Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA059265. Martin L. Herscovitz, Judge.
Linn Davis, 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, Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ,, J.
A jury convicted Terry McGee (defendant) of two counts of first degree burglary (counts 1 & 3; Pen. Code, § 459) and one count of attempted first degree burglary (count 2; §§ 664, 459). In a bifurcated proceeding, the trial court found that defendant had suffered a prior serious or violent felony conviction under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction under section 667, subdivision (a), and that defendant had served a prior prison term under section 667.5, subdivision (b). The trial court sentenced defendant to 18 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant represented himself at trial. After the jury issued its verdict, defendant requested an attorney to represent him during the court trial on the priors and sentencing. The trial court granted the request and appointed counsel. After the court trial on the priors, defendant sought to represent himself during sentencing. The trial court denied defendant’s request and appointed counsel continued to represent defendant. On the day of the sentencing hearing, defendant requested a substitution of retained counsel. Retained counsel, however, was not present. Instead, his colleague requested a five-week continuance because retained counsel was in trial. The trial court denied the request to substitute retained counsel.
On appeal, defendant argues the trial court committed reversible error when it denied his request to represent himself after the court trial on the priors, and when it denied his request to substitute retained counsel on the day of the sentencing hearing. Defendant also contends sufficient evidence does not support the attempted burglary conviction. We affirm.
FACTUAL SUMMARY
On the morning of September 28, 2007, Helen Arevalo (Arevalo) placed an envelope in the mail slot in front of her home for the postal carrier to pick up. The envelope was addressed to the California Lottery and was from Albert Zepeda, Arevalo’s grandson who lived with her. Sometime later, Arevalo heard a knock on her front door. When Arevalo looked to see who was at her door, she did not see anyone. Arevalo went out to her porch to investigate further and saw a man coming from around the side of her house. The man, who was wearing a baseball cap, asked Arevalo whether a girl named Kimberly lived next door. Arevalo replied “No, there’s no Kimberly next door” and the man “just stood there.” The man then apologized, said that he had the wrong street, and left.
Los Angeles Police Department (LAPD) Detective Robert Runnels showed Arevalo three six-pack photographic displays of various individuals including defendant. Within a matter of minutes, Arevalo identified defendant as the man who came to her home on September 28, 2007. At trial, Arevalo also identified defendant as the man who came to her home. She testified, however, that she was not “a hundred percent sure” of her in-court identification because she “only saw [the man] briefly” and the man was wearing a baseball cap, which affected her ability to see his face. Arevalo testified that the baseball cap she saw on the man who came to her house looked like a baseball cap that was eventually recovered in a vehicle that defendant was seen fleeing from.
At 2:15 p.m. on September 28, 2007, Victoria Sokhansanj (Sokhansanj), who lived around the block from Arevalo, left her home to pick up her children from school. When Sokhansanj returned, her home had been ransacked. Several items were missing, including jewelry, pillow cases, perfume, children’s games, clothes, a cell phone, and gifts that her children had saved from previous holidays. Sokhansanj also noticed that the window in her dining room was smashed and the screen door in the kitchen was broken.
On the afternoon of September 28, 2007, Yolanda Ramirez (Ramirez) saw a white sports utility vehicle (SUV) pull up near the front of her house. She saw two men exit the car. The men entered the front yard of her next door neighbor (Veronica Alegria). Some minutes later, Ramirez heard a noise. She went to her bathroom, which had a view of her neighbor’s house, and saw the men standing next to an open window. Because she thought the men’s presence was unusual, Ramirez called 9-1-1 and reported the scene along with the SUV’s license plate number.
LAPD Officer Rennick Brown (Brown), who was on airship duty, responded to Ramirez’s 9-1-1 call approximately 30 seconds later. When he arrived at Alegria’s home, he saw a white SUV parked nearby. The SUV had a license plate that matched the one reported by Ramirez. Two to three minutes later, Brown saw the SUV drive around the block and return to Alegria’s home. Two men, who were on the sidewalk walking away from Alegria’s home, entered the SUV. As the SUV pulled away, Brown continued tracking the vehicle from the airship and relayed the SUV’s location to various ground units. After the SUV was directed to pull over by one of the ground units, the SUV began to accelerate up to 90 m.p.h. through residential streets. A high speed chase ensued and ended when the SUV collided with another vehicle, resulting in a severe accident.
After the collision, Brown observed all three individuals inside the SUV flee on foot. He saw defendant run in a northerly direction and directed officers on the ground to his location. Using Brown’s directions, LAPD Detective Thomas Barnhart caught up with defendant. According to Barnhart, defendant had blood on his mouth and hands and required paramedic assistance. Officers also located and arrested the other two occupants in the SUV.
LAPD Officer Eric Holtz testified that Alegria’s home had been ransacked, and her television had been moved off its stand and abandoned in the middle of the living room floor. An LAPD fingerprint technician dusted the home, but was not able to recover any usable fingerprints. Because of various “dimple” patterns isolated by the technician, the technician believed that the individuals who entered Alegria’s home had used gloves.
Officers impounded the SUV and performed an inventory search. Inside the SUV, officers found the perfume, jewelry, and cell phone that belonged to Sokhansanj, and the envelope addressed to the California lottery that belonged to Arevalo’s grandson. In addition to those items, officers found two baseball caps and a pair of gloves inside the SUV, and a pair of gloves outside the SUV.
Arevalo testified that the baseball cap she saw on the man who came to her house looked like one of these baseball caps.
Defendant did not testify or present any defense witnesses.
PROCEEDINGS BELOW
The original information charging defendant with two counts of first degree burglary and one count of attempted burglary was filed on November 21, 2007, under superior court case No. LA056980. A deputy public defender represented defendant until January 10, 2008, on which date the trial court appointed bar panel attorney Robert Haberer to represent defendant. On April 30, 2008, defendant moved to proceed in pro. per. The trial court granted defendant’s motion. On June 17, 2008, the prosecution announced that it was unable to proceed to trial because of witness unavailability and would refile the case. The trial court dismissed the charges against defendant.
The prosecution refiled the information under superior court case No. LA059265 on July 11, 2008. Defendant represented himself at trial. On September 10, 2008, the jury issued its verdict finding defendant guilty of two counts of first degree burglary and one count of attempted first degree burglary. After the trial court excused the jury, defendant requested that the trial court appoint defense counsel to represent him for the remainder of the proceeding. The trial court removed defendant’s in pro. per. privileges and indicated that it would appoint an attorney to represent him during the court trial on the priors and sentencing. During the afternoon session, the trial court learned that the bar panel attorney on hand to represent defendant did not have enough experience to represent defendant, given the prior strike and the gravity of allegations against defendant. The trial court continued the matter until an attorney with the appropriate amount of experience was available for appointment.
On September 19, 2008, the parties reconvened and the trial court appointed Paul Cohen (appointed counsel), a bar panel attorney, to represent defendant. Appointed counsel requested a continuance in order to familiarize himself with the case and to explore the possibility of posttrial motions. The trial court granted the request for a continuance.
On October 7, 2008, the parties reconvened for the court trial on the prior convictions allegations. After the trial court made its findings on the prior convictions, the following exchange took place:
“[Appointed counsel]: I wanted to [bring some postconviction motions], and I wanted to continue the case. However, there’s been a change in circumstances. Mr. McGee indicates that he wishes to continue to represent himself again.
“The Court: No. We’re not going there again, Mr. McGee. I told you when you took on an attorney, that was a one-way street. We’re not going to play any more games in this case.
“Defendant: The reason I wanted to represent myself is [that] I had some issues I wanted to bring up and I wanted to do it myself.”
The trial court stated that it would not allow defendant to “delay this case any longer” and that appointed counsel would continue to represent defendant during the sentencing portion of the case. Appointed counsel indicated that the prosecution had agreed to October 30 for the sentencing hearing. Defendant waived his right to be sentenced before that date and the hearing was set accordingly.
On October 30, 2007, appointed counsel requested a continuance based on an unexpected scheduling conflict with another trial that he was defending. Finding good cause, the trial court agreed to continue the matter to November 3. Defendant interjected that he had filed a motion and wished to represent himself on the motion. The trial court responded: “Mr. McGee, I told you before, this is not a ping-pong game, where we’re going to be representing oursel[ves] and then having an attorney and then represent oursel[ves] and then have an attorney. I told you, when you asked for counsel, and I appointed counsel for you after your trial, that that was a one-way street. Once you accept counsel, that’s it. We’re not going to delay this proceeding indefinitely so you can be prepared and file motions. We’re not going to go through that song and dance any longer. We played enough of those games, Mr. McGee. You’ve got an attorney. He’s your attorney.”
Defendant went on to tell the trial court that “this case was dismissed under 1385” and that the prosecution had no right to file it again. The court responded: “Mr. McGree, I read your motion. It’s a frivolous motion that has no basis in law. The law allows a prosecutor to refile a case twice. That’s the law.”
On November 3, 2008, appointed counsel was not present and another attorney stood in for him. A continuance was requested and granted.
On November 6, 2008, the parties convened for the sentencing hearing. Appointed counsel stated that he was ready to proceed with the sentencing, but that defendant had retained another attorney, Ronald White (retained counsel), to represent him. Retained counsel, however, was not present at the hearing. A person named “Ms. Morris,” presumably a colleague, indicated that retained counsel was engaged in trial and wanted to continue the matter until the second week of December, some five weeks later. The trial court denied defendant’s request to substitute counsel, stating: “I’m not going to allow a substitution under those circumstances. The jury reached a verdict in this case way back—the defendant was found guilty September 10, 2008. Defendant then was pro. per. He then asked for counsel. I appointed counsel. Mr. Cohen has been on this case since then. He’s prepared to go forward with the sentencing.... We’re not continuing this any longer, so the motion to substitute counsel is respectfully denied.” The trial court went on to explain: “At this point, it’s only for purposes of obstruction and delay. Mr. McGee represented himself at the trial. He then gave up representation of himself and asked for counsel. I [ap]pointed Mr. Cohen. Mr. Cohen’s been on the case for 60 days. Now, on, finally, the date of sentencing, Mr. McGee wants to change attorneys for a third time. We’re not going to do it. He’s just trying to delay the proceedings. The motion to substitute counsel is respectfully denied.”
Defendant represented to the trial court that he had asked appointed counsel to file a “retrial motion” but that counsel had been unresponsive to his request. The trial court then held a closed Marsden hearing for defendant to explain the reasons why he wished to relieve appointed counsel. During the hearing, defendant maintained that his case was originally dismissed pursuant to section 1385 and “the People [were] barred from refiling under 1385 in furtherance of justice.” Defendant wanted to substitute retained counsel because appointed counsel failed to raise the section 1385 issue with the trial court. Defendant also maintained that appointed counsel never spoke or met with him. Appointed counsel countered that he had spoken to defendant for over 45 minutes on one occasion and they discussed the possibility of bringing various motions during this meeting.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The trial court denied defendant’s request to relieve appointed counsel. The parties continued with the sentencing hearing. Appointed counsel made a Romero motion to dismiss defendant’s prior strike. The trial court denied the motion, ruling that the prior strike was not an isolated incident and was part of a larger picture of criminal activity. The prosecution argued for the high term on count 1, which would have brought defendant’s sentence on count 1 to a term of 18 years in prison. Appointed counsel argued that the high term was inappropriate. The trial court sentenced defendant to the midterm on count 1, resulting in a term of 14 years. On counts 2 and 3, the trial court imposed the midterms of 16 months and 32 months respectively, both terms to run consecutive to count 1.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
DISCUSSION
Faretta v. California (1974) 422 U.S. 806 (Faretta).
Defendant contends the trial court committed reversible error when it denied his request to represent himself during sentencing.
A defendant has the constitutional right to represent himself as long as the request for self-representation is knowing, intelligent, and unequivocal. (Faretta, supra, 422 U.S. 806; People v. Stanley (2006) 39 Cal.4th 913, 929.) The right to self-representation “is absolute only if asserted a reasonable time before trial begins; self-representation motions made after this time are addressed to the trial court’s sound discretion.” (People v. Mayfield (1997) 14 Cal.4th 668, 809.) “[V]acillation between requests for counsel and for self-representation amounts to equivocation or to waiver or forfeiture of the right of self-representation.” (People v. Marshall (1997) 15 Cal.4th 1, 22 (Marshall).) “‘Equivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent.’ [Citation.]” (Ibid.) “[A] rule requiring the defendant’s request for self-representation to be unequivocal is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation.” (Ibid.)
The parties tussle over whether defendant’s motion for self-representation was timely. The timeliness of a defendant’s Faretta request matters, however, only if the request was knowing, intelligent, and unequivocal in the first place. And here, when the record is reviewed as whole, defendant’s request was clearly equivocal. Defendant was represented by appointed counsel, Robert Haberer, when the original case was filed against him. While the original case was pending, defendant requested self-representation and that request was granted. When the case was refiled, defendant continued to represent himself. After the jury issued its verdict, however, defendant requested appointment of counsel for the court trial on the priors and sentencing. Again, that request was granted. After the trial on the priors, defendant changed courses yet another time and requested self-representation. In short, defendant vacillated “between requests for counsel and for self-representation,” and his conduct amounted “to equivocation or to waiver or forfeiture of the right of self-representation.” (Marshall, supra,15 Cal.4th at p. 22.) Given defendant’s conduct, it was not an abuse of discretion for the trial court to deny defendant’s request for self-representation during sentencing.
II. Request to Substitute Retained Counsel
Defendant contends the trial court committed reversible error when it denied his request to substitute retained counsel on the day of the sentencing hearing. Defendant does not challenge the trial court’s denial of his motion to relieve appointed counsel under Marsden, supra, 2 Cal.3d 118.
“The right to the effective assistance of counsel ‘encompasses the right to retain counsel of one’s own choosing. [Citations.]’ (People v. Holland (1978) 23 Cal.3d 77, 86.) Underlying this right is the premise that ‘chosen representation is the preferred representation. Defendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.’ (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615, fn. omitted.)” (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).)
“[T]he right of a defendant to appear and defend with retained counsel of his own choice is not absolute.” (People v. Blake (1980) 105 Cal.App.3d 619, 624 (Blake).) “The right to such counsel ‘must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 790.) Furthermore, “a defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial.” (Blake, supra, at pp. 619, 623-624.)
“It is likewise settled that it is within the sound discretion of the trial court to determine whether a defendant shall be granted a continuance to obtain a private counsel [citation]; that there is no mechanical test for deciding whether a denial of a continuance is so arbitrary as to violate due process but rather each case must be decided on its own facts [citations]; that the burden is on the defendant to establish an abuse of discretion; and that in the absence of showing an abuse, the reviewing court will not disturb the ruling of the trial court. [Citation.]” (Blake, supra, 105 Cal.App.3d at p. 624.)
After reviewing the record in light of the foregoing principles, we conclude that the trial court did not commit reversible error by denying defendant’s request to substitute retained counsel. Defendant appeared unsatisfied with appointed counsel as early as October 7, 2008, when defendant complained that there were issues counsel failed to bring before the trial court. On that date, defendant knew that the earliest sentencing would take place was October 30, and yet defendant made no attempt during the interim to substitute retained counsel. Instead, defendant waited until the day of sentencing, November 6, when both the prosecution and defense were ready to proceed with sentencing, to request substitution of retained counsel. Moreover, retained counsel was not even present on that date. Instead, he sent a colleague to request a continuance until the second week of December, some five weeks later. The colleague gave no reason why retained counsel would need five weeks to prepare for sentencing other than to cursorily state that retained counsel was engaged in trial.
Under these circumstances, we do not believe the trial court acted so arbitrarily as to violate defendant’s constitutional rights in denying his request to substitute retained counsel. Defendant’s request was “unjustifiably dilatory” (Blake, supra, 105 Cal.App.3d at pp. 623-624) and the trial court properly weighed defendant’s right to counsel of his choice “‘against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration.’” (Courts, supra, 37 Cal.3d at p. 790.)
III. Sufficiency of Evidence
Defendant claims insufficient evidence supports the conviction of attempted burglary. Defendant concedes that he was the person who knocked on Arevalo’s door, but contends “there was no evidence presented that [defendant] attempted to enter or intended to enter the residence.”
A conviction of attempted residential burglary requires proof that the defendant attempted to enter a dwelling with the intent to commit a theft or any felony. (§§ 459, 664.) An attempt has two elements: “a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a; People v. Carpenter (1997) 15 Cal.4th 312, 387.)
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]... The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Given this court’s limited role on appeal, defendant bears a heavy burden in claiming there was insufficient evidence to sustain the findings. If the findings are supported by substantial evidence, we must give due deference to the jury’s findings and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard for securing a reversal is just as high when the prosecution’s case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 (Stanley).) “‘“‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citation.]’” (People v. Abilez (2007) 41 Cal.4th 472, 504.) It “‘is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact....’ [Citation.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 956.) As long as there is reasonable justification for the findings made by the trier of fact, a reviewing court’s opinion that contrary findings might also have been reasonable does not require a reversal. (Stanley, supra, 10 Cal.4th at p. 793.)
Here, defendant knocked on the front door of the house of a person he did not know, took an envelope that was inside a mail slot, and then went to the side of her house. When Arevalo answered the door, defendant asked a question about the next door neighbor, stared at her, and then left. Sometime after this encounter, defendant burglarized two other homes, one of which was a block away from Arevalo’s house. From this evidence, the jury could readily conclude that defendant intended to enter Arevalo’s home to commit a theft or other felony, had knocked on the door to see if anyone was home, had gone to the side of the house to attempt an entry, and had only been deterred when Arevalo answered the door. Thus, there was sufficient evidence to support the attempted burglary conviction.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.