Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA088216, David C. Brougham, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Darrell Lee Lopez contends the court abused its discretion in revoking his pro per status and in excluding under Evidence Code section 352 the testimony of a witness he intended to call to impeach a prosecution witness on a collateral matter. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged by information with two counts of resisting an executive officer (Pen. Code, § 69) and one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). It was further alleged that appellant had suffered three prior convictions -- in 1998, 2000, and 2004 -- within the meaning of section 667.5, subdivision (b), and section 1203, subdivision (e)(4).
Undesignated statutory references are to the Penal Code.
B. Evidence at Trial
On the evening of September 20, 2009, appellant went into a bar called Friar Tuck’s. He began behaving oddly, lifting up his shirt, asking the bartender, Anden Smith, to lift up hers, and bouncing off the ropes of the stage area. He asked for a drink, but the bartender refused to serve him. Sami Marzougui, the manager of the bar, asked him to leave, which he briefly did, after challenging Marzougui, who was escorting him out, to fight. Appellant returned almost immediately, swung his fist at Marzougui and pushed him, knocking over several tables in the process. The two men wrestled briefly. Two patrons, John Himes and Matt Carriero, stepped in to assist Marzougui. The three of them held appellant on the ground while Smith called 911. While being held down, appellant bit Himes’s hand hard, breaking the skin and causing a great deal of bleeding.
Pomona Police Officers Shaun Diamond and Lena Becker responded to the 911 call. When the officers arrived, appellant’s nose was swollen and red and he had blood on his shirt and around his mouth. The officers took him to a nearby hospital. Appellant was reluctant to allow medical personnel to examine him and refused to answer their questions. He was loud and verbally aggressive. A physician, Dr. Ivan Schatz, examined the abrasions on appellant’s forehead and nose and cleared him medically to be booked.
The men who struggled with appellant in the bar did not recall inflicting any injuries on him. No one in the bar saw either of the police officers strike him.
Appellant was taken to jail. Officer Diamond and a jail attendant, Warren Clukey, placed appellant in the strip search cell and attempted to conduct a strip search. Appellant did not remove his clothing when instructed. Officer Diamond and Clukey were able to remove his shirts. When asked to remove his pants, appellant refused, expressing concern that the two men were planning to sexually assault him. Officer Diamond and Clukey, assisted by another jail attendant, Morgan Mallory, managed to pull his pants off. But when instructed to remove his underwear, appellant stated: “Well, I guess it’s on” and started swinging his fists and elbows and trying to get out of the strip search room. Clukey was hit in the back by appellant’s elbow. Officer Diamond was hit on the cheek. Appellant hit his head and shoulder on the door when he tried to escape from the room. Appellant also hit a bench after being shoved by Officer Diamond. Officer Diamond used a taser on appellant, but that did not stop his struggling. Mallory attempted to stun appellant using the taser in drive mode, without darts. Appellant was tased three or four times altogether before the officers got him under control.
Officer Diamond and Mallory recalled that appellant removed his pants and other items of outerwear on his own.
After the struggle, appellant’s eye appeared injured and he was transported back to the hospital. Hospital personnel found him combative and unruly and placed him in restraints. The treating physician ordered a chest x-ray and cat scan of his head and face. His nose was swollen and there was swelling and a hematoma under one eye. In addition, there was a small fracture of a nasal bone. The examination revealed no serious injuries. Appellant was medically cleared to be returned to jail.
The medical evidence, including medical records from both examinations and the testimony of the doctor who had examined appellant the first time, came in during appellant’s presentation of his defense. The defense also called Carriero and Mallory.
C. Verdict and Sentencing
The jury found defendant guilty as charged and found true that he had suffered the prior convictions. The court sentenced appellant to a term of eight years and four months, consisting of four years for the assault charge, eight months each for the two resisting charges and three years for the section 667.5, subdivision (b) enhancement.
DISCUSSION
A. Self-Representation
1. Background
Early in the proceedings, appellant asserted the right to proceed in pro per. (See Faretta v. California (1975) 422 U.S. 806.) After advising him of the risks and disadvantages and making the finding that appellant had knowingly and voluntarily waived his right to counsel, the trial court permitted him to represent himself. The court also appointed standby defense counsel in case revocation of appellant’s status became necessary.
Appellant’s in-court behavior was problematic from the start. Before the jury was selected, he made nonsensical motions, groundlessly accused the prosecutor and others of withholding or tampering with evidence, and repeatedly asked the trial judge to recuse himself. The court warned appellant that he was expected to behave appropriately and that if he failed to do so, his pro per status would be revoked.
During voir dire, appellant left photographs he intended to introduce where prospective jurors could see them and made remarks about being in a “kangaroo court.” The court had difficulty keeping appellant focused on the selection process. Appellant sought instead to make additional motions and “read some stuff... [into] the record.” The court again warned him about the possibility of losing his pro per status.
During presentation of the prosecution’s case, appellant continued to make and re-argue frivolous motions, including motions pertaining to discovery and expert witnesses, motions to dismiss, and recusal motions. In addition, appellant frequently made offensive comments in front of the jury, including accusing the prosecutor of misconduct; accusing the prosecutor, the court and the police department of withholding exculpatory evidence; disparaging his own investigator; and contending that commonplace problems with video equipment demonstrated evidence tampering. He claimed or implied through his cross-examinations to have suffered serious injuries during the incident at the jail, including a fractured skull and a broken back or neck, and to have been beaten almost to death, although the medical evidence demonstrated he had suffered no serious injuries. He further claimed or implied that evidence -- including video recordings taken at the jail -- would show he had been attacked with an ice pick, sodomized, and subjected to a cavity search, and that the female arresting officer (Becker) had watched him being stripped. No such evidence was ever presented. Appellant also made comments which appeared particularly geared toward garnering juror sympathy, including repeatedly stating he was disabled, and falsely stating or implying he had not been allowed to see videos or documentary evidence before trial.
After asking Officer Becker multiple questions implying she had been present during the attempted strip search, appellant was asked by the court outside the presence of the jury whether he was aware of any evidence, including his own representation, that she had watched the attempted strip search. Appellant was unable to identify any such evidence.
One area of particular contention was appellant’s 2004 arrest and conviction. He repeatedly argued that it was somehow related to the underlying 2009 incident and that the same officers and/or jail attendants were involved in both incidents, although the prosecutor and the defense investigator assured him that was not the case, and the witnesses testified they had not been involved in any prior arrest of appellant. Nevertheless, ignoring the court’s warnings and admonishments, appellant repeatedly asked the witnesses questions about the 2004 case and repeatedly requested permission to introduce into evidence documents related to that case. On multiple occasions during this period, the court warned appellant he could lose his pro per status if he continued to interrupt, argue motions in front of the jury, and make baseless accusations of misconduct.
After the prosecution rested, appellant’s misconduct escalated. Appellant engaged in lengthy debates with the court over the relevance of his 2004 arrest, the testimony of witnesses he intended to call and his desire to recall all of the prosecution witnesses although, with one exception, he could identify no relevant questions he wished to ask that had not already been the subject of cross-examination. He asked the judge to recuse himself several more times. The day he was scheduled to call his first witness, appellant engaged in a diatribe in which he accused the court of deliberately impairing his defense, and reargued his motion to recall prosecution witnesses. This went on while the witness defendant had subpoenaed -- Dr. Schatz, who had been up all night working -- was waiting to testify. After the doctor testified, appellant requested that the DVD’s with pictures of his injuries go to the jury. The court agreed with his request, but when appellant learned there were only two DVD’s rather than four, he made new accusations of evidence tampering and argued with the court, his own investigator and the prosecutor. The court then informed appellant that Smith, who had been ordered to return, was waiting to be recalled for questioning concerning her prior conviction. Appellant stated he no longer wished to make the inquiry and when Smith was returned to the stand, attempted to ask her about matters that had been fully covered in the original cross-examination. The court stopped the examination and excused Smith. When the next defense witness (Carriero) appeared pursuant to appellant’s subpoena, appellant appeared to have no recollection of why he had called Carriero to testify.
The exception involved the bartender, Smith. Appellant had not asked her about a prior conviction she had suffered, and the court agreed to recall her to permit him to make that inquiry.
Once on the stand, Carriero testified that he had been so drunk he could recall little of what occurred on the night in question.
The next morning, Mallory, the senior jailor, appeared in response to appellant’s subpoena. Appellant wasted more time with a spate of nonsensical and repetitive motions. The court stated: “Do you want to lose your pro per status? Listen to me carefully. I told you we’re not going to relitigate motions. You previously made motions to dismiss. I heard you out. I denied those motions. And to the extent that you’re making new motions to dismiss, I am denying those. And I’m not going to spend days and weeks here hearing endless requests that are repeated. We’ve had this discussion. And let... me just tell you something, by making these motions you’re inching yourself closer to losing the pro per status because they are disrupting the administration of justice in this courtroom. [¶] Morgan Mallory is available as a witness at your request through your investigator. Do you want to call him as a witness?” Appellant continued to argue his various motions until the court cut him off and called in the jury.
The court noted at that time: “You indicated the other day that you wanted Ms. Smith back to ask her about her conviction and you represented to the court falsely that you wanted to ask her about that. When she was brought back here and you were given that opportunity, you declined to do so. And that suggests, and the record will reflect, a certain amount of continuing game playing on your part.”
When evidentiary proceedings re-commenced, rather than question Mallory, appellant called his investigator, Frank Mackey, and inquired about a number of irrelevant matters, including a 1996 investigation, appellant’s own witness list, and the timing of the receipt of various documents from the prosecutor. The court allowed this to go on for a few minutes and then excused the jury. He warned appellant a final time: “[Y]ou continue to disregard the court’s order as it related, to bringing up discovery issues. And discovery issues meaning your discontent with my rulings and previous court’s rulings about which witnesses you’re entitled to and which witnesses you’re not entitled to. [¶] So therefore, I regard your continuing to ask questions as continued disruptive behavior, that and your continued interruptions of the court and interruptions of the witness[es], has, in my opinion, turned this trial into something close to a circus and [¶]... [¶] I’m going to advise you again that if you have relevant questions you may ask him. But those relevant questions do not include discussions of court rulings and admissibility of witness issues.” Appellant made no indication he would acquiesce, but instead insisted that his questions of Mackey were relevant to his defense because he was “authenticating the evidence.” After a short break, the court revoked appellant’s pro per status based on appellant’s disruptive in-court behavior. The court stated that the decision was based on the accumulation of misbehavior, including interrupting the court and witnesses, commenting to the jury, and openly disagreeing with the court’s rulings on evidentiary issues and motions. The court stated that appellant had repeatedly “insist[ed] on having his own way, ” generated a “circus-like atmosphere, ” and subverted “the core concept of trial.” The court called in standby counsel, and the trial proceeded.
After his pro per status was revoked, appellant refused to cooperate with standby counsel or to participate further in the proceedings.
2. Analysis
“[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (Faretta v. California, supra, 422 U.S. at p. 834, fn. 46.) “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” (Id. at p. 835, fn. 46; accord, People v. Watts (2009) 173 Cal.App.4th 621, 629, quoting McKaskle v. Wiggins (1984) 465 U.S. 168, 173 [“[A] defendant requesting the right of self-representation must possess the ability and willingness ‘to abide by rules of procedure and courtroom protocol.’”].) “[A] trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation.” (People v. Welch (1999) 20 Cal.4th 701, 735.)
“When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. One consideration is the availability and suitability of alternative sanctions. [Citation.] Misconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant’s right to self-representation. [Citations.] The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status. [Citation.] Not every obstructive act will be so flagrant and inconsistent with the integrity and fairness of the trial that immediate termination is appropriate. By the same token, however, the defendant’s acts need not result in a disruption of the trial.... The likely, not the actual, effect of the misconduct should be the primary consideration. [¶] Additionally, the trial court may assess whether the defendant has ‘intentionally sought to disrupt and delay his trial.’ [Citations.]” (People v. Carson (2005) 35 Cal.4th 1, 10.)
On review, we apply the abuse of discretion standard to the trial court’s decision to terminate a defendant’s right of self-representation. (People v. Carson, supra, 35 Cal.4th at p. 12; People v. Welch, supra, 20 Cal.4th at p. 735.) “The trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’” (People v. Welch, at p. 735.)
Appellant’s persistent misbehavior and abuse of his pro per status fully supported the court’s decision. From the start, appellant’s actions were inconsistent with the court’s efforts to maintain the integrity and fairness of the trial. He attempted to garner juror sympathy by making comments about his alleged disabilities and false claims of tampering with or withholding evidence. He implied through his questioning that the evidence would show that he had been seriously beaten by the officers or subjected to serious abuse -- no such evidence was ever introduced. He implied that the court was improperly preventing him from presenting important evidence and witnesses. He asked irrelevant and repetitious questions, argued and re-argued meritless motions, subpoenaed witnesses he had no intention of questioning or for whom he had no relevant questions. He wasted the time of the court, the lawyers, the investigator, the jurors and the witnesses. The court warned him on multiple occasions that his failure to abide by its instructions would result in the loss of his self-representation status. But after brief periods of acquiescence, appellant would resume his prior behavior. The final straw occurred when he left a subpoenaed witness waiting in order to question his own investigator about wholly irrelevant and improper matters, and refused the court’s instruction that he move on. At that point, if not far earlier, it was clear that appellant had no intention of adhering to appropriate courtroom procedures, but rather intended to do or say whatever he wished before the jury as long as the court permitted him to continue to represent himself. On this record, the court’s decision to terminate appellant’s pro per status did not represent an abuse of discretion.
We note that the evidentiary portion of the trial alone consumed seven court days.
Appellant suggests the court should have imposed alternative sanctions short of revocation of his right to self-representation. He does not suggest what those alternatives might have been. As the Supreme Court said in People v. Carson, supra, 35 Cal.4th at p. 10, alternative sanctions are more suitable where the misbehavior is removed from the courtroom setting and less likely to affect the fairness of trial. Here, appellant’s misbehavior took place in the courtroom, much of it in front of the jury. The court demonstrated extreme patience, repeatedly warning appellant that loss of pro per status would result if he continued to refuse to maintain proper courtroom standards of behavior and decorum. Having permitted appellant to continue his pro per status despite repeated instances of conduct that could have warranted revocation, the court was under no obligation to impose alternative sanctions.
B. Witness Exclusion
1. Background
During appellant’s cross-examination of Officer Diamond, appellant asked the officer if he had attended Buena Park High School and if he knew Frank Riano. Officer Diamond responded in the negative. Later, appellant informed the court he intended to call Riano to testify that Officer Diamond had attended Buena Park High School and that this would establish that Officer Diamond had perjured himself and that he knew appellant from the past. The court concluded that the evidence would constitute collateral impeachment, and that introduction of the testimony would be unduly time-consuming under Evidence Code section 352.
During his discussion with the court, appellant implied that he too went to Buena Vista High School. However, appellant did not represent that Riano would say so, and appellant himself did not testify.
2. Analysis
Evidence is subject to exclusion under Evidence Code section 352 if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “[E]vidence is probative if it is material, relevant, and necessary. ‘[H]ow much “probative value” proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).’” (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20, disapproved in part on another ground in People v. Rowland (1992) 4 Cal.4th 238.) A trial court’s broad discretion in determining whether to admit or exclude evidence under Evidence Code section 352 will not be overturned absent an abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
We agree with the trial court that the evidence appellant sought to introduce was for the purpose of impeaching a witness on a collateral matter. “‘“[T]he latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” [Citation.]’” (People v. Harris (2008) 43 Cal.4th 1269, 1291, quoting People v. Ayala (2000) 23 Cal.4th 225, 301; see also People v. Fudge (1994) 7 Cal.4th 1075, 1103 [“[E]xcluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.”].) Allowing Riano to testify would not have irrefutably demonstrated that Officer Diamond lied about where he went to high school, much less that he had known appellant in the past. It would have demonstrated only that Riano believed he recognized Officer Diamond from high school. Moreover, evidence that Officer Diamond attended high school with appellant, standing alone, would not have supported an inference that Officer Diamond lied about appellant’s behavior on the night in question. Appellant offered no evidence to link their alleged attendance at the same high school to the existence of any animosity between them. In short, the trial court did not abuse its discretion in excluding the evidence.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., SUZUKAWA, J.