Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA063310, Charles C. Lee, Judge.
Marta I. Stanton, 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, Margaret E. Maxwell, Chung L. Mar, and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Joseph Daniel Moore appeals from the judgment entered following a jury trial that resulted in his conviction for custodial possession of a weapon. Moore was sentenced to a prison term of 14 years.
Moore contends: (1) the trial court erred by failing to order a second competency hearing; and (2) imposition of an upper term sentence violated his right to jury trial (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 127 S.Ct. 856].) He also requests that this court review the sealed record of the trial court’s Pitchess examination to determine whether the trial court abused its discretion by failing to order disclosure. In his petition for a writ of habeas corpus, which we consider concurrently with his direct appeal, Moore asserts a variety of claims. Discerning no reversible error, we affirm the judgment and deny the writ petition.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established the following. On September 29, 2005, Moore was in the “lock-up” section of the Pasadena courthouse, waiting to make an appearance in court on a pending case. During a routine search, Los Angeles County Deputy Sheriff Jawanna Thompson, the supervisor of the lockup facility, found a razor blade wrapped in paper in Moore’s mouth. The blade was considered contraband because such blades were used by inmates as weapons.
Moore presented no evidence.
2. Procedure.
Trial was by jury. Moore was convicted of custodial possession of a weapon, a razor blade (Pen. Code, § 4502, subd. (a)). The jury further found Moore had suffered a prior conviction for robbery, a serious or violent felony, and had served eight prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Moore to a term of 14 years in prison, configured as follows: the upper term of four years, doubled pursuant to the Three Strikes law, plus six one-year section 667.5, subdivision (b) enhancements. It also imposed a restitution fine, a suspended parole revocation fine, and a court security fee. Moore appeals.
All further undesignated statutory references are to the Penal Code.
The trial court imposed six, rather than eight, prior prison term enhancements because three of Moore’s qualifying prior convictions resulted in a single prison term.
DISCUSSION
1. The trial court did not err by declining to order a second competency hearing.
a. Additional facts.
Prior to trial, on December 23, 2005, the trial court declared a doubt about Moore’s competency pursuant to section 1368, because competency proceedings were pending in an unrelated case in which Moore was the defendant.
Moore was evaluated by Dr. Hy Malinek, who concluded he was competent to stand trial. On March 23, 2006, the trial court held a competency hearing. It concluded Moore was able to understand the nature of the proceedings and assist counsel in his defense, and was competent to stand trial.
On May 30, 2006, Moore appeared for pretrial proceedings. He complained about his counsel’s performance and a Marsden hearing was conducted. When his Marsden motion was denied, Moore unsuccessfully requested that his case be sent to a different courthouse that he believed would be more favorable for him. The parties engaged in plea discussions, and Moore rejected a negotiated disposition.
People v. Marsden (1970) 2 Cal.3d 118.
On the next day, May 31, 2006, the bailiff reported that Moore refused to exit his cell and appear in court, and was demanding a mental health advocate. Moore was agitated and yelling. The prosecutor noted that Moore had engaged in the same behavior in another case, delaying the proceedings. The trial court arranged for Moore to hear the proceedings and be able to communicate via a microphone set up in his cell. Defense counsel declared a doubt about Moore’s competence, stating, “I’m unable to communicate with my client. . . . I don’t think he can assist in his defense, and I don’t think he understands the nature of the proceedings that are going on here today . . . .” The trial court declined to declare a doubt without “further substantial evidence.” The court opined that Moore was an angry, hard-headed person prone to expressing himself. A mental health advocate arrived and met with Moore. Moore agreed to appear in court while the mental health advocate sat at the counsel table. A second Marsden hearing was held, and Moore’s request for new counsel was granted.
On June 29, 2006, Moore, his new counsel, and his counsel on an unrelated case discussed a potential disposition of both cases with the trial court. Moore demanded to file a Pitchess motion and a motion for DNA testing of the razor blade. He also asked to relieve his new counsel. Another Marsden hearing was held and Moore’s request to relieve counsel was denied. The matter was transferred to another court for trial.
On Thursday, August 17, 2006, Moore appeared in court for trial. He again requested a new attorney, complaining that his counsel had violated the attorney-client privilege. The trial court conducted another Marsden hearing and denied the motion. Moore again requested a mental health advocate. After the court stated that a jury panel would arrive to try the case the following Monday, Moore screamed obscenities and was removed from the courtroom.
Just before trial commenced, Moore asked for another Marsden hearing. The trial court denied the request for new counsel. Moore insisted on filing with the court a document captioned “Notice of Motion Request for Censorship.” The trial court denied the motion. Moore then demanded that he be removed from the courtroom, noting that “I keep on getting denied, sir” and “I am being forced for this trial.” He demanded, “Where’s my mental health advocate?” Because Moore refused to cease being disruptive he was removed from the courtroom. Before he was removed, the trial court indicated it would periodically check in with him to determine whether he wished to return. Moore replied, “I will not participate in this bull shit. . . . You denied my motion . . . . Do what you need to do without me sitting here. That’s bull shit. Fuck you all.” Subsequently the bailiff informed the court that Moore had declined to avail himself of the microphone which had been set up in his cell. The court indicated that Moore had a “history of [employing] techniques designed to obstruct trials going forward.” Moore had been able to articulate his theories in court, demonstrating understanding of the proceedings, and the trial court concluded he did not need a mental health advocate.
On the following court day, Moore again refused to appear in court but filed a document alleging that the trial was a mockery of the justice system and his rights had been violated. He again demanded a mental health advocate.
The next day, August 22, 2006, Moore told a deputy that he was “having trouble with the stress in the courtroom” and could not function without “his mental health advocate.” Moore again refused to appear in court until the mental health advocate was there to assist him. Later that day, Moore appeared in the courtroom to complain about various perceived violations of his rights and counsel’s failings. The trial court advised Moore that if he wished to testify he would have to abide by the rules of the court and avoid disrupting the proceedings. The court also informed Moore that for security reasons, deputies would stand next to him during his testimony. Moore demanded that a mental health advocate be present during his testimony to coach him and complained about the security arrangements. He stated that he was a mental patient suffering from schizophrenia and manic depression. A mental health advocate was summoned and spoke with Moore. Moore ultimately refused to answer the court’s inquiry whether he wished to testify.
Defense counsel stated that, based on Moore’s statements, he was declaring a doubt about whether Moore could assist in his defense, in that Moore would not take the stand and testify in a reasonable fashion. Counsel pointed out that after the first competency hearing, Moore had been placed in the mental health ward at the jail and was taking psychotropic medications.
The trial court declined to declare a doubt. It concluded that Moore’s disruptive behavior was possibly fabricated and “part of a charade.” The court believed Moore “could participate and testify if he wished to do so, but it’s part of his agenda to disrupt and hopefully . . . generate some kind of mistrial or some reversal on appeal.” The court referenced Dr. Malinek’s report, which had stated the following. Moore’s statements on multiple occasions indicated Moore had a detailed and impressive understanding of courtroom procedures and the charges in the case. There was no evidence whatsoever that Moore was at any time unable to understand the court process and the ramifications of his decisions. Moore’s behavior and conduct was consistently purposeful. Dr. Malinek had opined, “It clearly appears that the defendant had an agenda which was based on the desire to delay, disrupt, sabotage or postpone the proceedings. He appears to have attempted to taunt the court and its officers and to have attempted to hail any maneuver or manipulation he could to obtain a mistrial. [¶] His behavior seems to have been persistent and goal-oriented” and was undertaken in an “anti-social and manipulative effort to get what he wishes. The fact that he is angry, and unruly, and has disrespected the court’s rules is not a function of genuine mental illness, but rather a prominently antisocial personality. [¶] I strongly doubt that his conduct was ever reflected in genuine mental illness within which he did not understand the proceedings[,] wasn’t able to appreciate his predicament[,] or was genuinely delusional.” The trial court indicated, “I share the same views of [Dr. Malinek] from what I’ve seen.”
b. Discussion.
“A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence.” (People v. Ramos (2004) 34 Cal.4th 494, 507.) “Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 711.) The defendant must have a “ ‘ “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and . . . a rational as well as [a] factual understanding of the proceedings against him.” ’ [Citations.] The focus of the inquiry is the defendant’s mental capacity to understand the nature and purpose of the proceedings against him or her. [Citations.]” (Ibid.; People v. Ramos, supra, at p. 507; People v. Rogers (2006) 39 Cal.4th 826, 846-847.)
“[S]ubstantial evidence means evidence that raises a reasonable doubt about the defendant’s ability to stand trial.” (People v. Ramos, supra, 34 Cal.4th at p. 507.) “Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.] But to be entitled to a competency hearing, ‘a defendant must exhibit more than . . . a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.’ [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 847 .) Counsel’s opinion that the defendant might be incompetent, although relevant, does not compel the court to order a competency hearing. (People v. Blair, supra, 36 Cal.4th at p. 719; People v. Panah (2005) 35 Cal.4th 395, 433; People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112; People v. Avila (2004) 117 Cal.App.4th 771, 780.)
The court’s duty to conduct a competency hearing may arise at any time prior to judgment. (People v. Rogers, supra, 39 Cal.4th at p. 847.) “ ‘When a competency hearing has already been held and defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it “is presented with a substantial change of circumstances or with new evidence” casting a serious doubt on the validity of that finding. [Citations.]’ ” (People v. Kelly (1992) 1 Cal.4th 495, 542; People v. Lawley (2002) 27 Cal.4th 102, 136.)
Failure to declare a doubt and to conduct a competency hearing when there is substantial evidence of incompetence requires reversal of the judgment. (People v. Blair, supra, 36 Cal.4that p. 711; People v. Rogers, supra, 39 Cal.4th at p. 847.) “A trial court’s decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial.” (People v. Rogers, supra, at p. 847.)
Here, Moore had already been found competent in a pretrial hearing after he was evaluated by Dr. Malinek. No substantial change of circumstances or new evidence cast doubt on the validity of that finding. The only evidence cited by trial counsel was that Moore had been moved to the jail’s mental health ward, and was taking psychotropic medications. We disagree that these facts, standing alone, constituted a substantial change of circumstances. The mere fact a defendant suffers from a mental illness and takes psychotropic medications does not mean he is unable to understand the proceedings or assist in his own defense. (E.g., People v. Smith (2003) 110 Cal.App.4th 492, 502; People v. Blair, supra, 36 Cal.4th at p. 714 [even a “history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt concerning a defendant’s competence and to conduct a hearing on that issue”].)
As the trial court found, Moore was belligerent, angry, manipulative, disruptive, and uncooperative. There was, however, no evidence he was unable to understand the proceedings or assist with his defense had he chosen to do so. To the contrary, Moore demonstrated a clear understanding of the nature of the charges against him and courtroom procedure. He acknowledged he was “fighting 13 years on this possession of [a] deadly weapon charge.” He told the court he wished to file a Pitchess motion, and wanted to “file a discovery motion for DNA on the razor blade.” He requested that the court send his case to a different courthouse that he believed would be more favorable for his case. He complained about the fact he was shackled, and attempted to cite case law in support of his argument. He referred to his self-representation right as his Faretta rights. He demanded “police reports” and “transcript[s].” He gave the court a document complaining that, inter alia, his rights had been violated because he was appearing in jail garb. He stated that he wished to put various complaints on the record “for [his] appeal.”
Faretta v. California (1975) 422 U.S. 806.
Moore’s counsel told the court, prior to trial, that he did not have civilian clothing for Moore because “he will not talk to me about sizes and so forth.”
Further, Moore demonstrated an understanding of the nature of the case against him. He discussed settlement pretrial with considerable focus and decisiveness. He at one point explained that he sought photographs of the Pasadena courthouse where the search occurred in support of his theory that the razor blade was found not in his mouth but in a trash can. He articulated his theory that the trash can was located two or three steps from the spot where all inmates were searched, implying that the blade came not from him, but from another inmate. Moore also recognized that his defense depended upon his testimony about what occurred, stating, “If I don’t testify what other defense do . . . I have?” In short, the record is abundantly clear that Moore understood the nature of the proceedings and was entirely capable of assisting in his own defense, had he chosen to do so. (See People v. Marks (2003) 31 Cal.4th 197, 221 [defendant’s outburst during trial, in which he stated that a witness had identified another person as the perpetrator of the charged crime, “reflected he comprehended not just the nature of the proceedings but the state of the People’s case and its potential deficiencies”].) The trial court did not err by concluding there was no substantial evidence requiring a competency hearing. (See generally People v. Ramirez (2006) 39 Cal.4th 398, 431 [no substantial evidence that defendant was incompetent where, inter alia, the court’s observations of defendant raised no question in the court’s mind about his competence].)
As noted, Moore nonetheless refused to answer the court’s repeated and clear questions about whether he wished to testify, instead responding that “[t]he question is real difficult.”
Moore contends his “outbursts and refusal to be present and testify during trial raised a doubt as to his mental competency.” We disagree. Dr. Malinek had already concluded that Moore’s pattern of disruptive behavior was nothing more than a conscious attempt to delay or obstruct the proceedings. In any event, “ ‘[M]ore is required to raise a doubt [as to a defendant’s competence] than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense [citation].’ [Citation.]” (People v. Ramirez, supra, 39 Cal.4th at p. 431; see also People v. Koontz (2002) 27 Cal.4th 1041, 1064 [defendant’s rambling, marginally relevant speeches, even if evidence of some form of mental illness, did not show defendant lacked understanding of proceedings or ability to assist in the defense]; People v. Farnam (2002) 28 Cal.4th 107, 203 [defendant’s agitation and apparent willingness to speak out in front of the jury “f[e]ll far short of indicating a deteriorating mental state”].) Moore’s statements and conduct, while ill-advised, were not delusional or bizarre. As we have discussed, at no time did Moore demonstrate a lack of understanding of the proceedings or an inability to participate in his defense. As the trial court found, the record before us strongly suggests his disruptive behavior, as well as his refusal to testify and, at various times, attend the proceedings, indicated not mental illness but a desire to delay and frustrate the trial and manufacture error in the case.
2. Imposition of an upper term sentence did not violate Moore’s jury trial right.
As noted, the trial court imposed the upper term of four years on the custodial possession of a weapon conviction. It cited the following aggravating factors in support of its sentencing choice: the crime involved a weapon, the purpose of which was to inflict serious bodily injury; the manner in which the crime was carried out indicated planning, sophistication, and professionalism; Moore’s prior convictions as an adult were numerous; Moore had served prior prison terms; and his performance on probation or parole had been unsatisfactory. The court found no factors in mitigation.
Moore complains that, because the court imposed the upper term based on facts that were neither admitted nor found true by a jury, imposition of the upper term violated his Sixth and Fourteenth Amendment rights to a jury trial and due process (Cunningham v. California, supra, 127 S.Ct. 856; Blakely v. Washington, supra, 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.) We discern no constitutional error.
In Apprendi v. New Jersey, supra, 530 U.S. at page 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; People v. Black (2007)41 Cal.4th 799, 805, 808-809; People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
However, imposition of an upper term sentence “does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient for imposition of the upper term. (Id. at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, at p. 812.)
Imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendant’s criminal history. (See People v. Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 [“the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction”].) This recidivism exception applies not only to the fact of the prior conviction, but also to “other related issues that may be determined by examining the records of the prior convictions,” including the question of whether the defendant’s convictions are numerous or increasingly serious. (People v. Black, supra, 41 Cal.4th at p. 819.)
Here, the jury found Moore had suffered eight prior convictions. As noted, the recidivism exception applies to the question of whether a defendant’s prior convictions are numerous. Moore’s eight prior convictions clearly so qualified. (People v. Black, supra, 41 Cal.4th at p. 818 [three convictions are numerous].) The trial court could properly rely on the fact Moore’s prior convictions were numerous without running afoul of the principles announced in Blakely and Cunningham. Because Moore’s criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term, his jury trial and due process rights were not violated.
3. Review of in camera Pitchess examination.
Before trial, Moore sought discovery of the personnel records of Deputy Thompson, as well as Deputies Jeffrey James and Rudy O’Dell, pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. Moore sought material related to racism or bigotry, false arrest, fabrication of evidence, dishonesty, “improper tactics,” neglect of duty, or “any and all other instances of conduct unbecoming a police officer.” The trial court found good cause for in camera review of James’s and Thompson’s records for dishonesty or falsification or fabrication of evidence, but not for O’Dell’s. On August 17, 2006, the trial court conducted an in camera review of the deputies’ records and concluded no discoverable material existed.
Moore requests that we review the sealed record of the trial court’s Pitchess review to determine whether the trial court abused its discretion by failing to order additional disclosure of information.
Trial courts are vested with broad discretion when ruling on motions to discover peace officer records (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial court’s ruling for abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.) We have reviewed the sealed transcript of the in camera hearing conducted on August 17, 2006. That transcript constitutes an adequate record of the trial court’s review of any documents provided to it, and reveals no abuse of discretion.
4. Petition for writ of habeas corpus.
On March 26, 2007, Moore, acting in propria persona, filed a petition for a writ of habeas corpus. He contended: (1) he was denied his Faretta rights; (2) “a witness came to court lock up to take a picture to show [the] jury”; (3) “I.O.C.,” (4) falsifying documents; and (5) he was “beat[en] by deputies to take a deal on the case 3-7-06.” We ordered that the petition be considered concurrently with his appeal.
Attached to the petition was a handwritten letter asserting that Moore wished to include these issues in his appeal. We construed Moore’s letter as a request for substitution of counsel and sought a sealed response from appellate counsel. After receiving and considering that response, we denied Moore’s request without prejudice to Moore’s right to demonstrate that appellate counsel has failed to represent him adequately.
“Our state Constitution guarantees that a person improperly deprived of his or her liberty has the right to petition for a writ of habeas corpus. [Citations.] Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.’ [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 474.)
a. Denial of purported self-representation requests.
Moore asserts he was denied his Faretta right to self representation. He is incorrect. A criminal defendant has a Sixth Amendment right to represent himself at trial. (Faretta v. California, supra, 422 U.S. at pp. 819-821; People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Marshall (1997) 15 Cal.4th 1, 20.) The erroneous denial of a timely, unequivocal Faretta motion made by a competent defendant is constitutional error and requires reversal per se. (People v. Nicholson (1994) 24 Cal.App.4th 584, 594; People v. White (1992) 9 Cal.App.4th 1062, 1076.) “ ‘A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 931-932.) A defendant has the burden of justifying an untimely motion, which is addressed to the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827; e.g., People v. Windham (1977) 19 Cal.3d 121, 127-128; People v. Horton (1995) 11 Cal.4th 1068, 1110.) The timeliness requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. (People v. Horton, supra, at p. 1110.) A trial court may deny a motion for self-representation if the court finds it is a delaying tactic. (People v. Marshall, supra, 15 Cal.4th at p. 22; People v. Rudd (1998) 63 Cal.App.4th 620, 626.) When reviewing the trial court’s denial of a Faretta motion, we “give ‘considerable weight’ to the court’s exercise of discretion and must examine the total circumstances confronting the court when the decision [was] made. [Citation.]” (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
At the March 23, 2006 competency hearing, Moore’s counsel stated that Moore wished to assert his Faretta rights. After the court found Moore competent, Moore told the court he was “trying not to be represented by” counsel. The trial court stated the parties would take up the issue on the next court date. At the next court hearing, Moore was not present but his attorney indicated he needed to discuss his representation of Moore, and a Marsden hearing was conducted. At the next court hearing, Moore appeared and did not request self-representation. Assuming arguendo that Moore’s and his counsel’s comments indicated an unequivocal Faretta request, because Moore failed to raise the issue the next time he was before the court or obtain a ruling, he must be deemed to have waived or abandoned the March 23 request. (Cf. People v. Skaggs (1996) 44 Cal.App.4th 1, 8; People v. Kenner (1990) 223 Cal.App.3d 56, 58-62; People v. Stanley, supra, 39 Cal.4th at p. 929.)
At a subsequent pretrial proceeding on August 17, 2006, Moore stated he could “go no further” with his counsel and “without a doubt” wanted to represent himself. The court queried, “You’re asking me to represent yourself, rather than have another lawyer represent--” Moore interjected, “I want another lawyer or represent myself.” The court informed Moore he needed to state which option he wanted. Moore replied, “I want another lawyer.” The trial court then conducted a Marsden hearing. As is obvious, Moore did not make an unequivocal self-representation request at this proceeding. (See People v. Stanley, supra, 39 Cal.4th at p. 932 [“ ‘ “ ‘[T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se’ ” ’ ” and a court should draw every inference against waiver of the right to counsel]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002 [“Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation . . .”].)
During trial, on August 22, 2006, Moore launched into a diatribe regarding his attorney’s perceived failings, and stated what he would have done differently had he represented himself. Moore did not, however, make any statements during this discussion that can be construed as an unequivocal request for self-representation, and therefore did not invoke his Faretta rights at that point. (See People v. Valdez (2004) 32 Cal.4th 73, 99.)
After the jury rendered its guilty verdict, and during jury deliberations on the priors trial, Moore complained to the court, “all you do is deny me everything.” The trial court stated it would give Moore the opportunity to speak. Moore replied, “Imagine that. You’ll cut it off an[d] send me out of [the] courtroom. Sir, I don’t know how to do it, but I want a re-trial, and . . . I want to state my Faretta rights right now, so I can file my re-trial. I’m already convicted, which [another judge] said I was going to be before trial. [¶] You’ve denied me everything that I had coming, you know what? You denied me my right, so now that the trial is over with and you[ ] all conspired to send me to prison for 16 years . . ., I want to state my F[a]retta rights and file for my re-trial before sentencing, sir.” The trial court denied the motion as untimely.
The trial court did not abuse its discretion. First, Moore’s request was not unequivocal. It appears Moore was not seeking to represent himself in regard to the trial pending at the time, but wished to have a new trial at which he might represent himself. Furthermore, “ ‘[a] motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.’ [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1087; People v. Marshall, supra, 15 Cal.4th at pp. 22-23.) A motion made on a “temporary whim, or out of annoyance or frustration, is not unequivocal -- even if the defendant has said he or she seeks self-representation.” (People v. Marshall, supra, 15 Cal.4th at p. 21.) Moore’s request appears to have been motivated by frustration, rather than a genuine desire to represent himself.
In any event, the trial court was correct that the motion was untimely. A self-representation request made on the eve of trial is untimely. (People v. Burton (1989) 48 Cal.3d 843, 853-854; People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Scott (2001) 91 Cal.App.4th 1197, 1205; People v. Horton, supra, 11 Cal.4th at p. 1110; People v. Douglas (1995) 36 Cal.App.4th 1681, 1688-1689; People v. Howze, supra, 85 Cal.App.4th at p. 1397.) Here, the motion was made after the jury’s guilty verdict and during deliberations on the prior conviction allegations. The proceedings were almost concluded. Moreover the trial court had already determined, in regard to the competency issue, that Moore was attempting to manipulate and delay the proceedings. Moore had repeatedly sought to relieve his appointed counsel. Under these circumstances, the trial court did not abuse its discretion by denying the request as untimely. (See People v. Marshall, supra, 13 Cal.4th at p. 827; People v. Windham, supra, at pp. 127-128.)
b. Photograph of Moore.
Moore complains that his rights were violated because “a witness came to court lock up to take a picture of [him] to show to [the] jury.” As discussed ante, Moore was removed from the courtroom because he was disruptive, and also refused to appear. In order to prove identity at trial, the trial court allowed deputies to take a photograph of Moore to show the witnesses.
Moore refused to cooperate and pulled his shirt over his face when the photograph was taken.
This identification procedure was not improper. The privilege against self-incrimination “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” (Schmerber v. California (1966) 384 U.S. 757, 764.)
c. Purported falsification of documents.
Moore’s petition further asserts as a basis for relief the phrase, “[falsifying] documents.” Moore does not identify any documents that were purportedly falsified, the source of the falsification, or how any such falsification was relevant to the issues at trial. “ ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ ” (People v. Duvall, supra, 9 Cal.4th at p. 474.) Moore has failed to state sufficient grounds for relief. His contention, “ ‘lacking as it is in specificity, virtually defies review.’ [Citation.]” (People v. Box (2000) 23 Cal.4th 1153, 1190, fn. 8.)
d. “I.O.C.”
Moore’s next claim is listed simply as, “I.O.C.” Moore therefore has not met his burden to plead sufficient grounds for relief. (See People v. Duvall, supra, 9 Cal.4th at p. 474.) “We presume the regularity of proceedings that resulted in a final judgment [citation], and . . . the burden is on the petitioner to establish grounds for his release.” (Ibid.) Moore’s contention is too vague and nonspecific to allow meaningful review. (See People v. Box, supra, 23 Cal.4th at p. 1190, fn. 8.)
e. Police coercion.
Moore asserts as a fifth ground for relief, “being beat[en] by deputies to take a deal on the case 3-7-06.” However, Moore did not plead as part of a negotiated disposition; he was convicted by a jury. Moreover, Moore’s self-serving contention is insufficiently corroborated. A defendant’s statement or assertion, without some corroborating evidence, is insufficient to support relief (In re Alvernaz (1992) 2 Cal.4th 924, 945), and mere conclusory allegations, without explanation for their basis, do not warrant relief. (People v. Duvall, supra, 9 Cal.4th at p. 474.)
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: CROSKEY, Acting P. J., KITCHING, J.