Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF129919 W. Charles Morgan, Judge.
BENKE, Acting P. J.
A jury convicted Jose Gumecindo Olivarez and Frank Monico Bazzo of first degree murder (Pen. Code, § 187, subd. (a)) and sustained special circumstance allegations as to each defendant that the murder was committed for financial gain (§ 190.2, subd. (a)(1)) and by means of lying in wait (§ 190.2, subd. (a)(15)). The jury also found that Olivarez personally used a firearm within the meaning of section 12022.53. The trial court sentenced Olivarez to life in prison without the possibility of parole plus 10 years for the firearm enhancement. The court sentenced Bazzo to life in prison without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise specified.
Olivarez appeals, contending the trial court erred by (1) not allowing him to represent himself during the presentation of his defense and (2) denying his request to represent himself for purposes of a new trial motion. Olivarez also asserts the abstract of judgment incorrectly includes a $10,000 parole revocation fine under section1202.45, subdivision (b).
In his appeal, Bazzo contends (1) jury instructions allowing the identity of the perpetrator to be proven by the defendant's out-of-court statements alone lessened the prosecutor's burden of proof, (2) his constitutional rights to confrontation and a fair trial were violated by the admission of Olivarez's statements without the opportunity for cross-examination, and (3) it was error to allow the jury to convict him of murder without requiring the jury to unanimously agree on which facts comprised the offense. Bazzo also attacks the lying-in-wait special circumstance on various constitutional grounds.
Olivarez and Bazzo join in each other's arguments to the extent that they would benefit thereby. (Cal. Rules of Court, rule 8.200 (a)(5).)
FACTS
Background
Intertwined with the homicide in this case are the relationships among four individuals. The victim, Mostafa Shirazi, was the former longtime husband of Epifania Nicolas. Shirazi and Nicolas had three children together. After almost 25 years of marriage, the couple divorced in 2002 and then engaged in heavily contested and acrimonious litigation over division of the community property, which had a value of $14 million. A trial to decide the division of the community assets started during the third week of July 2005. After three days, the trial was continued until late August. On August 9 or 10, Nicolas's attorney told Shirazi's attorney that Nicolas wanted to settle. On August 11, the parties signed a settlement agreement, which divided the assets in half and resolved all the outstanding issues between them.
The grand jury indicted Nicolas, along with Olivarez and Bazzo, in connection with Sharif's murder. Prior to trial, the parties stipulated the case would be tried before two juries—one for Olivarez and Bazzo and one for Nicolas. Nicolas's jury acquitted her of all charges.
While the divorce litigation was pending, Nicolas married Bazzo in September 2003. During his marriage to Nicolas, Bazzo became involved in his wife's ongoing legal fight against Shirazi and was confrontational against Shirazi during and after negotiation meetings. In 2003, Bazzo told a friend he was angry and frustrated with Shirazi's treatment of Nicolas; Bazzo said he wanted to kill Shirazi. Once, Bazzo left a threatening telephone message for Shirazi concerning the divorce litigation. On another occasion, Bazzo told Nicolas and her adult son that he might kill Shirazi if Nicolas was deceived in the property settlement.
Juliet Meer, who related this conversation to the jury, said she did not take Bazzo seriously when he made comments about killing people because he did so frequently. Meer is Nicolas's sister.
Nicolas and Bazzo, who jointly operated a couple of board and care facilities, divorced in March or April 2005 on amicable terms. Bazzo and Nicolas maintained their business relationship after the divorce. Also, after the divorce, Bazzo continued to live in Nicolas's Murrieta home, along with some of her relatives, while Nicolas, who was a dentist, moved to Blythe, where she had a full-time dental practice.
One of Bazzo and Nicolas's board and care facilities was the Wyngate in Tujunga, a community in northeastern Los Angeles County. To meet licensing requirements, Bazzo and Nicolas hired Olivarez to renovate the Wyngate facility—a job that included roofing, window replacement, dividing the building into 37 rooms, drywall installation, tile work, painting and landscaping. Olivarez's work on the Wyngate facility was completed in June 2005.
After his arrest, Bazzo told police that it cost $650,000 to renovate the Wyngate facility.
As work at the Wyntate board and care facility was nearing completion, a barbecue was held there. Present was Gladys Ynga-Meza, a friend of Olivarez. During the barbecue, Ynga-Meza walked into a room where she saw guns on top of a dresser. When Ynga-Meza asked Olivarez if the guns were his, he replied: "Yes. These are to kill a person." When Ynga-Meza asked Olivarez why he would kill someone, Olivarez said: "Well, would you like it if your husband hit you every day?" Olivarez also told Ynga-Meza that he was going to be paid "about $20,000[] or something around that amount" for the killing and was waiting for the money to be deposited in Miami. When Ynga-Meza told Olivarez that she could report him to the police, he warned her that she would suffer consequences if she did.
The Murder
At 11:01 a.m., on August 15, 2005, Mostafa Shirazi was fatally shot after he walked out of the public utilities building in downtown Riverside. A.38 caliber bullet entered Shirazi's upper back and perforated the carotid artery. At the time of his death, Shirazi had approximately $3,000 in his pocket and was wearing men's jewelry.
An employee of the public utilities company saw the shooter pacing back and forth in front of the building moments before the shooting. Other eyewitnesses said the shooter put the gun in his waistband and quickly walked away while holding a cell phone to his ear. The shooter then entered the passenger side of a Toyota truck, which had stopped in the middle of the street, and the truck drove away. All of the eyewitnesses described the shooter as Hispanic, but there were differences with other details of their descriptions. One of the eyewitnesses identified Olivarez as the shooter—both in a photo lineup and at trial.
On the evening of the shooting, Riverside police detectives and officers went to notify Shirazi's family at the Murrieta residence, where they expected to find Nicolas. Instead, the police encountered Bazzo, who did not ask the police why they were there. Immediately before going down the hill to meet with police, Bazzo phoned Nicolas and told her: "The police are here. I love you guys." Bazzo told police he met Shirazi once or twice and they had no problems. Told by police that Shairazi had died, Bazzo pretended to cry, according to Detective James Brandt.
When Brandt contacted Nicolas by phone, she appeared sincerely upset by the news of Shirazi's death and agreed to be interviewed in person. Nicolas told Brandt that she and a dental assistant had driven to Las Vegas, Nevada, on Friday, August 12, and returned to Blythe on Monday, August 15. Nicolas also told Brandt that she had spoken on the phone to Bazzo twice on the morning of August 15.
The parties stipulated that Nicolas was in Las Vegas until August 15. The dental assistant who accompanied Nicolas to Las Vegas testified that they returned to Blythe around noon on August 15.
Police Investigation
Cell phone records showed that calls were made between Olivarez's cell phone and Bazzo's cell phone on August 15 at 9:47 a.m., 10:36 a.m., 10:49 a.m., 10:59 a.m., 11:47 a.m., 2:37 p.m., 3:10 p.m., 3:14 p.m., 6:29 p.m. and 8:48 p.m. The records also show that a call made to Bazzo's phone at 9:47 a.m. hit off a cell tower in Riverside. A 10:37 a.m. call to Bazzo's phone hit off another cell tower in Riverside. Calls made to Bazzo's phone at 10:55 a.m. and 10:59 a.m. hit off a cell tower that services the location of the public utilities building in Riverside.
About a week after Shirazi was murdered, Bazzo went to Italy for three or four weeks. Bazzo called Troy Wyatt, a neighbor, and asked him to pay $5,000 to Carmen Saldana. Bazzo told Wyatt that Saldana was a contractor who had done tile work in his house and he would repay Wyatt when he returned from Italy. Wyatt wired the money to Saldana and was later reimbursed by Bazzo.
Contrary to Bazzo's representation, Carmen Saldana was not a tile contractor. Saldana was Olivarez's former girlfriend, who had purchased a grey Toyota Tundra truck for him in early 2005 because his credit was poor. Olivarez promised to make car payments, but rarely did. Saldana repeatedly demanded Olivarez to make the payments or return the truck.
In late August, Bazzo told Detective Brandt that on August 15, 2005, he was in the San Diego area looking for tile for his house.
In a November 8, 2005 interview at the police station, Bazzo said he could not identify a photograph of Olivarez, which had been taken from a bank videotape. After Bazzo left the station, two detectives surreptitiously followed him. Bazzo drove to Wyngate and other locations. He then parked by the side of the road. Within minutes, Olivarez parked behind Bazzo's vehicle. Olivarez and Bazzo talked for a couple of minutes.
On November 9, police arrested Olivarez. Asked if he had ever been to Riverside, Olivarez said he had driven through Riverside and had made estimates for jobs there. Olivarez admitted having frequent phone conversations with Bazzo in August because Bazzo still owed him more than $3,500 for work he did on another board and care facility. When asked why there were several phone calls between him and Bazzo on the morning of the murder, Olivarez said there were problems with city inspectors and he did not have a contractor's license. When Brandt accused Olivarez of being in Riverside at the time of Shirazi's murder, Olivarez said he had been in Bakersfield for most of August and his brother John could confirm that he had been working there for the last two or three months. Olivarez also told the detective that he had a receipt and membership from a Bakersfield shooting range to verify his presence in Bakersfield. When shown cell phone records showing that he was in Riverside near the public utilities building at the time of the shooting, Olivarez said it might have been someone who looked like him. He continued to maintain he was in Bakersfield. Olivarez denied having anything to do with Shirazi's murder and denied being in downtown Riverside at the time of the murder.
The Bakersfield shooting range required customers to sign a waiver. Olivarez signed a waiver on August 17, 2005.
Police arrested Bazzo on November 9. Bazzo denied any involvement in Shirazi's murder. Asked if he knew Olivarez, Bazzo said they had done business together.
Nicolas was arrested on November 23.
DISCUSSION
I
Oliveraz's Appeal
A. Requests for Self-Representation
Oliveraz contends the trial court erred by denying his requests to represent himself (1) during the trial and (2) after the jury returned its verdict for purposes of a new trial motion. The contention is without merit.
General Principles
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right... to have the [a]ssistance of [c]ounsel for his defense." (U.S. Const., Sixth Amend.) Similarly, the California Constitution provides: "The defendant in a criminal cause has the right... to have the assistance of counsel for the defendant's defense...." (Cal. Const., art. I, § 15.) In Faretta v. California (1975) 422 U.S. 806, 819 (Faretta), the United States Supreme Court held that although the right to self-representation is not stated in the Sixth Amendment, "the right to self-representation—to make one's own defense personally—is... necessarily implied by the structure of the Amendment." (Fn. omitted.)
Thus, the Sixth Amendment provides two mutually exclusive rights regarding a criminal defendant's representation. (People v. Marshall (1997) 15 Cal.4th 1, 20; People v. Tena (2007) 156 Cal.App.4th 598.) Unlike the right to counsel, however, the right of self-representation is not self-executing. (People v. Marshall, supra, at p. 20.) A defendant's right to represent himself or herself "is waived unless the defendant makes an articulate and unmistakable demand" to do so. (People v. Weeks (2008) 165 Cal.App.4th 882, 886.) "The right to representation by counsel persists until a defendant affirmatively waives it, and courts indulge every reasonable inference against such waiver." (People v. Dunkle (2005) 36 Cal.4th 861, 908, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Faretta error is reversible per se. A trial court must grant a defendant's request for self-representation if three requisite conditions are satisfied. (People v. Welch (1999) 20 Cal.4th 701, 729.) The prerequisites are (1) the defendant must be mentally competent and the request must be made knowingly and intelligently after being advised of the dangers of self-representation, (2) the request must be unequivocal, and (3) the request must be timely. (Ibid.)
Nonetheless, "Faretta itself and later cases have made clear that the right of self-representation is not absolute." (Indiana v. Edwards (2008) 554 U.S. 164 [128 S.Ct. 2379, 2384]; see also Jones v. Barnes (1983) 463 U.S. 745, 751 ["we have held that, with some limitations, a defendant may elect to act as his or her own advocate"].) For example, 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.)
1. Olivarez's Self-Representation Request During Trial
Olivarez made a Faretta motion on March 3, 2008, during the presentation of the defense case by Nicolas's attorney. Olivarez initially told the trial court that he was dissatisfied with his original attorney and investigator. Regarding his current attorney, Olivarez faulted him for not cross-examining some of the prosecution witnesses as thoroughly as Olivarez would have liked him to.
Olivarez continued: "I still have a lot of issues pending that pertain[] to some of these witnesses that I'm trying to get my attorney to re-call. He's contradicting me, saying, 'No, we're done. This is it. We're going to rest our case.'
"I don't want to stop the trial, sir. All I'm asking is that if I am granted to go pro per, I will continue trial, but with [defense counsel] as my side counsel...."
Olivarez said defense counsel raised only some of the issues that he suggested and "didn't thoroughly interrogate [the witnesses]. And some of these issues that I had that are very, very important to my defense were not brought up during this trial. And now he's telling me that I cannot move back, that I can only move forward."
Olivarez then brought up his treatment in jail before returning to the subject of defense counsel's performance:
"[OLIVAREZ]: Again, on the case itself, it's not [defense counsel]'s fault. He is a very good attorney. But some of these things have not been addressed. And I—I'm very adamant that at the rate that we're going and kind of investigator we have, he spent over $8,000 of taxpayers money, and he hasn't showed me much. I've asked him for many, many things to do, pull receipts, Ace Hardware, other facilities that provided material to this facility. We were basing our defense on [Nicolas's]... specialist... witness. And he didn't come through, you know? He didn't do a good presentation. I think there's still many questions in the jurors' mind. And I think if I'm allowed to continue this trial pro per with [defense counsel] as my side counsel, I believe that I can re-call some of these witnesses because I'm more familiar with a lot of the facts."
Defense counsel opined that his client was displeased with counsel's style, which was less aggressive than that of Nicolas's attorney. Counsel said Olivarez had made "a million requests. We have done a lot of them. [The investigator has] put in over 250 hours. Lot of it is just wild goose chases to try to satisfy [Olivarez]. A lot of it doesn't... result in anything, you know? Things that are impossible to get or are not relevant.
"So I've made tactical choices. I've made, you know, strategic choices.... I know he's very unhappy with me. Part of it's style. Part of it[] [is] disagreement on how it should be done."
The court addressed Olivarez as follows: "When one is represented by counsel, counsel makes all the tactical decisions. Not 90 percent, 100 percent. The defendant makes certain other choices that only that person can make—take a plea agreement, waive time, not waive time, not take a plea agreement, testify, not testify. All these things are done in conjunction with the advice of counsel, but those are ultimate decisions that the defendant does.
"But what motions to run pretrial, what motions to run in the course of trial, who to call, who not to call, what questions specifically to ask versus staying away from some area, those things. That is 100 percent a call made by trial counsel So it's—[defense counsel] has devoted his professional life to criminal defense. And he has done it for many a year and over a huge spectrum of cases. So I—his judgment is—I trust his judgment. He's always been an advocate. Though he has a laid-back style, that is true, absolutely. But no one is the same. And it doesn't mean that he isn't on top nor does it mean that he's not effective.
"Now, as to your request to proceed yourself, the answer is: I'm going to deny that request. I know you're not asking for a continuance. But we're in place and we're moving down with [defense counsel's] overall knowledge of the case and direction in conjunction with other people who he has spoken with. And he's alluded to one thing already about a tactical decision with other counsel. So placing it in a vacuum, you coming to represent yourself is not a good thing at this point in time, nor will it be a good thing, nor will it, in fact—it's never good to represent yourself. That's a huge flaw that other people think is important."
Olivarez complains that the last two sentences of the trial court's comments—including the language "you coming to represent yourself is not a good thing"—was irrelevant and should not have been part of the court's decision-making in ruling on the Faretta request. To the extent the court factored in whether Olivarez had the ability to represent himself or even Olivarez's best interests when it denied the Faretta request, the court erred. "[A] trial court may not measure a defendant's competence to waive his right to counsel by evaluating the defendant's 'technical legal knowledge' [citation] or his ability to represent himself [citation]. The right to self-representation may be invoked by any defendant competent to stand trial." (People v. Doolin, supra, 45 Cal.4th at p. 454.) In any event, even if the court used these improper factors in its ruling, the error was harmless because Olivarez's request was not unequivocal.
Analysis
On its face, Olivarez's Faretta motion was not timely, and therefore his right to self-representation was not constitutionally mandated. "[O]nce a defendant has chosen to proceed to trial represented by counsel, " a defendant's Faretta motion is "addressed to the sound discretion of the court." (People v. Windham (1977) 19 Cal.3d 121, 128.)
In exercising this discretion, the trial court should consider factors such as "the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Windham, supra, 19 Cal.3d at p. 128.)
When the record as a whole reveals a proper ground for the trial court's denial of a Faretta motion, we will uphold the ruling. (People v. Dent (2003) 30 Cal.4th 213, 218.)
The key issue before us is whether Olivarez's Faretta motion was unequivocal. A Faretta request made after the trial has begun must be unequivocal. (People v. Barnett (1998) 17 Cal.4th 1044, 1087.)
" 'The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. 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. Barnett, supra, 17Cal.4th at p. 1087.)
The requirement that a Faretta motion be unequivocal "is necessary... to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation." (People v. Marshall, supra, 15 Cal.4th at p. 22.) The demand for self-representation must be both articulate and unmistakable. (Id. at p. 21.) Furthermore, because there is a strong presumption against waiver of the right to counsel, a court should apply a " 'stringent standard, ' " granting only those requests for self-representation that are timely and unequivocal; in determining whether the request is unequivocal, the court should draw every reasonable inference against waiver of the right to counsel. (Id. at pp. 20-21, 24.) Where "it is clear from the record that defendant never made an unequivocal assertion of his right to self-representation, ... [a] trial court [does] not err in declining to consider such a request." (People v. Valdez (2004) 32 Cal.4th 73, 99.)
Our review of the record reveals Olivarez's Faretta requests on March 3, 2008, were equivocal. On March 3, 2008, Olivarez made two separate requests to represent himself. In each, he asked to be appointed "pro per" but with defense counsel as "side counsel." Olivarez's requests to represent himself and to have his defense counsel assume a standby or advisory counsel role were not unequivocal requests for self-representation. Rather, they reflect ambiguity over whether Olivarez truly wanted to represent himself. The right to represent oneself and the right to counsel are mutually exclusive rights. Yet Olivarez asked to represent himself and have his counsel remain as standby counsel. This was not equivalent to an unequivocal election to represent himself; nor was it a clear waiver of his right to counsel. There is no guarantee that a standby or advisory counsel will be appointed to assist the defendant who chooses to represent himself. Although California courts have discretion to appoint advisory counsel to assist an indigent defendant who elects to represent himself (People v. Bigelow (1984) 37 Cal.3d 731, 742), "[a] criminal defendant does not have a [constitutional] right to simultaneous self-representation and representation by counsel." (People v. Bradford (1997) 15 Cal.4th 1229, 1368; see also People v. Clark (1992) 3 Cal.4th 41, 97, 111; People v. Bloom (1989) 48 Cal.3d 1194, 1218.)
The record also shows that Olivarez's main motivation for the request was to recall the witnesses and ask them more questions. The decision to recall witnesses for more questioning was a matter of trial tactics, and Olivarez's disagreement over such tactics did not constitute sufficient grounds for granting the Faretta motion. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206 ["disagreement over trial tactics... is 'an insufficient reason to grant an untimely Faretta motion' "]; see also People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4.) "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." (People v. Marshall, supra, 15 Cal.4th at p. 23.)
The gravamen of Olivarez's argument is the trial court's denial of his Faretta motion was an abuse of discretion because the court did not address the Windham factors (see fn. 11, ante). We disagree.
The Windham inquiry is required primarily for the purpose of insuring an adequate record for any subsequent appeal. Windham states: "We decline to mandate a rule that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation which is based on nonconstitutional grounds. Although we are of the view that such a procedure is the preferred practice, ... a strict and unbending rule is unnecessary in the present context.... In the instant case we impose a requirement that trial courts confronted with nonconstitutionally based motions for self-representation inquire sua sponte into the reasons behind the request.... [T]here should be a sufficient record on appeal in such cases in order to sufficiently evaluate alleged abuses of discretion when motions for self-representation are denied." (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6.)
Failure of a trial court to conduct a Windham inquiry does not mandate reversal of a denial of a Faretta motion if the record otherwise strongly supports the denial. (People v. Scott, supra, 91 Cal.App.4th at p. 1205; People v. Perez (1992) 4 Cal.App.4th 893, 904-905, fn. 10.) Here, the trial court's failure to conduct a Windham inquiry does not preclude affirming its denial of Olivarez's mid-trial Faretta requests because the record clearly shows the requests were equivocal.
2. Olivarez's Post-Verdict Faretta Request
Relying on People v. Miller (2007) 153 Cal.App.4th 1015, Olivarez contends the trial court erred by denying his post-verdict Farretta motion; he claims the motion was timely and unequivocal, and should have been granted as a matter of right.
Background
On March 19, 2008, the jury rendered its guilty verdicts, and the trial court scheduled sentencing for May 2. On May 2, the trial court received a letter from Olivarez in which he repeated earlier complaints about the defense team's failure to investigate and counsel's inadequate cross-examination. The letter also requested a new probation report and postponement of the case for 60 days to give the court the power to "change the verdict" and declare a mistrial.
After reading the letter, the court conducted a confidential hearing with Olivarez and defense counsel. Although the court initially said it did not view the matter as a Marsden motion, the hearing was conducted in accordance with procedures for a Marsden motion. The court heard from Olivarez, who said he had asked defense counsel to file for a mistrial, retrial or stay of appeal or to relieve himself as counsel to enable the Criminal Defense Lawyers organization to assign another attorney to him. Olivarez further said that if defense counsel was not willing to proceed with his suggestions, he wanted a new attorney. Upon inquiry, defense counsel said he believed Olivarez wanted a motion for new trial to be filed on the basis on ineffective assistance of trial counsel. The trial court appointed another attorney solely for the purpose of deciding whether a new trial motion should be filed.
People v. Marsden (1970) 2 Cal.3d 118. In People v. Marsden our Supreme Court held that a criminal defendant who wants to substitute appointed counsel is entitled to a hearing in which he or she can explain his or her request for a change of attorneys. (Id. at pp. 123-124.) A defendant is entitled to new appointed counsel if the record shows the first appointed attorney is not providing adequate representation or there is such an irreconcilable conflict or a complete breakdown in the attorney-client relationship that ineffective representation is likely to result. (People v. Valdez, supra, 32 Cal.4th at p. 95.)
On August 29, counsel, who had been appointed for purposes of a new trial motion, announced he would not be filing such a motion. At this point, Olivarez told the judge that he wanted to represent himself so that he could make a motion for a new trial. The trial court denied the motion on the ground that it was a dilatory tactic.
Analysis
In People v. Miller, supra, 153 Cal.App.4th at page 1024, the Court of Appeal held a Faretta motion is timely if made "a reasonable time prior to commencement of the sentencing hearing." In Miller, the defendant made a Faretta motion after the jury rendered its verdict and the trial court denied a new trial motion, but more than two months before the scheduled sentencing hearing. When he made his motion, the defendant indicated to the court that he wanted to conduct his own investigation and would be prepared on the sentencing date. (Id. at pp. 1020, 1024.) In holding the trial court erred by denying the defendant's motion as untimely, the court observed that concerns about trial delay or disruption do not apply to separate sentencing hearings. (Id. at p. 1024.) Because the Faretta request was timely, the Miller court continued, the defendant "had an absolute right to represent himself at sentencing, and the trial court was required to grant his request for self-representation, which was unequivocal, as long as he was mentally competent and the request was made 'knowingly and intelligently, having been apprised of the dangers of self-representation.' " (Ibid.)
This case is readily distinguishable from Miller, in which the defendant wanted to represent himself at sentencing, which the appellate court reasoned was a "posttrial" proceeding that was separate from trial. (People v. Miller, supra, 153 Cal.App.4th at pp. 1023-1024.) Here, Olivarez did not express any interest in the sentencing proceeding. Olivarez made his post-verdict Faretta motion so that he could file a motion for a new trial, a collateral proceeding that is a continuation of the trial. Olivarez's Faretta motion therefore was not timely, and consequently he did not have an absolute right to represent himself. Rather, Olivarez's right to self-representation at that point was subject to the court's discretion. (See People v. Doolin, supra, 45 Cal.4th at p. 455, fn. 39.) The trial court did not abuse its discretion in denying the Faretta request after finding the request was dilatory. A "legitimate concern" of the trial court is whether defendant's request "would needlessly delay the proceedings." (Id. at p. 454.)
B. Parole Revocation Fine Erroneously Included in Abstract of Judgment
Olivarez contends the abstract of judgment erroneously shows that a $10,000 parole revocation fine (§ 1202.45, subd. (b)) was imposed. He points out that (1) the trial court did not impose such a fine at the sentencing hearing, and (2) such a fine is not authorized in this case because he was sentenced to life imprisonment without the possibility of parole.
Although the trial court did not orally impose the section 1202.45 fine, the minute order erroneously stated the fine was imposed.
The Attorney General acknowledges that Olivarez is correct. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1186 [§ 1202.45 fine is not applicable to term of life in prison without the possibility of parole]; People v. Zackery (2007) 147 Cal.App.4th 380, 385 [oral pronouncement controls over minute order].)
The same mistake was made with respect to the minute order and abstract of judgment for Bazzo, who has joined in Olivarez's arguments on appeal.
Accordingly, we direct the trial court to correct the minute orders for both Olivarez and Bazzo. The court shall also amend the abstract of judgment for each appellant by striking the parole revocation fines under section 1202.45, subdivision (b), and send a copy of each amended abstract of judgment to the Department of Corrections and Rehabilitation.
II
Bazzo's Appeal
A. Jury Instruction Concerning Identity
Bazzo contends the jury was improperly instructed that the prosecution did not have to prove identity beyond a reasonable doubt. Specifically, Bazzo isolates the sentence, "The identity of the person who committed the crime and the degree of the crime may be proved by the defendant's statement alone, " from the rest of CALCRIM No. 359, and argues the sentence violated his right to have a jury determine his guilt beyond a reasonable doubt. The contention is without merit.
CALCRIM No. 359, as given, provides: "The defendant may not be convicted of any crime based upon his out-of-court statements alone. You may only rely on a defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed.... The identity of a 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."
The court also instructed the jury pursuant to CALCRIM No. 358 [Evidence of Defendant's Statements]. CALCRIM No. 358, as given, provides: "You have heard evidence that the defendant made an oral or written statement before trial. You must decide whether or not the defendant made any of these statements in whole or in part. If you decide the defendant made such a statement, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to such statements."
Bazzo argues the primary issue in this case was the identity of the killer and his (Bazzo's) out-of-court statements were used to prove Olivarez's identity as the killer of Shirazi. Bazzo claims his statements were "patently insufficient to establish identity beyond a reasonable doubt."
We are somewhat puzzled by Bazzo's premise that his extrajudicial statements established the identity of Olivarez as the one who fatally shot Shirazi. In his brief, Bazzo refers to three of his extrajudicial statements that the prosecutor mentioned in closing arguments: (1) Bazzo's phone call to Nicolas on the night of the murder just before he went down the hill to meet the police in which he told Nicolas: "The police are here. I love you guys."; (2) Bazzo's statements to the police that night in which he said he barely knew Shirazi, his questionable "crying" reaction to news of Shirazi's murder; his denial of having guns in the house; and (3) Bazzo's statement on November 8 that he did not recognize a photograph of Olivarez. From our reading of the record, these statements by Bazzo were evidence of his participation in a conspiracy to kill Shirazi and did not establish Olivarez's identity as the shooter.
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We evaluate whether an instruction is misleading by reviewing the jury charge as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) Instructions are not considered in isolation. (People v. Holt (1997) 15 Cal.4th 619, 677.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]" (People v. Campos, supra, 156 Cal.App.4th at p. 1237.)
CALCRIM No. 359 correctly expresses the corpus delicti rule. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.) " ' "The corpus delicti of a crime consists of two elements[:] the fact of the injury or loss or harm, and the existence of a criminal agency as its cause." ' " (People v. Zapien (1993) 4 Cal.4th 929, 985–986.) "[T]he corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant." (People v. Wright (1990) 52 Cal.3d 367, 403, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) In other words, the corpus delicti rule requires "every conviction must be supported by some proof of the corpus delicti aside from or in addition to [the defendant's extrajudicial] statements, and the jury must be so instructed." (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The purpose of the corpus delicti rule is to assure that an accused does not admit to a crime that never occurred. (People v. Jennings (1991) 53 Cal.3d 334, 368.) The corpus delicti rule is satisfied by a " 'slight' " or " 'minimal' " quantum of proof. (Id. at pp. 364, 367.)
To the extent that Bazzo's argument is premised on the assumption that identity is part of the corpus delicti, the assumption is incorrect. "Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant." (People v. Cobb (1955) 45 Cal.2d 158, 161; see People v. Kraft (2000) 23 Cal.4th 978, 1057; People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6.) Here, the corpus delicti of the murder was proved when eyewitnesses testified that a man shot Shiraf outside the public utilities building. Having established the corpus delicti, the prosecution properly introduced evidence of the defendants' extrajudicial statements to prove identity of the perpetrator. (People v. Cobb, supra, 45 Cal.2d at p. 162.) Accordingly, the identity of the perpetrator can be proven by a defendant's out-of-court statements alone.
We also disagree that CALCRIM No. 359's correct statement of the law that the identity of the perpetrator may be proved by extrajudicial statements alone reduces the prosecution's burden of proof on identity to less than guilt beyond a reasonable doubt. The instruction merely constitutes a statement that the corpus delicti rule does not preclude reliance on the defendant's out-of-court statements to prove identity beyond a reasonable doubt. The court instructed the jury with CALCRIM No. 220, which defines reasonable doubt, informs the jury that it must consider all the evidence, and instructs the jury the defendant is entitled to an acquittal unless the evidence proves him guilty beyond a reasonable doubt. Further, CALCRIM No. 359 advised the jury it could "not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." Reasonable jurors would have understood from the entirety of the charge that the prosecution was required to prove identity beyond a reasonable doubt after examination of all the evidence. CALCRIM No. 359 was not misleading, and it did not reduce the prosecution's burden of proof on identity.
Bazzo's reliance on Francis v. Franklin (1985) 471 U.S. 307, is misplaced. That case found constitutionally infirm instructions that created a rebuttable presumption of intent from proof of other elements of the crime. (Id. at pp. 315-316.) There was no similar direction here.
B. Admission of Olivarez's Statements to Ynga-Meza
Bazzo contends the admission of Olivarez's statements to Ynga-Meza violated his Sixth Amendment rights to confrontation because he had no opportunity to cross-examine Olivarez. The contention is without merit.
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the Supreme Court held the Sixth Amendment to the United States Constitution bars the admission of out-of-court testimonial statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 61-68.) Only testimonial statements pose potential Confrontation Clause problems. (Davis v. Washington (2006) 547 U.S. 813, 821; People v. Garcia (2008) 168 Cal.App.4th 261, 291.) "Testimonial statements are 'statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing and proving facts for possible use in a criminal trial.' [Citation.] An 'informal statement made in an unstructured setting' generally does not constitute a testimonial statement. [Citation.]" (People v. Garcia, supra, 168 Cal.App.4th at p. 291, quoting People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14.)
Olivarez's statements to Ygna-Meza were not testimonial. There was no reason to believe the statements "occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony." (People v. Cage, supra, 40 Cal.4th at p. 984, fn. omitted; see also People v. Vargas (2009) 178 Cal.App.4th 647, 660-661.) Olivarez was talking to a friend at a barbecue when he made his statements concerning the guns, his plans to use them to kill someone's husband and the $20,000 he was to be paid for the deed. (People v. Jefferson (2008) 158 Cal.App.4th 830, 842.) Olivarez thought he "could talk freely." (Ibid.) "There was nothing formalized about [Olivarez's and Ynga-Meza's]... profane conversation." (Id. at p. 843.) These circumstances would not " ' "lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial." ' [Citation.]" (Ibid., citing Crawford, supra, 541 U.S. at p. 52; see also People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19 [sexual abuse victim's accusatory statement to friend at school was not testimonial].) As the high court observed, "a casual remark to an acquaintance does not" bear testimony. (Crawford, supra, 541 U.S. at p. 51.)
Since Olivarez's statements to Ynga-Meza was not testimonial, the admission of the statements through Ynga-Meza's testimony did not implicate Bazzo's Sixth Amendment confrontation rights.
C. Absence of Unanimity Instruction on Murder Count
The trial court instructed the jury on two theories of first degree murder: (1) premeditation and deliberation and (2) murder while lying in wait. Bazzo contends the trial court erred by not instructing the jury that in order to convict him of first degree murder, the jury had to unanimously agree on the theory of murder.
Bazzo urges that under the reasoning of United States Supreme Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Ring v. Arizona (2002) 536 U.S. 584 a jury must agree unanimously on the theory of first degree murder. The California Supreme Court, however, has rejected Bazzo's argument that Apprendi requires a jury to unanimously agree on a theory of first degree murder. (People v. Nakahara (2003) 30 Cal.4th 705, 712-713, disapproved on another ground in People v. Williams, supra, 49 Cal.4th at p. 459.)
In People v. Nakahara, supra, 30 Cal.4th705, 712-713, our high court stated: "As for defendant's claim that a unanimity instruction should have been given, our cases have repeatedly rejected this contention, holding that the jurors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation. [Citations.]
"We are not persuaded otherwise by Apprendi.... There, the United States Supreme Court found a constitutional requirement that any fact that increases the maximum penalty for a crime, other than a prior conviction, must be formally charged, submitted to the fact finder, treated as a criminal element, and proved beyond a reasonable doubt. [Citation.] We see nothing in Apprendi that would require a unanimous jury verdict as to the particular theory justifying a finding of first degree murder. [Citation.]" (People v. Nakahara, supra, 30 Cal.4th at pp.712-713, see also People v. Hawthorne (2009) 46 Cal.4th 67, 89.)
Because we are bound by the decisions of the California Supreme Court, we need not further consider Bazzo's argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Constitutionality of Lying-in-Wait Special Circumstance
Bazzo contends section 190.2, subdivision (a)(15)—the lying-in-wait special circumstance statute—is unconstitutional (1) on due process grounds as too vague under the Fifth and Fourteenth Amendments and (2) as impermissibly vague and overbroad under the Eighth Amendment because it fails to appropriately narrow the class of persons eligible for the death penalty. The contention is without merit.
1. The Lying-In-Wait Special Circumstance Does Not Violate Due Process
Bazzo argues the lying-in-wait special circumstance violates due process principles because it allows law enforcement to arbitrarily and capriciously apply it. This argument is premised on the notion that there is no meaningful distinction between the lying-in-wait special circumstance and any other intentional killing. Bazzo's argument and premise have been rejected by the California Supreme Court in People v. Morales (1989) 48 Cal.3d 527, 557, disapproved on another ground in People v. Williams, supra, 49 Cal.4th at page 459 and People v. Stevens (2007) 41 Cal.4th 182, 203 to 204. We are bound by California Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and, therefore, we reject Bazzo's claim.
Bazzo recognizes this court is bound by our Supreme Court precedent, but raises this claim to preserve it for further review.
Furthermore, as this court has pointed out section 190.2, subdivision (a) (15) is neither too vague for people to discern which activities are proscribed nor too vague that it encourages arbitrary and capricious enforcement. (People v. Supeiror Court (Bradway) (2003) 105 Cal.App.4th 297, 310.)
"Section 190.2, subdivision (a)(15) [in conjunction with relevant case law] provides a clear definition of what is required to satisfy its elements. In addition to the elements of lying in wait, which are now the same as for first degree murder, a person must specifically intend to kill 'by means of lying in wait.' Any reasonable person considering [Olivarez's] conduct, or planning similar acts, would know that those acts constituted murder by means of lying in wait and that the special circumstance could be alleged if the person in addition specifically intended to kill his victim by such means.
"As for guidelines to prevent arbitrary and discriminatory enforcement, the statute is clear as to what conduct would subject a person to possible punishment by death or [life without the possibility of parole]. Generally, where the facts support a special circumstance allegation, the prosecutor has the discretion to seek the death penalty. Such ' "[p]rosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system or offend principles of... due process, or cruel and/or unusual punishment." [Citations.]' [Citation.]" (Bradway, supra, 105 Cal.App.4th at p. 310.)
Section 190.2, subdivision (a)(15) does not violate due process under the Fifth and Fourteenth Amendments.
2. The Lying-In-Wait Special Circumstance Does Not Violate The Eighth Amendment
Bazzo contends that even if the lying-in-wait special circumstance does not violate due process, it is unconstitutionally vague and overbroad in violation of the Eighth Amendment because it fails to meaningfully narrow death penalty eligibility.
The Attorney General argues that Bazzo lacks standing to raise this issue because he was not sentenced to death. (See Godrey v.Georgia (1980) 446 U.S. 420, 428.) Bazzo does not argue to the contrary, but we need not address the standing issue in light of established California Supreme Court authority rejecting Bazzo's Eighth Amendment argument.
Bazzo's claim has been repeatedly rejected by the California Supreme Court. (E.g., People v. Lewis (2008) 43 Cal.4th 415, 515-516; People v. Nakahara, supra, 30 Cal.4th at p. 721; People v. Gutierrez (2002) 28 Cal.4th 1083, 1148; People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) We reject the claim as well. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Moreover, we note that section 190.2, subdivision (a)(15) requires that the defendant intentionally kill the victim, which distinguishes the special circumstance from first degree murder under a lying-in-wait theory. (People v. Stevens, supra, 41 Cal.4th at p. 204.) Lying-in-wait first degree murder " 'requires only a wanton and reckless intent to inflict injury likely to cause death.' " (People v. Poindexter (2006) 144 Cal.App.4th 572, 580, fn. 10.)
As we pointed out in Bradway, supra, 105 Cal.App.4th at pages 309 to 310: "A careful reading of the case law explaining first degree murder by means of lying in wait and the lying-in-wait special circumstance... reveal that even after Proposition 18 changed the language of the of the lying-in-wait special circumstance to comport with the language of first degree murder 'by means of' lying in wait, the special circumstance remains distinguishable because it still requires the specific intent to kill, whereas first degree murder... does not. [Citations.] The special circumstance under section 190.2, subdivision (a)(15) therefore does not merely repeat the elements that make a killing by means of lying in wait a first degree murder. [Citation.] In addition, it has long been held that 'first degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment. [Citations.]' "
DISPOSITION
As to Oliveraz, the trial court is instructed to (1) correct the sentencing minute order and to amend the abstract of judgment to remove the section 1202.45 parole revocation fine and (2) forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
As to Bazzo, the trial court is instructed to (1) correct the sentencing minute order and to amend the abstract of judgment to remove the section 1202.45 parole revocation fine and (2) forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.