Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles Howard Swart, Judge Super. Ct. No. MA034647
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Bruce James Macias appeals the judgment following his conviction for first degree residential burglary. (Pen. Code, § 459.) He claims the trial court erred in denying his motions for judgment of acquittal and for self-representation, and that the prosecutor improperly shifted the burden of proof during argument. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Robert Friedlander and his wife Marian, both 62 years old, lived in a one-story duplex in Lancaster, California. They went to bed at 10:00 p.m. one evening. Shortly after midnight, Friedlander got up and walked by the living room. He saw that dresser drawers had been opened, papers had been scattered around the room, and a window screen had been bent back and the window was open. His wife noticed that her purse was missing. The purse contained an ATM card, credit cards, checks, and $30 to $50 in cash. Concluding that their home had been burglarized, the Friedlanders called the police. Before the police arrived, the Friedlanders noticed that other property was missing, and that a silver picture frame which had been inside the dresser drawer had been moved to the top of the dresser. The frame contained a picture of Mr. Friedlander at his brother's wedding. Friedlander later testified that his brother had children in their twenties.
The next morning, a deputy sheriff took a burglary report, and instructed the Friedlanders not to touch areas where the burglar may have been in order to preserve fingerprints. Later, a fingerprint technician dusted various surfaces for fingerprints and preserved nine prints, including prints found on the silver picture frame.
Fingerprint examiner Jayne Kane determined that two of the prints on the picture frame belonged to Macias. Two other examiners confirmed Kane's conclusion. Kane could not determine how long the fingerprints had been on the picture frame but, potentially, fingerprints could remain on a picture frame for years.
The Friedlanders did not know Macias and Macias had never been in the Friedlander home with their permission or consent.
A jury convicted Macias of burglary. After admitting he had served a prior prison term (§ 667.5, subd. (b)), Macias was sentenced to five years in prison consisting of four years for burglary and one year for the prior prison term.
DISCUSSION
Conviction Supported by Substantial Evidence
Macias contends that the trial court erroneously denied his motion for a judgment of acquittal after the close of the People's case. (§ 1118.1.) He argues that evidence of his fingerprint on the picture frame, the sole evidence connecting him to the offense, was insufficient to support a conviction. We disagree.
Section 1118.1 authorizes the trial court to enter a judgment of acquittal "if the evidence then before the court is insufficient to sustain a conviction . . . on appeal." In deciding a motion for judgment of acquittal, the trial court applies the standard of review applied by the reviewing court in assessing the sufficiency of evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) The court must determine whether the evidence could persuade a rational trier of fact of the defendant's guilt beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) In determining whether the evidence supports the trial court's ruling, an appellate court reviews the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. (Id., at p. 932.) We conclude that substantial evidence supports the trial court's ruling.
It is well established that fingerprints are the strongest evidence of identity and ordinarily are sufficient by themselves to identify the perpetrator of the crime. (People v. Andrews (1989) 49 Cal.3d 200, 211, overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237.) In People v. Figueroa (1992) 2 Cal.App.4th 1584, 1586-1587, the court concluded fingerprints found on a window which was the point of entry for the burglar was sufficient for a conviction. Although the defendant had visited the apartment before the burglary, there was no evidence of his presence between a cleaning of the window and the burglary. (Id., at p. 1588.) In People v. Preciado (1991) 233 Cal.App.3d 1244, 1246-1247, the court concluded that a defendant's fingerprints on a wristwatch box in a burgled apartment were sufficient for a conviction because the victim did not know the defendant, and the box had never left the home.
Macias relies on Mikes v. Borg (9th Cir. 1991) 947 F.2d 353, a murder case, where the Ninth Circuit reversed a conviction based solely on the presence of defendant's fingerprints on a turnstile post which was the murder weapon. The court recognized that fingerprint evidence alone may support a conviction under certain circumstances, but concluded that, "in fingerprint-only cases in which the prosecution's theory is based on the premise that the defendant handled certain objects while committing the crime in question, the record must contain sufficient evidence from which the trier of fact could reasonably infer that the fingerprints were in fact impressed at that time and not at some earlier date. [Citations.] In order to meet this standard the prosecution must present evidence sufficient to permit the jury to conclude that the objects on which the fingerprints appear were inaccessible to the defendant prior to the time of the commission of the crime." (Id., at pp 356-357, fn. omitted.) In Mikes, the court concluded that it was possible that the defendant's fingerprints were placed on the turnstile post before it had been purchased by the victim a few months before the murder. (Id., at p. 359.)
As an opinion of an intermediate federal appellate court, Mikes is not binding authority on California courts. (Rohr Aircraft Corp. v. San Diego County (1959) 51 Cal.2d 759, 764-765.) And, its rationale was rejected in People v. Figueroa, supra, 2 Cal.App.4th at pages 1587-1588. In addition, other Ninth Circuit cases have declined to strictly follow Mikes under factual situations similar to the instant case. (Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1022-1023; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 909-910.) Furthermore, there was evidence that the picture frame was inaccessible to Macias prior to the time of the burglary. Macias was unknown to the Friedlanders and the frame was inside a dresser drawer at the time of the burglary. This evidence supports the inference, and constitutes substantial evidence, that Macias placed his fingerprints on the picture frame when he removed it during the commission of the burglary.
Macias argues that, although he had no access to the picture frame in the Friedlander home, there was no evidence as to when the Friedlanders acquired the frame or whether it was accessible to the general public before acquisition. There is no basis to conclude, except as a hypothetical and remote possibility, that a picture frame containing a wedding picture of a person whose children were grown at the time of the burglary was recently purchased or accessible to Macias prior to purchase.
No Prosecutorial Misconduct
Macias contends that the prosecutor committed misconduct by repeatedly stating during closing argument that Macias did not call his own fingerprint expert to dispute the testimony of prosecution expert Kane. Macias argues that these comments improperly shifted the burden of proof to the defendant by suggesting to the jury that Macias had an obligation of offering evidence to rebut the prosecution expert. We disagree.
"A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such '"unfairness as to make the resulting conviction a denial of due process."' [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]" (People v. Cook(2006) 39 Cal.4th 566, 606.) To prevail on a claim of misconduct based on statements to the jury, a defendant must show a reasonable likelihood the jury understood or applied the statements in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970.)
A prosecutor may comment on the state of the evidence and defendant's failure to introduce material evidence or call logical witnesses. (People v. Cook, supra, 39 Cal.4th at p. 608; People v. Cornwell (2005) 37 Cal.4th 50, 90.) In particular, a prosecutor's comment regarding the defense's failure to present exculpatory evidence does not imply the defense bears a burden of proof. (People v. Lewis (2004) 117 Cal.App.4th 246, 257.) "A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
Here, the prosecutor's argument was a fair comment on the state of the evidence. The prosecutor stated that "there's nothing to contradict what Ms. Kane told you;" "what she told you is the truth [and] her opinion, which was valid. And that's the reason why we don't have a defense expert here to say that those prints are not the defendant's." In a similar vein, the prosecutor stated that "if the defense really had a problem with the evidence in this case, they could have called their expert to come in and counter the People's position, but they didn't do so, and it's the People's position again that we have proven this case beyond a reasonable doubt."
These comments did not state, or imply, that defendant had the burden to prove his innocence. They were merely argument that defendant had not produced any evidence to contradict the fingerprint evidence. In fact, the prosecutor reminded the jury that the prosecution had the burden of proof by stating that "we" have proven the case beyond a reasonable doubt.
No Error in Denial of Faretta Motion
Macias contends that the trial court's denial of his Faretta motion violated his constitutional right to represent himself. (Faretta v. California (1975) 422 U.S. 806, 818-836.) Again, we disagree. A criminal defendant has a constitutional right of self-representation. To invoke that right, a defendant must unequivocally assert it within a reasonable time prior to commencement of trial. (People v. Marshall (1996) 13 Cal.4th 799, 827.) The trial court must permit self-representation as long as the motion is timely, and intelligently and knowingly made. (People v. Stanley (2006) 39 Cal.4th 913, 931-932; Faretta v. California, supra, 422 U.S. at p. 835.)
The trial court, however, has discretion to deny an untimely motion for self-representation. (People v. Burton (1989) 48 Cal.3d 843, 852.) To be timely, a motion must be made a reasonable time before trial. (Id., at pp. 853-854.) Courts have affirmed the denial of motions made within a few days of a scheduled trial date. (People v. Rudd (1998) 63 Cal.App.4th 620, 625-626 [three days before trial]; People v. Hill (1983) 148 Cal.App.3d 744, 757 [five days before trial]; People v. Ruiz (1983) 142 Cal.App.3d 780, 790-791 [six days before trial].)
Macias cites a Ninth Circuit case stating that Faretta motions generally are timely when made before empanelment of the jury unless they are used as a tactic to secure delay. (Moore v. Calderon (9th Cir.1997) 108 F.3d 261, 264.) But, the California Supreme Court has rejected that rule, concluding that it is "too rigid in circumscribing the discretion of the trial court." (People v. Burton, supra, 48 Cal.3d at p. 854 & fn. 2.) Moreover, a more recent Ninth Circuit decision has stated that California's "reasonable amount of time before trial" standard for timeliness is consistent with Faretta. (Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1060-1061, fn. omitted.)
In any event, here, the trial court could reasonably conclude that the request for self-representation was untimely both because it was made too close to trial and because it was a tactic designed to cause delay.
The People offered a plea bargain on the day set for trial which was just three days from the expiration of the 60-day period within which a case must be brought to trial. (§ 1382, subd. (a)(2).) Macias rejected the offer, and immediately made a Marsden motion to replace his appointed public defender with new appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118.) He complained that his public defender did not believe he could win the case, and was upset that counsel had not negotiated a better plea agreement. The court denied the motion.
Approximately 30 minutes later, Macias appeared before another judge and again requested new appointed counsel. The court noted that he had just made a Marsden motion, and stated that current counsel was "very competent." In response, Macias asked if he could "go pro per." The court indicated that it would consider the request if he were ready to start trial within the following three days. Macias asked for "some time to start hitting the books," but stated that he would waive time. The court denied his request.
Approximately 30 minutes later, Macias appeared before a third judge and stated that, "I am going to go pro per. I also want a state-appointed attorney." At the court's suggestion, Macias waived time for one day to allow the court to consider his third Marsden motion and a Faretta motion. Macias agreed to waive one day of time.
During the ensuing Marsden hearing, Macias repeated his complaint that current counsel lacked confidence in the case, and stated that he wanted to "roll my dice" with another appointed counsel. He also accused counsel of laughing at him and making racial comments. Counsel denied the laughing and racial slur but stated that he had told Macias that he did not believe the jury would acquit him.
The court denied the Marsden motion and conducted a Faretta hearing. The court indicated that it would allow Macias to represent himself if Macias could start trial that day or within four days. Macias declined, stating that he wanted "more time to study in the law library." The court again stated that it might grant his Faretta motion if Macias could commence trial within four days. Macias said, "I don't know. I can't make a decision. I don't know the courts." The court denied the motion and sent the case to trial.
This record also supports a finding that Macias's request was equivocal, and made in reaction to the denial of his Marsden motions. "Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion." (People v. Marshall (1997) 15 Cal.4th 1, 23.) A motion is equivocal if it arises from a defendant's annoyance or frustration with counsel or with his motion for substitution of counsel. (Id., at pp. 21-22; People v. Scott (2001) 91 Cal.App.4th 1197, 1205.)
Here, Macias's request to "go pro per" was preceded by an unsuccessful Marsden motion, and followed by another unsuccessful Marsden motion. It was evident that he wanted new appointed counsel, not to represent himself. Macias was admittedly unprepared to defend himself and uncertain about how to prepare himself for trial.
Finally, Macias argues that, even if his Faretta motion was untimely, the trial court abused its discretion because the court failed to consider his reasons for self-representation or the significance of any delay. We disagree. In exercising its discretion to deny an untimely Faretta motion, the trial court must consider the quality of counsel's representation, the defendant's prior proclivity to substitute counsel, the reason for the request, the stage of the proceedings, and the disruption or delay that might follow the granting of such a motion. (People v. Windham (1977) 19 Cal.3d 121, 128.) Such consideration may be implicit and the court is not required to make express inquiries and findings regarding the factors. (People v. Marshall, supra, 13 Cal.4th at p. 828.)
Here the trial court's ruling followed multiple hearings during which the trial court considered the Windham factors as well as the factors applicable to a Marsden motion. Two judges favorably evaluated the representation being provided by the public defender, and found no good reason for the request and that the proceedings would be disrupted if the motion were granted.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.