Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03HF0857, and petition for writ of habeas corpus. John Conley, Judge. Judgment affirmed in part and reversed in part with directions. Petition denied.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
On September 21, 2006, a jury convicted defendant Michael Angelo Powell of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), second degree robbery (§§ 211, 212.5, subd. (c)), and felony evasion while driving recklessly (Veh. Code, § 2800.2, subd. (a)). For purposes of the “Three Strikes” law, the court found defendant had suffered 21 prior felony convictions (§ 667, subds. (d) & (e)(2)(A)), and for purposes of a five-year enhancement, one prior felony conviction (§ 667, subd. (a)(1)). The court sentenced defendant to a total prison term of 30 years to life with credit for 1440 days of custody and conduct credits.
All statutory references are to the Penal Code unless otherwise stated.
The 21 convictions for robberies of various stores, pharmacies, bakeries, and individuals in 1993 were part of one case and not separately tried; therefore the court treated them as one prior for purposes of the section 667, subdivision (a)(1) enhancement.
On appeal defendant contends (1) he “received ineffective assistance of counsel when his attorneys failed to properly investigate his case,” (2) the “court erred when it failed to either consider the motion for a new trial on the merits, appoint alternate counsel to bring the motion, or allow [defendant] to present the motion on his own,” and (3) he was entitled to “one additional day of actual custody credit and one additional day of conduct credits.” We agree defendant is entitled to two additional days of presentence custody credit. In all other respects, we affirm the judgment.
In his March 15, 2007 petition for writ of habeas corpus, defendant contends the court violated his constitutional and statutory rights to a speedy trial and his constitutional right to due process of law. We disagree and deny defendant’s March 15, 2007 habeas corpus petition.
FACTS
At about 5:55 p.m., on June 16, 2003, at the service desk of a Von’s store, a manager deposited bundles of currency ($5 and $1 bills) into a drawer, while a box boy filled out some forms and a customer waited for the paperwork. A man approached the desk dressed in a beanie, sunglasses, and gloves. He put a gun to the manager’s waist and said, “Open the drawer now,” frightening the manager and the box boy. The customer, seeing the “bad situation,” left the store and waited in his truck in the parking lot. The manager, obeying the robber’s command, unlocked and opened the drawer. The robber put the money in a plastic Von’s bag, then asked, “Where [are] the hundreds?” The manager replied she had “dropped them down the safe.” The robber left the store, and started walking toward a nearby Outback Steakhouse. The customer, who had phoned 911 only to hear a busy signal, drove after the robber. The robber walked fast, then ran through the Outback Steakhouse parking lot. Still following the robber, the customer parked his truck behind the Outback Steakhouse and ran to the end of a brick wall. There, he was “able to see into [a] Taco Bell parking lot” where a lime green two-door Honda or Toyota coupe, “maybe a Prelude,” was parked. The customer saw the car’s driver’s side door closing. He saw no other persons around the car. The car “started up,” left the parking lot “at a high rate of speed,” and headed northeast. The customer phoned the police and described the vehicle.
An officer in a marked vehicle with “light bar and sirens on top” heard the dispatch about the light green car and parked on a freeway on-ramp “to observe traffic in case the suspect was traveling northbound on the freeway.” The rush hour traffic was “stop and go.” A light green Honda Prelude drove by and the officer made eye contact with defendant, its driver. Defendant “looked forward and tensed up.” The Prelude “began to split lanes . . . forcing vehicles out of the way” and went into an emergency lane. The officer, in pursuit, turned on his car’s lights and siren, which activated the car’s video camera. The Prelude exited the freeway, turned left against a red light, and almost collided with a car. It ran another red light, “almost crashing into another car.” The pursuit continued with defendant traveling at an unsafe speed and running more red lights. “[A]t one point two cars almost crashed into each other because they were moving out of the way for the suspect.” The Prelude went over a raised center median and began traveling the wrong way on a major street. Cars “started pulling over to the side.” A motorcycle officer joined the chase. After being blocked by another police car, defendant drove over a curb and suffered a flat tire. Defendant ran more red lights and a stop sign until the tread fell off the Prelude’s smoking tire and the car came to a stop.
Defendant, shirtless and seated in the driver’s seat, was the only person in the Prelude. A Von’s bag containing $1,370 in bundles of $1 and $5 bills was found in the Prelude. Also found in the car were a black beanie, black gloves, a white shirt, two pairs of sunglasses, a Ross bag containing a price tag and “wrapping from a bandage,” defendant’s wallet, and Rite-Aid and Ross receipts. The Ross receipt was issued by a Ross store down the street from the Von’s. The receipt evidenced a purchase that day at 5:02 p.m. of a beanie, a shirt, pants, and cologne. The receipt from a nearby Rite-Aid showed a June 16, 2003 purchase at 5:10 p.m. of three by four inch medical pads and two other items. A search of defendant’s person uncovered $400 (in $100 bills) in his socks.
Defendant was handcuffed and placed in the back of a patrol car. An officer asked him where the gun was. Defendant led the police to a spot off the freeway where a fake plastic handgun was found on the embankment.
Within an hour of the robbery, the witnesses were taken individually to in-field show-ups to view defendant. At the time, defendant was not wearing a shirt, a beanie, or sunglasses. The customer told police he was 100 percent certain defendant was the robber; the box boy said defendant “could possibly be” the perpetrator; and the manager stated she was 75 percent sure defendant was not the robber.
At the police station, two officers advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 before interviewing him. Defendant stated the following. He had paid a friend $5 for the “toy gun” and had thought the robbery “would be something easy” and he “wouldn’t have to hurt anybody.” “[A]bout an hour before [he] robbed the place,” he “saw the little manager with . . . a stack [of money] about six inches wide” that she put in a drawer. (Defendant described the manager as a “little girl,” blond, “probably in her early twenties.”) Defendant changed his clothes; he put on a shirt he had bought a few weeks before, a black hat, and sunglasses. He “walked in and got a bag and asked her to open the drawer and she opened it and she handed [him] the money and [he] left.” Defendant stated he knew he “was through” when the customer ran from the store, got in the truck, and got on the phone. Once in his car, defendant set the bag of money on the floor.
At trial in September 2006, the manager testified the robber was Caucasian, about six feet tall and 220 to 240 pounds, with dark hair and eyes and a mustache, and “wearing a jacket, a beanie and [sunglasses], dark clothes,” and gloves. The box boy recalled the man as being about six foot one inch tall and “a little bit overweight,” and wearing a white shirt, a black beanie and sunglasses. The customer testified that when he saw defendant at the in-field show-up, defendant was wearing “the same type of pants” as the robber, i.e. blue jeans.
A video recording of the car chase was played in open court.
Defense
Defendant testified to the following version of events. On the day of the robbery, his wife phoned him in the morning and asked him to take her to breakfast. (At the time defendant and his wife were not living together.) Defendant picked her up. They had breakfast at Denny’s and went back to his hotel, then to Starbucks and shopping. Around 2:30 p.m. he took her home. From there he went to the Costa Mesa Employment Development office where he filled out paperwork.
Around 5:15 p.m., defendant went to see a man who owed him $500. The man’s first name is William, but people call him Billy. Billy is a member of a violent skinhead gang named Peni (Public Enemy Number One); his gang name is Little Guns. (Defendant refused to divulge Billy’s last name, even though the court ordered him to do so.) Around 5:30 p.m., Billy, who lived near the Von’s, asked defendant “to drive him over to pick up his paycheck,” so Billy could cash it and repay defendant. Billy directed defendant to the Taco Bell and told him to park there. Billy got out of the car carrying a Ross plastic bag and walked toward the Outback Steak House where he claimed to be a cook.
Defendant “went into the Taco Bell and got a soda.” He “came out of the store, . . . finished the soda, and . . . tossed it into the dumpster . . . .” A “woman came out from behind the dumpster . . . and said [defendant] had scared her, because [he] threw the cup [and it] was full of ice.” Defendant had a two-second conversation with the woman and gave her his change from the Taco Bell. “There was another person behind that dumpster area.” “It looked like they had sleeping bags . . . .”
Defendant walked back to his car, took off his shirt, and started to get in the car, when Billy walked up to the passenger side. Billy got in the car carrying a plastic bag (not the Ross bag). Billy yelled that someone was following him. As defendant backed up, he could see in his rearview window that someone was “standing next to the fence, looking.”
They were driving back to Billy’s house when Billy said he had cashed his check. They were a “couple doors down from [Billy’s] place” when Billy told defendant “what he had done.” Defendant got mad because “of the situation [he] was involved in.” Defendant “reached over,” saw the money in the bag, “got out of the car [and] walked around to the passenger side.” He “pulled the door open and pushed Billy out of the car,” then hit Billy “a couple times” “in the face.” Billy threatened defendant, telling defendant to remember who Billy was and saying he knew where defendant’s wife and child lived. (On cross-examination, defendant testified he was not afraid to hit Billy because Billy is actually “a coward.” But defendant was concerned about Billy’s threats because Billy “threatened [defendant] through people he knew.”)
Defendant got in his car and drove away, intending to go see his wife. A short time later, defendant noticed Billy driving behind him in Billy’s girlfriend’s car. Defendant tried to speed up to get away from Billy. On the freeway (where the heavy traffic was “stop and go”), Billy “pulled up next to” defendant and repeated his threats. Billy “said [he] wanted to follow [defendant] to [defendant’s] hotel room” because “the money was in [defendant’s] car.” Defendant “reached down[,] looked in the bag,” and saw a gun and “a stack of money about six inches thick” that “looked like 20 grand.” Defendant “threw the gun out of the car.”
Billy was right behind defendant when defendant noticed a “police car sitting there.” Defendant watched the officer in his mirror, “waiting to see what he was going to do.” He then led the police on a car chase until he “blew a tire” and noticed “there was a helicopter.” The car chase was accurately reflected in the “video” shown to the jury.
Defendant confessed to the robbery because he was concerned for his wife and child due to Billy’s threats. The confession was a lie.
DISCUSSION
I. The Appeal
Defendant Contends a Delay in Investigating His Case Constituted Ineffective Assistance of Counsel
Defendant contends his counsel were ineffective in investigating his case, and as a result the “vast majority of evidence that supported his defense, and even alibi witnesses,” were lost. He argues the three homeless people “sleeping behind a dumpster” could have bolstered his alibi defense by confirming he was by his car when Billy approached it. He also asserts the Taco Bell surveillance tape would have shown “him inside the store at a specific time and date, . . . possibly right when the robbery was occurring.” Defendant also claims documents from the Employment Development Department would have shown he was there “up to about 5:00 p.m.” on the evening of the robbery, but these were lost due to “the passage of time.” According to defendant, “no investigator was appointed to his case until June 30, 2004, a year after his initial arrest,” and “not until that point did anyone even start looking for [the] three alibi witnesses.” Defendant concludes his counsels’ assistance was ineffective, arguing: “Any competent counsel would have known both that the existence of such evidence was fleeting at best, and immediate action to secure it was important. The homeless witnesses would have physically moved on and certainly their memories would have faded. . . . So too, it would be doubtful that the [Taco Bell] tapes would be kept for more than a short period of time. Since it was not a crime that involved the Taco Bell, the store would see little reason to keep the tape.”
The record reflects defendant tried many times to expedite the investigation of these leads. Over the course of this case, he was represented by three successive counsel. His first counsel, Michael Molfetta, was appointed to represent him on June 18, 2003. About a month and a half later, Molfetta was relieved as counsel due to a conflict and replaced by William Morrissey.
On December 16, 2003, defendant moved for appointment of new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant declared Morrissey and the investigator had not “conducted any pre-trial investigation,” and had failed to, inter alia, (1) interview his wife, (2) interview the witnesses to the robbery, or (3) request a “physical line-up.”
On January 5, 2004, defendant (acting in propria persona) moved for dismissal with prejudice of all charges against him, alleging his attorney and investigator had “failed to conduct any pre-trial investigation.” Defendant stated he “provided verifiable conclusive information and [evidence] to the appointed attorney (and investigator) back over five (5) months ago that clearly” proved his innocence. Specifically, defendant claimed to have informed his first and second appointed counsel that (1) “in the Taco Bell parking lot, behind the dumpster were three homeless people,” he “spoke to the woman and gave her change,” and she “witnessed the defendant standing next to his vehicle when a second person walked up and got in the passenger side of the vehicle”; and (2) he was “in the Taco Bell ordering a drink” “at the exact time of the alleged robbery” and the Taco Bell “has surveillance cameras.”
On January 7, 2004, the court conducted a hearing on defendant’s Marsden motion. At the hearing, defendant added the further allegation that six months had passed and yet no one had investigated the surveillance camera at Taco Bell. He also stated he had informed Morrissey of other robberies perpetrated by “this person that did this robbery, and [Morrissey had] failed to investigate.” Responding to defendant’s allegations, Morrissey stated the investigator on the case, Alfredo Rasch, “is investigating.” For example, Rasch was trying to find defendant’s wife to interview her. Morrissey had chosen not to interview the Von’s manager because her potential testimony was already very favorable to defendant. Similarly, Morrissey had elected not to request a lineup because it could only hurt the defense. “Concerning other matters, [Morrissey and Rasch were] actively investigating.” Morrissey opined defendant “is doing irreparable harm to himself by filing this motion to dismiss” and revealing to the district attorney “a potential defense.” The court found Morrissey had properly represented defendant and would continue to do so, and had “taken appropriate steps to investigate this matter and prepare the case for trial.” Consequently, the court denied defendant’s Marsden motion.
On January 14, 2004, defendant moved to represent himself in propria persona. On February 20, 2004, defendant moved for dismissal of the charges against him based on ineffective assistance of counsel and violation of his right to a speedy trial. That same day, Morrissey was relieved as counsel due to a conflict, and defendant withdrew his motion to represent himself. Three days later the court appointed Ernest Eady to represent defendant.
On April 2, 2004, defendant requested the court to file perjury charges against Morrissey, alleging Morrissey had lied about the investigator “diligently investigating [the] case.” Defendant alleged Rasch had visited him in the jail on January 26, 2004 and informed him that Rasch “wasn’t appointed by the court to [the] case and . . . hadn’t been working on [the] case” because “Morrissey had instructed him not to.”
On July 9, 2004, defendant (acting in propria persona) moved for release on his own recognizance and attached a copy of a June 30, 2004 letter to defendant from Alfredo Rasch of Rasch Investigations. In the letter, Rasch states: “I wanted to send you a short note to let you know that I have finally been appointed as your court appointed defense investigator on this case. I am going to schedule a visit with you as soon as I possibly can so that we can go over your case and talk about investigation that needs to be done.” The court denied defendant’s motion for release on his own recognizance.
On August 17, 2004, defendant filed another Marsden motion. At the Marsden hearing on August 30, 2004, defendant stated Eady was appointed as his counsel in February 2004, but did not file for funds for an investigator until June 9, 2004. He noted Rasch’s letter stated “he had finally been appointed to the case” on June 30, 2004, one year after defendant’s arrest. The investigator had visited defendant during the past week (i.e. late August 2004) and had now started investigating. Eady responded to defendant’s allegations. As to the delayed appointment of Rasch, Eady explained he had “to go through everything and prepare a declaration for alternate defense services” stating “what needs to be done, and an estimation of the cost, or . . . the time involved.” Only after receiving defendant’s Marsden motion did Eady realize the investigator had only recently “gone to see” defendant. The court resolved any conflicts between defendant and Eady in Eady’s favor, found Eady had “properly represented [defendant] and would continue to do so,” and denied the motion.
On August 28, 2006, defendant filed another Marsden motion. At the Marsden hearing on September 6, 2006, Rasch (the investigator) and his assistant were present, along with Eady and defendant. Rasch, his assistant, and Eady described the investigative efforts they had made on defendant’s behalf. Rasch had tried many times to interview the manager, the box boy and the customer (as well as a second store patron), but no one had cooperated. Eady had obtained a list of the prior convictions suffered by the customer who had positively identified defendant as the robber. Defendant’s estranged wife refused to speak with Rasch and wanted “nothing to do with” defendant. Rasch’s assistant had, starting in November or December of 2004, tried to obtain relevant sign-in sheets from the Employment Development Department that would show defendant was there at a certain date and time, but the records had been destroyed. She then tried to get the sheets from the person in charge of the parolee program at the Employment Development Department, but he did not keep written records. The court asked defendant if he had “anything else” regarding the Marsden motion, and defendant replied he did not. The court found defendant made no showing “counsel ha[d] not been diligent or [had] not been pursuing investigation to prepare for trial” and denied the motion.
Not until late in the trial did Eady, outside the jury’s presence, specifically discuss the efforts made to locate the homeless woman at the dumpster. The discussion took place after the defense had presented its evidence but before it formally rested its case. On that day, a person (who had been in custody with defendant) offered to help find the witness. But although the investigator and this person spent the afternoon seeking the homeless woman, they learned only that she had not been seen “in well over three weeks.” Eady stated: “I would put on the record the fact that this [homeless woman] is an individual who [defendant] has been mentioning to his lawyers since immediately following his arrest. I have information from the predecessor attorneys on this case, or I have information that the predecessor attorneys on the case were told by [defendant] about the existence of this person. I have been told by [defendant] about the existence of this person. I have had the investigator make attempts over the time that I’ve had the case to locate the person. The investigator, to my knowledge, has gone to the vicinity of that Taco Bell in an attempt to generate information that would allow him to locate this person, and he has been singularly unsuccessful in doing that.”
Defendant was Not Prejudiced by Any Ineffective Assistance of Counsel
To prove an ineffective assistance claim, a defendant must show that
(1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 692 (Strickland).) A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” (Id. at p. 697.) Thus, “[w]hen there has been no showing of prejudice, we need not determine whether trial counsel’s performance was deficient.” (In re Marquez (1992) 1 Cal.4th 584, 602.)
Prejudice is only presumed in cases where assistance of counsel is actually or constructively denied, where the state interferes with counsel’s representation, or where counsel suffers from a conflict of interest. (Strickland, supra, 466 U.S. at p. 692.)
To prove prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695.)
Here, defendant has failed to show he was prejudiced by any delay in investigation. The evidence of his guilt was overwhelming. He confessed to the crime with accuracy and in great detail. For example, he correctly described the manager as small and in her early twenties. (The manager testified in court she is five feet two inches tall and weighed 125 pounds and was age 21 at the time of the robbery.) He knew the manager opened a drawer. He described the customer running from the store, getting in a truck, and making a phone call. He knew the gun was a toy one. He described changing into a black hat, sunglasses and a recently purchased shirt.
Similarly, the car chase on which defendant led police — at great danger to himself and others — strongly suggests his guilt, as did the discovery in his car of the bag of money, a white shirt, a black beanie, black gloves, sunglasses, and a Ross bag and receipt. The Ross receipt suggested two of those items could have been purchased shortly before the robbery.
The customer identified defendant as the robber with 100 percent certainty. He also identified the Prelude as the car he saw at the Taco Bell. The box boy testified: “[I] said I couldn’t be too certain because I didn’t get a great look at him because I only looked over my shoulder a couple times, noticed a few things, but [he] had the same build and he did have a big nose as well.” When the box boy saw defendant’s profile, he told “the officer that the nose looked to be the same.” Although the manager was 75 percent sure defendant was not the robber, she also testified it was hard to judge since defendant was not wearing a shirt, beanie and sunglasses. At the time of the robbery, she was focused on the gun since she “could feel it.”
Defendant’s countervailing testimony about Billy is simply implausible. Holes in the story suggest it was painstakingly and artificially crafted. A Ross bag was found in the car although defendant took great pains to testify that Billy carried a Ross bag toward the Outback Steakhouse and then returned with a different bag, not the Ross bag. Also unexplained in defendant’s version of events is why defendant removed his shirt before getting into his car at Taco Bell. Apparently, defendant never asked Billy why he was followed to the car. The remainder of the story is, as the People say, “outlandish.” Its credibility is further strained because Billy’s identity was never divulged. Also weak is defendant’s assertion he falsely confessed to the crime in order to protect his wife and child from Billy. If the story about Billy were true, defendant could have attributed the robbery to Billy without revealing Billy’s last name during the police interview, just as he did at trial.
We conclude defendant was not prejudiced by any delay in investigation. Even if the homeless witnesses had been located and/or the Taco Bell surveillance tape had been obtained, it is not reasonably probable the jury would have found defendant to be innocent. A time stamped Taco Bell tape would not have given defendant a conclusive alibi since the exact time of the robbery was unknown and the Taco Bell was located close to Von’s. Nor is it reasonably probable that any testimony by the homeless witnesses would have changed the jury’s verdict, in light of the overpowering evidence of defendant’s guilt. In sum, defendant has failed to prove his ineffective assistance claim.
Denial of the New Trial Motion Was Not an Abuse of Discretion
Defendant challenges the court’s denial of his request for a two week continuance for the police to conduct a DNA test on a used band-aid found in his car after the robbery. Defendant made this request during a November 20, 2006 hearing on a new trial motion he filed in propria persona. In the new trial motion, defendant alleged the prosecutor waited “until just a few days before trial to give the defense” information about a witness who placed a 911 call on June 16, 2003 and described the suspect, inter alia, as having “‘a large square band-aid on the right side of his neck, [possibly] trying to hide something with the band-aid.”
The court conducted a Marsden hearing and, immediately thereafter, a hearing on defendant’s new trial motion. In the Marsden hearing, defendant noted the police had “found [a] used band-aid on the floor of the car” and had asked him during the interrogation if he had a band-aid on his neck. Defendant argued “when that band-aid comes back with someone else’s DNA on it, I think the D.A. will have a problem with this case.” Eady responded he had learned of the witness’s existence at some point earlier in the case. Eady “had heard her 911 tape.” He did not realize defendant “didn’t know about her.” “She wasn’t somebody [Eady] would have called” as a witness; however, previously, he had not “grasped [defendant’s] theory about the band-aid.” The court denied the Marsden motion, stating, inter alia, it did not “see a band-aid [as] the kind of thing the jury would hone in on . . . .” The court found speculative the suggestion that Billy’s DNA would be discovered on the band-aid.
The court then turned to defendant’s new trial motion. Eady stated that for tactical reasons he had chosen not to adopt the new trial motion. The court, citing In Re Barnett (2003) 31 Cal.4th 466, denied the motion because defendant was “required to proceed in court through [his] counsel.”
Defendant moved under Faretta v. California (1975) 422 U.S. 806 to represent himself strictly for purposes of the new trial motion. The court denied the motion.
On appeal, defendant argues the court “should have either allowed [him] to represent himself, or appointed alternate counsel to investigate the DNA, or merely postponed the sentencing hearing to allow the band-aid to be tested.”
“‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328.) “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’” (Ibid.)
Applying these factors, we conclude the court did not abuse its discretion in denying defendant’s new trial motion and his request for a two week continuance to have the band-aid tested. The used band-aid was not newly discovered evidence. Similarly, the witness’s 911 call was not newly discovered evidence, since Eady had prior knowledge of it. Most importantly, a different result was not probable on retrial. In the police interview defendant admitted he bought the band-aids to cover a bleeding scratch. As stated above, the evidence of defendant’s guilt was overwhelming. Any evidence of DNA on the band-aid was unlikely to raise a reasonable doubt in the jurors’ minds.
We address the new trial motion on the merits even though Eady did not adopt it. (People v. Fields (1996) 13 Cal.4th 289, 296 [appellate court may affirm ruling on a different ground than relied on by lower court].)
Defendant is Entitled to 1442 Days of Presentence Custody Credit
As both defendant and the People agree, the court miscalculated defendant’s presentence custody credit as totaling 1440 days. In fact, defendant is entitled to 1442 days of presentence custody credit, consisting of 1254 days of actual credit and 188 days of conduct credit.
II. The March 15, 2007 Habeas Corpus Petition
In defendant’s March 15, 2007petition to this court for writ of habeas corpus, he contends his counsel and the court violated his constitutional rights to a speedy trial and due process. He complains of a specific delay commencing on August 21, 2006 when Eady asked the court for a continuance, but defendant refused to waive time. Following our issuance of an order to show cause, defendant’s counsel also argued a statutory speedy trial violation based on the same facts.
All further dates refer to the year 2006 unless otherwise specified.
Chronology of Events
On August 21 (the date set for trial), Eady advised Judge Makino that he (Eady) was engaged in a trial projected to end about August 31. Eady asked to continue the case to Tuesday, September 5, since Monday, September 4, was a holiday. Defendant refused to waive time and requested a Marsden hearing. Judge Makino scheduled the Marsden hearing for August 25, denoted as day four of ten. Judge Makino stated he would not be present on August 25, so another judge would conduct the Marsden hearing.
At the August 25 hearing, Judge Fitzgerald noted defendant was “available to us, but he has not been brought up.” The minute order reflects “defendant [was] not present in court.” Eady stated he was “still engaged in trial” in a case “not scheduled to end until probably the 31st.” He asked the court to “trail” the case to September 5, and hold the Marsden hearing at that time. Judge Fitzgerald stated the 10-day period did not begin to run until counsel answered ready, and Eady was unavailable because he was in trial. Judge Fitzgerald continued the trial to September 5 (with a possible Marsden hearing scheduled for that date also).
There is no explanation in the record for the court’s irregular decision to exclude defendant from the hearing. Eady apparently did not object to defendant’s exclusion.
By letter to Judge Makino dated August 27, defendant wrote expressing his “extreme disappointment and confusion on what took place . . . on August 25, 2006.” He stated that on August 25, he “was taken back to court for the Marsden hearing, [but] was not taken into the courtroom,” and “saw and spoke to no one.” Now he had learned his case had “been put off until September 5, 2006 which is beyond the statutory 10 days.” Defendant asked, “How is that possible? And how is that legal?” Although the letter bears a filed stamped date showing the superior court clerk filed it on October 19, the corresponding envelope is postmarked August 28.
The case was subsequently “trailed” three times: first on September 5 because the People answered not ready, and again on September 6 and 7 without designation in the minute orders as to which party was not ready. Trial was finally set for Monday, September 11.
Defendant wrote a petition for writ of habeas corpus (the September petition) to the superior court which he dated September 8, the Friday before the trial date. Despite the petition’s purported date of September 8, the superior court clerk’s filed stamped date is October 13. In the September petition, defendant (1) alleged his right to a speedy trial and due process had been violated; (2) stated he had refused to waive time on August 21 and did not speak to anyone on August 25; (3) referenced his August 27 letter to Judge Makino; and (4) asked the court to “grant relief to which he may be entitled in this proceeding.”
The record does not contain a copy of the corresponding postmarked envelope.
Trial started the following Monday, September 11, which Judge Conley identified as day six of ten. Defendant was convicted on September 21.
On October 26, Judge Makino issued an order denying the September petition as “moot” because the trial had already taken place.
Defendant filed another petition for writ of habeas corpus. Although the record contains no copy of this petition, it apparently “complain[ed] the court caused [his September petition] to become moot by its own delay . . . .” On January 24, 2007, the superior court issued an order denying the petition — the twelfth petition defendant had filed in the case according to the court. The court ruled it “did not delay” because California Rules of Court, rule 4.551 requires “the court to act within 60 days of receiving a petition, which the court did.”
In his petition for writ of habeas corpus filed with this court on March 15, 2007, defendant alleged “defense counsel and the court knowingly and deliberately violated [his] constitutional right to a speedy trial and his right to due process.” Defendant summarized the August 21 hearing and also mentioned that in “the 2 1/2 years that the attorney had been on the . . . case the attorney had asked the court over 15 times for continuances.” Defendant “emphatically assert[ed] that he was deliberately kept out of the courtroom on August 25, 2006, because both defense counsel and the court knew that [he] would not have agreed to another continuance.” Defendant asked this court to issue an order to show cause. On March 10, 2008, we issued an order to show cause and consolidated the petition with defendant’s appeal.
Defendant’s Constitutional Speedy Trial Claim Lacks Merit
We turn first to defendant’s contention his constitutional rights were violated. “To determine whether [a] defendant’s federal [constitutional right to a speedy trial] was violated, we evaluate the length of the delay, the reason for the delay, defendant’s assertion of his right, and the prejudice to defendant.” (People v. Harrison (2005) 35 Cal.4th 208, 227.) Here, the length of the delay from August 21 through September 11 is 21 days and the reason for the delay was Eady’s engagement in another trial. “Defendant does not claim any prejudice from the relatively minor delay. We thus reject defendant’s federal constitutional claim, and we reject his state constitutional claim on the same basis. ([Citation] [absent a violation of a statutory speedy trial provision, a defendant must make a showing of specific prejudice to establish a violation of the state Constitution’s speedy trial right].)” (Ibid.)
Defendant Failed to Preserve His Statutory Speedy Trial Claim
The main argument pressed by defendant in his traverse is that his speedy trial right under section 1382 was violated. Section 1382 provides a statutory speedy trial right that is “‘supplementary to and a construction of’” the speedy trial provisions of the federal Constitution and our state Constitution. (People v. Wilson (1963) 60 Cal.2d 139, 145 (Wilson).) Section 1382 mandates specific timeframes within which a defendant must be brought to trial. (§ 1382, subd. (a).) In a felony case, trial must generally begin within 60 days of the defendant’s arraignment unless the defendant requests or consents to the setting of a trial date beyond the 60-day period. (§ 1382, subds. (a)(2) & (a)(2)(B).) When the defendant requests or consents to a delayed trial date, the court must dismiss the case if the defendant is not brought to trial “on the date set for trial or within 10 days thereafter,” “unless good cause to the contrary is shown” or the defendant again requests or consents to a delayed trial date. (§ 1382, subds. (a) & (a)(2)(B).)
In a recent case, our Supreme Court concluded “that counsel has authority to waive the client’s right to be brought to trial within the original 10-day grace period in the absence of a personal objection from the client, even when appointed counsel’s calendar congestion is the cause of the delay.” (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 966, (Barsamyan) italics added.) This holding clarified the court’s earlier decision in People v. Johnson (1980) 26 Cal.3d 557 (Johnson), where it held: “[F]irst, . . . when a client expressly objects to waiver of his right to a speedy trial under section 1382, counsel may not waive that right to resolve a calendar conflict when counsel acts not for the benefit of the client before the court but to accommodate counsel’s other clients. Secondly, . . . at least in the case of an incarcerated defendant, the asserted inability of the public defender to try such a defendant’s case within the statutory period because of conflicting obligations to other clients does not constitute good cause to avoid dismissal of the charges.” (Id. at pp. 561-562.)
In a final footnote, Barsamyan, concluding Johnson did not support Barsamyan’s claim because the defendant did not personally object to the postponement, declined “the request of real party in interest that [the court] reexamine that decision.” (Barsamyan, supra, 44 Cal.4th at p. 982, fn. 4.) Johnson’s holding that appointed counsel may not consent, over a defendant’s objection, “to a postponement of trial beyond the statutory period” based solely on counsel’s calendar conflicts, has been criticized. (See, eg., People v. Superior Court (Alexander) (1995) 31 Cal.App.4th 1119, 1128; People v. Chavez (Colo.App. 1982) 650 P.2d 1310, 1311.)
The right to a speedy trial, whether constitutional or statutory, may be waived. (Wilson, supra, 60 Cal.2d at p. 146.) The statutory speedy trial right “will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss.” (Ibid.) A defendant who chooses to move for dismissal must do so “as soon as is reasonably possible after the expiration of the allowable delay”; he may not “wait until just before trial, by which time prospective jurors may be assembled, the witnesses subpoenaed and in attendance, and the proceedings ready to begin.” (Id. at p. 145, fn. 3.) “The right to a speedy trial must therefore be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial.” (Id. at p. 146.) “It is too late to raise the point for the first time on appeal [citations]; nor may it be raised for the first time by a petition for habeas corpus after judgment of conviction . . . .” (Ibid.) “The defendant must . . . move to dismiss after the expiration of the allowable delay (but before the beginning of trial) so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided.” (Id. at p. 147.) “‘It is not the policy of the law to permit a person thus to keep his silence, take his chance on getting a favorable verdict and, if he loses, at some later time (perhaps after the statute of limitations has run) come in and void the judgment by raising a point which if timely raised would have allowed the filing of a new information before the running of the statute and while the state’s witnesses were still available.’” (Id. at pp. 147-148.)
A defendant who seeks post-conviction review of a denial of a statutory speedy trial “must prove prejudice flowing from the delay of trial.” (Johnson, supra, 26 Cal.3d at p. 562; Wilson, supra, 60 Cal.2d at pp. 151-152.) “‘[O]nce a defendant has been tried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error,’ and so on appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice, even though the defendant would not be required to show prejudice on pretrial appellate review.” (People v. Martinez (2000) 22 Cal.4th 750, 769.)
Here, the last date to which defendant “‘may have consented [for trial]’” was August 21. (See People v. Griffin (1991) 235 Cal.App.3d 1740, 1745 [“[the] date . . . set for trial” within the meaning of section 1382 has been interchangeably construed as “‘the last day to which defendant may have consented [for trial],’” or “‘the latest trial date to which he consented’”].) Defendant therefore had a statutory right to be tried within 10 “consecutive calendar days” after August 21, i.e. by August 31, unless good cause was shown for further delay. (Barsamyan, supra, 44 Cal.4th at p. 977.) His trial did not commence until September 11, i.e. 11 days after the 10-day grace period expired.
Applying the foregoing precepts, we conclude, for two independent reasons, that defendant’s statutory speedy trial claim must be rejected. First, defendant waived his statutory right because he failed to file a timely motion to dismiss. Although defendant was acting in propria persona on this issue, he “is not entitled to special treatment and is required to follow the rules.” (McComber v. Wells (1999) 72 Cal.App.4th 512, 523.) Defendant’s August 27 letter to Judge Makino requested no affirmative relief. His September petition for writ of habeas corpus was not presented to the court as a dismissal motion. Although the matters alleged in the September habeas petition constituted potential grounds for a dismissal, the petition was submitted on a standard Judicial Council form for habeas corpus and assigned a separate case number, thereby failing to alert the court that dismissal was sought before commencement of trial. Even assuming it was indeed (1) mailed on Friday, September 8 (the day defendant purportedly signed it) and (2) received by the Superior Court Clerk the next business day, Monday, September 11 (contrary to the filed stamped date of October 13), the court had 60 days under California Rules of Court, rule 4.551 to rule on the petition. Trial commenced on Monday, September 11, the next court day after defendant allegedly signed the September petition. Thus, defendant failed to meet his obligation to move for dismissal “as soon as is reasonably possible after the expiration of the allowable delay.” (Wilson, supra, 60 Cal.2d at p. 145, fn. 3.) Furthermore, because the court was not required to immediately review the September petition, it was incumbent on defendant to bring to the court’s attention, before trial commenced, his request for dismissal. Defendant was present in court on several days before trial commenced, as well as on the opening day of trial, and could have moved for dismissal. He did not do so. In his traverse, defendant argues he could not have moved in propria persona for dismissal because he was represented by counsel. This argument ignores the several motions for dismissal, as well as other documents, defendant filed in propria persona throughout the pretrial and posttrial proceedings.
In Johnson, the defendant “by writ of habeas corpus moved to dismiss the charges, [and] the trial court summarily denied his petition.” (Johnson, supra, 26 Cal.3d at p. 573.) Our Supreme Court treated Johnson’s habeas corpus petition as a sufficient assertion of his speedy trial right due to his counsel’s failure to assert the right, but recognized such relief was available only “in exceptional cases.” (Id. at p. 573, fn. 18.) Johnson filed his habeas corpus petition a full month prior to trial and the superior court summarily denied it before trial. (Id. at pp. 564-565.)
Second, defendant makes no showing he was prejudiced by the 11-day delay. At this stage, i.e. post-conviction, such a showing is necessary. (Johnson, supra, 26 Cal.3d at p. 562.) Defendant argues he “could have sought appellate review” prior to his conviction if the court had ruled on the September petition before then. But as discussed, the court was not required to rule on the September petition within that timeframe.
We therefore deny defendant’s March 15, 2007 petition for writ of habeas corpus.
DISPOSITION
The judgment is modified to grant defendant 1442 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment and an amended sentencing minute order, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
Defendant’s March 15, 2007 petition for writ of habeas corpus is denied.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.