Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF102555A
RAYE, J.The prosecution presented uncontested evidence that defendant Ronnie Derek Meeks had the motive and opportunity to stab the victim 19 times, while she was alive, before administering the lethal blunt force trauma to her head. The prosecution also introduced compelling DNA evidence she had been murdered in defendant’s motel room and he had dumped the body, together with bloody sheets, pillows, and gloves, into a dumpster, as well as evidence he had received a cut on his hand as a result of the victim’s defensive moves. A jury convicted him of murder in the first degree, involving the use of torture and the personal use of a knife.
On appeal, defendant, who represented himself at trial, contends the trial court abused its discretion by denying his request to allow his standby counsel to make his closing argument. Standby counsel had prepared the trial for three years and had attended the entire trial. Although we agree with defendant the court abused its discretion by holding him to his election to represent himself without any indication on the record that it considered the factors necessary to justify its refusal to allow standby counsel to give a closing argument, we do not find the error prejudicial. We also reject defendant’s claims of instructional error and therefore affirm the judgment.
FACTS
Although 20 witnesses testified at trial, defendant asked a few inconsequential questions of only 7. Together they provided overwhelming evidence that defendant stabbed the victim in his motel room, cleaned the room, and discarded the body, bloody sheets, pillows, and gloves in a dumpster.
Defendant apparently was a man of some means. He gave money to the victim, who was a prostitute, and her friend Maria Delgado, and bought them whatever they wanted. The victim was living with defendant in a motel room. According to Delgado, defendant loved to play with knives; it was his “tweak.” On April 5, 2006, Delgado accepted $150 from defendant, purportedly to “beat up” the victim. She testified she never planned to harm the victim, even though she was mad at her at the time, but she needed the money for heroin and crack. Several days after Delgado accepted the $150, defendant told Delgado the victim had stolen $900 from him.
On April 11, 2006, Alex Hernandez, a “pleasurable money manager, ” that is, a pimp, visited defendant in his motel room between 11:00 a.m. and noon. He smelled “[c]leaning solvents” and saw seven knives on the bed. Defendant was distraught. Hernandez looked in the bathroom and saw a female body wrapped in a shower curtain. Defendant gave Hernandez $100 to buy him a box, plastic, and duct tape at U-Haul. Hernandez, a parolee, took the money but did not buy any of the requested items for defendant.
Hernandez, foreseeing that he might be implicated in the killing, saved voice messages defendant sent him later in the day. On one of the messages, defendant stated: “Alex[, ] this is Ron[.] I know you [sic] doing things for you [sic] mom and that’s fine and dandy. I just need you to get over here. I need you to stop by U-Haul, pick up a box 6 foot by 8, ASAP and a blanket. Thank you and I’ll pay for it. If you don’t have the money, come get me (unintelligible) I need to do some moving quick fast and in a hurry. Thank you, have a nice day. Bye, bye.” Later that day, defendant gave up on Hernandez and got a large cardboard box from U-Haul himself.
Around 6:30 p.m. on April 11, 2006, an anonymous caller told the sheriff’s department there might be a dead body in defendant’s motel room. The responding sheriff’s deputy noticed a strong smell of pine cleaner, a large flattened cardboard box leaning against the wall, cleaning supplies, a gardening glove, and a wire spool used for a table. He did not, however, find a body.
The body was found just before midnight in a dumpster. The victim had been dead for more than 24 hours. The pathologist opined the perpetrator was attempting to cause pain, not kill her, when he stabbed her 19 times since none of the wounds was lethal. The victim sustained defensive wounds trying to fight back and eventually died from repeated blows to the head and the chest. According to the pathologist, the victim was “beaten to death.”
Police found a woman’s clothing and undergarment during a search of defendant’s motel room. The bed was made with a comforter, but no sheets or blankets. There were bloodstains on the underside of the mattress, near the bed and bathroom, and on the comforter. Blood samples from the glove retrieved from the dumpster matched both defendant and the victim. Blood samples from the television and mattress matched the victim.
Defendant called two witnesses on his behalf. When assisting him with one transaction, a teller at a credit union testified defendant seemed “normal, ” but readily conceded she did not really know him. A friend from high school attested to defendant’s “good character” but could not recall when he had last seen him before the murder. Defendant had appeared on his doorstep three days after the murder.
DISCUSSION
I
Refusal to Reappoint Standby Counsel
A. Factual Background.
Before defendant’s trial ever began, proceedings were suspended twice because defense counsel and the court were not certain he was competent to stand trial. Each time, he refused to answer any questions by the medical evaluators. He exhibited paranoid and disruptive behavior. Nevertheless, a jury ultimately determined he was competent to stand trial.
Defendant moved to represent himself. The trial court tried mightily to dissuade defendant from such an improvident decision, including warning him that he would be granted no special assistance or privileges, that he was up against a very competent and experienced prosecutor, that he was facing life without the possibility of parole, and that he would have to be ready for trial within two weeks. Defendant acknowledged that he understood his rights and responsibilities, including his obligation to behave as an officer of the court. The trial court expressly warned him that he would lose the opportunity to represent himself if he had another outburst in court or disregarded the bailiff’s directives. The court also appointed standby counsel, expressly not to advise or assist defendant, but to stand ready to resume her representation. Defendant assented to the court’s terms.
And, so far as the record shows, he complied. While he certainly was unable to offer any meaningful defense, he did not engage in the disruptive behavior he displayed at the outset of the trial. Nevertheless, the fact remains that he filed no pretrial motions, asked a few irrelevant questions of only seven witnesses, waived opening and closing statements, and put on only two witnesses, neither one of whom offered any testimony of substance. Standby counsel did not sit idly by. Throughout the trial, she expressed her grave concern that defendant was incapable of competently handling his case, cross-examining witnesses, or even that he had “the basic level of understanding to be able to represent himself.” Just before closing argument, defendant asked the court to reappoint his standby counsel to allow her to give the closing argument.
The court refused. The court informed defendant that it was an “unusual request” because he had acted as his own attorney and had had the weekend to prepare a closing argument. The court acknowledged that standby counsel had “sat through the whole trial and taken extensive notes, ” but the court was uncertain whether she was prepared to give the closing arguments. Defendant reported that standby counsel was unable to give the closing that day.
The court ruled as follows: “I’m going to say you’re stuck with it, because that was the discussion we had at the beginning that if you act as your attorney, you’re responsible for anything, you don’t get to say, ‘Whoa, I’m over my head, I’m calling her in from the bullpen.’” Although defendant initially stated he would give a closing argument, he ultimately waived it.
B. Legal Analysis.
“In People v. Windham (1977) 19 Cal.3d 121, 128..., we explained that while a timely, unequivocal Faretta motion invoked the nondiscretionary right to self-representation, a midtrial motion was ‘addressed to the sound discretion of the court.’ In People v. Elliott (1977) 70 Cal.App.3d 984... (Elliott), the Court of Appeal concluded the same was true of a midtrial request to revoke in propria persona status and have counsel appointed. (Id. at p. 993.) Adapting the nonexclusive list of factors to consider mentioned in Windham, the Elliott court opined that a trial court should consider, along with any other relevant circumstances, ‘(1) defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.’ (Elliott, at pp. 993-994.) [¶] This court cited Elliott’s discretion framework favorably in People v. Gallego [(1990)] 52 Cal.3d [115, ] 163-164, adding, however, that ultimately the trial court’s discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors.” (People v. Lawrence (2009) 46 Cal.4th 186, 191-192 (Lawrence).)
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
The question thus posed is whether the trial court exercised its discretion in refusing to reappoint standby counsel. In an analogous Faretta case, the court concluded, “[T]he record fails to demonstrate that the trial court exercised its discretion on the motion.” (People v. Rivers (1993) 20 Cal.App.4th 1040, 1048 (Rivers).) The Attorney General in Rivers argued that the trial court did not evaluate the relevant factors, believing the “‘record already sufficiently demonstrated the quality of counsel’s representations, the lack of any prior interest in appellant’s part in representing himself, and the stage of the proceedings at which the request was made.’” (Id. at p. 1049.) Rejecting this approach, the court held that a meaningful consideration of the relevant factors is designed to ensure that the exercise of discretion is informed, thoughtful, and reasonable. (Id. at pp. 1048-1049.)
Here too there was no meaningful analysis of any of the factors or, as our Supreme Court admonished most recently in Lawrence, of the totality of the circumstances. The court had carefully considered defendant’s initial request to represent himself and undertook a thorough examination of his competency and of his understanding of the rights he was waiving, even going so far as to appoint standby counsel and provide defendant the best investigator it had available. But in its subsequent refusal to reappoint standby counsel, the court failed to provide a sufficient record to demonstrate it had exercised its discretion in an informed, thoughtful, and reasonable manner.
The court’s frustration was evident and indeed understandable. Defendant had been forewarned of the risks he assumed and did not ask for standby counsel’s assistance until the evidentiary phase of the trial had ended and only argument remained. Despite the fact standby counsel had prepared the case for over three years, and had sat through the entire case, the court never inquired when she would be prepared to argue. Defendant represented that the lawyer would be unprepared to deliver the argument that very day. But there is no evidence the court confirmed the accuracy of that representation or ascertained when counsel would be prepared. Given her significant preparation prior to and during the trial, her delivery of a closing argument would have resulted in minimal, if any, delay.
It is incumbent on the trial court to ascertain a “truer estimate” of an anticipated delay occasioned by a self-represented defendant’s request to reappoint counsel. (People v. Cruz (1978) 83 Cal.App.3d 308, 320-321 (Cruz), superseded by statute on other grounds as explained in People v. Levell (1988) 201 Cal.App.3d 749, 751-752.) In Cruz, the court concluded: “In both Elliott and the present case, no showing was made by the prosecution that the requested continuances would cause a disruption in the calendar of the courts, that it would be detrimental to the prosecution of the cases, or that it would be contrary to the interests of justice. Due to this failure, it must be presumed that the continuance requested by defendant in the instant case would not have caused disruption to the court or prejudice to the prosecution beyond that normally involved in a three-week delay.” (Cruz, at p. 321.)
In Cruz, the defendant requested a two- to three-week continuance. Here, by contrast, defendant did not request a continuance at all. As stated, there is no indication on the record whether standby counsel would have needed more than an evening to prepare an argument for a case she had prepared for years. Certainly the court should have ascertained a “truer estimate” of when she would have been prepared to argue. In the absence of such an estimate, we too must presume defendant’s request would not have caused disruption to the court or prejudice to the prosecution.
The court offered no other indication on the record as to why standby counsel should not be allowed to step in. The only justification the court gave was almost punitive in tone. Defendant had exercised his right to represent himself, and in the court’s view, he should not be able to change his mind. But the court’s curt response begs the question why standby counsel had been appointed and paid for if, when needed, she was not allowed to argue.
That is not to say a defendant has the unfettered right to change his mind on a whim and interfere with the administration of justice. But given that he had not demonstrated a proclivity to delay the proceedings and there is nothing in the record to suggest anything more than a short delay, if any, we cannot say the record demonstrates the court exercised its discretion by considering either the totality of the circumstances or any of the Elliott factors. In the absence on the record that the court exercised its discretion, we must find error and consider whether the error is prejudicial.
The test of prejudicial error in this context is that set out in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), i.e., whether it is reasonably probable that a result more favorable to defendant would have been reached had standby counsel been appointed. (Elliott, supra, 70 Cal.App.3d at p. 998.)
As recounted above, the evidence of guilt was overwhelming. The victim’s blood was found in defendant’s motel room. There was blood from defendant and the victim on the glove found in the dumpster. The sheets and pillows were missing from the motel room and found in the dumpster along with the body. Defendant’s friend saw a body in the bathroom wrapped in a shower curtain. When his friend asked him what had happened, defendant replied, “You’re just like me, man. I blacked out. She wouldn’t stop. I’m sorry. He – she wouldn’t stop.” The victim had stolen $900 from defendant. The victim was alive and struggling as she was stabbed 19 times. Defendant had a defensive cut on his hand.
Defendant argues, however, that a lawyer would have offered the jury a viable alternative narrative, and he insists that narrative would have been particularly important in the context of closing argument. Defendant fantasizes that during summation his standby counsel would have exposed the problems with the credibility of the prosecution’s witnesses, would have pointed out evidentiary gaps rising to the level of reasonable doubt, and would have encouraged the jurors to consider lesser theories of culpability. He believes artful advocacy during closing would have resulted in a different outcome, particularly because there were no eyewitnesses and no murder weapon tying him to the murder. We disagree.
We accept the fundamental notion that closing argument can be a critical stage in the proceedings. Moreover, argument gives the defense the opportunity to marshal the evidence and attempt to persuade a jury that the prosecution has not carried its burden of proving guilt beyond a reasonable doubt. But defendant overstates the significance of mere argument in the face of overwhelming evidence of guilt.
Here we make the obvious observation that defendant did not ask for help during the presentation of evidence. His standby counsel was stuck with little to argue since defendant failed to put on any meaningful defense. Thus argument, without evidence to support it, would have had little impact on the jury.
Additionally, the jury instructions provided the information and the options defendant suggests his lawyer would have argued. That is not to say that jury instructions can replace argument, but it is to consider that in this case the jury was forewarned about issues involving credibility and instructed on the availability of lesser included offenses. As a result, the prosecution provided the jury compelling physical evidence as well as evidence of motive, opportunity, and means, and the court provided the law on how to assess the credibility of witnesses and the elements of all the possible offenses. Defendant has failed to persuade us that it is reasonably probable a result more favorable to him would have been reached if only his standby lawyer had been allowed to argue his pathetically weak defense in the face of the mountain of evidence against him. (Rivers, supra, 20 Cal.App.4th at p. 1050; Elliott, supra, 70 Cal.App.3d at p. 998; Watson, supra, 46 Cal.2d at p. 836.)
II
Instructional Error
“On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) Applying these basic principles, the California Supreme Court has rejected two of defendant’s three instructional challenges. As a result, there is little we need to say. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant objects to CALCRIM No. 359, delivered to the jury as follows: “The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser included offense was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.”
Defendant contends that the italicized portion of the instruction violated his constitutional right to due process because it told the jury the prosecution did not have to prove the perpetrator’s identity beyond a reasonable doubt and could prove it on defendant’s statements alone. Under the so-called corpus delicti rule explained in this instruction, “the jury is informed that a defendant cannot be convicted of a crime unless there is proof as to each element of the offense independent of his extrajudicial confession or admission. Once the prosecution has proved the corpus delicti of murder, however, the prosecution may use evidence of a confession or admission to establish identity.” (People v. Frye (1998) 18 Cal.4th 894, 959-960 (Frye), overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In Frye, the Supreme Court rejected the argument advanced here that the challenged instruction relieved the prosecution from proving beyond a reasonable doubt that defendant committed the charged crimes. Rather, the instruction “provided only that the prosecution could rely on extrajudicial admissions to prove identity once the corpus delicti had been established. [Citation.] In light of the parties’ steadfast focus on the issue of identity at trial, including the consistent position by the defense that defendant did not kill [the victims] and the extensive evidence presented by the People connecting him to the crimes, we conclude there is no reasonable likelihood the jury would have understood the prosecution had no obligation to prove defendant was the person who committed the offenses.” (Frye, supra, 18 Cal.4th at p. 960.)
The Frye holding remains intact. Indeed, the Supreme Court rejected an even stronger argument that there was a reasonable likelihood the instruction could mislead a jury to dilute the burden of proof when coupled with erroneous or misleading argument by the prosecutor. Yet again the court reiterated “there is no reasonable likelihood the jury would not have understood it must determine whether it had been proved beyond a reasonable doubt that defendant killed [the victim].” (People v. Schmeck (2005) 37 Cal.4th 240, 287 (Schmeck).) The Frye and Schmeck rulings are dispositive here. Because, as the Supreme Court has determined, there is no reasonable likelihood the jury misunderstood the burden of proof, there was no instructional error.
Defendant insists that Francis v. Franklin (1985) 471 U.S. 307 [85 L.Ed.2d 344] trumps Schmeck and Frye. Not so. Francis involved the pernicious danger of mandatory presumptions. The defendant challenged the constitutionality of two sentences contained in the jury charge: “‘The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.’” (Francis, 471 U.S. at p. 311.) The Supreme Court held that a reasonable juror could have understood the two sentences, even in the context of the entire charge, as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the state had proved the predicate acts. (Id. at p. 325.)
Our case involves no risk that reasonable jurors would have understood the corpus delicti rule as a mandatory presumption. Nor for the reasons explained in Frye and Schmeck would they have extracted a solitary sentence from the instruction and read it to find the prosecution had no obligation to prove defendant was the person who committed the offenses. Identity, as both defendant and the Attorney General assert, was the focus of the entire trial. Following the rationale of Frye and Schmeck, as we must, we too conclude that reasonable jurors would not have understood the instruction to dilute the prosecution’s burden of proving identity beyond a reasonable doubt.
Similarly, the Supreme Court has rejected the notion that a permissive inference relieves the state of its burden of proof. (People v. Mendoza (2000) 24 Cal.4th 130, 180.) Nevertheless, defendant once again challenges instructions allowing permissive inferences. Based on evidence of defendant’s attempt to clean his motel room and dispose of the body, the trial court instructed the jury in accord with CALCRIM No. 371 that if it found defendant “tried to hide evidence, that conduct may show that he was aware of his guilt.” And based on evidence defendant left the motel room immediately after the crime, the court further instructed the jury in accord with CALCRIM No. 372 that if it found defendant “fled immediately after the crime was committed, that conduct may show that he was aware of his guilt.”
Defendant finds the instructions improper because the jury was instructed not only on murder, but on the lesser included offenses of voluntary and involuntary manslaughter. He contends the instructions allowed the jury to consider suppression and flight as circumstances in deciding whether he committed a crime, but he insists “the evidence does not logically support an inference of those elements necessary to establish first degree murder.” Thus, in his view, because the permissive inferences allowed by the instructions were logically unconnected, they are arbitrary and a denial of due process.
Defendant acknowledges that People v. Yeoman (2003) 31 Cal.4th 93, 131 forecloses his claim. The Supreme Court explained, “Here, reason and common sense amply justified the suggested conclusion that defendant’s suppression of evidence showed consciousness of guilt.... Reason and common sense also justified the conclusion that defendant’s conscious possession of Horrell’s recently stolen property tended to show he was guilty of robbery... in view of the corroborating evidence....” (Id. at pp. 131-132.)
So too in our case “reason and common sense amply justified” the inference that defendant’s suppression and flight showed a consciousness of guilt. Other instructions were then relevant to a determination of defendant’s mental state and resulting culpability. But as the Supreme Court has consistently held, the permissive inference does not violate due process. Thus, the court did not err by instructing the jury on permissible inferences.
Finally, defendant contends the court improperly instructed the jury not to consider in-custody status as a factor in assessing witnesses’ credibility. Even assuming, however, that the jury’s assessment of the credibility of Delgado and Hernandez, both of whom were in custody at the time they testified, was critical to the defense and therefore the court should not have given standard instructions on credibility, any possible error was harmless beyond a reasonable doubt. The prosecution elicited admissions from both witnesses of their many prior convictions. Given the evidence of their steady stream of prior convictions, the jury was not left with a mistaken impression of untarnished credibility. The instruction to disregard their in-custody status was clearly harmless.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J. BUTZ, J.