Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. 210879, CC511614
Mihara, Acting P.J.
Defendant was convicted by jury trial of two counts of lewd conduct (Pen. Code, § 288, subd. (a)) on separate victims, and it was found true that he committed acts on more than one victim (Pen. Code, § 667.61). He was also convicted in a separate jury trial of possessing a sharp instrument in jail (Pen. Code, 4502, subd. (a)), and he admitted that he had suffered six prior “strike” convictions. Defendant was committed to state prison to serve consecutive life terms for the two lewd conduct counts which were to be served consecutive to a life term for the possession count.
On appeal, defendant contends that the trial court erred in the lewd conduct trial in (1) admitting evidence of his prior uncharged acts against his daughter, (2) giving an underinclusive limiting instruction regarding prior acts, (3) instructing the jury regarding an Internet posting attributed to defendant, and (4) imposing consecutive terms for the two lewd conduct counts. He claims that the possession conviction must be reversed because the trial court’s admonitions to him, when he waived his right to counsel and elected to represent himself at trial, were inadequate, and the trial court erroneously refused to admit hearsay evidence. We find no prejudicial errors and affirm the judgment.
I. Facts
In 1999, eight-year-old A. was living with her mother in Gilroy in a trailer on a three-acre property that A.’s family owned. Defendant also lived in a trailer on this property. A. regularly visited defendant in his trailer, because defendant had air conditioning, a television, and Internet access. A.’s mother’s trailer did not have air conditioning or Internet access, and, on hot days, defendant’s trailer was “the cool spot to be.”
In 1999, defendant began sexually abusing A. Defendant touched A.’s chest with his hand under her clothing. He also gave her a “French kiss.” At defendant’s request, A. put his penis in her mouth and gave him “a blow job.” This happened more than 10 times. After she orally copulated him, defendant would masturbate and ejaculate. At least once a week, defendant touched A.’s vagina with his finger or his penis. This happened more than 10 times. Defendant tried to put his penis in her vagina, but it hurt. A. told him to stop, and he did. Defendant played a “game” with A. that he called “Doctor.” During this “game,” defendant used a vibrator on A.’s vagina.
A. knew that defendant had a daughter, R. When defendant wanted A. to do something sexual with him, he would tell A. that he and his daughter “used to do all of this kind of stuff all the time.” A. thought that he said this to “make me feel guilty.” It “didn’t occur” to A. to tell her parents about defendant’s actions.
A.’s 10-year-old friend F. came with A. to defendant’s trailer several times in 2000. On one occasion, A. saw defendant “chewing on” F.’s ear. Defendant put his tongue inside F.’s ear. Three times defendant rubbed F.’s vagina over her clothes while A. was sleeping. Defendant told F. “that if I told anybody that [he] would make sure I didn’t see A[.] again or I couldn’t spend the night over there.” On one occasion, F. saw defendant rubbing A.’s breasts. F. and A. never talked about defendant’s actions while A. was living in Gilroy.
Defendant moved to Oregon in April or May 2000, and A. and her mother moved to Oregon in June 2000. A. and her mother moved to the same town where defendant was living in Oregon. Defendant was living in his trailer on property owned by his friend S.U. A. and her mother lived about 10 miles away. A. and her mother would go to S.U.’s place to “socialize” with S.U. and her children. Defendant continued his sexual abuse of A. in his trailer in Oregon. When A. and her friend M. went to defendant’s trailer for dinner, defendant sexually abused both of them.
M. told her mom about the sexual abuse, and M.’s mom told the police. A. initially told the Oregon police that nothing had happened, because she “felt like they were being nosey” and “didn’t trust them.” However, A. subsequently told her mom about the abuse, and her mom informed the police. A. was “really mad” when she found out that her mom had told the police, as her mom had promised not to do so. After F. learned that A. had reported that defendant had molested A., F. disclosed that he had also molested her.
In October 2005, while defendant was in jail pending trial for his California offenses against A. and F., a search of his single-person jail cell turned up six sharp instruments and other contraband, much of it hidden in slits in the bottom of the seat of his wheelchair.
II. Procedural Background
In April 2004, defendant was charged by indictment in case No. 210879 with two counts of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)) on separate victims. The indictment also alleged that defendant had committed offenses against more than one victim within the meaning of Penal Code section 667.61, subdivisions (b), (c), and (e). In April 2006, defendant was charged by information in case No. CC511614 with possessing a sharp instrument in jail (Pen. Code, § 4502, subd. (a)), and it was further alleged that he had suffered six prior “strike” convictions.
An amended information in the possession case was filed in May 2006.
At the trial of the lewd conduct case, the parties stipulated that defendant had been convicted in Oregon in November 2002 of attempted sexual penetration, two counts of oral copulation, and three counts of lewd conduct on A. in Oregon. It was also stipulated that defendant had been convicted of unlawful sexual intercourse, oral copulation and three counts of lewd conduct on M. in Oregon.
The court instructed the jury at that time that “just because a jury in another jurisdiction found the defendant guilty of these crimes does not necessarily mean that the defendant is guilty of the crimes for which he faces trial in our county.”
Defendant testified at the lewd conduct trial that A. frequently visited his trailer, F. had visited a few times, and A. and F. had once spent the night with him in his trailer, but he denied molesting either of them. Defendant testified that A.’s mother had been “basically stalk[ing]” him, and he “finally moved to Oregon to get away from her.” Defendant admitted that he had been convicted of 11 counts of molesting A. and M. in Oregon, but he denied that he had actually committed the molestations. Defendant also denied ever having had sexual intercourse with his daughter R. And he denied having engaged in any sexual conduct with S.U. Defendant denied having possessed any dildos or vibrators. He admitted that he had carved a penis out of soapstone. Defendant theorized that A.’s mother was responsible for A., M., and F. falsely accusing him. He explained that A.’s mother “attacked me two months after I had bypass surgery and I put some bruises on her and M[.] saw those bruises and those accusations were made.” This alleged incident occurred in Oregon. He also claimed that A.’s mom stole his horse.
After less than three hours of deliberations, the jury found defendant guilty of both lewd conduct counts and found the multiple victims allegation true.
The jury trial in the possession case began the week after the completion of the lewd conduct trial. Defendant represented himself at this trial. At his request, the strike allegations were bifurcated, and he admitted them. Defendant did not testify at the possession trial. After one hour of deliberations, the jury returned a verdict finding defendant guilty.
The two cases were consolidated for sentencing. The court imposed a 25 years to life term for the possession count and consecutive 15 years to life terms for the two lewd conduct counts. The court ordered that the California sentence would be consecutive to the Oregon sentence. Defendant filed a timely notice of appeal.
III. Discussion
A. Lewd Conduct Case
1. Prior Offenses Against R.
Defendant contends that the trial court abused its discretion under Evidence Code section 352 by admitting evidence of his prior offenses against R.
a. Background
Defendant moved in limine to exclude evidence of his prior offenses against R. He argued that the prior offenses against R. were temporally remote, “clearly more egregious,” might influence the jury to punish defendant for the prior uncharged offenses that had never been prosecuted, and would involve an undue consumption of time. The court found the evidence admissible under Evidence Code sections 1108 and 352.
R., defendant’s daughter, testified at trial. R., who was 38 years old at the time of trial, had not seen defendant since she was a teenager. R. testified that defendant had begun sexually abusing her “[b]ack as I can ever remember.” He began by fondling her breasts and vagina, and it progressed to oral copulation and sexual intercourse. The sexual intercourse only occurred during the last year that R. lived with him, when she was 11 and 12 years old. During that year, R. and defendant lived with R.’s stepmother and S.U. in Oregon in the summer and San Jose in the winter. S.U. was 16 years old at the time, and R. saw defendant having sex with S.U. Defendant carved “toy” penises out of wood and soapstone. R. saw defendant use these toy penises on S.U. and on her stepmother. Defendant told R. that he had sex with her in order to “make the perfect wife.” The sexual abuse occurred for so long that R. considered it “normal” as she “didn’t know any other way.”
R. and defendant had no further sexual contact after that year.
b. Analysis
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).) The trial court must “engage in a careful weighing process under section 352,” and “consider such factors as [the prior sex offense’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 917.) “This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Defendant argues that his offenses against R. were much more inflammatory than his offenses against A. and F. We disagree. While the fact that defendant sexually abused his own daughter is offensive, it was not highly inflammatory in the context of this case, where there was evidence that defendant repeatedly sexually abused two unrelated young girls over a substantial period of time. The offenses against R. were generally similar to those against the other girls, including touching, oral copulation and other sex acts. Defendant emphasizes that the lewd conduct charges here did not allege that he had engaged in sexual intercourse with either A. or F. This is true, but A. testified that he attempted sexual intercourse with her and only abandoned his unsuccessful attempt when she complained of pain. Defendant made comments to both R. and A. which were aimed at convincing each of them that his sexual abuse was “normal.” Indeed, defendant told A. about his sexual activities with R. in an attempt to convince A. that she should engage in similar activities with him. Defendant emphasizes that R. saw defendant engaged in sexual activities with her stepmother and S.U., which he characterizes as “perverse,” yet A. was similarly exposed to seeing defendant engage in sexual activities with F., and vice versa. A. and R. gave similar testimony about defendant’s use of sex toys. All of the offenses occurred in defendant’s home, and all of the victims were prepubescent girls. In all, the similarities between the charged offenses and the offenses against R. rebut defendant’s claim that the offenses against R. were far more inflammatory than the charged offenses.
Defendant also argues that the admission of evidence of his prior acts against R. tended to confuse the issues at trial because it would have been apparent to the jury that he had never been punished for his crimes against R. In a case where a jury learns of prior unpunished offenses, there may be a danger that the jury will decide to punish the defendant for the prior unpunished offenses by convicting him of the charged offenses. This risk is minimal here, because the jury was also aware that defendant had been punished for an unrelated group of prior offenses. Defendant emphasizes that his offenses against R. had occurred a very long time ago. Yet the temporal remoteness of these offenses was but one factor in the calculus, and it had to be weighed against the strong probative value of evidence that defendant had long been committing similar offenses against prepubescent girls. The trial court’s discretionary decision to admit evidence of defendant’s sexual abuse of R. did not exceed the bounds of reason.
2. Limiting Instruction
Defendant contends that the trial court prejudicially erred in failing to explicitly include the offenses against R. and S.U. within the scope of the limiting instruction given to the jury.
a. Background
The trial court gave the following instruction to the jury. “This next instruction relates to the alleged Oregon conduct. For purposes of other alleged conduct being used by jurors in determining whether or not the defendant, quote, was disposed or inclined to commit the currently charged sexual offenses, close quotes, the People presented evidence of alleged sexual abuse crimes in Oregon. These other acts were not charged as crimes in this trial. [¶] The elements of those other alleged sexual abuse crimes can be found immediately following this instruction. You may consider the evidence of prior alleged sex crimes, only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses.” The court instructed the jury that the prior alleged sex crimes could be used as dispositional evidence.
The court then instructed the jury on the elements of the Oregon convictions. “Oregon Counts 4, 5, 6, 9, 10 and 11 are lewd and lascivious acts with a child under the age of 14 years of age.” The court directed the jury to the elements of these offenses in the instructions. “Oregon Counts 2, 3 and 8 are oral copulation with a person under the age of 14.” The court identified the elements of this offense. “Oregon Count 1 is attempted unlawful sexual intercourse with a person who is under the age of 16 years at a time the defendant reached his 21st birthday.” The court described the elements of this offense. “Oregon Count 7 is unlawful sexual intercourse of a person who is under the age of 16 years at the time the defendant had reached his 21st birthday.” The court described the elements of this offense.
In his argument to the jury, the prosecutor equated the Oregon convictions and defendant’s prior acts against R. “From this you may infer if you believe the defendant committed these other acts against R[.], against A[.], against M[.]. You can find that the defendant has a predisposition to commit sex offenses against children.”
b. Analysis
We do not view the limiting instruction as unambiguously excluding the offenses against R. and S.U. from its scope. The first part of the limiting instruction referred tothe “alleged Oregon conduct,” and R. testified that defendant’s acts against her and S.U. occurred during a period when she and defendant lived part of the time in Oregon and part of the time in California. The jury could have reasonably concluded that the acts against R. and S.U. were part of the “alleged Oregon conduct” to which the first part of the instruction referred. While the second part of the instruction was keyed to specific Oregon convictions, the jury could still understand the first part of the instruction to refer to both the convictions and the acts against R. and S.U. At worst, the instruction was ambiguous.
“‘If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’” (People v. Young (2005) 34 Cal.4th 1149, 1202 (Young).) In making this determination, we “must consider the arguments of counsel in assessing the probable impact of the instruction on the jury.” (Young, at p. 1202.) Here, it is highly unlikely that the jury would have understood the court’s limiting instruction to apply to the Oregon convictions but not to the prior offenses against R. and S.U. The prosecutor specifically equated the two groups of offenses with relation to the court’s limiting instruction, and the jury expressed no confusion in this regard. A rational jury would have understood that the limiting instruction applied to all of the prior offenses, regardless of whether they resulted in convictions.
3. Internet Posting
Defendant claims that the trial court prejudicially erred in instructing the jury about an Internet posting attributed to him.
a. Background
During his cross-examination of defendant at trial, the prosecutor briefly asked him about an “internet posting” that bore defendant’s name and had been posted in February 2000 to a news group called “alt-teens.penpals” and to similar teen-oriented news groups. Defendant denied having authored or posted the material. On redirect, defendant again denied having posted this material, but he asserted that it might be “modified versions of web pages in my web site . . . .” Defendant gave a similar response on re-cross. “Actually, it looks like it was clipped out of a page from my web site, modified and then posted back to the internet . . . .” “[S]ome of that I actually wrote.”
After a recess during re-cross, the prosecutor revisited this issue. At this point, defendant changed his testimony and asserted that he “misspoke” and “didn’t write any of this . . . .” The prosecutor then read the posting into the record. In the posting, the author talked about living in the woods, likened it to “the garden of eden,” and sought “a friend to share the adventure with.” “Lovers or otherwise, we would be best friends and share everything.” Defendant denied that he had written or posted this material.
The trial court gave the following instruction prior to argument. “This next instruction relates to the prior alleged conduct of the defendant. [¶] Regarding the posting of the letter on the Internet, the People presented evidence that the defendant may have committed prior acts that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the offenses. [¶] . . . [¶] If you decide the defendant committed the offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to commit the alleged crimes in this trial.” This instruction was followed by the limiting instruction “relat[ing] to the alleged Oregon conduct.”
The prosecutor mentioned the Internet posting during his argument to the jury, noting that the “kind of man” who posts such material is “a child molester.” He highlighted defendant’s shifting testimony about the source of the material.
After the jury retired to deliberate, the court made a record of the instruction conference. “And the court went over the instructions line by line, word for word with the attorneys and each sentence was approved by the attorneys or in the case of some small minor editing such as in CALCRIM 375. It starts out ‘regarding the posting of the letter on the internet.’ That was agreed to by all parties so it wouldn’t be confusing regarding any potential conflict in the jury instructions.” Neither the prosecutor nor defendant’s trial counsel disagreed with the court’s description of the instruction conference.
b. Analysis
Defendant complains that the trial court’s instruction regarding the Internet posting incorrectly characterized it as a “crime.”
The instruction characterized the posting as “prior alleged conduct,” “prior acts that were not charged in this case,” and “offenses.” It never specifically identified the posting as a “crime.” The instruction obviously did not mis characterize the posting when it referred to it as “prior alleged conduct” or “prior acts,” so it falls to defendant to establish that it is reasonably likely that the jury would have construed the court’s references to “prior acts . . . not charged” and “offenses” to incorrectly refer to the posting as a crime. He has not met this burden.
In the context of the instruction, it would have been clear to the jury that the word “offenses” was simply being used as shorthand to refer to the Internet posting that was the subject of the instruction. The word “offense” refers to a much broader group of acts than merely crimes. It may refer to “the act of displeasing or affronting” or “a breach of a moral or social code.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 806.) Defendant’s posting of material intended to entice a teenager to become his live-in lover was clearly a “breach of a moral or social code,” and therefore could properly be understood as an “offense.” The Internet posting was “not charged in this case,” so the court’s instruction was not inaccurate in this respect.
Furthermore, any error in referring to the Internet posting as an “offense[]” rather than merely as “conduct” or an “act” was obviously harmless. The only question before the jury in this case was whether defendant engaged in the alleged acts with A. and F., and it was not remotely possible that any inference regarding the Internet posting affected the jury’s decision on this issue.
Since there were no other errors at the lewd conduct trial, it is not necessary to separately address defendant’s claim of cumulative prejudice.
4. Imposition of Consecutive Terms
Defendant asserts that his trial counsel was prejudicially deficient in failing to object to the trial court’s imposition of consecutive terms for the two lewd conduct counts.
The probation report stated: “As each crime involved a separate victim with separate acts which occurred on separate occasions, consecutive sentencing is recommended.” At the consolidated sentencing hearing, the prosecutor, defendant’s trial counsel in the lewd conduct case, and defendant, who was representing himself in possession case, all submitted the matter without argument. The court ordered that the life terms for the two lewd conduct counts be consecutive “because there are separate victims.”
Although consecutive terms are mandatory for some offenses under Penal Code section 667.61, consecutive terms were not mandated for defendant’s offenses. “For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” (Pen. Code, § 667.61, subd. (i), italics added.) Defendant’s offenses, violations of Penal Code section 288, subdivision (a), are specified in paragraph 8 of subdivision (c), and therefore the trial court had discretion to impose either concurrent or consecutive terms for the two lewd conduct counts. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261-1263.)
When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove by a preponderance of the evidence that counsel’s performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” (Strickland, at p. 694.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.)
Defendant asserts that the trial court could not properly rely on the fact that there were separate victims to support the imposition of consecutive terms because this was “an element of the offense.” “A fact that is an element of the crime may not be used to impose consecutive sentences.” (Cal. Rules of Court, rule 4.425(b)(3).) Assuming arguendo that the dual use prohibition also applies to an element of a one-strike allegation and that defendant’s trial counsel was therefore deficient in failing to object to the trial court’s erroneous justification, defendant still cannot succeed on his ineffective assistance claim unless he can establish prejudice.
Defendant has not established that there is a reasonable probability that the trial court would have imposed concurrent terms if defendant’s trial counsel had objected to the court’s reliance on “separate victims” as a justification for the imposition of consecutive terms. The probation report noted that the offenses had also occurred on separate occasions, and the trial court could have properly relied on this circumstance to support the imposition of consecutive terms. The fact that defendant repeatedly abused each of the victims on several separate occasions strongly supported imposition of consecutive terms, and absolutely nothing in the record supports defendant’s contention that the trial court would have been inclined to impose concurrent terms.
B. Possession Case
1. Adequacy of Admonitions
Defendant claims that his waiver of his right to counsel in the possession case was invalid because the trial court failed to inform him of the length of the sentence that he faced at the time he elected to represent himself.
a. Background
In April 2004, defendant completed a petition seeking to act as his own attorney in the lewd conduct case. He did not complete the portion of the form that dealt with the penalty he faced in that action. His request was granted.
In November 2005, defendant was charged by felony complaint with the October 2005 possession offense. In January 2006, defendant withdrew his waiver of counsel in the lewd conduct case, and an attorney was appointed to represent him. At the March 2006 preliminary examination in the possession case, defendant was represented by the same appointed counsel who was representing him in the lewd conduct case. He was held to answer. An information was filed in the possession case in April 2006, and an amended information was filed in May 2006.
On May 1, 2006, in the midst of the lewd conduct trial, defendant sought to discharge his appointed attorney and again represent himself. His request was denied. After he had been convicted of the lewd conduct charges, the possession trial was set for May 8, 2006.
On May 8, 2006, defendant asked to represent himself in the possession trial. Although the court found defendant’s motion untimely, it told him that he could represent himself if he was ready to proceed that day. The court told defendant “you need to be able to proceed to trial today and that’s the issue.” Defendant said “I definitely want to represent myself even if I have to go to trial today, but I have not been able to prepare and can we put it off until at least Thursday?” He insisted that he was “not stalling,” and wanted to proceed expeditiously. The court noted defendant’s “proclivity to substitute counsel is somewhat of a concern to this court.” After consulting with his appointed counsel, defendant said “I would like to represent myself no matter what . . . .”
Defendant partially completed a form petition seeking to represent himself. He did not complete the portion of the form pertaining to the penalty for his offense. Defendant explicitly acknowledged that he was aware of “the pitfalls of representing yourself.” The court did not expressly inform defendant of the length of the sentence he was facing. Defendant waived his right to counsel and elected to represent himself.
An hour or so later, during the same hearing, the question of how to deal with the strike allegations was raised. The court explained to defendant that the strike allegations could be bifurcated, and he could have a jury trial or a court trial on them or admit them. Defendant was initially confused about these options, although he made it clear that he did not want the jury to hear about his prior convictions. He said he wanted to admit the strike allegations. The court informed him of his rights, and he waived his right to a jury trial and his right to a court trial on the strike allegations. When the trial court tried to obtain his waiver of his right against self-incrimination, defendant said he did not want to give up that right. “I want to remain silent and just admit them.” The court took this to mean that he waived his right against self-incrimination.
When the court had finished taking defendant’s waivers of his constitutional rights and was ready to take his admissions of the strike allegations, the prosecutor asked to “clarify one thing with regards to the priors and voir dire Mr. Strouse.” The following colloquy occurred. “MR. BAKER [the prosecutor]: Do you understand by admitting these priors if you are convicted of the weapon charge you are going to face potentially 25 to life for that particular offense? Do you understand that? [¶] THE DEFENDANT: No, I didn’t. [¶] MR. BAKER: Well, these are the six priors that you are, that are alleged. [¶] THE DEFENDANT: I get the picture, your honor. So I don’t admit the priors. I have appeals. [¶] THE COURT: Okay. So what would you like to do? Do you want to have a jury decide your priors or you want a court [to] decide your priors?”
A discussion ensued about defendant’s concern that his admission of the strike allegations would affect his appeals from the Oregon and California sex offense convictions. Eventually, defendant asked “Am I admitting that I was convicted or am I admitting guilt, because I was convicted? I don’t deny that.” The court explained that he would be admitting that he “suffered those convictions,” and defendant expressed willingness to admit that. The court then resumed where the discussion had left off. “THE COURT: Then let’s go through that. [¶] Did you hear [the prosecutor’s] question regarding by admitting these prior convictions that it exposes you to 25 years to life which you are facing in your other case as well. Do you understand that? [¶] THE DEFENDANT: Yeah.” Defendant then admitted the six strike allegations.
A week later, just before opening statements, defendant requested the appointment of advisory counsel. The court denied his request. During a discussion with defendant about this ruling, the court told defendant: “[Y]ou understood all of your rights. You are competent and you wanted to represent yourself and you knew there would be pitfalls representing yourself and you accepted those gladly. You were at the point you would represent yourself and I wanted to make sure it was a measured decision and intelligent decision.” Defendant responded: “I agree, your honor.”
b. Analysis
“The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion.” (People v. Lawley (2002) 27 Cal.4th 102, 139 (Lawley).) “No particular form of words, however, is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (Lawley, at p. 140, internal quotation marks omitted.)
It is true that the trial court did not specifically admonish defendant at the time of his day-of-trial waiver of counsel that he faced a sentence of 25 years to life on the possession charge. However, the record as a whole demonstrates that defendant understood the risks that he was facing when he chose to represent himself at the possession trial. Defendant was hardly unsophisticated. He had represented himself in the lewd conduct case until a few months before trial, and he had unsuccessfully attempted to discharge his attorney during the lewd conduct trial and again represent himself. He was clearly literate, and the information plainly disclosed the sentence that he faced in the possession case. When the prosecutor mentioned the fact that he faced 25 years to life, defendant did not claim that he did not face that sentence. His confusion appeared to stem solely from his misunderstanding about what it meant to admit the strike allegations, rather than a misunderstanding regarding the length of the sentence he faced. When the court asked him, just an hour or so after he waived his right to counsel, if he understood that he faced a sentence of 25 years to life, he acknowledged that he did.
Nor can it be argued that this knowledge came too late to inform defendant’s decision to represent himself. Defendant never sought the reappointment of counsel, and his subsequent unsuccessful request for the appointment of advisory counsel demonstrates that he did not believe that the granting of his self-representation motion precluded any further requests with regard to counsel. Indeed, defendant agreed at that time that he had made an informed and intelligent decision to represent himself. The totality of the record establishes that defendant understood the risks he faced when he waived his right to counsel and chose to represent himself.
2. Exclusion of Hearsay Statements
Defendant maintains that the trial court prejudicially erred in excluding certain hearsay statements that he proffered in support of his defense.
a. Background
During in limine motions, defendant asserted that he wished to call Sal Castillo to testify about “a problem between me and Curtis Dean Anderson” to show “a motive for trying to get me in trouble for anything, weapons and that I allegedly threatened him with them.” He also wanted to call Dennis Karnes to testify that Castillo “came to him just a day or two before I was rousted and said that . . . he was going to get me.” Defendant explained that his defense was that the weapons had been “planted” in his wheelchair without his knowledge. Karnes was never called to testify. Both Curtis Dean Anderson and Sal Castillo invoked their rights to remain silent and refused to answer any questions.
Defendant sought to present testimony by Dennis Curtis that “Curtis Dean Anderson told [Curtis] he had Sal Castillo to set [sic] [defendant] up.” He also wanted to present Curtis’s testimony that Anderson had said he “was going to get Strouse,” and “[i]f I get a chance I am going to get him.” The prosecutor sought to exclude testimony about Anderson’s hearsay statements. Defendant asserted that this testimony was admissible “[t]o show that Curtis Dean Anderson did, in fact, intend to get me one way or another.” “That Curtis Dean Anderson did, in fact, get me, that he did set me up . . . .” The court concluded that defendant had been unable to identify any applicable exception to the hearsay rule and ruled that Curtis’s testimony regarding Anderson’s statements was inadmissible.
The prosecution’s evidence at trial disclosed that, at about 1:00 a.m. on October 26, 2005, while defendant was in jail pending trial for his California offenses against A. and F., his jail cell was searched. Defendant was lying in bed in his single-man cell at the time that the search commenced. Several weapons, including a razor with a cardboard handle (known in the jail as a “tomahawk”) were found inside slits in the lining on the bottom of the seat of defendant’s wheelchair. The slits also contained three razor blade cartridges, a razor blade, two paper clips and a handful of staples. A sharpened spoon and a sharpened pencil were found on the desk in defendant’s cell.
Defendant called Curtis to testify for the defense at trial. Curtis, defendant’s fellow jail inmate, testified that he had seen Castillo threaten and taunt defendant. Curtis testified that “[t]he threat was to you concerning Curtis Dean Anderson and the document that was transpired between Curtis and you.” When defendant asked Curtis “[w]hat did he threaten to do[,]” the court sustained the prosecutor’s hearsay objection. Curtis testified that he had seen Castillo in defendant’s wheelchair and he had seen Castillo go into defendant’s cell. Curtis said that he recalled seeing Castillo “[p]retty regularly” in defendant’s wheelchair “just prior to the last shakedown that we had.” He testified that the last “shakedown” had been in January 2006. Curtis also testified that he had last seen Castillo using defendant’s wheelchair in June 2005. He admitted that he was “very confused about the date, because I can’t just really pinpoint the months.” Nevertheless, Curtis said he was “pretty sure” that the last shakedown had been in the first week of January 2006. However, he subsequently said it could have happened in November 2005. Defendant did not testify at the possession trial.
The prosecutor addressed Curtis’s testimony in his argument to the jury. “Mr. Curtis said that the last time this person, Sal Castillo, who I guess, presumably, is alleg[edly] the one that framed him, but there has been no testimony that he framed him, but the name is thrown out there.” “And then the defense elicits testimony that this person, Sal Castillo, made a threat towards Mr. Strouse. There is no evidence when this threat was made. The only evidence of a threat at all is Mr. Curtis’[s] testimony, that’s it. [¶] So to believe there was a th[reat] against Mr. Strouse you have to believe Dennis Curtis . . . .”
“But why does this mean anything? Well, ladies and gentlemen, there is no substance to it. A person comes in and says yeah, there was a threat made. We don’t know if other people made threats to Mr. Strouse or Mr. Strouse made threats to other people, maybe other people threatened other people in jail. It’s all jailhouse drama. We don’t know if it’s true. Dennis Curtis is not a person you should rely on. And on top of that, I guess the theory is that somehow there was a threat made by Sal Castillo according to Dennis Curtis. And then the defense wants you to make this leap that there was this threat and we don’t know when the threat was made or the context of it at all. The defense wants you to make this leap from that to the fact that he was framed. [¶] Now, Curtis said . . . that this guy, Sal Castillo, somehow had access to Mr. Strouse’s wheelchair and framed him and installed these weapons in his wheelchair on the day of the crime, but that means nothing because Dennis Curtis can’t pin down when he saw him with the wheelchair.”
“[L]et’s assume that Sal Castillo had some grudge. Imagine, ladies and gentlemen, you are locked up in jail, you are locked up with another person and you are thinking well, I am going to frame that person. Why in the world would you frame someone by arming them? Does that make sense? I really don’t like this guy. I threatened him before so now what I am going to do is to really get him. I am going to give him a weapon. I am not just going to give him one weapon, I am going to give him an arsenal of weapons. . . . Does that make sense?” “What is reasonable is that the defendant has these weapons for self-defense, that’s all. A person who has so many weapons, so many weapons on them that isn’t a result of someone getting framed, it’s a result of someone who is in jail and scared of something . . . .” “There is no credible evidence that the defense [sic] is being framed. Again, if you believe Dennis Curtis’[s] testimony that a threat was even made, it still doesn’t establish anything about some nexus or connection to this case and it doesn’t make sense given the complexity that this alleged framer had to go through.” “It’s all a big conspiracy. He was set up, but, of course, there is no hard evidence to support it.”
b. Analysis
Defendant contends that the trial court erred in refusing to permit him to present Curtis’s proposed testimony that “Anderson told Curtis that Anderson intended to ‘get’ Strouse and to ‘set him up.’” He claims that this proffered testimony was “state of mind” evidence which was admissible, notwithstanding the hearsay rule, under Evidence Code section 1250.
Defendant also claims that the trial court excluded proffered testimony by Officer Julian Quinones regarding statements by Castillo and Anderson. Quinones did not testify at trial. Just before opening statements, defendant said that he wanted to add Quinones to his witness list. Since Quinones was on the prosecution’s witness list, the court told defendant that he could call Quinones as his own witness if he wished. The prosecutor stated that he was not going to call Quinones to testify for the prosecution and asked for an offer of proof from defendant regarding Quinones’s proposed testimony. Defendant said that Quinones would testify that “a witness, a nameless witness accused me of threatening him and that’s pretty much it.” Defendant was unable to respond to the court’s inquiry as to what hearsay exception such testimony would fall within. The court did not rule on the issue at that time and instead said it would “reserve on that . . . .”
Defendant proffered Curtis’s proposed testimony that Anderson had told Curtis that Anderson “was going to get Strouse,” and “[i]f I get a chance I am going to get him.” “[E]vidence of a [trustworthy] statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250.)
The proffered testimony does not fall within Evidence Code section 1250. While Anderson’s statement to Curtis was arguably evidence of Anderson’s state of mind, such evidence is only admissible if the state of mind of the declarant, Anderson, was “itself an issue” in the case or the state of mind evidence was offered to prove or explain the acts or conduct of the declarant, Anderson. There was no evidence at trial of any acts or conduct of Anderson. And Anderson’s state of mind was never linked to any issue that was before the jury. The sole reference to Anderson in the evidence presented to the jury at trial was Curtis’s testimony that Castillo’s threat “was to you concerning Curtis Dean Anderson and the document that was transpired between Curtis and you.” This unexplained reference to Anderson did not in the slightest respect establish that Anderson’s state of mind was relevant to any issue before the jury in this trial. The evidence before the jury lacked the slightest linkage between Anderson’s state of mind and the presence of the sharp instruments found in defendant’s wheelchair and on his desk. Consequently, the proffered testimony was not admissible under Evidence Code section 1250, and the court did not err in excluding it as hearsay.
IV. Disposition
The judgment is affirmed.
WE CONCUR:
McAdams, J., Duffy, J.
The officer who actually conducted the search of defendant’s cell thereafter testified for the prosecution. On cross-examination, defendant elicited that officer’s testimony that Quinones had asked him to search defendant’s cell. After the prosecution had completed its case-in-chief, defendant said he wanted to call Quinones to testify. Quinones had not been subpoenaed and could not be readily located. The prosecutor again sought an offer of proof as to what admissible evidence Quinones could provide for the defense.
Defendant asserted that he wanted to ask Quinones “what initiated the report.” He expected Quinones to say that he wrote a report and initiated the search of defendant’s cell because Castillo had told Quinones that defendant had threatened Castillo with a knife. The prosecutor pointed out that such testimony would be hearsay, and defendant acknowledged as much. The court ruled that defendant could not “bring in Sergeant Quinones to put on hearsay testimony that you could not get in through other witnesses . . . .” The court concluded that this proposed testimony had “very small” relevance and was not being proffered for relevant reasons but instead for its value as hearsay.
Defendant’s appellate challenge is limited to the trial court’s alleged exclusion of hearsay statements by Anderson and Castillo “that they intended to ‘get’ him and to ‘set him up.’” He asserts that he made an offer of proof below that Quinones would provide such testimony. We can find no such offer of proof in the record before us. Consequently, defendant has presented no viable issue on appeal regarding the admissibility of Quinones’s testimony.