Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA331649, William N. Sterling, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Richard Paul Roddy appeals from the judgment entered following a jury trial which resulted in his conviction of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and his admissions that he previously had been convicted of four felonies for which he served prison terms (Pen. Code, § 667.5, subd. (b)) and had suffered a drug-related conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). The trial court struck the prior convictions and prison terms for the purpose of sentencing and imposed a term of three years in state prison for Roddy’s conviction of possession of cocaine base. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been summarized from the transcript of the preliminary hearing, during which Roddy was acting in propria persona, and the trial transcript. At trial, Roddy was represented by counsel.
On November 7, 2007, Police Detective Michael Saragueta was assigned to the Narcotics Division of the Los Angeles Police Department. He worked as part of a team of officers including, among others, Officers Isaac Martinez and Dave Cho, who were “assigned to work [the] chase car for the narcotics buy team, ” Detective Vip Kanchanamongkol, who was responsible for monitoring the one-way transmitter worn by the undercover officer designated to buy narcotics, and Detective Anthony Jackson, who was working at the “central station... booking arrestees [and evidence] into the system.”
At approximately 9:25 that evening, Saragueta was walking near the intersection of Stanford Avenue and Sixth Street when he was approached by Roddy, who was standing in front of a fence with four or five other African-American men. Roddy asked Saragueta how much he wanted and Saragueta indicated that he wished to buy “ ‘a 20, ’ ” or “$20.00 worth of rock cocaine.” Roddy handed to the officer “four off-white solids resembling rock cocaine” and the officer, in turn, handed to Roddy four $5 bills which he had previously photocopied. As Saragueta walked away from Roddy, he indicated to his partners that a transaction had occurred and Roddy was taken into custody.
One of the arresting officers told Saragueta that he had recovered from Roddy four $5 bills. Other officers found on Roddy six small off-white solids resembling rock cocaine and an additional $30. It was later determined that the rock cocaine sold by Roddy to Saragueta weighed 0.42 net grams.
In his defense, Roddy testified that at approximately 9:30 p.m. on November 7, 2007, he was in the area near the intersection of 6th Street and Stanford. He had $30 in his possession and intended to purchase cocaine. He did not intend to sell any drugs.
Roddy was walking toward 5th Street when he was approached by Saragueta. Saragueta said to Roddy, “ ‘I want to buy a 20’ ” and Roddy responded, “ ‘You want a 20, uh? ’.... [¶] ‘Give me the money.’ ” Saragueta gave to Roddy $20, which Roddy put in his pocket. Roddy then “turned [his] back” on the officer and said, “ ‘You’re burned.’ ” When Saragueta said to Roddy, “ ‘What about my rocks?’ ” Roddy responded, “ ‘Do you understand what burn means?’ ”
After Saragueta said something that Roddy did not understand, “other cops showed up.” A search of Roddy revealed rock cocaine and $50 in cash. Officers broke Roddy’s pipe during his arrest. An officer approached Roddy from behind and he and Officer Saragueta pushed Roddy against the undercover police car. “They got their weight on [Roddy] and smashed the pipe against the wheel and it broke.”
At trial, when Roddy was asked if he “want[ed] to get in trouble for this case[, ]” he responded, “I don’t understand ‘trouble.’ I didn’t sell anything.... I’m in trouble already. I took the man’s money.”
2. Procedural history.
At a hearing held on November 26, 2007, Roddy indicated that he wished to proceed in propria persona. After Roddy informed the court that he had represented himself in both 1992 and 1998, his counsel stated that “the last time [Roddy] had a case, he represented himself all the way through jury trial and sentencing.” The trial court, nevertheless, informed Roddy of some of the risks of self-representation. The court stated: “You are treated just like a lawyer, and no one is going to give you any special help––or with regard to the Evidence Code or the rules of procedures of court, you are going to be treated just like an attorney. You will be sitting across the table from a very experienced prosecutor who does know all the rules and all of that. So you will be at a disadvantage in that regard. So I wanted to do what I need to do which is to make absolutely sure this isn’t another kind of issue that I should deal with and whether you are just simply frustrated. Because my preference would be that you are represented by an attorney, that is the wise thing to do. But you do have a right to represent yourself.” After indicating that Roddy could be sentenced to “as many as 12 or more years [in] state prison should [he] be convicted of the [alleged] charges, ” the trial court again asked Roddy if he was certain he wished to represent himself. Roddy responded, “I want to do it myself.” “I want to represent myself.” Roddy indicated that he took medication for seizures, but that his state of mind was “completely clear” and he had filled out a “four- page Advisement and Waiver of Right to Counsel Form” and signed it on the appropriate line. In another attempt to convince Roddy to proceed with counsel, the trial court asked him, “Do you understand that representing yourself has very strong disadvantages [including] that you will not have the assistance of a lawyer to help you?” Roddy responded, “I am happy with that. I like that.” Finally, the trial court stated: “Okay. Is there any way I could talk you out of this?” Roddy responded, “No.”
After a discussion involving the timing of his preliminary hearing, the trial court stated: “I had an opportunity to read and consider the Advisement and Waiver of Right to Counsel form that you have provided, initialled, and signed. I have also had an opportunity to speak with you directly about the consequences of representing yourself. I am satisfied from the information that I have here before me that you may represent yourself. I would also tell you that if you make this decision, you are probably not going to be able to go back and get somebody to represent you. You are going to be representing yourself.... [¶]... Do you still want to go forward and represent yourself?” Roddy responded, “Yes.” The trial court stated: “All right. I am going to grant you your pro per status.”
Roddy and the prosecutor discussed some discovery issues and the date of his preliminary hearing. The trial court then stated: “What the courts normally do to begin your pro per status is to grant you some funds. That’s the order that I just signed in terms of providing you with phone cards and legal runners and the other things that you are requesting right now. I am going to keep this request in the court file. And the judge on the 4th[, the date of your preliminary hearing, ] is going to take a look at those and make any additional rulings on those issues.... [¶]... And it sounds to me like you would certainly want to raise this issue again. So be sure to do that with the judge on the 4th....”
Roddy’s preliminary hearing was held on December 14, 2007. During the proceedings, he acted in propria persona. On December 28, 2007, an information was filed charging Roddy in count 1 with the sale, transportation or offer to sell cocaine in violation of Health and Safety Code section 11352, subdivision (a), a felony. Count 2 charged Roddy with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5, a felony. It was further alleged, as to counts 1 and 2, that Roddy had suffered four prior felony convictions for which he served prison terms within the meaning of Penal Code section 667.5 and that he had been convicted of the transportation, sale or giving away of a controlled substance in violation of Health and Safety Code section 11352 within the meaning of Health and Safety Code section 11370.2, subdivision (a). Roddy entered pleas of “not guilty” to counts 1 and 2 and denied the special allegations.
On January 31, 2008, Roddy made a motion to set aside the information pursuant to Penal Code section 995. He urged that the amount of cocaine purportedly seized by the police officer was so small that it could only be characterized as “crumbs, ” not usable “rock[s].” In addition, Roddy asserted that he does not take money from “White people” and Officer Saragueta is White. Finally, Roddy stated that he did not sell drugs. In response, the People asserted that Roddy’s arguments were “essentially factual” and not sufficient to warrant the granting of a section 995 motion. The trial court, after “read[ing] and consider[ing] the preliminary hearing transcript, ” denied Roddy’s motion, indicating that it did not warrant dismissal of the case.
At the same proceedings, the trial court and prosecutor reviewed Roddy’s motion for discovery. When Roddy indicated that he did not have a copy of the transcript of the preliminary hearing, the trial court informed him that the transcript of the municipal court proceedings which he had in his possession was a transcript of the preliminary hearing. In addition, it was noted that Roddy had received the names of the prosecution’s witnesses, copies of any statements made to the police, copies of “the drugs themselves and money, ” copies of “prosecution trial witness statements, ” the names of expert witnesses and their reports and the results of chemical tests performed on the substances allegedly seized from Roddy on November 7, 2007.
At pretrial proceedings held on February 15, 2008, Roddy made a “[m]otion for pro per funding ” and a copy of the transcript of the preliminary hearing. When the trial court again indicated that Roddy had received a preliminary hearing transcript, Roddy responded, “I haven’t gotten any of my transcripts at all.” The following colloquy then occurred: “[Roddy]: No orders, no nothing. Okay. Transcript has been located. I was supposed to get––supposed to get a $40 for––from this court more pro per funding. [¶] The Court: You never got any money? [¶] [Roddy]: No. I believe for $44.60––[¶] The Court: It was faxed. [¶] The clerk: It was faxed, Your Honor. [¶] The Court: But I don’t know if the sheriff’s––¶] The clerk: We did what we had to. [¶] [Roddy]: I have a statement. [¶] The Court: Okay. So you’re saying you did not get any money? [¶] [Roddy]: No.” The trial court indicated that it was going to “do two things. And then [it would] bring [Roddy] back out later.” The court stated: “We’re going to call the sheriff and confirm that you did not get any money. Two, we’re going to call the investigator and confirm [whether] or not that he’s on your case.”
That afternoon, Roddy was brought back to court and the following occurred: “The Court: Roddy matter. He’s present in custody.... I had the bailiff check with the sheriffs. And the Sheriff’s Department has faxed me a document which in my mind constitutes proof that you were given the $40. [¶] [Roddy]: I don’t have the money. [¶] The Court: The bottom line for me at this point is that I do now make a determination that you were not truthful with me. [¶] [Roddy]: I was truthful. I [will] phone right now. I’d like to see the money. [¶] The Court: With respect to the money, so––because at this point that was what I consider a lie to me. [¶] [Roddy]: No. [¶] The Court: I’m pulling your pro per privileges. [¶] [Roddy]: This is [a] form of––now $40––[¶] The Court: Say that––I will do this. [¶] [Roddy]: Pro per. [¶] The Court: Day 49 of 60. And we’ll call the P.D.’s office this afternoon and they will––[¶] [Roddy]: Those funds––don’t mean nothing to you. [¶] The Court: Thank you. [¶] [Roddy]: That’s garbage.” Later that day, the Public Defender Department accepted reappointment as counsel for Roddy.
The document sent by the Los Angeles County Sheriff’s Department indicates that $40 was deposited into an account for Roddy on December 7, 2007. It also showed that he had made four withdrawals: one on December 17 for $8.35, one on December 21 for $4.60, one on January 10, 2008 for $20 and one on January 11 for $5.68.
Approximately three weeks later, on March 4, 2008, counsel for Roddy informed the trial court that he had some doubts regarding Roddy’s mental competence and was unsure whether he should stand trial. Counsel indicated that he was preparing an order for two psychiatrists to examine Roddy and would submit them to the court within the next day or so. The trial court thus suspended proceedings until evaluations could be made.
After reviewing the doctor’s reports, on April 10, 2008 the trial court declared “a substantial doubt about [Roddy’s] mental competency [pursuant] to [Penal Code section] 1368.” The court, accordingly, suspended all further proceedings.
On March 12, 2009, the trial court found Roddy competent to stand trial. Roddy’s counsel then addressed the court and indicated that Roddy wished to represent himself. When the trial court asked Roddy why he wished to go to trial in propria persona, the following occurred: “[Roddy]: It’s the law. Keeping me for 120 days. And so what––I still don’t know what––[¶] The Court: I didn’t understand you. If you could talk a little slower so I can understand you. [¶] [Roddy]: Okay. From the beginning I want[ed] to go pro per. I fired him. You turned your back on me. And a sex trial? This is ridiculous. [¶] The Court: Okay. Here’s what I have to determine. I’m going to give you the forms, but based on a certain case called Indiana v. Edwards I have to determine whether or not, notwithstanding you may technically be competent to stand trial, but, nevertheless, suffer from a––such a mental illness that it would cause you not to be able to conduct yourself by yourself as an attorney in an effective manner. So I have to make that determination.”
Indiana v. Edwards (2008) 554 U.S. 164.
After Roddy apparently filled out an Advisement and Waiver of Right to Counsel form, the trial court indicated that it had “reviewed the files and notes [indicating] that on an earlier occasion [it] did revoke [Roddy’s] pro per status for what [it] felt [were] legitimate reasons.” The court then stated: “So, therefore, the request to go pro per this time is denied.”
On June 10, 2009, Roddy’s counsel made a Pitchess motion. After holding an in-camera hearing, the trial court determined that there was “discoverable material.”
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Trial was by jury. However, Roddy waived his right to a jury trial with regard to the alleged prior convictions and prison terms and, after being properly advised, admitted them.
A jury found Roddy not guilty of the sale of cocaine base in violation of Health and Safety Code section 11352, subdivision (a) as alleged in count 1 and not guilty of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 as alleged in count 2. The jury found Roddy guilty of possession of cocaine base in violation of Health and Safety Code section 11350, subdivision (a), a lesser included offense of that charged in count 2 of the information.
For purposes of sentencing, the trial court struck pursuant to Penal Code section 1385 Roddy’s prior convictions and prison terms. It then sentenced Roddy to a term of three years in state prison for his conviction of possession of cocaine base.
CONTENTIONS
Roddy contends the trial court committed reversible error when it revoked his in propria persona status and later denied his renewed request for self-representation.
DISCUSSION
In Faretta v. California (1975) 422 U.S. 806, 834 (Faretta), the court determined that “[t]he right to defend [against a criminal charge] is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ [Citation.]” Accordingly, “[p]ursuant to the Sixth Amendment of the federal Constitution, a defendant has the right to conduct his or her own defense, providing he or she knowingly and intelligently waives the right to counsel [citation], and ‘is able and willing to abide by the rules of procedure and courtroom protocol.’ (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.)” (People v. Bradford (1997) 15 Cal.4th 1229, 1363-1364.)
The Faretta court noted, however, that a “trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.) “ ‘The right of self-representation is not a license to abuse the dignity of the courtroom.’ ” (People v. Carson (2005) 35 Cal.4th 1, 9, quoting Faretta, at p. 834, fn. 46.) As recognized by the court in People v. Butler (2009) 47 Cal.4th 814, 825, “[t]here are limits on the right to act as one’s own attorney.” The court stated: “It is settled that the Faretta right may be waived by failure to make a timely request to act as one’s own counsel [citation], or by abandonment and acquiescence in [the] representation by counsel [citations]. The court may deny a request for self-representation that is equivocal, made in passing anger or frustration, or intended to delay or disrupt the proceedings. [Citation.] A defendant may be mentally incompetent to waive counsel. [Citation.] And in [Indiana v.] Edwards [(2008) 554 U.S. 164], the high court recently decided that ‘the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.’ [Citation.]” (People v. Butler, supra, at p. 825.)
“The trial court possesses much discretion when it comes to [granting or] terminating a defendant’s right to self-representation and the exercise of that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’ ” (People v. Welch (1999) 20 Cal.4th 701, 735; see People v. Clark (1992) 3 Cal.4th 41, 116 [The trial court’s judgment call regarding a Faretta motion is “entitled to deference”].) The trial court is in the best position to determine whether a defendant should be granted in propria persona status or allowed to continue acting in propria persona (People v. Welch, supra, at p. 735) and we recognize that “the extent of a defendant’s disruptive behavior may not be fully evident from the cold record.” (Ibid.) We note, however, that clearly “ ‘[e]rroneous denial of a Faretta motion is reversible per se.’ ” (People v. Butler, supra, 47 Cal.4th at p. 824, citing McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8.)
In People v. Clark, supra, 3 Cal.4th 41, the defendant had been granted in propria persona status. “Throughout the trial, [he] had frequently and vehemently made clear that he desired to prove that others had committed the crimes. He had been vigorously defending himself, and indeed had clearly been planning to continue his detailed cross-examination of the [witnesses].... Then he apparently became disgruntled with the court’s rulings. In front of the jury, he suddenly stated an intent to stand mute. This statement was clearly not motivated by the sincere desire to withhold a defense; it was instead an attempt to either inject error into the case, or to pressure the court into reconsidering its earlier rulings, or, most likely, both. It was merely one of a series of attempts to manipulate or coerce the trial court.” (Id. at pp. 114-115.) In Clark, the court determined that the trial court was “not required to tolerate this conduct. As Faretta itself made clear, a constitutional right of self-representation ‘is not a license to abuse the dignity of the courtroom.’ (Faretta v. California [(1975)] 422 U.S. 806, 835, fn. 46.) Thus, ‘the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.’ (Id. at p. 834, fn. 46.)” (People v. Clark, supra, at p. 115.)
The defendant in People v. Davis (1987) 189 Cal.App.3d 1177, 1199-1201, disapproved on other grounds in People v. Snow (1987) 44 Cal.3d 216, 225-226, was also found to have deliberately engaged in serious misconduct which warranted termination of his in propria persona status. There, before asking the witness a question, Davis would make a comment such as, “ ‘The district attorney notify the deputies to keep me here so he could get down there first, that’s why they take me to a room and leave me there until 12:30....’ ” (Davis, at p. 1199.) The trial court sustained the prosecutor’s objection, struck the comment and instructed Davis to refrain from making such remarks. However, when he continued to do so, the following occurred: “ ‘[The Prosecutor]: Objection to that statement that it was made by the district attorney. [¶] The Defendant: That is what we are talking about. [¶] The Court: Mr. Davis, again, a warning. [¶] The Defendant: Yes, Your Honor. [¶] The Court: Any further statements of that nature—any further statements whatsoever other than questions will result in your being removed as your own counsel. [¶] The Defendant: Your Honor, these are threats. You make your own decision. [¶] [The Prosecutor]: Objection to [his] speaking to the court—[¶] The Court: All right. Excuse me. [¶] Mr. Davis, you are now represented by your standby counsel.’ ” (Id. at pp. 1199-1200.)
The appellate court determined that the trial court properly revoked, then refused to reinstate, Davis’s in propria persona status. The appellate court agreed with the trial court that Davis had committed misconduct and noted that, although revocation occurred “quite late in the trial” and his standby counsel might not have been “afforded sufficient time to prepare[, ] [i]f there was a problem, it was of the defendant’s own doing. [Citation.]” (People v. Davis, supra, 189 Cal.App.3d at p. 1201.) Finally, when Davis asserted that his conduct on that day was no more egregious than it had been on previous days, the appellate court indicated that it was “not persuaded.” The court stated that “[a] trial court is not stopped from revoking pro. per. status merely because it has formerly displayed the skin of a rhinoceros and the patience of Job. It is vested with vast discretion in determining when and where to draw the line. The exercise of that discretion will not be disturbed in the absence of a strong showing of clear abuse.” (Ibid.)
Inappropriate conduct outside of the courtroom, but which has bearing on the trial, may also warrant denial or termination of a defendant’s in propria persona status. In People v. Carson, supra, 35 Cal.4th at page 9, the court noted that “[o]ne form of serious and obstructionist misconduct is witness intimidation, which by its very nature compromises the factfinding process and constitutes a quintessential ‘subversion of the core concept of a trial.’ [Citation.] ‘A defendant acting as his own attorney has no greater privileges than any member of the bar. He may not disrupt proceedings or intimidate witnesses. [Citations.]... The trial court can stop harassment and abuse of a witness by a threatening defendant and can terminate self-representation by a defendant who engages in serious misconduct. [Citations.]’ [Citation.] Threatening or intimidating acts are not limited to the courtroom. [Citation.] When a defendant exploits or manipulates his in propria persona status to engage in such acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation.”
In the present case, the trial court properly terminated, then refused to reinstate, Roddy’s in propria persona status. Roddy blatantly lied to the trial court regarding whether he had received his allocated funds. The record clearly shows that, not only did he receive the funds, he made four withdrawals. Under these circumstances, the trial court could reasonably conclude that Roddy “ ‘deliberately engage[d] in serious and obstructionist misconduct.’ ([People v.] Faretta [(1975)] 422 U.S. [806, ] 834-835, fn. 46.)” (People v. Welch, supra, 20 Cal.4th at p. 734.) His dishonesty abused the dignity of the courtroom and, just as it would not be tolerated from a member of the bar, it need not be tolerated from a lay person acting in propria persona. (People v. Carson, supra, 35 Cal.4th at p. 9 [“ ‘A defendant acting as his own attorney has no greater privileges than any member of the bar’ ”].)
Moreover, Roddy’s dishonesty, which could be viewed as an attempt to manipulate the trial court into awarding him additional funds, could be interpreted as a “reasonable basis for believing that his self-representation [would] create disruption” or lead to misconduct during trial. (People v. Welch, supra, 20 Cal.4th at p. 734.) Given Roddy’s refusal to back down when confronted with the evidence showing that he lied, the trial court could reasonably conclude that he would be less than candid with regard to his preparations for trial (ibid.; see also People v. Carson, supra, 35 Cal.4th at p. 9) and would attempt to improperly manipulate the evidence. (See People v. Davis, supra, 189 Cal.App.3d at pp. 1199-1201 [Davis’s remarks made prior to the asking of each question in an attempt to manipulate the jury’s understanding of the evidence amounted to misconduct warranting termination of his in propria persona status].)
In view of Roddy’s conduct, remarks and attitude, it cannot be said that the trial court abused its discretion in terminating, then refusing to reinstate, his in propria persona status. (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46; People v. Welch, supra, 20 Cal.4th at p. 735; see People v. Clark, supra, 3 Cal.4th at p. 116.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.