Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06347.
BUTZ, J.
Defendant Marlon Raye and his codefendant were found guilty by a jury of vehicle theft. (Veh. Code, § 10851, subd. (a).) In a bifurcated court trial, the trial court found defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to the mitigated term of 16 months, plus three years for the prior prison terms, for an aggregate term of four years four months in state prison.
On appeal, defendant contends: (1) the trial court erred in precluding evidence of a statement he made to the arresting officer; (2) the trial court improperly granted his request to represent himself during the trial on the prior prison term allegations; (3) the trial court erred in not reappointing counsel during the trial on the prior prison terms and at sentencing; and (4) the evidence was insufficient to support the true findings on the prior prison terms. We shall affirm the judgment.
FACTUAL BACKGROUND
On July 31, 2008, Detective Frank Ubois of the Sacramento Police Department set up a white 1992 Honda Accord as a “bait car” as part of a program designed to apprehend auto thieves. The car was equipped with electronic monitoring equipment, including GPS tracking, an automatic door locking device, and audio and video recording that were triggered to begin recording when a door was opened. The car was parked with the doors unlocked and the keys in the ignition.
At 4:43 a.m. on August 2, 2008, Officer Troy Hawley responded to a call that the alarm system in the bait car had been activated. On his way to the location where the bait car had been parked, Hawley saw the car being driven, followed it and called for backup. Just before the backup officers arrived, the driver of the bait car pulled into a convenience store parking lot located approximately a mile from where the bait car had been parked. The driver stopped at the gas pumps. Hawley pulled up behind the car and activated his overhead lights.
Defendant, who had been driving, was directed to exit the car and was arrested. Codefendant Sandra Heffington was in the front passenger seat and was also arrested. Just over five minutes elapsed between the time the bait car alarm was activated and the time the doors were unlocked to permit defendant to exit in compliance with Officer Hawley’s directions.
The tape from the bait car was played for the jury. It reflected that, after defendant and Heffington got in the car, Heffington told defendant to “burn rubber” to get out of there, and then she noticed the car did not have gas. They decided to get gas. Heffington then wondered aloud if the car had a tracking device, then assured herself it did not, and that “somebody left their keys in [it].” Defendant offered that it might be a “set up” but Heffington assured him they “would’ve been busted already” if that were the case. They discussed where they wanted to go and as they pulled into the gas station, they noticed the officer behind them. Heffington began cursing, stating they were “fucking through” and she “fucking knew it.” As Officer Hawley was ordering them to put their hands in the air, defendant told Heffington, “[A]ll we gotta do is say our friend lend (sic) it to us. That’s all we gotta tell ’em. Ol’ boy told us to go put gas in it for ’em and that’s it. Had the keys in it and everything.” Heffington added, “And tell ’em you just picked me up from my house.” Defendant then apparently noticed the doors being remotely unlocked and began cursing, “Damn. Damn. Fuck, dude, we’re being arrested. They unlocked it, it was a setup car. They just unlocked it dude. Dude fucking set us up.” The tape ended as Heffington was being taken into custody.
DISCUSSION
I. Exclusion of Hearsay
Defendant sought admission during cross-examination of Officer Hawley of an exculpatory statement he made to the officer after his arrest, to the effect that he had been given permission to drive the car by a person named Anthony. Defendant contends the trial court erroneously denied the request.
Defendant argues that the statement was admissible to show his intent. But it was the truth of defendant’s statement that was relevant to defendant’s case. The fact that he made the statement was not important. As such, the evidence was hearsay. Defendant cites no exception to the hearsay rule to support his argument that the hearsay statement was admissible and none appear applicable.
Evidence Code section 1251, which permits statements of a declarant’s previously existing mental state, requires the “declarant [be] unavailable as a witness.” (§ 1251, subd. (a).) As the California Supreme Court explained in People v. Edwards (1991) 54 Cal.3d 787, 819, “Defendant was certainly not unavailable to himself. Although he possessed, and exercised, a privilege not to testify, the choice was his. He could have testified had he so elected. As stated in the Comment of the Assembly Committee on the Judiciary to Evidence Code section 240, the section defining the phrase ‘unavailable as a witness, ’ ‘if the out-of-court statement is that of the party himself, he may not create “unavailability” under this section by invoking a privilege not to testify.’”
Undesignated statutory references are to the Evidence Code.
Section 1251 provides: “Subject to Section 1252, evidence of a statement of the declarant’s state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.”
Section 1250, which permits statements of a declarant’s then existing mental or physical state, is equally unavailing to defendant. As with section 1251, statements admitted pursuant to section 1250 must meet the trustworthiness requirement in section 1252. “To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ‘“made at a time when there was no motive to deceive.”’” (People v. Edwards, supra, 54 Cal.3d at p. 820.) As defendant made his exculpatory statement to law enforcement shortly after his arrest, the statement clearly fails to meet the trustworthiness requirement of section 1252.
Section 1250 provides, in relevant part: “(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”
Section 1252 provides: “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.”
Nor was defendant denied his right to due process or a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution. He was not, as he claims, denied the right to present a defense. “Defendant was free to present this information by taking the stand himself. To allow him to present this evidence through admission of [his out-of-court statement] would have allowed him to present favorable evidence without subjecting himself to cross-examination. ‘“A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.”’ (People v. Edwards[, supra, ] 54 Cal.3d [at p.] 820, quoting People v. Harris (1984) 36 Cal.3d 36, 69 (plur. opn. of Broussard, J.).)” (People v. Gurule (2002) 28 Cal.4th 557, 605.)
II. Self-representation
Defendant next contends the trial court erred in permitting him to represent himself during the trial on the prior prison term allegations and at the subsequent sentencing hearing. He argues that the trial court did not assure his waiver of the right to representation by counsel was knowing and intelligent. He further argues the court erred by not subsequently reappointing counsel. We disagree with both contentions.
After the jury returned the guilty verdicts on November 14, 2008, defendant waived jury trial on the prior prison term allegations and the matter was continued for a court trial on those allegations and sentencing. When the parties appeared at the January 9, 2009 hearing, the prosecutor offered several certified documents in support of the prior prison term allegations. Defense counsel stated she had reviewed the People’s certified documents supporting the prior prison term allegations, made no objections to the evidence, and indicated she was prepared to submit the issue to the court without further evidence. She had also prepared and filed a statement in mitigation for sentencing that addressed the probation officer’s recommendation for the upper term. Defendant, however, sought to challenge the prosecutor’s proof. Although still represented by counsel, the trial court allowed him to explain his challenge.
Defendant then argued, citing statutes and case law to the court, that the People were required to prove his guilt on the underlying offenses. He also objected to the People’s evidence as inadmissible hearsay. The trial court declined to relieve counsel at that point and continued the matter for argument.
At the next hearing, on January 15, 2009, after explaining to defendant why the case law he had cited was irrelevant and what the prosecution was required to prove, the trial court entertained further argument from defendant. Defense counsel stated that she had considered defendant’s argument and determined it had no merit, but objected to the prosecution’s evidence on the grounds of hearsay and unreliability. The prosecutor replied that the certified documents met the requirements of the hearsay objections in sections 1271 and 1280, and the court overruled defense counsel’s objections.
Defendant continued arguing that the prosecutor had not adequately proved his prior prison terms, this time arguing that the People were required to prove the nature and facts of his prior convictions. The trial court attempted to explain the distinction between the requirements for proving prior prison terms and the requirement for proving prior strikes. During his argument, defendant made statements clearly indicating he knew he was contesting one-year enhancements and knew they were alleged due to his prior prison sentences. Defendant insisted on pursuing his argument, complaining that his attorney would not assist him. The trial court explained again what enhancements were charged and what the prosecution was required to prove, and then offered to allow defendant to represent himself in order to “file something” and defendant agreed.
At this point, the trial court thoroughly admonished defendant about the disadvantage at which he would be placed from not having legal training and defendant stated he understood. Defendant asked if he would have cocounsel and the court told him it would not appoint cocounsel because there was no indication that his current counsel had not been effectively and properly doing her job. But the court told defendant if he wanted to discharge her anyway and represent himself, the court would authorize library use for defendant and give him time to prepare something. Defendant acceded. Defendant then executed the necessary forms, defense counsel was relieved, and the matter was continued.
The parties returned on April 3, 2009, approximately two and a half months later. Defendant argued extensively, citing statutes and case law, but making the same and new legally flawed arguments. The trial court entertained his arguments and repeatedly attempted to clarify the areas of the law that defendant had misapplied. The court then continued the matter again to research some of the authority cited by defendant and to assist him in obtaining information from one of his former attorneys in an underlying prior prison term case.
The hearing resumed on April 10, 2009. The court had obtained the information from defendant’s former attorney and clarified the statutory authority upon which defendant had been relying. The trial court entertained further extensive argument from defendant, including discussion of additional case law and new issues. The court then decided to continue the matter again, to permit defendant to get some additional information and to consider his recent argument. As the court and defendant discussed what needed to be reviewed before the next hearing, defendant suggested, “You think, if you want to just give me cocounsel, we can get it over quicker?” The trial court responded that, in hindsight, it may have saved the court a lot of time if it had initially appointed cocounsel, but the parties and the court had already done the work. Moreover, the trial court did not want further delay for a new attorney to be appointed at that point.
The parties returned two weeks later, on April 24, 2009. The trial court repeatedly attempted to explain to defendant why his legal theories contesting the prior prison term allegations were incorrect. The trial court stated that the three prior prison term allegations had been proven beyond a reasonable doubt and that it was ready to proceed to sentencing.
Defendant persisted and asked for a “retrial.” The trial court told him his motion was untimely. Defendant continued to complain, during which he stated that, if he could not get what he wanted, he wished to relieve himself and have an attorney appointed to address mitigation at sentencing. The trial court denied his motion for a new trial, denied his request for appointment of new counsel, and found the three prior prison term allegations true.
The trial court stated it had reviewed the probation report and noted defendant’s previous counsel had prepared a good statement in mitigation. Although defendant had a copy of the probation report and the statement in mitigation, he requested a continuance for a week to address “other things.” The court granted his request.
Sentencing took place on May 1, 2009. The prosecutor stated defendant was statutorily ineligible for probation due to his eight prior felony convictions and requested the court impose the upper term of three years, plus three years for the prior prison terms, as recommended in the probation report. Defendant disputed part of his criminal record, denied guilt on the instant case, claimed his recent performance on parole had been outstanding, and requested the court impose “the low term with these prison priors ran concurrent.”
The trial court imposed the low term of 16 months, plus one year each for the three prior prison terms, for an aggregate term of four years four months.
A. Grant of Request for Self-representation
Defendant contends the trial court erred in permitting him to represent himself during the trial on the prior prison term allegations without assuring he made a knowing and intelligent waiver of his right to counsel.
A criminal defendant has a constitutional right to represent himself at trial if he “‘knowingly and intelligently’ forgo[es] those relinquished benefits” associated with the right to counsel. (Faretta v. California (1975) 422 U.S. 806, 819, 835 [45 L.Ed.2d 562, 572, 581].) The defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” (Id. at p. 835 [45 L.Ed.2d at pp. 581-582].)
The test of “whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 1466]; Iowa v. Tovar (2004) 541 U.S. 77, 87-89, 92 [158 L.Ed.2d 209, 220-221, 223].) Accordingly, “[n]o particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070; People v. Lawley (2002) 27 Cal.4th 102, 140.)
The failure to give a particular set of advisements does not, of itself, show that a Faretta waiver was inadequate. Instead, “[t]he burden is on appellant to demonstrate that he did not intelligently and knowingly waive his right to counsel.... [T]his burden is not satisfied by simply pointing out that certain advisements were not given.” (People v. Truman (1992) 6 Cal.App.4th 1816, 1824, citations omitted; see People v. Sullivan (2007) 151 Cal.App.4th 524, 547; People v. Mellor (1984) 161 Cal.App.3d 32, 37.) “On appeal, we examine de novo the whole record—not merely the transcript of the hearing on the Faretta motion itself—to determine the validity of the defendant’s waiver of the right to counsel.” (People v. Koontz, supra, 27 Cal.4th at p. 1070.)
Here, the trial court adequately assured that defendant understood he would be at a disadvantage because he was not legally trained. Defendant had already been found guilty of the underlying offense, leaving only the court trial on the prior prison term allegations and sentencing. Defendant knew that the allegations exposed him to three additional one-year terms. His counsel had already addressed the prior prison term allegations and had submitted an ultimately successful statement in mitigation for sentencing. Accordingly, all of the complexities that were actually relevant had been addressed by counsel and there was little to no risk to defendant in proceeding without representation at that point. The only “complexities” that remained were those created by the numerous legally flawed arguments defendant persisted with regarding the prior prison term allegations which, although generously entertained by the trial court, were meritless.
Thus, we conclude defendant was adequately advised under the particular facts and circumstances of this case.
B. Denial of Request for Reappointment of Counsel
Defendant also contends the trial court abused its discretion in denying him reappointment of counsel, as he requested, after the court indicated it was finding the prior prison term allegations true. He contends any delay would have been “inconsequential” so there was no reason to deny his request.
Once a defendant waives his right to counsel, the decision to reappoint counsel is in the trial court’s discretion. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.) In exercising that discretion, the court must consider the totality of facts and circumstances, including the defendant’s history of substituting counsel, the stated reasons for the request to return to representation by counsel, the length and stage of the proceedings, the disruption or delay that reasonably might be expected from granting the motion, and the likelihood of the defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney. (Id. at p. 164.) But “‘[w]hile the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.’” (Ibid., quoting People v. Smith (1980) 109 Cal.App.3d 476, 484.)
Under the totality of the circumstances in this case, the trial court properly exercised its discretion to deny defendant’s request. As previously discussed, all of the issues and complexities that were actually relevant had been addressed by defendant’s former counsel. Counsel had already addressed the prior prison term allegations and had submitted an ultimately successful statement in mitigation for sentencing. In order to allow defendant to fully research and develop his legally flawed arguments, the trial court had patiently and repeatedly continued the bench trial on the prior prison term allegations and the sentencing hearing for three and a half months. Although defendant now argues that any further delay resulting from appointing new counsel would have been “inconsequential, ” the court reasonably found that such delay was unnecessary.
Considering the already lengthy delays, the late stage of the proceedings, and the lack of likelihood that appointment of new counsel could further assist defendant, the trial court did not abuse its discretion in denying defendant’s request for reappointment of counsel. Indeed, we note that, despite the probation report’s recommendation and the prosecution’s request for the upper term, the trial court imposed the low term, as requested by defendant and his former counsel.
III. Evidence of Priors
Defendant contends his prior prison terms must be reversed due to insufficiency of proof because the prosecution failed to move the supporting documentation into evidence. We reject his contention.
The prosecutor offered certified documents, consisting of abstracts of judgment and “prison packets, ” at the initial January 9, 2009 hearing. The documents were marked and shown to defense counsel, who made no objection. After reviewing the documents, the court asked, “Now, so the People submit these certified records as the evidence for the purpose of a Court trial on the issue of the priors, correct?” The prosecutor answered, “Yes.” Defendant then launched into an argument regarding the sufficiency of those documents that ultimately required numerous hearings and consumed over 100 pages of reporter’s transcript.
Throughout the entire course of these protracted hearings, the parties and the court consistently treated the documents as if they were in evidence. The court overruled the subsequent hearsay and “reliability” objections, and framed the issue as “whether the documentation meets any legal test or requirements” to establish the validity of the priors. Prior to ruling, the court again asked, “Now, do the People submit on the records they have submitted to the Court... as to the three priors?” The prosecutor stated she wanted to add an additional exhibit that had been marked that morning. The court then asked, “Do the People submit on this exhibit as well as the records of the court system, records in the system?” The prosecutor answered, “That is correct.” The court asked defendant if he had anything additional to say and he responded, “It doesn’t matter no more.” The court then found the prior prison term allegations true.
Defendant does not contend that the documents were not admissible or that, if admitted, they are not sufficient to prove he served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He argues merely that the prosecutor did not formally move them into evidence and, as such, there was no evidence to support the prior prison term allegations.
Assuming, without deciding, that the prosecutor did not sufficiently “move” the documents into evidence, or that the court did not sufficiently “admit” them, the documents are sufficient to support the trial court’s findings. “It is well established that where the record shows that a document has been considered by the court and the parties as being in evidence, a reviewing court will not look for technical reasons to exclude [it] from consideration....” (Cohon v. Dept. Alcoholic Bev. Control (1963) 218 Cal.App.2d 332, 335, fn. 10; accord, Estate of Connolly (1975) 48 Cal.App.3d 129, 132, fn. 4; Reed v. Reed (1954) 128 Cal.App.2d 786, 790-792.) “[T]he fact that no formal offer in evidence was made will not exclude it from consideration as part of the record on appeal.” (Reed v. Reed, supra, 128 Cal.App.2d at p. 791; see also Miller v. Superior Court (2002) 101 Cal.App.4th 728, 742.)
Thus, we reject defendant’s claim that there is insufficient evidence to support the trial court’s findings.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., NICHOLSON, J.