Opinion
B164309.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY PADILLA, Defendant and Appellant.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Johnny Padilla was convicted by a jury of possessing a controlled substance for sale and was sentenced to a term of five years in prison. On appeal, Padilla argues that (1) he was denied his constitutional right to represent himself at trial, and (2) the evidence is insufficient to support a sentence enhancement for a prior prison term. We affirm.
FACTS
Two deputies on patrol stopped appellant Padilla for drinking beer on a public sidewalk on May 3, 2002. Appellant told the deputies his name was "Robert." Appellant carried no identification, so the deputies searched appellant before taking him to the police station for fingerprinting. During the search, the deputies retrieved five baggies of rock cocaine from appellants shirt pocket. After being advised of his right to remain silent, appellant informed the deputies that he sells cocaine for five dollars per bag. He denied using cocaine himself, and did not appear to be under the influence. Appellant was not carrying matches, a lighter or a crack pipe to consume the drugs. The deputies found $670 in appellants pockets.
Appellant was re-interviewed at the sheriffs station. He admitted that he lied to the arresting deputies about his name and birth date. He asserted that he purchased the drugs for personal use and was trying to find a crack pipe when he was arrested. Appellant claimed that the cash he carried came from his job selling T-shirts; however, the deputies made follow-up calls and could not verify the existence of appellants employer.
Appellant testified and denied drinking beer in public, denied being outdoors when he was arrested, denied being given his Miranda rights, and denied selling drugs. He conceded that he possessed $20 in crack cocaine, which he intended to use to get high because he is a drug addict. He admitted that he gave the deputies a false name and birth date when he was arrested.
DISCUSSION
1. The Denial of Appellants Request to Represent Himself
During jury voir dire, appellant told the court that he wanted "to speak about [the case] myself, you know what I mean? Ask questions myself and present evidence myself." Appellant clarified that he wanted his attorney to remain on the case as co-counsel. The court denied appellants request because jury selection had begun and it was unlikely "at this late date" that appellant could adequately represent himself.
A defendant who wishes to proceed in propria persona must assert the right to self-representation in an unequivocal fashion. (People v. Marshall (1997) 15 Cal.4th 1, 20-21.) The courts "must draw every inference against supposing that the defendant wishes to waive the right to counsel." (Id. at p. 23.) If the defendants statements "`create any ambiguity as to his desire to represent himself" the courts will find no assertion of the right to self-representation. (Ibid .) A defendant who demands that his lawyer stay on as co-counsel demonstrates ambivalence about self-representation. (Id. at p. 26.)
Apart from being unequivocal, a defendants exercise of his right to self-representation must be timely. The motion must be made "`"within a reasonable time prior to the commencement of trial."" (People v. Clark (1992) 3 Cal.4th 41, 98.) Untimely motions may be denied at the discretion of the court, which makes its determination by considering the quality of counsels representation; defendants prior demands for substitute counsel; the reasons for the request; the stage of the proceedings; and the disruption or delay that might ensue. (Id. at pp. 98-99; People v. Windham (1977) 19 Cal.3d 121, 128.)
In this case, appellant did not express a sincere desire to forgo counsel and represent himself. On the contrary, while appellant indicated that he wished to ask questions and present evidence, he also stated that he wanted his attorney to act as co-counsel. This did not amount to an unequivocal invocation to the right to self-representation. Appellant did not assert his rights in a timely manner, in any event. The panel of prospective jurors was being questioned when appellant piped up with his request. It is unlikely that appellant suddenly became dissatisfied with his attorneys efforts, considering that she managed to secure a hung jury (5-4) and a mistrial at the first trial of this case, despite appellants possession of five baggies of cocaine and a large amount of cash at the time he was arrested.
The most likely explanation of appellants 11th-hour request is that he sought to disrupt or delay the proceedings. A motion for self-representation "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 trial court did not abuse its discretion by denying appellants equivocal and untimely request to represent himself.
2. Sufficiency of the Evidence that Appellant Served a Prior Prison Term
The information alleges that appellant served a prior prison term that operates to enhance appellants sentence. (Pen. Code, § 667.5, subd. (b).)[] On December 17, 2002, after the jury reached a verdict on the substantive offense, the court inquired whether appellant wished to enter a plea on the prior offense. Appellant waived his right to a jury trial on the prior offense and agreed to have a court trial on the day of sentencing.
On January 6, 2003, the day of sentencing, the prosecutor read the enhancement allegations from the information to appellant; i.e., that appellant was convicted in October 1997 and was sentenced to state prison for two years. Appellants counsel stated that appellant "is willing to admit" his October 1997 prior convictions. The prosecutor then took a plea from appellant, who agreed to waive his right to a court trial, to confront witnesses and against self-incrimination regarding "whether or not you [appellant] previously were convicted of attempted second degree robbery and battery on a non-inmate by an inmate."
Through counsel, appellant indicated that "he is willing to give up these rights. Hes aware he went to prison and hes aware what he went to prison for. His concern was that . . . its not a strike . . . ." Counsel added, ". . . he admits that he went to state prison. He went to state prison for the amount of time that was stated by the district attorney. He went to state prison for the charge that was stated by the district attorney. What he is contesting and saying is that he believes it was not a strike." The court replied that it would determine whether or not the prior qualified as a strike. Waivers were given and appellant admitted his prior convictions for robbery and battery on a non-inmate. Counsel joined in the waivers and the court accepted the plea. Appellant received a one-year sentence enhancement for having served a prior prison term.
Appellant now contends that the sentence enhancement he received was not supported by sufficient evidence because he did not admit, and the prosecution did not prove, that he served a prison term for his 1997 convictions or that he did not remain free of prison custody and felony convictions for a period of five years after concluding his prior prison term.
Before the court can impose a section 667.5(b) enhancement, the prosecution must prove beyond a reasonable doubt that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed the term of imprisonment, and (4) did not remain free for five years of both prison custody and commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563, 566.)
Counsel may stipulate to evidentiary facts in criminal cases. (People v. Adams (1993) 6 Cal.4th 570, 578.) "Nothing . . . obliges the court to advise a defendant of the right to a jury trial, and to confrontation and cross-examination, and of the privilege against self-incrimination prior to accepting a stipulation that does no more than relieve the People of the burden of offering evidence as to the existence of an element of a sentence enhancement. This is true regardless of whether the stipulation is made by counsel or by the defendant personally." (Id. at pp. 582-583; People v. Newman (1999) 21 Cal.4th 413, 421-422.)
Here, the first element of the section 667.5(b) enhancement was established when appellant knowingly and voluntarily waived his right to a trial and admitted his 1997 convictions. The People were relieved of the burden of proving the second and third elements of the enhancement by appellants evidentiary stipulation, through counsel, that appellant (a) went to prison and (b) completed a two-year term. As to the final element of the enhancement, a simple mathematical calculation proved that appellant failed to remain free of custody for more than five years. Appellant was convicted in October 1997, served his prison term, and committed a new offense in May 2002. This is less than a five-year span.
Appellant does not argue that his attorney improperly conceded crucial facts to which appellant had a viable defense. Once appellant admitted in court that he did, in fact, suffer the prior convictions alleged in the information, his attorney reasonably stipulated that appellant was imprisoned and completed his term. Had counsel not so stipulated, the prosecution could have readily proved these elements. Between appellants admission of his prior convictions, his stipulation to having served a term of imprisonment, and the obvious time span between his prior conviction and his re-arrest, there was sufficient evidence to sustain the prior prison term enhancement.
DISPOSITION
The judgment is affirmed.
We concur: NOTT, J., ASHMANN-GERST, J. --------------- Notes: The statute will be referred to in this opinion as section 667.5(b).