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People v. Ruiz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 12, 2012
B230288 (Cal. Ct. App. Jan. 12, 2012)

Opinion

B230288

01-12-2012

THE PEOPLE, Plaintiff and Respondent, v. DANIEL A. RUIZ, Defendant and Appellant.

Carla Castillo, 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, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA091286)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed.

Carla Castillo, 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, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Daniel A. Ruiz was convicted by a jury of second degree robbery (Pen. Code, § 211) and of carjacking (§ 215(a)); he admitted three prior serious or violent felony convictions within the meaning of the Three Strikes Law and one serious felony conviction for the purposes of section 667(a)(1). Appellant was sentenced to 25 years to life on the robbery count, with an additional 5 years pursuant to section 667(a)(1). He received the same sentence on the carjacking count, but this sentence was stayed under section 654. Various fines were imposed but stayed and appellant was ordered to pay $400 in victim restitution. He was given 228 days in presentence custody credit.

All statutory references are to the Penal Code.

"In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (§ 667(a)(1).)

The sole issue that appellant raises in this appeal is that he was denied the right to represent himself, a right that was recognized in Faretta v. California (1975) 422 U.S. 806 (hereafter Faretta). Because the timing of appellant's Faretta motion is critical to our disposition of this appeal, we first set forth the relevant procedural history of this case. We then summarize the facts.

PROCEDURAL HISTORY

The preliminary hearing was held on September 28, 2010, with appellant represented by Deputy Public Defender Estela Torres. The information was filed on October 12, 2010. On November 18, 2010, appellant rejected the prosecution's offer of 23 years in state prison. This led to an exchange between appellant and the trial court that was to prove significant, as we discuss in part 2 of the Discussion section. The same day, the case was continued to January 6, 2011 for a readiness hearing and to January 10, 2011 for trial. Both sides announced they were ready for trial on January 6, 2011; appellant was now represented by Deputy Public Defender Ronald Whitenhill, who tried the case.

Appellant made his Faretta motion during the hearing held on January 6, 2011. The court denied the motion the same day. We will set forth the details of the exchange between the trial court and appellant as we discuss appellant's contention.

The case went to the jury on January 12, 2011. The verdict was returned the next day.

FACTS

Because of the nature of appellant's contention, we restrict our summary to the salient facts.

The victim of the robbery and carjacking was Huda Saman, who worked as a cook at the Mirage restaurant in Pomona, which was the scene of the crimes. Saman was working in the kitchen around 9:40 a.m. on July 1, 2010, when she heard someone knocking on the back door. When she looked to see who it was, she saw appellant and another man dressed in police uniforms. Appellant told Saman to open the door and that he was looking for Naji. (Naji was apparently the restaurant owner's nickname.) When Saman said that Naji wasn't there, appellant told her to open the door "or you're in trouble. I am a policeman."

Saman identified appellant in court and she picked him out of a photo lineup the day the crimes were committed.

Saman called the owner who instructed her to open the door, which she did. Appellant and his companion entered and walked with Saman into the restaurant. Appellant's companion now began to ransack the cash register, from which he removed approximately $400 and various papers and checks. There was a laptop behind the cash register, which this man appropriated.

Appellant asked for Saman's I.D. When she told him it was in her purse in her car, appellant told her to give him the car keys. Saman, realizing that she was in trouble, and thinking of television showing "people go into other places and kill the people," complied. Appellant told his partner that they had to leave immediately.

The two men left the restaurant and got in Saman's car which was in the front parking lot. Appellant made an obscene gesture toward Saman and the two men drove off in Saman's car. Inside the vehicle were Saman's I.D., driver's license, Wells Fargo and Bank of America credits cards.

Appellant was arrested three days later in the course of a traffic stop. Appellant was accompanied by Christine Mesdjian, a former waitress from the Mirage restaurant, and another male. During the course of the stop, appellant discarded a spoon containing heroin and oxycontin, which brought about his arrest. The arresting deputy sheriff found a number of items in Mesdjian's purse that belonged to other people, including Saman's Wells Fargo credit card.

The defense, which was skillfully presented, was that appellant went to the Mirage restaurant on the date and time in question, accompanied by Mesdjian, whom he identified as his girlfriend, and an unidentified male friend of Mesdjian's, who worked as a security guard. The details of the defense case need not detain us. In essence, appellant's testimony attempted to shift all the malfeasance onto the unidentified male security guard and to portray appellant as an innocent and increasingly uneasy bystander as the other man began to rifle through the cash register. Appellant acknowledged that he drove off with this man in Saman's car to find Mesdjian, who was waiting elsewhere because she allegedly did not want to go into the restaurant with the two men.

According to appellant, Mesdjian stayed outside the restaurant because she had had some trouble with the owner.

DISCUSSION

1. Appellant's Faretta Motion

When the case was called on January 6, 2011, the hearing commenced with both lawyers answering ready for trial. Defense counsel then stated that appellant wished to represent himself. Without waiting for the trial judge, appellant immediately chimed in: "Yes, Your Honor. I'm not ready at all. I've got a lot of stuff I still got to do and I'd rather face defending myself and I want to -- my right to do that, sir."

There now ensued a short exchange between the trial judge and appellant during which the trial judge endeavored to impress on appellant that he should not expect to get a continuance of the trial the following Monday, which was January 10, 2011, the trial date. Even though at one point appellant said that he would be "just as ready as the public defender," this did not turn out to be the case. Appellant quickly reverted to his original position, which was that he wasn't ready. He said: "I need to start zero of 60 again so I can be ready. [¶] THE COURT: What? [¶] THE DEFENDANT: I was starting zero of 60 again to represent myself. [¶] THE COURT: No, you don't start 60 again. Monday is your trial date. [¶] THE DEFENDANT: Okay. [¶] THE COURT: You're either ready. If you're not ready, you tell me now. [¶] THE DEFENDANT: I personally am not ready, sir. [¶] THE COURT: You're not ready."

The trial court then denied the motion without explicitly stating the reason for the ruling. 2. There is Evidence in the Record that Shows that the Trial Court Did Not Abuse Its Discretion in Denying the Faretta Motion

"[W]hen 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." (People v. Windham (1977) 19 Cal.3d 121, 128.)

The Faretta motion in this case was not timely. This is not only a matter of common sense: precedents come to the same conclusion. A Faretta motion made four days prior to trial is not timely. (People v. Scott (2001) 91 Cal.App.4th 1197, 1204-1205.) Neither is a motion made six days prior to trial. (People v. Ruiz (1983) 142 Cal.App.3d 780, 790-792.) While we agree that there is no "Pythagorean 'secret magic of numbers' " (id. at p. 790) when it comes to determining whether a Faretta motion was timely, we are confident that few, if any, can be found who would find the instant motion timely, when trial was set on November 18, 2010 for January 10, 2011. Thus, while "it is clear that only a timely and unequivocal motion for self-representation must be granted" (ibid.), this was not such a motion, which means that the matter is consigned to the discretion of the trial court. (See generally 5 Witkin & Epstein, Cal. Criminal Law (3d. 2000), Criminal Trial, § 252, pp. 387-388, citing and discussing inter alia People v. Windham, supra, 19 Cal.3d 121.)

When it comes to evidence that supports the trial court's ruling, neither appellant nor the trial court were writing on a clean slate when appellant made his Faretta motion.

During the hearing on November 18, 2010, the court strove to persuade appellant to accept the prosecution's offer of a 23-year prison term since he was facing a 30-years-to-life sentence. Defense counsel also spoke up, stating that he had told appellant that if he did not take the offer, he would die in prison, which was likely since appellant was at this time 40 years old. Nonetheless, appellant seems to have taken umbrage at this remark. Defense counsel stated that appellant "thinks that I don't want to represent him, that I don't have confidence, that I'm going against him." The trial court added a strong endorsement of defense counsel as one of the "best attorneys around here who's been around here forever." Appellant then said: "I lost my confidence in him. That's what I was trying to say. I can't confide in my attorney anymore because of that. That's what I was trying to say."

Appellant did nothing until January 6, 2011, when he made his Faretta motion. As it is, the record of appellant's view of his defense counsel, which is clear enough as of November 18, 2010, was made even clearer on January 10, 2011 when, during yet another attempt to persuade him to accept the 23-year offer, appellant stated that he had decided on November 18, 2010 that he wanted different defense counsel.

In short, the game that appellant was trying to play on January 6, 2011 was obvious, and the trial court read it correctly. Appellant was trying to postpone the trial and had deliberately waited until January 6, 2011 to make the Faretta motion and, based on the granting of his motion, also obtain a continuance of the trial. In other words, the trial court was not really faced with a bona fide Faretta motion but with a transparent attempt to postpone the trial. As common experience instructs us, the next move on appellant's part would probably have been to withdraw his Faretta request once the continuance had run its course and ask for the appointment of counsel.

When the trial court exercises its discretion in denying an untimely Faretta motion, the preferred practice is for the court to state its reasons; however, there is no rule requiring the trial court to do so. (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6.) "[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." (People v. Bradford (2010) 187 Cal.App.4th 1345, 1354.) We think it is clear from the record that the trial court understood what appellant was trying to accomplish. Certainly, appellant's earlier claimed dissatisfaction with defense counsel Whitenhill as of November 18, 2010 speaks volumes.

Citing U.S. v. Farias (9th Cir. 2010) 618 F.3d 1049, appellant contends that, as in that case, the trial court in this case failed to ascertain the reasons why appellant wanted to represent himself. As respondent correctly points out, we are not bound by the decisions of lower federal courts. (People v. Bradley (1969) 1 Cal.3d 80, 86.) In any event, in this case, unlike Farias, the record demonstrates that appellant deliberately delayed the Faretta motion until the last minute. If, as appellant states in his opening brief, appellant was dissatisfied with Whitenhill "prior to January 6," he should have acted prior to January 6, 2011.

Respondent contends that Farias holds that the trial court must evaluate a Faretta motion "on the underlying facts" without regard to when the motion is made. We do not agree since Farias stressed the importance of timeliness. (Farias, supra, at pp. 1052-1053.)
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Appellant contends that the trial court should have examined a number of "factors," such as the quality of counsel's representation and appellant's proclivity, or lack thereof, of changing lawyers. This is simply another way of contending that the trial court should have put its reasons on the record. As we have already noted, the trial court was not required to do so. (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6.)

Finally, appellant contends that the trial court expressed no concern that appellant was attempting to delay or disrupt the trial. We do not agree with this. The trial court's energetic insistence on sticking with the trial date of January 10, 2011 clearly signaled that the trial court understood perfectly that appellant was seeking to delay the trial and, quite possibly, was planning to later abandon his Faretta request, which certainly would have disrupted the proceedings.

For the first time in his reply brief, appellant claims that he requested another attorney on November 18, 2010. This is incorrect. Appellant voiced his dissatisfaction with attorney Whitenhill on November 18, 2010, but he did not ask for another lawyer.

The claim, also advanced in the reply brief, that appellant made his Faretta motion "as soon as practicable" simply does not square with the realities of this case. He easily could have made the request on November 18, 2010 in court and, of course, he had almost two months after that to submit a written request.

In sum, what we have in this case is almost a paradigm of an untimely Faretta motion that was brought only to delay and disrupt the trial. We see no abuse of discretion in the trial court's ruling.

DISPOSITION

The judgment is affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.


Summaries of

People v. Ruiz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 12, 2012
B230288 (Cal. Ct. App. Jan. 12, 2012)
Case details for

People v. Ruiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL A. RUIZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 12, 2012

Citations

B230288 (Cal. Ct. App. Jan. 12, 2012)