Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FVA05881. Barry L. Plotkin, Judge.
John P. Ward, 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, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
After his first trial ended in the jury being deadlocked and a mistrial being declared, defendant was convicted by a second jury of receiving stolen property. In bifurcated proceedings, the trial court found true allegations that he had suffered four strike priors and four priors for which he served prison terms. (Pen. Code, §§ 667, subds. (b)-(i) & 667.5, subd. (b).) He was sentenced to prison for 25 years to life. He appeals, claiming the trial court erred in denying his request for an attorney after having been granted his third request to represent himself. We disagree and affirm the conviction, while directing the trial court to correct an error in the abstract of judgment.
The facts concerning defendant’s crime are irrelevant to this appeal.
Proceedings Below
The jury convicted defendant on December 5, 2000. Trial on the prior allegations was continued until September 7, 2001. During that interim, retained counsel for defendant filed a Romero motion and the People filed an opposition to it.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On September 7, 2001, defendant’s second motion to represent himself was granted. Trial of the priors was continued and on November 30, 2001, defendant retained counsel to represent him and that trial was continued further. On August 1, 2003, retained counsel declared a conflict and was relieved. A new attorney was appointed for defendant. On November 14, 2003, defendant successfully moved, for the third time, to represent himself. Noting that defendant was facing heart surgery, the trial court told defendant that if he wished to have counsel appointed before his next court appearance, to write to the court and make the request.
Defendant had previously represented himself before the case went to trial for the first time, sometimes with the assistance of appointed co-counsel in between being represented by appointed counsel, during which he made a Marsden (People v. Marsden (1970) 2 Cal.3d. 118) motion, and then retained counsel.
See footnote 2, ante.
Over the next two years and two months, a number of continuances and two requests for additional compensation for defendant’s investigators were granted, and three different investigators were serially appointed to assist defendant. On January 23, 2006, defendant’s motion for appointment of an attorney was granted, but defendant then withdrew it. Defendant’s motion for additional fees for his investigator was denied without prejudice to being submitted with an adequate explanation for the request. Before the next court appearance, defendant wrote to the trial court listing all the individuals he wanted interviewed by his investigator.
One of these people is now a federal judge. Defendant later told the trial court that this person was the one who had explained to him “twenty years ago” that his record would be expunged. However, curiously, he seemed unaware of the fact that this person was a woman.
At the next court appearance, on February 17, 2006, the trial court asked defendant why he wanted this list of people interviewed. He said that they would corroborate his claim that in September, 1990, something happened, which he did not want to disclose in open court, the result of which was that his entire criminal record was to be expunged. The People declared that they were ready to begin trial on the priors and the trial court wanted to proceed with that, while allowing defendant to have an in camera hearing later to explain to what he had alluded. Defendant agreed to this. Just before the prosecutor began her case, she told the trial court that defendant wanted to have an attorney appointed to represent him at the trial of the priors. The trial court denied the request, finding it was made solely to delay matters. Defendant later admitted that he decided to ask for an attorney when the People declared they were ready to begin trial on the priors.
During the in camera hearing, the prosecutor stated that defendant had told her that he was in a federal witness protection program and had been told that his entire criminal record, including the priors for which trial was about to begin, would be expunged. However, the prosecutor added, she had seen no indication of a possible expunging of his record. She said defendant may have been involved with his retained attorney in a bail bond scheme, but he had not yet been charged in connection with it. Defendant asserted that his former retained attorney, her attorney, who was a conflict panel attorney, and another of defendant’s former appointed attorneys, who was also a conflict panel attorney, were coconspirators. Defendant also asserted that the promise to expunge his record, which had been made to him “twenty years ago” by a then-federal prosecutor, who was now a federal judge, was in his file in the hands of the federal government, which had failed to honor defendant’s subpoenas to obtain it. He said he wanted counsel appointed to obtain this document.
The trial court commented that there was no reason to believe a new attorney could obtain this document when defendant’s prior retained attorney had failed to do so. The court pointed out that the trial of the priors had been continued for more than five years and two months, during which time defendant, defense attorneys and defense investigators had been unable to obtain this document.
The trial court mistakenly calculated the delay at eight years.
The trial court offered to allow defendant to admit the priors, then it would put the matter over so defendant could present his proof that his record had been expunged or to proceed with the trial of the priors. Defendant reiterated his request for counsel. He explained that he had changed his mind about representing himself that day when the People announced they were ready to go forward on the trial of the priors because he thought that by doing so, he would get another investigator who could obtain the document or interview the people on his list who would corroborate his claim. The trial court said the only issue was whether defendant’s record, in fact, had been expunged, and it was its impression that only the governor had the power to do that. It noted that defendant had had an investigator at his disposal to produce the necessary proof, but had not. The trial court again denied defendant’s request for an attorney as untimely and as being brought solely for the purpose of delay, without prejudice to permit him to make a more persuasive showing. The trial court left open the possibility of appointing an investigator to explore whether his record had been expunged. Trial of the priors did not occur until another week.
At that hearing, after the presentation of evidence, the trial court found the prior allegations to be true, defendant admitted them, then the trial court found them true beyond a reasonable doubt. The trial court again noted that defendant had had the assistance of an investigator to look into his claim that his record had been expunged.
At the same hearing, defendant requested an attorney to represent him in arguing his Romero motion, which written motion had previously been submitted by retained counsel. The trial court appointed the attorney defendant said he wanted and noted that the two issues then “on the table” were the Romero motion and the possibility that his priors had been expunged.
More than seven months later, on September 22, 2006, defense counsel argued the Romero motion, which the trial court denied, and did not mention the possibility that defendant’s priors had been expunged. The trial court then sentenced defendant to 25 years to life. Defendant here contends that the trial court erred in denying him appointed counsel at the trial of the priors.
Issue and Discussion
The parties agree that in denying a request for appointment of counsel to a defendant who is representing himself, the trial court should consider, “(1) defendant’s prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney. (Citations.)” (Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1394.)
Defendant contends that the only factor that arguably applies here is that he had a history of substituting counsel and self-representation, and, even so, it is not a strong factor because of the circumstances of this case. Defendant’s first contention on this point makes no sense and to the extent it may partially be understood is unsupported by the record. His second, that he was “apparently” hospitalized during the period between May, 1996 and February 17, 2006, is not supported by the record, which shows only that defendant did not appear in court on July 9, 2004 “due to hospitalization.” In a letter dated May 29, 2004, defendant had informed the trial court that his medical situation was “deteriorating rapidly” but he was apparently still in custody at that point. By September 24, 2004, defendant was back in court. Therefore, at most, the longest period defendant was medically incapacitated was 116 days, out of a six year, two month period, if one begins with the first self-representation motion he made. Contrary to defendant’s apparent suggestion otherwise, during the course of this case, up to the time he made this unsuccessful motion for self-representation, he changed lawyers eight times, if you include himself serving as his own lawyer. As noted, after his unsuccessful motion, defendant was, once again, appointed counsel to represent him during a hearing at which he had an opportunity to make the only contention the record discloses could possibly serve as a rebuttal to the proof of the existence of his prior convictions. And, when given that opportunity, defendant, through his appointed counsel, declined to offer such rebuttal.
We have read and considered counsel’s letter dated February 6, 2008, and we are grateful for the views expressed therein.
The People point out that the remaining above-listed factors governing appointment of counsel for self-represented defendant’s support the trial court’s determination. Without doubt, they do. The reason defendant, himself, gave for the delay was to postpone the People’s proof of the priors so he could get yet another investigator to find the elusive document guaranteeing him that his prior record had been expunged. As the trial court pointed out, none of his previous lawyers, including himself, or investigators had been able to unearth any evidence supporting this claim. Moreover, after the People proved the priors, defendant was given another seven months, during all of which time he was represented by appointed counsel, to present this evidence, and he did not.
The next factor, i.e., the length and stage of the proceedings, also weighs in favor of the trial court’s ruling. This case began in late May of 1996, and it was on February 17, 2006, almost ten years later, when defendant sought his third opportunity to represent himself. As stated before, the only proceeding during which defendant was denied counsel, other than himself, was during the People’s proof of the priors, for which the only possible rebuttal defendant had was that there might be a promise to expunge his entire criminal record.
The remaining factors, i.e., the disruption or delay caused by granting such a motion and the likelihood of his effectiveness if required to continue to represent himself, have already been discussed and also weigh in favor of the trial court’s ruling. Defendant, himself, admitted that he had suffered the priors and the case was not finalized until more than ten years after it began.
Under the circumstances present here, the trial court did not abuse its discretion in denying defendant’s third request to represent himself during the People’s proof of the truth of the priors. (See People v. Smith (1980) 109 Cal.App.3d 476, 484-485.)
Disposition
The trial court is directed to amend the abstract of judgment to show that defendant was convicted by jury and not by the trial court as the abstract currently states. In all other respects, the judgment is affirmed.
We concur: KING J., MILLER J.