Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Bruce F. Marrs, Judge, Supreme Court No. KA066479
California Appellate Project, Jonathan B. Steiner, Executive Director, and Ronnie Duberstein, Staff Attorney, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Viet H. Nguyen, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
PERREN, J.
Pedro Castro Perez appeals convictions for evading an officer causing serious bodily injury (Veh. Code, § 2800.3), leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and driving without a valid driver's license (Veh. Code, § 12500, subd. (a)). The jury found a true allegation that he had a prior serious or violent felony conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Perez's 15-year sentence consisted of a 5-year upper term for the evading an officer causing serious bodily injury offense, doubled as a second strike, and five years as a prior conviction enhancement under Penal Code section 667, subdivision (a)(1). Perez contends the trial court violated his constitutional right to self-representation, and erred in imposing an upper term sentence based on aggravating facts that were not found true by the jury beyond a reasonable doubt.
In an opinion filed May 10, 2007, we concluded that the trial court committed error under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) by imposing the upper term sentence for evading an officer causing serious bodily injury based on aggravating factors not determined by the jury. We vacated the upper term sentence, remanded for resentencing, and otherwise affirmed the judgment. Our Supreme Court granted review and, on September 12, 2007, transferred the matter to this court with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We vacated the decision and requested supplemental briefing. Having reviewed those briefs, we conclude that the upper term sentence imposed on Perez violated Cunningham, and the error was not harmless beyond a reasonable doubt. We affirm the judgment but remand for resentencing.
With the exception of our discussion of the sentencing issue, the following opinion is substantially identical to our prior opinion of May 10, 2007.
FACTS AND PROCEDURAL HISTORY
Perez was driving his Jeep Cherokee recklessly and at an unsafe speed. He was forced to stop behind a truck, but drove onto the sidewalk to evade a pursuing police car. Perez ran a red light, side-swiped a car, and collided with a pickup truck. A passenger in the car hit by Perez was seriously injured and had to be hospitalized for several weeks. Perez was apprehended as he ran from his vehicle. He did not have a valid driver's license.
The public defender was appointed to represent Perez but was later replaced by private counsel. In August 2004, the trial court declared a doubt regarding Perez's mental competence and suspended criminal proceedings. In October 2004, the court found Perez competent and criminal proceedings resumed.
On November 2, 2004, after one day of jury trial, the trial court questioned the representation provided by defense counsel and stated that it would grant a mistrial if requested. After independent counsel was appointed for him, Perez requested a mistrial and it was granted. The public defender was reappointed to represent Perez.
Later in November, Perez made a Marsden motion for new appointed counsel and the motion was denied. (People v. Marsden (1970) 2 Cal.3d 118.) Perez made a second Marsden motion on February 25, 2005, the first day of trial. The trial court's denial of the motion was followed immediately by a Faretta motion for self-representation. (Faretta v. California (1975) 422 U.S. 806.) Perez appeals the denial of his Faretta motion as well as imposition of the upper term sentence.
DISCUSSION
No Error in Denial of Faretta Motion
Perez contends that the trial court's denial of his Faretta motion violated his constitutional right to represent himself. We disagree.
A criminal defendant has a constitutional right of self- representation. (Faretta v. California, supra, 422 U.S. at pp. 818-836.) To invoke that right, a defendant must unequivocally assert it within a reasonable time prior to the commencement of trial. (People v. Marshall (1996) 13 Cal.4th 799, 827; People v. Burton (1989) 48 Cal.3d 843, 852.) The trial court must permit self-representation as long as the defendant's motion is timely, and is intelligently and knowingly made. (People v. Stanley (2006) 39 Cal.4th 913, 931-932; Faretta, at p. 835.)
The trial court, however, has discretion to deny an untimely motion for self-representation. (E.g., People v. Burton, supra, 48 Cal.3d at p. 852.) Although there is no particular time at which a motion becomes untimely, a timely motion must be made a reasonable time before trial. (Burton, at pp. 853-854; People v. Windham (1977) 19 Cal.3d 121, 127-128.) Courts have affirmed the denial of motions as untimely when made within a few days of a scheduled trial date. (See People v. Rudd (1998) 63 Cal.App.4th 620, 625-626 [three days before trial]; People v. Hill (1983) 148 Cal.App.3d 744, 757 [five days before trial]; People v. Ruiz (1983) 142 Cal.App.3d 780, 790-791 [six days before trial].)
Here, the trial court reasonably concluded that Perez's motion was not timely. The motion was made on the day of trial, yet his two Marsden motions show dissatisfaction with appointed counsel for several months. Perez had ample opportunity to seek self-representation earlier, and offered no explanation for his delay. (See People v. Scott (2001) 91 Cal.App.4th 1197, 1206.)
Perez cites a Ninth Circuit rule that generally Faretta motions are timely when made before impanelment of the jury unless they are used as a tactic to secure delay. (Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264; see also Avila v. Roe (9th Cir. 2002) 298 F.3d 750, 753.) But, the California Supreme Court concluded that, to the extent the federal and state rules differ, "we find the federal rule too rigid in circumscribing the discretion of the trial court and adhere to the California rule.” (People v. Burton, supra, 48 Cal.3d at p. 854 & fn. 2.) We are obligated to follow this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, a more recent Ninth Circuit decision upheld the California standard, concluding that California's "reasonable amount of time before trial" standard for timeliness is consistent with Faretta. (Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1060-1061, cert. den. (2005) 126 S.Ct. 139.) In any event, the record supports the trial court's implied finding that the self-representation request by Perez was a tactic designed to cause delay which would render his motion untimely under the cited Ninth Circuit cases.
The record also supports a finding that Perez's motion was equivocal, and made in reaction to the denial of his Marsden motion. "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. Marshall, supra, 15 Cal.4th at p. 23.) A motion is equivocal if it arises from a defendant's annoyance or frustration with counsel or with his motion for substitution of counsel. (Id., at pp. 21-22; People v. Scott, supra, 91 Cal.App.4th at p. 1205.)
Here, Perez made a Marsden motion to obtain new appointed counsel arguing, in essence, that he and counsel did not understand each other, counsel was not helping him, and counsel failed to provide him with "papers" from the case. Immediately after the trial court denied his motion, Perez stated to the court: "I want to tell you something. . . . If you cannot change my attorney, I will go—I will represent myself." But, Perez was unprepared to defend himself, and the record suggests that he had not considered the possibility of self-representation and was unable to assess his own position in the case.
Perez also contends that, even if his Faretta motion was untimely, the trial court abused its discretion in denying it. Perez argues the trial court summarily denied the motion without questioning Perez about, or considering, the relevant criteria. We disagree, and conclude that there was no abuse of discretion.
In exercising its discretion to deny an untimely Faretta motion, the trial court must consider the quality of counsel's representation, the defendant's prior proclivity to substitute counsel, the reason for the request, the length and stage of the proceedings, and the disruption or delay that might follow the granting of such a motion. (People v. Windham, supra, 19 Cal.3d at p. 128.) Such consideration may be explicit or implicit and it is not necessary for the court to make express inquiries and findings regarding the factors. (People v. Marshall, supra, 13 Cal.4th at p. 828.) A reviewing court must give considerable weight to the trial court's exercise of discretion, and the defendant has the burden of justifying the delay. (People v. Valdez (2004) 32 Cal.4th 73, 102; see also People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
Here the trial court's ruling followed a lengthy hearing during which the trial court considered the Windham factors as well as the factors applicable to a Marsden motion. The court favorably evaluated the representation being provided by appointed counsel, considered Perez's proclivity to change counsel through Marsden motions, the absence of any reason for the request, the absence of any reason for delaying the request until the day of trial, and the delay and disruption of the proceedings if the motion were granted. Clearly, Perez was mentally unstable and unprepared to direct his own defense.
In any event, any error in the trial court's failure to weigh the Windham factors on the record is harmless. Any error in the exercise of the trial court's discretion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.) The error is harmless if it is not reasonably probable that the defendant would have obtained a more favorable result had he represented himself. Here, the record contains overwhelming evidence of Perez's guilt, evidence that was essentially unchallenged. There is no reasonable probability he would have obtained a better result had he represented himself.
Remand for Resentencing
Perez contends that imposition of an upper term sentence based on aggravating factors determined by the court violated his constitutional right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 860; see also Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.) We agree.
In Cunningham, the United States Supreme Court held that the portion of California's determinate sentencing law that permits a judge to impose an upper term sentence based on aggravating sentencing factors that are not determined by a jury violates the Sixth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at pp. 860, 868.) The court explained that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Id., at p. 860.) In Black II and Sandoval, our Supreme Court interpreted Cunningham and its predecessors as permitting imposition of an upper term sentence without jury findings when one aggravating circumstance found by the court is established in accordance with the requirements of Apprendi and Blakely. (Black II, supra, 41 Cal.4th at pp. 805-806, 813; Sandoval, supra, 41 Cal.4th at pp. 836-837.)
Perez argues that Black II and Sandoval were wrongly decided to preserve his right to federal court review, but acknowledges that we are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Here, the trial court stated that it was imposing the upper term sentence for evading a police officer causing serous bodily injury "due to the severe injuries to three individuals and the defendant's driving on the sidewalk, the defendant passing a school on one of the streets, one of the small side-streets, at a very great rate of speed, a rate of speed sufficient so that the pursuing patrol officer bottomed out and smashed her radiator out, which takes a tremendous amount of speed, in addition to the other driving, which the jury, I'm sure, considered in arriving at their verdict of guilty." Respondent concedes that none of these aggravating circumstances satisfy the constitutional requirements of Cunningham as interpreted by Black II and Sandoval, but argues that the error was harmless beyond a reasonable doubt.
Perez also had a prior serious felony conviction, but the trial court did not rely on this conviction as an aggravating factor due to its imposition of a five-year Penal Code section 667, subdivision (a) enhancement. A prior conviction cannot be used both as the basis of an enhancement and as an aggravating factor. (Former Pen. Code, § 1170, subd. (b); Sandoval, supra, 41 Cal.4th at p. 848; People v. Coleman (1989) 48 Cal.3d 112, 164.)
"[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval, supra, 41 Cal.4th at p. 839.) Here, respondent contends that the jury would have found beyond a reasonable doubt the existence of each of the aggravating factors relied on by the trial court in imposing the upper term sentence. We disagree.
Although a jury reasonably could have made a true finding as to each of the aggravating factors, we cannot conclude beyond a reasonable doubt that the jury "would have assessed the facts in the same manner as did the trial court." (Sandoval, supra, 41 Cal.4th at pp. 840, 842.) A reviewing court "cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury" and, for this reason, a defendant does not have an opportunity or reason to challenge the evidence supporting these circumstances during trial unless the same evidence would have tended to undermine proof of an element of the charged offense. (Id., at p. 839.)
Here, an element of the offense was "serious bodily injury" to victim Maria Dorado, but the aggravating circumstances found by the trial court included injuries to three people, reckless driving, and high-speed driving that had the potential of endangering school children. These findings were based upon the evidence and, as the court stated, may have been considered by the jury, but they were not admitted by Perez or established by the jury's verdict and rested "on a somewhat vague or subjective standard" requiring an imprecise quantitative or comparative evaluation of Perez's conduct. (Sandoval, supra, 41 Cal.4th at p. 840.)
The record also indicates that the trial court's findings related to the aggravating circumstance that the "crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).) There is no dispute that Perez's conduct was dangerous and caused serious injury and risked even further injury, but we are not convinced beyond a reasonable doubt, that the jury would have found this aggravating circumstance to be true. (See Sandoval, supra, 41 Cal.4th at p. 843.)
DISPOSITION
The imposition of the upper term sentence on the evading an officer causing serious bodily injury offense (Veh. Code, § 2800.3) is reversed and the case remanded for resentencing. Upon remand, the trial court may exercise its discretion to impose the lower, middle or upper term for the offense. (Sandoval, supra, 41 Cal.4th at p. 832.) The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections. In all other respects the judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.