Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F05905552-6, W. Kent Hamlin, Judge.
Roger T. Nuttall, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Mark Natalio Semper appeals his convictions for assault, spousal abuse, and felony DUI. He contends that he was denied his Sixth Amendment rights under the United States Constitution to discharge his counsel and substitute new counsel, and denied his right to represent himself. He also contends that there was ineffective assistance of counsel. For the following reasons, we affirm the judgment.
STATEMENT OF THE CASE
On April 13, 2006, the Fresno County District Attorney filed a first amended information charging Semper with nine counts relating to two separate incidents.
The first three counts related to a July 20, 2005 incident where Semper allegedly injured and threatened his girlfriend. Semper was charged in count I with corporal injury of a spouse (Pen. Code, § 273.5, subd. (a)), in count II with assault by means likely to produce great bodily harm (§ 245, subd. (a)(1)), and in count III with criminal threats (§ 422).
Unless otherwise noted, all further statutory references are to the Penal Code.
The remaining counts related to an incident of road rage on January 21, 2006. Semper was charged in count IV with assault with a deadly weapon (§ 245, subd. (a)(1)), in count V with driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), in count VI with driving with a .08 percent blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)), in count VII with vandalism (§ 594, subd. (a)), in count VIII with leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and in count IX with child abuse (§ 273, subd. (a)). It was further alleged as to counts IV-IX that, in the commission of those offenses, Semper was released from custody or bail or own recognizance within the meaning of section 12022.1.
On April 13, 2006, Semper pled not guilty to all counts. On April 21, 2006, the court granted Semper’s motion to reduce count IX from a felony to a misdemeanor pursuant to section 17, subdivision (b).
Jury trial began on April 24, 2006. On May 1, 2006, Semper made a motion for a mistrial due to inadequate representation by his trial counsel, John Smurr. Appellant also made requests for a continuance to allow him to obtain new and different counsel and for Mr. Smurr to be relieved as counsel due to incompetence. In response to the motion, Mr. Smurr also requested to be relieved as Semper’s counsel of record and for Semper to continue in pro. per. The court denied each motion and request.
On May 4, 2006, the jury found Semper guilty of all counts, and found the allegations as to counts IV-VII to be true.
On May 17, 2006, Roger Nuttall was substituted in for Mr. Smurr as Semper’s counsel.
On September 22, 2006, the trial court sentenced Semper to a total of six years, eight months in state prison, but stayed the sentence for five years and granted probation for those five years. Semper was ordered to attend numerous counseling programs and/or sessions, provide DNA samples, pay a court security fee of $20, pay a DUI fine of $1,800, and had his driving privileges suspended.
On November 2, 2006, Semper timely filed a notice of appeal.
FACTS
July 20, 2005 Incident (Counts I-III)
Semper lived together with his girlfriend Linda and their two-year old daughter in Fresno County. On July 20, 2005, Semper and Linda got into an argument which ended with their wedding being called off and Semper forcibly taking the engagement ring off Linda’s finger. The argument also caused Linda to go to the house of their neighbors, Dennis and Susan.
At approximately 9:00 p.m., Linda rang the neighbors’ doorbell rapidly. She was holding her left arm and said, “Call 9-1-1, he’s trying to kill me.” Dennis asked who was trying to kill her; Linda responded, “Mark.” Linda was crying and hysterical and kept exclaiming, “He’s gonna take my baby.” Susan called the police and related what Linda had told her to the dispatcher. Linda also told her neighbors that Semper had pushed her down, got on top of her, smothered her with his hands over her mouth, choked her, and threatened to break her neck. She said that Semper told her, “I could kill you right now if I wanted to.”
Fresno Police Officer Michael Toews responded to the call. Initially he observed Linda screaming and crying. He observed that Linda had a small scratch to her chin and that a napkin with blood on it was covering an injury to her left hand. Linda told Officer Toews that Semper had used force to push open the bedroom door (which Linda had locked), grabbed her, and threw her on the floor. Semper then straddled over the top of her and put her in a headlock. He had put his hand over her nose and mouth to restrict her breathing. He had used force to remove the engagement ring from her left hand and told her that “he could break all her fucking fingers.” After removing the ring, Semper had rolled Linda onto her stomach and wrapped her into a headlock or choke hold position. Semper then told her that “he could kill her and break every bone in her body and that he probably should.” Linda told Officer Toews that she was afraid that Semper was going to kill her.
Officer Toews also interviewed Semper. Semper told Officer Toews that he had used force to remove Linda’s ring.
Linda testified that the incident was filled with emotion and hysteria, and so she and Semper both said things that they did not mean. She claimed that she was saying anything to get Semper into trouble because she was so mad at the time. Linda stated that some of the things that she said that night were true, some false, and some were twisted. She testified that she didn’t recall all the specifics of what she said to Officer Toews. She denied that many of the things that she told Officer Toews about actually happened.
Defense
Semper testified that there was an argument, and that he walked into his bedroom after the argument. He admitted that he used physical force to remove Linda’s engagement ring, but denied the other allegations.
January 20, 2006 Incident (Counts IV-IX)
Amy Ben brook testified that she and her husband, Kelly, were involved in an incident on the night of January 20, 2006. They had dinner with friends, and then, between 10:30 and 11:00 p.m., Amy left in her car to drive home, and Kelly left in his truck a couple of minutes later. While Amy was stopped at a stop sign near her home, Semper’s Chevy truck drove erratically around a corner and almost hit the front of Amy’s car. Amy was unable to identify the license plate number on the truck, so she began to follow Semper in her car. As she was following Semper, she called her husband Kelly on his cell phone to warn him that there was an erratic driver in the neighborhood.
Amy and Kelly were able to rendezvous and they eventually located Semper’s truck, which was parked in a cul-de-sac. Kelly then pulled up next to the truck. He rolled down his window and told appellant, “You need to slow down. You almost hit my pregnant wife.” Kelly admitted that he probably threw in a curse word or two. Semper got out of his truck, leaned into Kelly’s car, and said, “What the ‘F’ did you say?” Kelly decided to drive away to avoid further trouble. Amy followed Kelly in her car. Semper then got back in his truck and chased Kelly and Amy.
The vehicles drove around the neighborhood for three or four minutes. Amy tried to call Kelly and the police on her cell phone, but she couldn’t get through. Amy pulled over close to the sidewalk and got a pen and paper ready. Semper sped up, almost hit Amy’s car door, and continued past Amy towards Kelly. Amy wrote down Semper’s license plate number when his truck went by.
Semper hit the rear end of Kelly’s truck with the front end of his truck and pushed Kelly’s truck into the curb and into a yard. Kelly got out of his truck and hid behind a nearby tree. Semper turned his truck around, then smashed his truck into the side of Kelly’s truck three more times. Before the third time, Semper looked at Kelly and said, “You some kinda pussy?” Semper then pushed Kelly’s car up towards a tree and then Semper drove away.
Amy was able to call 9-1-1 and provide the license number to police dispatch. The police dispatch informed her that they had the address and officers were being sent to arrest Semper.
Linda testified that on the night of January 20, 2006, she and Semper went to the Savemart Center, where each of them had one or two beers. Then they went to the Dirty Olive, where they each had two more drinks. Linda claimed that she fell asleep on the way home, during which time Semper picked up their daughter at his father’s house. She did not wake back up until their vehicle was pulled over at their home. She claimed that when the vehicle stopped, she got her daughter out of the car seat in the back seat.
Fresno Police Officer Jeffrey Logue testified that when he and Officer Jon MonPere pulled over Semper’s vehicle, Linda leaned out of the truck and vomited. She was holding her unrestrained two-year old daughter in her lap. She told the officers that she didn’t know what had happened that night because she was too intoxicated. Semper told Fresno Police Officer Mark Bradford that he had drank one beer at about 8:15 p.m., although Semper had glassy eyes and a moderate odor of alcohol. Semper failed multiple field sobriety tests and registered a .088 on a preliminary alcohol screening test.
Defense
Semper testified that on the night of January 20, 2006, he went to a restaurant and drank three beers. From about 9:00 to 10:00 p.m., Semper drank two beers at the Savemart Center. Semper and Linda then each drank a cosmopolitan and a shot of liquor at a bar.
After he left the bar, Semper picked up his daughter at his father’s house. As he left his father’s house, he noticed two vehicles following him with their high beams on. He was afraid that something bad was going to happen. One of the vehicles, a pickup truck, got in front of him and started to brake-check as the other car came up behind him. Semper’s truck bumped the pickup truck in front of him. After 30 or 40 yards, the pickup truck drove up the curb and into a yard. The man inside the pickup truck got out and started coming towards Semper’s truck. Semper then used his truck to push Kelly’s truck over to a tree so that Kelly would not be able to open the door of his truck. After that, Semper told the man “F you” and left.
On cross-examination, Semper admitted that he lied to the police officers when they later questioned him. He had denied to the police officers that he had been involved in a collision and that he was aware of any damage to his vehicle.
DISCUSSION
I.
Sixth Amendment Claims
Semper contends that he was denied his Sixth Amendment rights under the United States Constitution when the trial court denied his request to discharge Mr. Smurr and substitute new counsel and his request to represent himself. We disagree.
As discussed earlier, Semper made a request to discharge his trial counsel, Mr. Smurr, and asked for a continuance to allow him to retain new counsel. The requests primarily stemmed from Semper’s belief that Mr. Smurr was losing his memory and from Semper’s disagreements with Mr. Smurr’s trial strategy. Mr. Smurr rejected Semper’s assertions and requested to be removed as trial counsel. Mr. Smurr also suggested that Semper represent himself. However, the trial court confirmed that Mr. Smurr would adequately and zealously represent Semper if the court required him to continue the representation.
The trial court thought that there were only two viable options: (1) declare a mistrial and reset the matter for Semper to hire new counsel to represent himself, or (2) order Mr. Smurr to proceed as counsel, and if he refused, then order a mistrial and hold Mr. Smurr in contempt. The trial court identified a third option, which was to grant the continuance, but did not think this third option was viable, probably because of the enormous burden on the jury and witnesses during the continuance. The trial court chose the second option. The trial court chose this option based upon it’s findings that Mr. Smurr had effectively represented Semper to that point and that Mr. Smurr had not lost his memory because he could recite what had happened in the previous days.
A. Discharge of Retained Counsel
A criminal defendant may discharge retained counsel, with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) However, his right to discharge retained counsel is not absolute. (Ibid.) The trial court retains discretion to deny such a motion if the discharge would (1) cause significant prejudice to the defendant, or (2) was untimely and would result in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. (People v. Lara (2001) 86 Cal.App.4th 139, 153.)
The People contend that the request to discharge counsel was untimely in this case. We agree. The trial court properly exercised its discretion to deny Semper’s motion to discharge his retained counsel and grant a continuance because the evidence before the trial court indicated that the motion was untimely and would result in a disruption of the orderly processes of justice that would be unreasonable under the circumstances. First, there would be substantial disruption of the trial because Semper filed his motions eight days after jury trial began, and after 14 witnesses had already testified and the prosecution had already rested. Substantial evidence supports the trial court’s finding that to grant the motion would cause a substantial and significant disruption of the court proceedings.
Second, the trial court also found that Mr. Smurr was effectively representing Semper. More importantly, the trial court also found that Mr. Smurr could concisely recite the testimony regarding the underlying incidents to the court, which indicated that he retained the ability to recall the events of the trial. Thus, Semper’s assertions against Mr. Smurr, which may be supported by subsequent post-trial events, were not supported by the evidence before the trial court.
On appeal, Semper alludes to Mr. Smurr’s alleged “recent diagnosis with Alzheimer’s disease.”
It is possible that, if the trial court had been aware of the information that was revealed post-trial, the trial court may have granted Semper’s motions to discharge retained counsel and continue the trial. Because that post-trial evidence is not in the record on appeal, we cannot address that argument in this direct appeal. Semper should raise it by means of writ filed in the superior court.
Thus, we conclude that the trial court did not err in denying Semper’s motion to discharge retained counsel, denying a continuance, or denying a mistrial.
B. Self-Representation
The Sixth Amendment of the United States Constitution guarantees every defendant the right to represent himself. (Faretta v. California (1975) 422 U.S. 806, 835.) However, the right to self-representation is not self-executing. (Id. at p. 834.) In order to invoke the right to self-representation, a defendant must “knowingly and voluntarily” make a timely and unequivocal request for self-representation after having been warned of its dangers. (Id. at pp. 835-836.) In order to invoke an unconditional right of self-representation, the defendant must assert the right “within a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128.) Faretta motions made after the commencement of trial are addressed to the trial court’s sound discretion. (People v. Windham, supra, 19 Cal.3d at p. 128.) The California Supreme Court has stated that the factors to consult in determining whether a motion is timely are 1) the quality of counsel’s representation of the defendant, 2) the defendant’s prior proclivity to substitute counsel, 3) the reasons for the request, 4) the length and stage of the proceedings, and 5) the disruption or delay that might reasonably be expected to follow the granting of such a motion. (Ibid.)
Here, factors 4 and 5 support the trial court’s conclusion that the motion is untimely. Moreover, factors 1 and 3, which are based upon the trial court’s findings on the effectiveness of trial counsel, also support a finding that the motion is untimely. Thus, the trial court could conclude that the motion for self-representation is untimely and deny the motion.
More importantly, it is unclear whether there was any unequivocal request for self-representation. The only statement that could feasibly be construed as a request by Semper to represent himself was a statement made by Mr. Smurr in the middle of the hearing: “I have a suggestion. Maybe he should go pro. per. It seems to me he thinks he’s smarter than his attorney; so therefore I’m sure he’s competent to represent himself.” The trial court quickly dismissed that as an option, and it was never mentioned again by any party.
Thus, we conclude that the trial court did not err in denying any request for self-representation.
II.
Ineffective Assistance of Counsel
Semper also contends that he was provided ineffective assistance of counsel in two instances. In order to prevail on a claim for ineffective assistance of counsel, Semper must make two showings. First, he must show that counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2006) 37 Cal.4th 168, 206-207.) Second, Semper must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) We examine each of Semper’s claims under this standard.
A. Failure to Sever Counts
Semper claims that he was provided ineffective assistance of counsel when his trial counsel failed to move to sever the counts relating to the two different incidents. We disagree.
Section 954 permits related offenses to be charged in a single accusatory pleading if they are offenses of the same class of crime. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) A party seeking severance has the burden to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (Ibid.) Refusal to grant a severance motion may be an abuse of discretion where: (1) “‘“evidence of the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendants; and (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]”’” (Ibid.)
Here, it is conceded that the evidence in the two incidents is not cross-admissible in separate trials and that the case is not a capital case. However, the parties disagree about the other two Ramirez factors. We conclude that the counts against Semper are not unusually likely to inflame the jury. While spousal abuse and felony assault with a vehicle are serious crimes, we do not believe that these crimes in the particular instances of this case would inflame the jury to such a degree that the jury verdict would be substantially impacted. For example, the record does not indicate that Semper was unusually malicious or cruel.
With respect to the spillover effect of aggregate evidence, we note that the trial court instructed the jury on CALCRIM No. 3515, which states that each of the counts charged in the case were separate crimes and must be considered separately. Moreover, even if there was a spillover effect of aggregate evidence, we do not conclude that the spillover effect might well have altered the outcome of some or all the charges. There was sufficient evidence presented on each of the incidents that, even if Semper was tried separately on each of the incidents, a jury could have convicted Semper on each and every count. The counts relating to the January 20, 2006 incident was supported by the testimony of the neighbors and police officer and by the undisputed evidence that Semper forcibly removed the engagement ring from Linda’s left ring finger. The counts relating to the July 20, 2006 incident was supported by testimony from the Benbrooks and police officers and by the damaged condition of the vehicles involved.
Thus, we conclude that the trial court would not have erred in denying a severance motion and likely would have denied a severance motion. Therefore, Semper cannot show that he was prejudiced by the failure of his trial counsel to move to sever the counts.
B. Failure to Lay Proper Foundation for Expert Witness
Semper also contends that his trial counsel provided ineffective assistance of counsel by failing to lay a proper foundation for the admissibility of an expert’s testimony, which was subsequently not admitted. We disagree.
Semper had testified that the collisions between his truck and Kelly’s truck occurred when he bumped the pickup truck in front of him as it brake-checked. He also testified that he rammed Kelly’s truck so that the door would be blocked by a tree so that Mr. Benbrook would not have access to it. Trial counsel hired an expert who reconstructs accidents to support Semper’s testimony. However, the trial court did not allow the evidence to be admitted because the trial court concluded that no foundation had been established that an expert could testify based upon viewing photographs of the damaged vehicles, an examination of the accident scene six months later, and measurements of a Toyota pickup that looked similar to the pickup involved in the accident. We agree with the trial court regarding the weaknesses inherent in the expert’s testimony, and that such testimony likely would not have been admissible based upon lack of foundation. Moreover, even if admitted, such testimony was not reliable or credible because of those same foundational weaknesses. Thus, Semper cannot show prejudice resulting from the failure to lay a proper foundation at trial because he cannot show a reasonable probability that the jury verdict would have been different if the expert’s testimony was admitted.
Our conclusion that the expert’s testimony would not constitute strong evidence in support of Semper’s case raises the issue that trial counsel should have prepared the expert to present a stronger opinion. This issue however goes to the trial tactics and strategy of trial counsel. Because the record does not illuminate the basis for trial counsel’s preparation of the expert, this issue is more appropriately made in a petition for habeas corpus filed in the superior court. (People v. Jones (2003) 30 Cal.4th 1084, 1105; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, J., Dawson, J.
We have considered the issues this diagnosis potentially raised. We have concluded that absent evidence before the trial court regarding the presence of this disease during this trial and the impact on trial counsel during this trial that this is an issue appropriately raised by writ of habeas corpus. We decline on appeal to include this contention within our consideration of the issues raised by the trial record.