Opinion
C086090
11-18-2019
THE PEOPLE, Plaintiff and Respondent, v. TODD CHRISTIAN ROBBEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P17CRF0114)
Believing he had been unfairly treated by the criminal justice system, defendant Todd Robben posted threatening messages about a law enforcement officer, attorneys, and judges on websites, sent threatening letters, and made threatening statements in telephone conversations. A jury found him guilty of threatening a witness (Pen. Code, § 140, subd. (a)), two counts of threatening a public officer (§ 71), two counts of criminal threats (§ 422), and three counts of attempted threatening of a public officer (three different judges) (§§ 664, 71). The trial court sentenced defendant to seven years in prison.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in denying his motion pursuant to Faretta v. California (1975) 422 U.S. 806, where he sought to represent himself just before jury selection. He claims the court should have undertaken the inquiry required by People v. Windham (1977) 19 Cal.3d 121 (Windham). He further contends the court erred in denying his motion for acquittal under section 1118.1 on count I, threatening a witness (a police officer), at the close of the People's case.
We affirm. Although the trial court did not expressly discuss the Windham factors in denying the untimely Faretta motion, the record shows the court had those factors in mind in making its ruling and the factors supported denial of the motion. There was substantial evidence in the People's case-in-chief to support the conviction on count I. Viewed in context with defendant's other threats, there was substantial evidence that his statements about killing a police officer he believed had committed perjury were true threats.
FACTS
Events in Nevada
Defendant's problems with the criminal justice system began in Nevada in 2011 or 2012 when he appeared before Municipal Court Judge John Tatro on a low-level misdemeanor. There was a hearing to increase defendant's bail to $500,000 because the district attorney believed defendant was suicidal and making threats to kill himself, Tatro, or both. Defendant was taken into custody and examined by a psychologist in jail who found him not suicidal. Tatro lowered his bail after three days. Defendant pled guilty to disorderly conduct and the sentence was deferred.
Defendant sponsored a website accusing Tatro of being an alcoholic, a child molester, and a wife beater. Tatro was up for reelection and defendant protested with large signs and banners. Defendant continued to post to websites against Tatro, including doctored pictures of Tatro's family. The police began monitoring the website and drove by the judge's house every night.
In December 2012 there was a shooting at Tatro's house. Two years later, he received a threatening Christmas card that said: "You will die." In 2015 an explosive device was found at Tatro's home. Tatro suspected defendant was responsible for these acts, but DNA testing showed the culprit in all three acts was someone else who was charged and prosecuted.
Count I--Threatening Sergeant Laney
In 2014 Sergeant Shannon Laney arrested defendant for driving under the influence in South Lake Tahoe. Defendant accused Laney of committing perjury at the trial. On websites for which he was responsible, defendant posted about killing corrupt and lying police officers. One image showed the smoking barrel of a gun and said, "WHEN CORRUPT LAWYERS, JUDGES, COPS, PROSECUTORS AND OTHER G-MEN ARE SNUFFED OUT - EVERYONE WINS." Another image showed a law enforcement officer testifying and said, "How do we fix the police 'testilying' (sic) problem? Kill the fuckers." Another image showed a badge of the South Lake Tahoe Police Department with the slogan SOUTH LAKE TAHOE POLICE : WE KILL UNARMED PEOPLE ARRIVE ON VACATION AND LEAVE IN A COFFIN" and the words "KILL 'EM ALL AND LET GOD SORT IT OUT--FUCK THE SLTPD." Other postings indicated that bad or corrupt cops should be killed, and yet another said, "Yes, corrupt judges, cops, DA's (sic) and politicians need to die."
Defendant's phone calls from jail were monitored. In one call, defendant told Michael Weston that Laney had perjured himself. Weston suggested that defendant could sue him. Defendant said he would and also go "after him criminally." He said if there was no peaceful solution then "what is a person to do? That's why -- that's why people are fed up in this country, and they're killing cops, and they're killing DAs." He continued, "They're killing cops . . . they're killing DAs and they're killing the corrupt judges rightfully so because if you can't fight them peacefully, then that's the only alternative solution."
In a petition for a writ of mandate defendant filed in 2016, defendant alleged Laney lied on the stand and provided false or misleading signatures. On one of defendant's websites was a picture of an officer on patrol with the caption, "South Lake Tahoe Officer Shannon Laney rides his corruption-mobile and writing false affidavits 'under penalty of perjury.' " There was a photograph of Laney on the site.
Counts II and III--Threats Against the City Attorney
After his DUI conviction, defendant was arrested for driving on a suspended license and his car was impounded. Defendant filed a claim and petitioned for a writ claiming his car had been improperly impounded. After the car was sold, defendant filed a demand letter with South Lake Tahoe City Attorney Thomas Watson. Watson believed the demand letter threatened his life. In a reference to a movie, it stated voices in defendant's head repeated "REDRUM, REDRUM, REDRUM," murder spelled backwards, and that "lawyer hunting season is upon us." After Watson rejected defendant's claim and this court rejected his writ petition, defendant sent Watson an e-mail threatening violence and including the quotation from William Shakespeare, "First thing we do, let's kill all the lawyers."
Watson sent his wife and daughter out of town and took to wearing a bulletproof vest. He agreed to participate in a pretext call. In the call, Watson told defendant he was afraid of him and offered him various things, such as returning his car and getting the police not to participate in the trial, to stop the threats. Defendant agreed to stop the threats.
Count V--Threats Against Defense Counsel
The conflict panel in El Dorado County appointed David Cramer to represent defendant in his appeal of his conviction for driving with a suspended license. The panel told Cramer that defendant was suspected in the threats against Tatro. Defendant called Cramer continuously and Cramer tried to explain the limited scope of his appointment. Defendant also sent Cramer letters. One said, "Get the fuck off my case now, motherfucker. I've reported your corrupt cho-mo ass to the State Bar." Cramer received an e-mail from defendant with the Shakespeare quote about killing all the lawyers. Another letter read in part, "Go kill yourself, you fucking asshole. Lots of people you've fucked over want you dead. I'll make sure you're no longer a lawyer in this state. You're done! Put the gun to your fucking head and pull the trigger you peice (sic) of shit. Fuck you."
"Chomo" is slang for a child molester.
In one letter, defendant threatened to put a bullet in Cramer's head, kill his family, and blow up his office. Cramer took this detailed threat seriously. He feared defendant and bought a gun for protection; he withdrew from representing defendant.
Count IV--Threats Against State Bar Official
Newton Knowles, assistant general counsel for the California State Bar, reviewed defendant's complaint against Cramer after it was initially denied. Knowles was concerned about threats to Cramer and to the State Bar. Specifically, Knowles was concerned about the passage that read: "Many people in my situation would just put a bullet in David J. Cramer's fucking head and call it a day. Others may torch [his] 'law office,' kill his family and the people who 'appointed' him and those of you who failed to 'discipline' him. Rightfully so." The letter also said, "If you don't[,] I will 'discipline' this motherfucker." "P.S. I won't kill him, I'll just let others do it . . . He needs to go."
Counts VI, VII, and VIII--Attempted Threats Against Judges
When defendant's case for driving with a suspended license came up for trial in South Lake Tahoe, the two judges there, Judges Kingsbury and Bailey, had recused themselves. The case went to Judge Wagoner for assignment in Placerville. All of the other judges in Placerville recused themselves. By then, defendant had accused Wagoner of being a child molester and a drug addict, and had contacted the Commission on Judicial Performance to file a complaint, so Wagoner recused himself. In jail conversations defendant accused Wagoner of being a child molester and suggested someone should kill him. Defendant wrote Wagoner threatening letters, saying "There will be blood." Despite the threatening language, Wagoner was not frightened.
The case was reassigned to a Sacramento County Superior Court judge, who recused himself after defendant defamed him. It was finally assigned to Judge Steve White. Defendant unsuccessfully sought to recuse White (three times) and the entire El Dorado County District Attorney's Office. After defendant's third attempt to disqualify White, the trial court ordered that it "will no longer file or consider any further filings by defendant other than those limited motions related to his legal representation, if any."
Defendant also made threats against other judges. In a call from jail, defendant said, "I know all about the judges and their corruption . . . . These guys are a bunch of fucking child molesters and all that." He said these people need to "never ever, ever wake up again" and they needed to be "removed from the planet." Specifically mentioning Judges Wagoner, Kingsbury, and Bailey, defendant said he wanted to tap into the movement to see them dead. Defendant wanted people shooting at their houses; calling the judges "chomos," he said they "need to be fucking shot, all right." Defendant said a lot of people wanted to see them dead and the system would collapse. Defendant wanted to "get people fucking snipering (sic) these mother fuckers down."
The Defense
Defendant believed he was treated unfairly by the El Dorado County criminal justice system due to his involvement with Judge Tatro and the "defamation" accusing him of shooting at the judge. He explained his crude language was due to duress and he used inflammatory language to get people's attention. He claimed he never intended physical harm and did not say he would kill anyone. He regretted some of what he had done and characterized himself as a "peaceful guy."
DISCUSSION
I
Denial of Faretta Motion
Defendant contends the trial court committed reversible error in denying his Faretta motion, made just before jury selection, without conducting the inquiry required by Windham, supra, 19 Cal.3d 121.
A. Background
About two months before trial, defendant indicated he wanted to represent himself. The trial court expressed concern that defendant would be unable to restrain himself from going off on tangents and not staying tethered to the matters before the court. Defendant continued to interrupt the court and discuss matters unrelated to his Faretta motion. The court commented, "And all the things you are doing right now do not reassure me that you can follow the rules in the courtroom, and if you can't do that, then I have strong reservations about permitting you to represent yourself." Defendant indicated his strength was pretrial motions and he was frustrated because they had not been done. He then began to discuss denial of his speedy trial rights, causing the court to observe, "Do you understand you are doing just the things I have asked you not to do?"
Defendant did not have the paperwork he had been given for representing himself, so the court put the matter over for a week. The court indicated that if it was still defendant's wish to represent himself, the court would grant the motion. But the court cautioned defendant that if he did not follow procedures and court's direction, the court would terminate his self-representation. "[W]e cannot have the trial turned into a circus."
At the next court hearing, before a different judge, defendant appeared undecided about his decision whether to represent himself. Defendant said he was ready to make a decision but he did not have enough information from his trial counsel. Eventually, defendant decided to stay with his trial counsel.
At a subsequent hearing, defendant made a motion to replace his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. During the hearing, defendant had difficulty staying focused on the Marsden motion. Finally, the court told defendant he was no longer responsive to the issues and told him to be quiet. Defendant continued to accuse the court of bias and prejudice until the court had defendant removed from the courtroom and denied the Marsden motion. The court found any breakdown in communication was entirely "the consequence of your own recalcitrant and headstrong and go-at-your-own-way defiant approach to being represented."
On the day of jury selection, defendant indicated he would like to make another Faretta motion. The court ruled the motion was untimely. It took a short recess to conclude its ruling. The court returned and noted it could not immediately find the case it was looking for, but it would look up the case later and expand on its ruling. The court never mentioned the ruling again.
B. The Law
"[I] in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. Accordingly, when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be." (Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted.)
Asserting the right to self-representation moments before jury selection was set to begin is untimely. (People v. Valdez (2004) 32 Cal.4th 73, 102.) An untimely Faretta motion is left to the sound discretion of the trial court. (Windham, supra, 19 Cal.3d at p. 128.) In ruling on the motion, "the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among other factors to be considered by the court in assessing such requests made after the commencement of trial are 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." (Ibid.)
"The court in Windham, though requiring the trial court to inquire into the reasons behind a defendant's untimely Faretta request, 'decline[d] to mandate a rule that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation which is based on nonconstitutional grounds.' [Citation.] Instead, a trial court's exercise of discretion in denying an untimely Faretta motion is properly affirmed if substantial evidence in the record supports the inference that the court had those factors in mind when it ruled. [Citations.]" (People v. Bradford (2010) 187 Cal.App.4th 1345, 1354-1355.) Where "the reasons for the denial of the motion are absolutely clear on the record, we conclude there will be no detrimental effect on the justice system for the appellate court to draw the inferences necessarily implied by the court's ruling." (People v. Perez (1992) 4 Cal.App.4th 893, 905, fn. 10.)
C. Analysis
Defendant contends the trial court erred in denying his Faretta motion because he did not couple it with a request for a continuance. It is "settled that a trial court may deny a request for self-representation made on the very eve of trial, on the ground that granting the motion would involve a continuance for preparation . . . ." (People v. Fulton (1979) 92 Cal.App.3d 972, 976.) "The trial court's discretion to deny a motion made at the commencement of trial or later exists to 'prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.' [Citation.] It follows ineluctably that where self-representation is requested for a legitimate reason, where there is no request for a continuance and where there is no reason to believe there would be any delay or disruption, the trial court's denial of a Faretta motion is an abuse of discretion." (People v. Nicholson (1994) 24 Cal.App.4th 584, 593, italics added.)
Here, although defendant did not ask for a continuance, the record shows his Faretta motion was not made for a legitimate reason. Notably, defendant, who was not reticent about speaking his mind in court, did not offer any reason for the motion and was uncharacteristically quiet after the trial court denied it. During the various pretrial proceedings, defendant was highly disruptive. The trial court had to tell defendant repeatedly to be quiet and twice had him removed from the courtroom for outbursts. His previous request to represent himself had resulted in lengthy hearings and displays of indecision on defendant's part. The record shows clearly that the court intended to give a fuller accounting of its ruling, but was unable to find the legal authority quickly and apparently forgot about the issue.
"[W]hile the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors." (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) The quality of defendant's legal representation was not a legitimate issue. The judge who heard defendant's ultimate decision not to represent himself earlier spoke of trial counsel's reputation "as being one of the most highly regarded confident, experienced, defense counsel." During the Marsden hearing, the court indicated defendant "had a very fine lawyer" who was "trying very hard on your behalf." Indeed, defendant himself referred to trial counsel as "a dammed (sic) good attorney."
As we have described, defendant had shown a proclivity to delay proceedings by raising issues about representation. Defendant had made a prior Faretta motion and had decided to continue with counsel only after a prolonged discussion during which he repeatedly refused to make a decision, although the matter had already been put over a week. He made a Marsden motion which ended in defendant's outburst and his removal from the courtroom.
Faced with an untimely Faretta motion, the trial court is to consider "the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Windham, supra, 19 Cal.3d at p. 128.) Although defendant did not then request a continuance, the trial court here could reasonably expect disruption as well as delay. Defendant boasted of his expertise in pre-trial motions and immediately after the court denied the Faretta motion, defendant indicated he wanted to file a motion, despite the court's ruling that it would not accept motions filed by defendant.
The probability of disruption was the greatest factor supporting denial of the Faretta motion. The court had already expressed great concern about defendant's ability to stay on track, avoid going off on tangents, and follow the rules. This issue arose in the discussion of the prior Faretta motion, and during the hearing on the Marsden motion. In discussing a possible offer of probation, the court stated, "I'm also concerned that Mr. Robben has not shown any evidence of being able to follow the rules." The court repeatedly had to tell defendant to be quiet and twice had him removed from the courtroom. The record is replete with instances of defendant interrupting and talking over the court despite warnings not to do so.
The trial court did not err in denying defendant's untimely Faretta motion.
II
Denial of Motion for Acquittal on Count I
Defendant contends the trial court erred in denying his section 1118.1 motion for acquittal on count I at the close of the People's case-in-chief. He contends the People did not provide sufficient evidence that defendant threatened to use force or violence against Laney. He notes that none of the website postings about killing lying cops named Laney and nothing permitted an inference that defendant communicated a desire that someone should inflict force or violence upon Laney.
A. Standard of Review
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." (§ 1118.1.)
"An appellate court reviews the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction. [Citation.] 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' " (People v. Houston (2012) 54 Cal.4th 1186, 1215.) "Review of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that point." (Ibid.)
The test is not "whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Hillery (1965) 62 Cal.2d 692, 702.)
B. Section 140--Threatening a Witness
Count I charged defendant with a violation of section 140, subdivision (a) against Laney. That subdivision provides: "Except as provided in Section 139, every person who willfully uses force or threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person, or to take, damage, or destroy any property of any witness, victim, or any other person, because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding or juvenile court proceeding, shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
Count I of the indictment charged defendant with criminal threats against Laney. After Laney did not testify, this count was dismissed for insufficient evidence. The trial court renumbered the remaining counts. --------
"[T]o ensure the constitutionality of section 140(a), we construe it as applying only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, 'a serious expression of an intent to commit an act of unlawful violence' [citation], rather than an expression of jest or frustration. The latter category carries First Amendment protection; the former does not. [Citation.] So construed, section 140(a) does not violate the First Amendment." (People v. Lowery (2011) 52 Cal.4th 419, 427 (Lowery).)
"We note that section 140(a) requires that a threat against a crime victim or witness be made 'willfully.' But a penal statute's use of the term 'willfully' to describe the intent with which an act is done ordinarily implies 'simply a purpose or willingness to commit the act,' not 'any intent to violate law, or to injure another. . . ." [Citations.] Accordingly, a person who under section 140(a) 'willfully' utters threatening language against a crime victim or witness could be found to have violated section 140(a) even if the person had no intention of carrying out the threat, as the mere use of the threatening language, without more, completes the crime." (Lowery, supra, 52 Cal.4th at p. 427.)
Section 140 does not require that the threat be communicated to the victim. (People v. Murillo (2015) 238 Cal.App.4th 1122, 1127.) "The acts proscribed in section 140, . . . take place because the witness, victim, or informant has provided information or assistance to a law enforcement officer. The statute is retrospective rather than prospective and proscribes acts which are retaliatory rather than acts to intimidate. It defines only a description of the particular act of threatening to use force or violence, or taking, damaging, or destroying property, without reference to an intent to do a further act or achieve a future consequence." (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.)
C. Analysis
Defendant repeatedly claimed that Laney committed perjury in testifying against him. Thus, there was no question but that the threats resulted "because the witness" "has provided any assistance or information" "to a public prosecutor in a criminal proceeding." (§ 140, subd. (a).) The issue is whether the jury could reasonably conclude that "a reasonable listener would understand, in light of the context and surrounding circumstances," defendant's threatening statements "to constitute a true threat, namely, 'a serious expression of an intent to commit an act of unlawful violence' [citation], rather than an expression of jest or frustration." (Lowery, supra, 52 Cal.4th at p. 427.)
Defendant contends that his anti-police postings did not mention Laney by name. But defendant referred to Laney by name in his phone call with Weston. He also made several general threats that lying cops should be killed and more specific threats that killing Laney was the only alternative if there was no peaceful solution. In isolation, these threats might appear to be hyperbolic statements of frustration. The jury, however, was to look at them "in light of the context and surrounding circumstances" (Lowery, supra, 52 Cal.4th at p. 427), and was instructed accordingly.
Defendant made numerous threats over a substantial period of time as part of a continuous pattern aimed at the many participants in his criminal proceeding. While some of threats were general, defendant also made very specific threats about killing certain people. As defendant explained in a phone call, he was trying to "tap into the movement" to see people killed. Viewed in this context, the jury could reasonably conclude defendant's statements about killing Laney or having someone else kill him because he was a "lying cop" were true threats, and not merely statements made in frustration or jest.
The trial court did not err in denying defendant's motion for acquittal on count I.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Robie, J.