Opinion
C080135
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. HENRY WILLIAM LANE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR93450)
A jury convicted defendant Henry William Lane of resisting or obstructing a peace officer. The trial court sentenced him to six years in prison.
Defendant now contends (1) the trial court erred in failing to instruct sua sponte on unanimity (CALCRIM No. 3500) because multiple wrongful acts were presented in evidence and argued by the prosecutor; and (2) the trial court did not properly consider defendant's request to represent himself at trial.
Finding no error, we will affirm the judgment.
BACKGROUND
A
Red Bluff Police Officer James Talley responded to a report of possible domestic violence at a motel. Defendant chased a female out of a room and toward Officer Talley. Defendant looked at the officer and ran away, twice ignoring the officer's instruction to stop. Red Bluff Police Officer Matthew Coker and Tehama County Sheriff's Deputy Ryan Frank, a K-9 handler, also responded to the scene.
Deputy Frank and Officer Coker found defendant in a trailer park sitting inside a shed with his hands tucked inside his legs. Deputy Frank repeatedly ordered defendant to show his hands, but defendant did not do so. The deputy warned defendant loudly and repeatedly that he would send in his dog if defendant did not comply; defendant made no response. The dog entered the shed and bit defendant on the right arm.
Officer Coker saw defendant apparently reaching with his left hand for a screwdriver. The officer entered the shed and prevented defendant from obtaining the screwdriver. But every time officers told defendant to give them his hands, he would clench his fists and keep them hidden while kicking at the officers. Officer Coker finally cuffed defendant. At some point defendant said, "You want it to be on, bitch?" According to Officer Coker, the struggle inside the shed seemed to last between three and five minutes.
Defendant also tried to stop the officers from putting him in a patrol car. When defendant was halfway into the back seat, he reached up with one leg and kicked Officer Coker in the torso.
B
Represented by counsel, defendant waived preliminary hearing, pleaded not guilty and denied the special allegations. He then filed a Marsden motion. At a hearing on the motion the trial court heard defendant's concerns and defense counsel's explanation, found defendant's complaints unfounded, denied the Marsden motion, and confirmed the matter for trial.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On the date jury selection was scheduled to begin, defendant made another Marsden motion. The trial court heard the motion that same day, listened to defendant's complaints about defense counsel, heard defense counsel's explanations, found there was no irretrievable breakdown in the relationship between defendant and counsel of a kind that would make it impossible for counsel to represent defendant, and denied the second Marsden motion.
Immediately after the conclusion of the second Marsden hearing, defendant said: "I'd like to go pro per." Defendant said he understood that jury trial had been set for that day. He also said he had been trying to obtain retained counsel, but had not been able to do so.
The trial court asked defendant if he had handled criminal law cases before. Defendant said he had "been in it a little bit of my life." The trial court asked if he knew how to select a jury. He said he had not done it, but he was "a fast learner."
When the trial court asked again if defendant intended to represent himself, defendant responded: "I'm asking for a continuance, any type of delay at this moment to be able to gather more witnesses." Defendant also said he needed an adequate amount of time because he "just got money" and needed to "hire an attorney."
The trial court denied the request for a continuance and proceeded to take up the matter of defendant's prior conviction. The district attorney noted that the court had not expressly ruled on defendant's pro per request. The trial court replied: "It was impliedly denied, so I indicated we were proceeding -- [¶] . . . [¶] -- with the trial." The trial court then called in the panel of prospective jurors.
C
During a court conference on jury instructions, the trial court noted that the unanimity instruction (CALCRIM No. 3500) previously requested by the People had been withdrawn. The prosecutor said: "That's correct."
In closing argument, the prosecutor said the issue before the jury was whether defendant resisted an officer by force, violence, or threat, as charged, or committed only the lesser included offense of resisting an officer without force or violence. Regarding force or violence or threat, the prosecutor argued:
"Reaching for a screwdriver, does that constitute one of those elements? I would say yes.
"Is saying: 'Oh, you want to get it on, bitch?' Does that constitute a threat? I would say yes.
"Kicking at officers constitute violence? I would say yes.
"Does kicking an officer square in the bread basket, does that constitute violence? Of course it does."
Defense counsel conceded in closing that the facts were undisputed and asked for conviction of the lesser included offense.
The jury convicted defendant of resisting or obstructing a peace officer. (Pen. Code, § 69.) The trial court sentenced him to six years in prison.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends the trial court erred in failing to instruct sua sponte on unanimity (CALCRIM No. 3500) because multiple wrongful acts were presented in evidence and argued by the prosecutor.
"[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where the evidence justifies a unanimity instruction, the trial court must give it even without a request. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Datt (2010) 185 Cal.App.4th 942, 951.)
"There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings); accord, People v. Williams (2013) 56 Cal.4th 630, 682 (Williams).)
Here, defendant continuously resisted Officer Coker's attempts to detain him while the officer was acting in the lawful course of his duty and was known by defendant to be doing so. Defendant continued his efforts, both inside and outside the shed, to use force, violence and threats to repel Officer Coker. All of the acts cited by the prosecutor took place after Officer Coker entered the shed and were specifically directed at Officer Coker. Given the short time frame within which defendant's acts of violent resistance occurred, it can fairly be said that those acts were " 'so closely connected in time as to form part of one transaction.' " (Jennings, supra, 50 Cal.4th at p. 679; Williams, supra, 56 Cal.4th at p. 682.)
Moreover, defendant offered the same defense to all the alleged acts: he admitted they occurred but argued they constituted a lesser offense than charged. He did not contest the officers' characterization of any of the acts. Contrary to defendant's speculation about what different jurors may have believed, there was no reasonable basis upon which the jurors could have distinguished among the acts. (Jennings, supra, 50 Cal.4th at p. 679.) A unanimity instruction was not required. (Williams, supra, 56 Cal.4th at p. 682; Jennings, supra, 50 Cal.4th at p. 679.)
Defendant relies on People v. Melhado (1998) 60 Cal.App.4th 1529 but his reliance is misplaced. In Melhado, the defendant allegedly made criminal threats around 9:00 a.m., 11:00 a.m., and 4:30 p.m., and left the scene of the crime between each threat. (Id. at p. 1533.) Although the prosecutor told the court outside the jury's presence that he was relying on the 11:00 a.m. threat, he did not clearly elect that act to the exclusion of the others in closing argument; therefore, the trial court's failure to instruct on unanimity was prejudicial error. (Id. at pp. 1535-1536, 1539.) In Melhado, unlike in the instant case, the continuous-course-of-conduct exception did not apply, and the appellate court did not discuss it.
Defendant's argument rests on the false premise that he was charged with "multiple discrete acts of force or violence against different officers in differing locations . . . ." Although more than one officer was involved in defendant's apprehension and detention, the information named only Officer Coker as the victim, and all the acts cited by the prosecutor were done against him.
The trial court had no sua sponte duty to instruct on unanimity.
II
Defendant next contends the trial court failed to properly consider defendant's Faretta motion for self-representation, made on the date set for trial. He claims the trial court was required to grant his request to represent himself because the request was knowing, unequivocal, and timely. We disagree.
Faretta v. California (1975) 422 U.S. 806 (Faretta). --------
The trial court must grant a Faretta motion if (1) the defendant is mentally competent, requests pro per status knowingly and intelligently, and is advised of its dangers; (2) the request is unequivocal; and (3) the request is made a reasonable time before trial. (People v. Jackson (2009) 45 Cal.4th 662, 689 (Jackson).) However, if the motion is not made in timely fashion before trial, the court has discretion whether to grant it, and we review its ruling for abuse of discretion. (Id. at pp. 689-690.) If the court does not specify untimeliness as a ground for denying the motion, we may review the record independently to determine whether the motion could properly have been denied as untimely. (People v. Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15 (Halvorsen).)
In determining whether a Faretta motion was untimely, we must consider the totality of the circumstances at the time the motion was made. (People v. Lynch (2010) 50 Cal.4th 693, 724, abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636-643.) Relevant circumstances include whether the trial date is near, whether counsel is ready for trial, whether the defendant had earlier opportunities to request self-representation, whether there are a large number of witnesses and any crucial witnesses are reluctant or unavailable, whether the case is complex, and whether the defendant will need a continuance if the request is granted. (Lynch, supra, 50 Cal.4th at p. 726; see People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5 (Windham).) A similar list of circumstances appearing in Windham, supra, 19 Cal.3d at pages 127-129, is sometimes referred to as "the Windham factors." (See, e.g., People v. Bradford (2010) 187 Cal.App.4th 1345, 1354 (Bradford).)
Although the trial court should inquire on the record into the so-called Windham factors when faced with an untimely Faretta motion, the failure to do so does not necessarily show an abuse of discretion if substantial evidence in the record supports the inference that the court had those factors in mind when it ruled. (Bradford, supra, 187 Cal.App.4th at pp. 1354-1355.) Here, substantial evidence in the record supports that inference. As the court was well aware, the trial date was at hand, counsel had not claimed a lack of readiness for trial, defendant could have requested self-representation earlier, the known witnesses were few and available, the case was not complex, and defendant asserted he would need a continuance if his Faretta motion were granted. Given the totality of the circumstances, it is insignificant that the jury had not yet been sworn. (Jackson, supra, 45 Cal.4th at p. 689 [no rule that any motion made before trial, no matter how soon before, is timely]; People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made "moments before jury selection was set to begin" untimely].) On these grounds, the trial court could properly have acted within its discretion to deny the motion as untimely, and the court's failure to specify that ground for denial on the record is not a basis for reversal. (Jackson, supra, 45 Cal.4th at pp. 689-690; Halvorsen, supra, 42 Cal.4th at p. 433, fn. 15.)
The trial court could also properly have exercised its discretion to deny the motion because it was not unequivocal. (Cf. Jackson, supra, 45 Cal.4th at p. 689; People v. Scott (2001) 91 Cal.App.4th 1197, 1206 (Scott).) Defendant requested self-representation for the first time immediately after the denial of his second Marsden motion, and without at first stating any reason other than those the court had already heard at length on both Marsden motions. A request for self-representation made " 'out of a temporary whim, or out of annoyance or frustration, is not unequivocal . . . .' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 932; see Scott, supra, 91 Cal.App.4th at p. 1206 [Faretta motion made immediately after denial of Marsden motion].)
Defendant told the trial court he had been trying to retain counsel and just obtained the money to do so. Even though he claimed he needed a continuance to locate witnesses, he also said he needed it to hire an attorney. Those statements suggest defendant did not have a genuine desire to represent himself, but was seeking to remove appointed counsel, delay trial, and obstruct the orderly process of justice. (Cf. People v. Marshall (1997) 15 Cal.4th 1, 23; Scott, supra, 91 Cal.App.4th at p. 1205.) Because defendant mentioned his efforts to retain counsel before the court asked him any questions about his ability to represent himself, we disagree with defendant's assertion that his request was unequivocal "when he made it" and became equivocal only after the court's "improper" questioning.
The trial court did not abuse its discretion in denying the Faretta motion, and thus we need not consider the question of prejudice.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.