Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F07318
HULL, J.A jury convicted defendant Leland Lamont Phillips of two counts of forcible rape committed against one child (Pen. Code, § 261, subd. (a)(2); unspecified section references that follow are to the Penal Code) and three counts of aggravated sexual assault on another child under the age of 14 (§ 269, subd. (a)(3)). The trial court found a prior rape conviction to be true and sentenced defendant to an aggregate prison term of 25 years plus 250 years to life.
On appeal, defendant asserts that (1) his right to speedy trial was violated, (2) the court erred in denying his Faretta motion for self-representation (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]), (3) ineffective assistance of counsel compels reversal, (4) CALCRIM No. 318 unconstitutionally shifted the burden of proof to defendant, (5) CALCRIM No. 1191 violated defendant’s right to due process, and (6) the court erred in denying his request for continuance to file a motion for new trial. None of these claims has merit, and we therefore affirm the judgment.
Facts and Proceedings
The events at issue in this case occurred between 1994 and 1996. During this time, when C.J. was 14 years old, she spent several nights at the home of her aunt, Geraldine. Defendant, who was living with Geraldine, woke C.J., took her to the garage, and raped her. He raped her a second time in the kitchen of the house. Defendant also sodomized Geraldine’s developmentally disabled young son, M.G. on several occasions. Neither child reported defendant’s actions at the time because they were afraid of him.
Defendant was charged with two counts of forcible rape committed on C.J. and three counts of aggravated sexual assault on M.G. A jury convicted him on all counts, but we reversed because defendant had been denied his right to public trial. (People v. Phillips (Jan. 31, 2006, C046626) [nonpub. opn.].) We grant defendant’s request for judicial notice of the records in that case.
By the time of retrial, C.J. was 25 years old; M.G. was 20 years old, but functioned on the level of a third or fourth grader. The victims again described the acts committed by defendant years earlier. Pursuant to Evidence Code section 1108, another witness testified that defendant had raped her when she was 15 years old.
The jury convicted defendant on all counts, and this appeal followed.
Discussion
I
Right to Speedy Trial
Reiterating a claim made in his first appeal, defendant asserts that the 2003 refiling of charges relating to C.J., six years after they were dismissed in 1997, violated his rights to due process. However, as defendant also recognizes, this issue is not cognizable because it was already resolved adversely to him in his first appeal.
“Under the law of the case doctrine, ‘“where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case . . ., both in the lower court and upon subsequent appeal . . . .”’” (People v. Turner (2004) 34 Cal.4th 406, 417.) “Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.” (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435.) Exceptions to the law of the case doctrine are limited to two situations: if its application will result in an unjust decision or if the controlling rules of law have changed in the interim. (People v. Stanley (1995) 10 Cal.4th 764, 787.) “The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination.” (Ibid.)
We resolved defendant’s speedy trial claim in the first appeal, concluding that defendant’s due process rights were not violated and that defendant did not suffer sufficient prejudice to require dismissal of the charges. Neither of the exceptions to the law of the case doctrine apply here. As defendant acknowledges, we are bound by our earlier determination that there was no speedy trial violation.
II
Faretta Motion
Defendant contends that the trial court erred in denying his Faretta motion for self-representation. We disagree.
“A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] 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.] Faretta error is reversible per se.” (People v. Welch (1999) 20 Cal.4th 701, 729.)
At a March 14, 2007 trial readiness conference, defendant asked for a two-week continuance to find private counsel. When the court refused to grant the continuance, defendant moved to discharge his attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant complained that his attorney was not prepared, had not sent an investigator to talk to defendant, and had not issued the subpoenas he thought should be issued. Counsel responded by outlining the steps he had taken to prepare for trial, including reviewing the transcripts from defendant’s first trial and talking to the prior defense investigator and defendant’s prior attorney. Counsel stated that he was ready to try the case.
Defendant countered, “He’s not prepared. I don’t want him representing me. I will go pro per before he represents me. He’s not going to mess my life up again. It’s not going to happen. So I’m asking you please give me another counsel or let me go pro per, because he’s not prepared. He’s making excuses.” Defendant then launched into another attack on counsel’s perceived lack of preparation.
The court denied defendant’s motion to substitute counsel, ruling that appointed counsel was providing adequate representation.
Hearings on in limine motions were held on March 26 and March 27, 2007, and trial was scheduled to start on April 2, 2007. On that morning, just before jury selection was to begin, defendant renewed his Marsden motion, reiterating his earlier complaints about counsel’s preparations. Counsel again explained what he had done to prepare for trial and the trial court denied defendant’s Marsden motion. Defendant then stated, “Okay. Well, your Honor, I have no--nothing else I can do besides file a Faretta [m]otion then.”
The court responded, “No. We’re not going to do that, Mr. Phillips. I’ll tell you why. Because right now I’m going to find that given the Marsden [m]otions that you’ve made in the past, given how quickly they come one on top of another, given the responses from your attorneys in these motions and given that the matters that you’ve raised are matters that--I’m not going to say that are frivolous but are matters that resolve and a resolution of those matters is within your knowledge.
“I’m going to find that you’re--at least today’s Marsden [m]otion and to the extent that you are making a Faretta [m]otion today are designed to derail this case and to attempt to put into this case an error in an attempt to delay this case. [¶] So I’m going to find that you are doing this out of frustration and out of a motive to derail this case rather than out of a legitimate desire to represent yourself. I’m going to deny your motion.”
Defendant asserts that the court failed to conduct the appropriate inquiry into his desire for self-representation and erred in denying his motion. Neither claim has merit.
Defendant’s comments at the March 14 hearing cannot be construed as an unequivocal request for self-representation as required for a Faretta motion. In the middle of his requests for a continuance to obtain private counsel and his Marsden motion to relieve appointed counsel, defendant stated that he did not want his attorney to represent him and commented “I will go pro per before he represents me.” Adding “I’m asking you please give me another counsel or let me go pro per, because he’s not prepared,” defendant then continued his criticisms of his attorney; no further mention was made of any desire for self-representation.
“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. 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 (1997) 15 Cal.4th 1, 23; accord People v. Valdez (2004) 32 Cal.4th 73, 99.)
Defendant’s fleeting reference to Faretta can best be viewed as an impulsive comment made in the course of a litany of complaints about his attorney. (See People v. Valdez, supra, 32 Cal.4th at p. 99.) Defendant’s focus was his Marsden motion to replace his appointed counsel. Because there was no unequivocal invocation of a right to self-representation, the trial court was not obligated to question defendant further on this matter. (Ibid.)
Nor did the trial court err in denying the Faretta motion defendant made on April 2. Court hearings had been held on March 26 and 27, 2007, but defendant raised no concerns about his representation on either occasion. On April 2, as trial was about to begin, defendant renewed his Marsden motion, raising the same claims he had made earlier. When the court denied the motion, defendant commented that the only thing left for him to do was to file a Faretta motion. As previously described, the court denied that motion, finding it made out of a desire to “derail” the case rather than out of a legitimate desire for self-representation. The court’s ruling was proper.
Defendant made his motion just as jury selection was scheduled to begin. Faretta motions made shortly before the start of trial are not timely (People v. Scott (2001) 91 Cal.App.4th 1197, 1205), and the trial court is vested with broad discretion in ruling on such requests. (People v. Valdez, supra, 32 Cal.4th at p. 102.) “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. Jenkins (2000) 22 Cal.4th 900, 959; accord People v. Valdez, supra, 32 Cal.4th at p. 103.)
Here, defendant offered no explanation for the delay in seeking self-representation. The trial court noted that defendant had filed frequent and repetitive motions to relieve counsel and concluded that defendant’s Faretta motion was made out of frustration, rather than any true desire for self-representation. The record bears out that assessment. There was no Faretta error.
III
Ineffective Assistance of Counsel
Defendant contends that his attorney was ineffective in failing to investigate M.G.’s mental health and in failing to utilize some of the impeachment evidence used in the first trial. We disagree with both claims.
“To secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel’s performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citation.] If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
At trial, M.G. testified that he suffered from paranoid schizophrenia and took medication for this condition. This was apparently the first time this diagnosis was revealed. Defendant contends that his attorney should have been alerted to this possibility because M.G. testified at the first trial that he took medications for unspecified mental and emotional problems. According to defendant, his attorney should have delved into M.G.’s medical history before retrial began or, at the very least, sought a continuance or mistrial when M.G. made this disclosure. Defendant theorizes that paranoid schizophrenia could have reflected on M.G.’s credibility as a witness because his capacity for distinguishing fact from fiction could have been affected.
These suppositions do not establish the prejudice necessary for an ineffective assistance of counsel claim. There is no evidence to support defendant’s theory that paranoid schizophrenia affected M.G.’s ability to relate events that had occurred years earlier. M.G. was taking medication to control this condition and he was not delusional at trial. He was coherent and responsive to questions, and described his mental illness to the jury; the only apparent difficulties with his testimony stemmed from his developmental disabilities, not any other mental disorder. Defendant’s theories are predicated on speculation, not evidence. Because defendant cannot demonstrate to a reasonable probability that a different verdict would have resulted had his attorney investigated M.G.’s mental health, his claim of ineffective assistance of counsel cannot succeed.
Defendant also faults his attorney for failing to impeach M.G. and C.J. with prior inconsistent statements and testimony they gave at the first trial. Again, however, this “shortcoming” does not demonstrate ineffective assistance of counsel. The use of impeachment evidence is a matter of trial tactics and will not be second-guessed. (People v. Barnett (1998) 17 Cal.4th 1044, 1140.) Much of the evidence outlined by defendant relates to peripheral matters that occurred years earlier. Defense counsel may well have concluded that attacking sympathetic witnesses would serve only to irritate the jury and detract from the central issues of the case.
Just as importantly, defendant cannot demonstrate that a more favorable result would have resulted had this impeachment evidence been introduced. In fact, this evidence was elicited in the first trial and the jury nonetheless convicted defendant.
Given these circumstances, defendant cannot establish ineffective assistance of counsel.
IV
CALCRIM No. 318
The trial court instructed the jury pursuant to CALCRIM No. 318 (“Prior Statements as Evidence”) as follows: “You have heard evidence of statements the witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways. [¶] First, to evaluate whether the witness’s testimony in court is believable. And second, as evidence that the information in those earlier statements is true.”
Defendant contends that this instruction impermissibly shifted the burden of proof to defendant and created an unlawful presumption by directing the jury to ignore M.G.’s trial testimony about the number of molestations that occurred and instead accept M.G.’s prior statements as true, i.e., that he was molested a minimum of four to six times. Defendant’s claim is meritless.
As we recently explained: “CALCRIM No. 318 tells jurors how they may use the prior statements ‘[i]f [they] decide that the witness made those statements . . . .’ Thus, the ‘may’ comes into play only after the jurors have found the statements were made. The instruction does not allow the jurors to ignore evidence.” (People v. Golde (2008) 163 Cal.App.4th 101, 119-120; accord People v. Felix (2008) 160 Cal.App.4th 849, 859.)
Nothing in this instruction created a mandatory presumption. The jury was told that it “may” use these statements in particular ways “if” it determined that the witness made those statements. CALCRIM No. 318 is a proper statement of law.
V
CALCRIM No. 1191
Defendant asserts that CALCRIM No. 1191, the instruction relating to the use of evidence of uncharged sex offenses, violates due process by allowing the jury to convict based solely on disposition testimony. We disagree.
In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, the California Supreme Court approved the nearly identical predecessor instruction, CALJIC No. 2.50.01. As we concluded in People v. Cromp (2007) 153 Cal.App.4th 476, 480, there is no material difference between CALCRIM No. 1191 and the older CALJIC No. 2.50.01, and the analysis in Reliford applies with equal force to the CALCRIM instruction. CALCRIM No. 1191 is constitutionally sound.
VI
Request for Continuance for New Trial Motion
Defendant contends that the trial court erred in denying his request for a continuance to obtain affidavits to support his motion for new trial. He asserts that the disclosure that M.G. suffered from schizophrenia was newly discovered evidence and a continuance was necessary in order to consult with mental health experts about the possible effects of this condition on M.G.’s reliability as a witness. The trial court acted well within its discretion in denying the continuance.
A trial court may grant a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” (§ 1181, subd. 8.) In support of a such a motion, the defendant must produce affidavits from the witness who will be offering this evidence; if additional time is needed to obtain these affidavits, the trial court may grant a continuance “for such length of time as, under all circumstances of the case, may seem reasonable.” The trial court is vested with broad discretion in ruling on motions made under section 1181, subdivision 8. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1252.)
Defense counsel asserted that he had consulted with a forensic psychologist who believed paranoid schizophrenia could have a “potentially profound impact on witness credibility.” However, the psychologist needed to review M.G.’s medical records and trial testimony in order to give a professional opinion about M.G.’s credibility. Defendant requested a continuance so that he could obtain a transcript of M.G.’s testimony and copies of M.G.’s medical records. The trial court denied both the continuance and the motion for new trial.
The court acted well within its discretion in making these rulings for one basic reason: defendant’s motion for new trial was not based on newly discovered evidence. M.G. testified on April 9, 2007, that he had been hospitalized for paranoid schizophrenia and took medication to control this condition. As already noted, no request for continuance was made at that time. The jury returned its verdicts on April 12. Defendant’s motion for new trial was not made until six weeks later, on May 23, 2007. He asserted he had tried to obtain a transcript of M.G.’s testimony a few weeks earlier, but the reporter had been on vacation. He did not describe any efforts to obtain M.G.’s medical records.
As the trial court noted, defense counsel was aware of M.G.’s psychiatric diagnosis during trial and could have pursued his investigations at that time. He did not. His motion for new trial was not predicated on newly discovered evidence but on information he learned weeks earlier at trial. Moreover, as the court noted, M.G. testified in an appropriate manner and showed no signs of psychosis; defendant’s motion was based entirely on speculation. The trial court acted well within its discretion in concluding that there was no justification for either a new trial or a continuance. (See People v. Musselwhite, supra, 17 Cal.4th at p. 1252.)
Disposition
The judgment is affirmed.
We concur: RAYE, Acting P.J., BUTZ, J.