Jakul: I understand.
"The Court: Are you ready to go to trial on Monday?
"Defendant Jakul: No.
"The Court: Well, we're here for assignment calendar. I'm not going to continue your case so that you can get up to speed. Are you ready to proceed on Monday?
"Defendant Jakul: No.
"The Court: So are you ready to defend yourself on Monday?
"Defendant Jakul: No.
"The Court: So you want Mr. Sasnett to represent you on Monday or do you want to represent yourself on Monday at jury trial?
"Defendant Jakul: Well, if I have to start that fast, I would like Mr. Sasnett.
"The Court: I'll give you an opportunity to talk with Mr. Sasnett a little more this morning, okay?
"Defendant Jakul: Okay."
After a recess to allow Jakul to further discuss the issue with his attorney, the court reconvened and denied Jakul's motion to represent himself. The court noted the arraignment on information was on July 9, 2009, the first pretrial conference was August 6, 2009, and a second pretrial conference was on September 25, 2009. The court further noted that at the September 25 conference, the trial date was set for October 23 and 26. The People requested, and Jakul joined, a one-week continuance of the trial date. The court granted the request and continued trial until Monday, November 2. Jakul never made a request to represent himself at any of these hearings.
In response, Jakul's counsel informed the court Jakul was denied access to the law library on July 9. Jakul's counsel further told the court that Jakul had discussed with him the possibility of representing himself on numerous occasions. The court was not persuaded by Jakul's counsel's arguments and stressed that Jakul needed to make his request to the court within a reasonable time before trial. Because Jakul waited until the court day before trial, the court found that his request was untimely and denied it.
B. The Court Properly Denied Jakul's Request to Represent Himself
A defendant has a federal constitutional right to represent himself under the Sixth and Fourteenth Amendments. (Faretta v. California (1975) 422 U.S. 806, 835 (Faretta); People v. Burton (1989) 48 Cal.3d 843, 852 (Burton))"To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner." (People v. Barnett (1998) 17 Cal.4th 1044, 1087; see also People v. Bradford (1997) 15 Cal.4th 1229, 1365.) When an unequivocal motion for self-representation is timely made, the trial court must permit the defendant to represent himself after ascertaining he has voluntarily and intelligently elected to do so, irrespective of how unwise the choice appears to be. (People v. Windham (1977) 19 Cal.3d 121, 128, citing Faretta, supra, 422 U.S. at p. 836; People v. Marshall (1997) 15 Cal.4th 1, 20-27 (Marshall))
To assess a Faretta claim, we review the entire record de novo to determine whether the defendant's invocation of the right to self-representation was knowing and voluntary. (Marshall, supra, 15 Cal.4th at p. 24.) The standard of review applicable to the court's determination that defendant's request was equivocal or untimely is not clear. (Ibid.)However, we conclude that under either de novo review or a more deferential standard, the court properly rejected what was an untimely and equivocal motion for self-representation. (Id. at p. 23.)
The court denied Jakul's Faretta motion on the grounds that it was untimely. Jakul insists his motion was timely because it was made "a full court-day and a half, and a lunch break" before a jury would be impaneled. No California authority, however, supports Jakul's urged per se rule.
In California, there is no bright-line test for determining the timeliness of a Faretta motion (People v. Clark (1992) 3 Cal.4th 41, 99 (Clark)); rather, the "reasonable time" requirement is to ensure that a defendant does not "misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. . . . When the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted. When, on the other hand, a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by a reasonable standard." (Windham, supra, 19 Cal.3d at p. 128, fn. 5; Burton, supra, 48 Cal.3d at pp. 852-853.)
Not finding any California authority to support his proposed per se rule, Jakul relies on a Ninth Circuit U.S. Court of Appeals decision for the proposition that a motion for self-representation is timely if made before the jury is impaneled. (Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264, abrogated on different grounds in Williams v. Taylor (2000) 529 U.S. 362, as noted in Baker v. City of Blaine (9th Cir. 2000) 221 F.3d 1108, 1110, fn.2.) We, however, are not bound to follow the decisions of the federal circuit courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19.) Further, the Ninth Circuit has, in a different circumstance, determined a request untimely when it is made just before or after important trial proceedings have begun. (See Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149, 1158 [motion made on the morning of trial untimely].)
The court in Faretta, supra, 422 U.S. 806, itself observed that the right of self-representation is not absolute and it could be denied if it is untimely or for purposes of delay. California courts have recognized untimely requests can be an exception to the right of self-representation and have repeatedly upheld the denial of untimely motions. For example, in People v. Frierson (1991) 53 Cal.3d 730, 742 (Frierson), the court held that a self-representation motion made on September 29, 1986, when trial was scheduled for October 1, 1986, was made on "the eve of trial" and was untimely. (See People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made "moments before jury selection was set to begin" deemed untimely]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [self-representation motion made on the date scheduled for trial untimely]; Clark, supra, 3 Cal.4th at pp. 99-100 [case had been continued day to day after August 10 "in the expectation that the motions would be concluded and jury selection set to begin at any time," and hence the defendant's August 13 motion was "in effect the eve of trial" and untimely].)
We conclude that Jakul's motion was made on the "eve of trial." We see little difference between the time at which Jakul moved to represent himself here and the timeframe the court found untimely in Frierson, supra, 53 Cal.3d at page 742. As such, the trial court was correct to find Jakul's motion untimely.
An untimely Faretta motion is addressed to the trial court's discretion. In exercising its discretion, the court should consider certain criteria, including "the quality of counsel's representation . . . 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; People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Marshall (1996) 13 Cal.4th 799, 827.)
We note, at the outset, the court's questioning of Jakul in response to his request to represent himself was not exemplary. The court focused too much on Jakul's technical legal knowledge and acumen, which is irrelevant in analyzing a defendant's request to be self-represented. (See Windam, supra, 19 Cal.3d at p. 128.)
Although the court did not specifically recite in its decision rejecting Jakul's request that it had considered the so-called Windham factors (Clark, supra, 3 Cal.4th at p. 101), a review of those factors in light of this record convinces us that the court did not abuse its discretion in denying the motion (id. at p. 100). Jakul was first arraigned on July 9, 2009. There were several pretrial conferences in the months that followed. Jakul, however, did not request to represent himself at any of these hearings. Instead, Jakul only made his request after the court denied his counsel's motion for a trial continuance, one court day before trial was to begin. When the court asked Jakul why he waited until the court day before trial to request to represent himself, Jakul's only stated reason was, "I feel I'm strong enough to do it." In addition, the only reason Jakul provided for wanting to represent himself was, "So I can go study everything about this myself." Jakul did not state that he was dissatisfied with the quality of his counsel. To the contrary, he stated that he wanted his counsel to represent him if the trial went forward as scheduled.
Further, trial was to begin the next court day and the court had already granted a one-week continuance. Allowing Jakul to represent himself a court day before trial would have necessitated an additional continuance because he admitted that he would not be ready for trial on November 2. The court had already denied Jakul's attorney's request for a continuance that morning. The trial was to involve 10 prosecution witnesses, and at least one of the witnesses was elderly and in poor health. Accordingly, Jakul's Faretta motion threatened to disrupt the entire trial, and the court correctly exercised its discretion to deny it. (See People v. Lynch (2010) 50 Cal.4th 693, 722-724, abrogated on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 637.)
Jakul's Farretta motion also was equivocal. He indicated that if the trial was going forward as scheduled, he wanted to retain his counsel. Also, the record is unclear if Jakul really wanted to represent himself or was merely trying to gain access to the prison law library. Jakul therefore did not unequivocally request to represent himself, and his Faretta motion could be denied for this reason as well. (Cf. Marshall, supra, 15 Cal.4th at p. 23; see also People v. Barnett, supra, 17 Cal.4th at p. 1087.)
In short, the court was well within its discretion to conclude the request was untimely, made for purposes of delay, and not really a good faith request for self-representation. There was no error in this regard. In addition, even under an independent review, we conclude Jakul's motion was untimely and equivocal.
V
STAY OF JAKUL'S SENTENCE UNDER SECTION 654
Jakul contends the court committed reversible error by failing to suspend his sentence for count 2 under section 654. We disagree.
In general, section 654 prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conduct is indivisible depends on the intent and objective of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19; see also People v. Latimer (1993) 5 Cal.4th 1203, 1216.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) Even though our Supreme Court has in the past criticized this test, it has more recently reaffirmed it as the established law of this state. (People v. Britt (2004) 32 Cal.4th 944, 952.) In so doing, the court noted "that cases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted. [Citation.]" (Ibid.) In other words, "if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
Section 654 provides in pertinent part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
The issue of whether section 654 precludes punishment in any case "is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (Jones, supra, 103 Cal.App.4th at p. 1143.)
Here, it is apparent that Jakul had the intent to steal Bradham's car. He, along with Lane, broke into the car and attempted to hotwire it. However, when Bradham turned on the outside lights, Jakul abandoned his plan to take the car, but instead took money out of the car's ashtray. Thus, Jakul's intent and objective switched from taking the car to taking money from the car. Accordingly, the court could have reasonably found Jakul held two separate intents and objectives.
Jakul's argument to the contrary is unpersuasive. The evidence does not support his contention that he broke into the car, took change from the ashtray, and then fled in one continuous course of conduct.
Nor does the evidence support the application of the single-intent-and-plan doctrine as urged by Jakul. This matter does not concern the consolidating of various petty thefts into a grand theft. (See People v. Bailey (1961) 55 Cal.2d 514, 518-519.) Instead, Jakul intended to take Bradham's car, but changed his intent and objective when Bradham turned on the outside light, and Jakul took change from the car's ashtray instead. A stay of Jakul's sentence for count 2 under section 664, therefore, is not appropriate.
VI
LANE'S JOINDER
Although Lane, in his opening brief, joined in the arguments advanced by Jakul, he did not supply any additional argument on the issues of right to self-representation or a stay of sentence under section 664 as it applied to his unique circumstance. Joinder may be broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), but each appellant has the burden of demonstrating error and prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice"].) To the extent Lane's cursory joinder was an attempt to raise the right to self-representation or stay of sentence under section 664, his reliance solely on Jakul's arguments and reasoning is insufficient to satisfy his burden on appeal. Further, from our review of the record, it is not apparent how either issue applies to Lane. We therefore consider the right to self-representation and stay under section 664 issues only as to Jakul.
DISPOSITION
The judgments are affirmed.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
BENKE, J.