Opinion
B224653
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. GEARY TURNER, Defendant and Appellant.
Carla Irma 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VA112308)
APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge and Dewey L. Falcone, Judges. Affirmed.
Carla Irma 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Geary Turner was convicted by a jury of one count of robbery. On appeal Turner contends the trial court erred in denying his request for self-representation and in limiting the testimony of his eyewitness identification expert. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Turner was charged in a one-count information with robbery (Pen. Code, § 211).The information specially alleged Turner had suffered a prior conviction for making criminal threats (§ 422), a serious or violent felony within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony within the meaning of section 667, subdivision (a)(1). Turner pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code unless otherwise indicated.
The information also specially alleged Turner had suffered a prior conviction in 1974 for voluntary manslaughter, a serious or violent felony within the meaning of the Three Strikes law and a serious felony within the meaning of section 667, subdivision (a)(1). Prior to trial the court granted the People's motion under section 1385 to dismiss the special allegation regarding the 1974 manslaughter conviction in the interest of justice.
2. The Trial
According to the evidence at trial, Turner approached 14-year-old Ignacio C. while Ignacio was in his driveway placing recyclable cans in a plastic bag. Turner placed his right hand under his shirt just inside his waistband, as if to demonstrate he had a weapon, and ordered Ignacio to give him the bag of cans. Ignacio complied. As Turner walked away, Ignacio ran inside to tell his mother what had happened. Ignacio and his mother immediately ran outside and screamed at Turner, who turned around to look at both of them and then continued walking away. Ignacio and his mother followed Turner in their car. At some point Ignacio and his mother flagged down George Villagran, a Los Angeles County deputy sheriff, and reported the crime, describing the perpetrator as an African-American man, aged 40 to 50, five feet, five inches tall, weight of 150 pounds with black and gray hair.
A few hours later Deputy Villagran saw Turner riding his bicycle on the block where Ignacio and his mother lived. Noticing Turner resembled Ignacio's description of his assailant, Villagran detained Turner and brought him to Ignacio's house where Ignacio identified Turner as the man who had robbed him.
The defense theory was mistaken identification. Dr. Edward Geiselman, a psychologist with expertise in the accuracy of eyewitness identification and recollection, testified about various factors that can affect the reliability of eyewitness identifications. Turner did not testify.
3. The Verdict and Sentencing
The jury found Turner guilty of second degree robbery. In a bifurcated proceeding the court found the prior conviction allegation to be true. The court sentenced Turner to an aggregate state prison term of nine years, comprised of the low term of two years for robbery, doubled under the Three Strikes law, plus a consecutive five-year sentence for the prior conviction under section 667, subdivision (a)(1).
DISCUSSION
1. The Trial Court Did Not Err in Denying Turner's Second Request for Self-representation at Trial
a. Relevant proceedings
At a pretrial hearing on November 30, 2009 Turner moved to exercise his right to represent himself at trial. The trial court noted the motion was timely (at that time trial had been set for December 21, 2009) and, after giving Turner the appropriate admonitions concerning self-representation, granted his request.
At the next hearing on December 4, 2009 the court granted Turner's request for a continuance to enable him to communicate with his appointed investigator. Turner made several more requests for continuances, which were granted, at subsequent pretrial proceedings. Finally, at a readiness hearing on February 19, 2010, Turner stated he was not ready to go to trial because he was still waiting for his investigator to assist him in issuing eight subpoenas. When the court inquired as to the nature and reasons for the subpoenas, and whether he objected to turning over witness statements obtained by his investigator, Turner moved to disqualify the judge pursuant to Code of Civil Procedure section 170.6.
After the matter was transferred to a different courtroom, Turner voluntarily relinquished his right to represent himself and requested the court appoint counsel for him. The court granted his request and appointed counsel, who promptly requested a continuance to prepare for trial. The court continued the matter to March 24, 2010. On March 24, 2010 Turner's counsel requested, and was granted, another continuance to April 22, 2010.
On April 22, 2010 Turner's counsel announced the defense was ready for trial. The court set a trial date for May 3, 2010. On May 3, 2010 Turner requested a Marsden hearing to replace his appointed counsel. Following a hearing, the court denied the request and informed Turner trial would begin the next day. Turner immediately moved to represent himself at trial. The court inquired whether Turner would require a continuance to represent himself. When Turner responded he would not be ready to proceed the next day and would require another continuance, the court denied the request.
People v. Marsden (1970) 2 Cal.3d 118 addresses the circumstances under which a criminal defendant has a right to have his or her appointed counsel replaced and the procedures to be used by the trial court in determining whether those circumstances exist. The hearing concerning defendant's request for new appointed counsel is referred to as a Marsden hearing.
The court explained, "You represented yourself for quite some time while you were in this building. You filed numerous continuances. You made several motions in front of Judge Murphy. Ultimately, you brought a [Code of Civil Procedure section] 170.6 [motion] against Judge Murphy. [The] case was brought to this court. You relinquished your pro. per. status, asked for a public defender. The court appointed a public defender for you. She's done an adequate job of subpoenaing individuals and preparing for trial. She's prepared to go to trial today. She's announced ready today. She has a witness who is part of your defense case and part of the defense strategy that is prepared and going to be available for testimony starting this week. . . . Mr. Turner we're [on] the eve of trial. You are now requesting this pro. per. status, that is after I denied your Marsden motion. I believe that your motion to request to represent yourself is not timely. . . . You previously represented yourself. You relinquished that right to represent yourself. You asked for a public defender. Your public defender's now gone awry [as to] what you wanted [her] to do. Now, on that basis, you've asked now for a continuance, and you've asked for pro. per. status. At this juncture, Mr. Turner, given the status of this case and the length of time that—or, I should say, in the status we are in, the proceedings, this motion for pro. per. status is not timely. . . . [Y]our request to represent yourself is denied. Ms. Sims will remain your counsel of record, and we'll be ready to proceed to trial tomorrow."
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b. Governing law
A criminal defendant has the right under the Sixth and Fourteenth Amendments to the United States Constitution to waive his or her right to counsel and to represent himself or herself. (Faretta v. California (1975) 422 U.S. 806, 819 [95 S.Ct. 2525, 45 L.Ed.2d 562] ["[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense"]; People v. Koontz (2002) 27 Cal.4th 1041, 1069 ["'A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself.'"].)
A defendant's right to self-representation, however, is absolute only if he or she invokes that constitutional right a reasonable time prior to the start of trial. (People v. Windham (1977) 19 Cal.3d 121, 127-128 ["in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial"]; accord, People v. Lawrence (2009) 46 Cal.4th 186, 191-192.) "'"When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion." [Citation.] In exercising this discretion, the trial court should consider factors such as "'the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.'"'" (People v. Valdez (2004) 32 Cal.4th 73, 103.)
c. The trial court did not abuse its discretion in denying Turner's untimely self-representation motion
Citing federal cases Turner contends his request to represent himself at trial was timely because it was made before the jury had been impaneled. (See Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264 [articulating bright-line rule that Faretta request is timely if made before jury is empanelled unless it is shown to be a tactic to secure delay]; People v. Rudd (1998) 63 Cal.App.4th 620, 627 [noting federal rule].) That bright-line rule, articulated by the Ninth Circuit but not adopted by the United States Supreme Court, "is not, and has never been, the law in California." (People v. Jackson (2009) 45 Cal.4th 662, 690.) Controlling precedent from the California Supreme Court characterizes a request as untimely, and thus subject to the trial court's discretion, if not made within a reasonable time before trial. (People v. Clark (1992) 3 Cal.4th 41, 99.) Under that standard the request here, quite literally made on the eve of trial, was plainly untimely. (See ibid. [request for self-representation made on eve of trial untimely; court had discretion to deny motion]; People v. Lynch (2010) 50 Cal.4th 693, 722-723 [citing cases holding that self-representation motion made days before trial untimely]; People v. Valdez, supra, 32 Cal.4th at p. 102 [motion for self-representation made moments before jury selection set to begin deemed untimely].)
Even if not absolutely entitled to invoke his right to self-representation, Turner contends the court abused its discretion in denying his request because it would have required a further continuance of the trial. According to Turner, a continuance was necessary in order for him to do what his appointed counsel had failed to do—subpoena potential witnesses and pursue an alibi defense.
The court's denial of Turner's request was neither arbitrary nor capricious. (See People v. Lynch, supra, 50 Cal.4th at pp. 724-725 [noting abuse of discretion standard].) While representing himself, Turner repeatedly asked for continuances to confer with his investigator and prepare for trial. After his request for reappointment of counsel was granted, additional continuances were necessary to allow counsel to prepare. Finally, apparently dissatisfied with his counsel's tactical decision, Turner sought to restore his pro. per. status conditioned on yet another continuance. The trial court found Turner's request to be simply another delay tactic and denied the motion. On this record, that decision was well within the trial court's discretion. (See People v. Valdez, supra, 32 Cal.4th at p. 103 [trial court's denial of Faretta motion not abuse of discretion when record shows untimely motion, accompanied by request for continuance, made as part of effort to cause delay in trial]; People v. Marshall (1997) 15 Cal.4th 1, 23 ["motion for self-representation made in passing anger or frustration . . . or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied"].)
2. The Trial Court's Limitation of Dr. Geiselman's Testimony Does Not Compel Reversal
On direct examination defense counsel asked Dr. Geiselman, the eyewitness identification expert, whether he was "aware of any studies of wrongful convictions caused by inaccurate eyewitness identification." The People objected on the ground the question, as presented, was an improper hypothetical. The trial court sustained the objection. Defense counsel did not rephrase the question, and no further questions directed to that point were asked.
Turner argues the court improperly sustained the objection and prejudicially limited expert testimony on the inaccuracies of eyewitness identification in a case in which the eyewitness identification by Ignacio and his mother was the only evidence linking Turner to the crime. (See People v. Sanders (1995) 11 Cal.4th 475, 508 ["[w]hen eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony"]; People v. Jones (2003) 30 Cal.4th 1084, 1112 [exclusion of expert testimony on eyewitness identification is justified only if other evidence is presented corroborating the eyewitness identification and giving it independent reliability].)
Turner's argument rests on an inaccurate characterization of the record. Far from excluding expert testimony on the various factors affecting the accuracy of eyewitness identification, the court permitted Dr. Geiselman to testify extensively on the topic. Indeed, citing various studies in this area, Dr. Geiselman explained to the jury the "weapon-focus" effect that arises when the eyewitness believes a deadly weapon is involved. According to Dr. Geiselman, the witness's attention is drawn to the weapon and not to the person's face, thereby undermining the reliability of the identification. Dr. Geiselman also opined the witness's confidence in the accuracy of the identification is deceptive because studies have shown the relationship between the witness's confidence and the accuracy of the identification is weak at best. In addition, Dr. Geiselman testified about the unreliability of cross-racial identification and the inherent suggestibility of field identifications, both of which, as the defense emphasized, occurred in this case. Whether or not defense counsel's single question concerning Dr. Geiselman's knowledge of wrongful convictions caused by eyewitness identifications was objectionable, in light of the extensive testimony provided by Dr. Geiselman on the factors affecting the accuracy of eyewitness identification, the court's ruling, if error at all, was plainly harmless. (People v. Rowland (1992) 4 Cal.4th 238, 264 [evidentiary error that is not federal constitutional error is evaluated under People v. Watson (1956) 46 Cal.2d 818, 836 standard of whether it is reasonably probable defendant would have received a more favorable result absent the error]; People v. Marks (2003) 31 Cal.4th 197, 227.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J. We concur:
WOODS, J.
JACKSON, J.