P. v. Beard

P. v. Beard

Filed 9/24/08 P. v. Beard CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ROBERT BEARD, Defendant and Appellant.

B198672 (Los Angeles County Super. Ct. No. SA056989)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard A. Stone, Amy D. Hogue and Elden S. Fox, Judges. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.

_

Robert Beard appeals from the judgment entered following a bifurcated jury trial in which he appeared in propria persona and was convicted of two counts of assault with a deadly weapon and two counts of misdemeanor sexual battery. (The convictions arose from incidents in the West Hollywood area on July 2 and July 3, 2005, in each of which a woman on a public street was grabbed in a sexual manner by defendant, who then threatened the woman with a screwdriver.) In the second phase of trial, defendant was found to have sustained multiple prior felony convictions, including two under the Three Strikes law. He was sentenced to an aggregate term of 37 years to life in state prison. Defendant contends that the trial court erred with respect to his right of self-representation and in reinstating one of the prior conviction allegations.

SELF-REPRESENTATION ISSUES

The Record

On July 6, 2005, defendant appeared on the complaint in this case before the Honorable Richard A. Stone. On that date, a one-page Municipal Court of California, County of Los Angeles Faretta^[1]waiver form was also filed with the court. By initialing and signing the form, defendant stated, among other things, that he had received a GED, had represented himself before, knew he had the right to a lawyer, and understood he would be bound by rules of procedure and evidence, would have to prepare his own defense and conduct his own investigation, would be opposed in the case by an experienced prosecutor, and would be at an extreme disadvantage if he lost the case. At the arraignment, the court read the charges and the following colloquy ensued:

THE COURT [Judge Stone]: It is my understanding that you want to represent yourself in this case?

[THE DEFENDANT]: Yes.

THE COURT: Do you know what the potential sentence is on this case?

[THE DEFENDANT]: Yes.

THE COURT: What is it?

[THE DEFENDANT]: Im not for sure right now. I have to get with you later.

THE COURT: What do you think it is?

[THE DEFENDANT]: I cant really say.

THE COURT: Life.

[THE DEFENDANT]: Okay.

THE COURT: Its life. You sure you want to represent yourself on a case where you could be convicted for a life offense where [you could] spend the rest of your life in prison?

[THE DEFENDANT]: Yes.

THE COURT: There are tremendous disadvantages to self-representation.

[THE DEFENDANT]: Well, the only thing about it as long as I dont be back in L.A., you know, I dont really care.

THE COURT: Im sorry?

[THE DEFENDANT]: As long as I dont have to come back here in L.A., California, you understand, you know, Im cool.

THE COURT: Well, what do you mean as long as you dont have to come back to L.A.?

[THE DEFENDANT]: Because thats all Ive been having problems with is a whole bunch of lies since Ive been here. You understand, so now I might as well take it for what its worth.

THE COURT: Im not exactly sure I understand you, Sir.

[THE DEFENDANT]: Its plain and simple like I said that since Ive been here 

THE COURT: People have been lying about you?

[THE DEFENDANT]: Yes, several times.

THE COURT: I understand.

[THE DEFENDANT]: If you look back over those records just last year, I beat a case where I was falsely accused of battery.

THE COURT: Did you represent yourself in that case?

[THE DEFENDANT]: Yes, over in Santa Monica.

THE COURT: There are tremendous disadvantages to self-representation.

[THE DEFENDANT]: Yeah, I understand if its true what the person is being accused of.

THE COURT: Whether its true or not, there are still disadvantages for representing yourself. Do you know the Evidence Code?

[THE DEFENDANT]: Ive read the Evidence Code. Ive been pro per four, five  several times.

THE COURT: So you believe 

[THE DEFENDANT]: This is not the first time Ive been pro per. Ive been pro per several times. I move to dismiss because I was denied notice whatever the charges were when I was brought to jail, I was denied phone calls and I was denied the bail.

THE COURT: Your request to go pro per is granted. I am sufficiently satisfied that you are aware of the dangers and disadvantages of self representation. You have represented yourself on a number of occasions before. [] You believe its in your best interest. It is your constitutional right to represent yourself. Are these your initials and signature on this form?

[THE DEFENDANT]: Yes.

THE COURT: Did you read it carefully?

[THE DEFENDANT]: Yes.

THE COURT: You satisfied you understand exactly what youre doing?

[THE DEFENDANT]: Yes.

THE COURT: Your request to go pro per is granted.

On July 25, 2005, defendants case was transferred and he appeared before the Honorable Amy D. Hogue. At the beginning of that days proceedings, the following colloquy took place:

THE COURT [Judge Hogue]: Mr. Beard. I just got transferred to this department. Im going to be the judge here hearing your case. Im very concerned to see that you are representing yourself. Its not a good idea to represent yourself generally. And Id like to urge you to use the services of the public defender if you qualify.

THE DEFENDANT: Ive used them before. I have experience with the public defender.

THE COURT: Right.

THE DEFENDANT: I dont have need for the public defender.

THE COURT: Well, you are looking at a substantial sentence in this case, Mr. Beard, if you get convicted.

THE DEFENDANT: When I first got arrested, there was no booking slip. They did not tell me what my bail was. They did not let me make a phone call. I did not know what the charge was up until five days later when I appeared here in court. So therefore the attorney that came to speak to me should have been talking about some type of dismissal or getting me released, but he was talking about Im facing strikes and all this so I was told 

THE COURT: All Im trying to tell you, Mr. Beard 

THE DEFENDANT: No thank you. A good public defender would have filed motions, but they didnt do it. So I got to do it. And I cant do it because I do not have the materials to put the motion together.

THE COURT: Mr. Beard, do you want to take some time today to talk to the public defender to see if it might make sense to use a lawyer?

THE DEFENDANT: No.

THE COURT: I dont think you would go to the Staple Center and start playing basketball against a Laker. Its the same. You are not a lawyer. How can you come in here and try to be a lawyer?

THE DEFENDANT: Well, what you do not understand is that Im probably as old as you. Before you came in here, Your Honor, the judge told me that he was going to make provisions for me to have access to the law library so I could do the motion that I needed to file. I have experience in going pro per.

THE COURT: All right.

THE DEFENDANT: All I need right now is the books.

THE COURT: Let me interrupt you, Mr. Beard. I see that Judge Stone on July 6 allowed you access to the library so theres nothing the court has done to stop you going to the library.

THE DEFENDANT: It did not stop me going, but he said there was  to file my motion that I need a order to file the motion. They got that on the computers there. There was no motions on there. I told him to give me some money in which to buy materials or give me access to the library. Do something for me to get the motion.

THE COURT: All right. Motions are something that lawyers know how to write. That is a good reason why you ought to have a lawyer, Sir.

THE DEFENDANT: Im saying also the state is supposed to provide these type of materials for pro per.

THE COURT: Have you gone on the computer at the county jail, Sir?

THE DEFENDANT: Yes, Maam. I have looked at it. The judge told me last week they was going to have the motion put on the computer and other material, but they havent done that yet and no telling how long its going to take.

THE COURT: The court cannot do anything more than give you access to the library and whats on the computer at the county jail.

In late August 2006, defendants preliminary hearing was conducted before Judge Hogue. An information was later filed. Defendant was arraigned on the information before Judge Hogue on September 12, 2006. At the time of the arraignment, defendants in propria persona status was not discussed.

At a hearing before Judge Hogue on September 30, 2006, defendant executed a four-page Los Angeles Superior Court Faretta waiver form in which he stated, among other things, that he had the right to counsel, that he understood there were many dangers and disadvantages of self-representation, such as going against an experienced prosecutor, and that his custodial status would make it more difficult to investigate the case and contact witnesses. Defendant also stated that he knew whether the crimes with which he was charged required general or specific intent and knew the legal defenses to those crimes.

A session held on November 29, 2005, before the Honorable Elden S. Fox started with the court asking whether defendant had been advised he had the right to have counsel appointed to assist him at any time in the proceedings. Defendant acknowledged he had been so advised and confirmed that he still wished to represent himself. Judge Fox also admonished defendant that he would be better off if a lawyer were representing him.

Throughout the course of the proceedings, defendant filed motions in the trial court and writ petitions in this court seeking various forms of relief.

Faretta Waiver

Defendant first contends that, with respect to the proceedings conducted before arraignment on the information, his Faretta waiver was invalid because he was not adequately informed of the risks and disadvantages of self-representation. We disagree.

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. Koontz (2002) 27 Cal.4th 1041, 10691070.) In order to make a valid waiver of the right to counsel, a defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. [Citation.] (Faretta, supra, 422 U.S. at p. 835 [].) No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is 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. [Citation.] (People v. Koontz, supra, 27 Cal.4th at p. 1070.)

Defendant claims the July 6, 2005 admonition by Judge Stone was inadequate because it was similar to the admonition given in People v. Noriega (1997) 59 Cal.App.4th 311. But in Noriega the the trial court did not give any necessary warnings to assure itself appellant was making an informed and intelligent decision to represent himself despite the disadvantages and risks of that choice. [] Instead, the courts questions were directed at appellants ability to understand and appreciate his constitutional right to counsel, and at his competency to waive that right. (Id. at p. 320.) Here, although Judge Stone did not specifically enumerate some of the disadvantages of self-representation, he referred to the Faretta waiver that defendant had signed, which set forth disadvantages that defendant would have to prepare his own defense, conduct his own investigation, and face an experienced prosecutor at trial. In addition, before the preliminary hearing took place, Judge Hogue suggested to defendant that representing himself was the equivalent of playing basketball against a member of the Lakers. Accordingly, defendants reliance on the Noriega decision is misplaced.

Defendant also cites a concurring opinion in Noriega, which argued that the lack of a requirement for a particular form of words in taking a Faretta waiver has led to inconsistency. The concurring justice further suggested that our Supreme Court adopt specific guidelines for the waiver. (People v. Noriega, supra, 59 Cal.App.4th at pp. 324325 (conc. opn. of Woods, J.).) In the more than 10 years since Noriega was decided, the Supreme Court has not followed the suggestion of the concurring justice.

Finally, defendant relies on Ninth Circuit cases which he claims have consistently required advisements in open court regarding the disadvantages of self-representation. (See, e.g., Lopez v. Thompson (9th Cir. 2000) 202 F.3d 1110, 1117.) But even if the colloquies in which defendant engaged with Judge Stone and Judge Hogue are not considered to be adequate advisements themselves, we note that the Ninth Circuit views its procedure for advisement as suggested, but not mandated. (Ibid.) And, of course, cases from federal courts of appeals are not binding on the courts of this state. (People v. Bradford (1997) 15 Cal.4th 1229, 1292; People v. Burton (1989) 48 Cal.3d 843, 854, fn. 2.)

Based on the foregoing, defendants contention that his Faretta waiver was invalid must be rejected.

Failure to Readvise at Arraignment

At the September 12, 2006 arraignment, no mention was made of defendants in propria persona status. Defendant aptly contends that this failure violated the requirement of Penal Code section 987, subdivision (a), that if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel.

But contrary to defendants assertion that violation of the statute should be assessed under Chapman v. California (1967) 386 U.S. 18, our Supreme Court has reasoned that because a valid waiver of counsel continues throughout the proceedings, a trial courts failure to readvise a defendant of the right to counsel at the arraignment does not constitute error under the federal constitution. (People v. Crayton (2002) 28 Cal.4th 346, 362363.) Rather, the effect of such failure is to be assessed under the harmless error standard of Peoplev.Watson (1956) 46 Cal.2d 818, 836, in light of the complete record of the trial proceedings. (People v. Crayton, supra, 28 Cal.4th at p. 365.)

Here, both before and after his arraignment, defendant was orally advised of his right to counsel and signed Faretta waivers which further advised of that right. During the course of proceedings, defendant did not falter in his assertion of his right and intention to represent himself. (People v. Sullivan (2007) 151 Cal.App.4th 524, 552.) And from the time of his first appearance defendant filed motions in the trial court and writ petitions in this court seeking various forms of relief, including greater library access and legal and office supplies, thus illustrating his knowledge of the difficulties and pitfalls he faced while acting as his own attorney. (Ibid.) Accordingly, as in People v. Crayton, supra, 28 Cal.App.4th at page 366, there can be no doubt that defendant was aware of his right to appointed counsel at all stages of the proceedings and knowingly and voluntarily waived that right, insisting upon exercising his constitutional right to represent himself. [T]here is no reasonable probability that the superior courts error in failing to readvise defendant of his right to counsel at the arraignment affected defendants decision to represent himself throughout the course of the proceedings. [Citation.] (Accord, People v. Sullivan, supra, 151 Cal.App.4th at pp. 552553.)

Validity of Faretta

Defendant, recognizing that this court is bound by Faretta, nonetheless argues that Faretta was poorly reasoned and should be abandoned, stating that he does so solely to preserve the issue for a writ of certiorari to the United States Supreme Court. In his reply brief, defendant cites the recent case of Indiana v. Edwards (2008) _ U.S. _ [128 S.Ct. 2379]. But nothing in the record of defendants case demonstrates that the judges before whom he appeared failed to take realistic account of the particular defendants mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. (Id. at pp. 23872388.)

REINSTATEMENT OF PRIOR CONVICTION ALLEGATION

One of the prior convictions charged against defendant was a 1997 burglary, which was alleged under Penal Code sections 667, subdivision (a)(1) (five-year prior), 667.5, subdivision (b) (one-year prior), and 1170.12 (strike prior). (Further statutory references are to the Penal Code.) During the November 29, 2006 hearing before Judge Fox, the court noted that defendant had improperly filed a second motion under section 995. The court further stated that although you didnt address the issue, Mr. Beard, because the court is legally required to do so, the court has discovered that as to one of the 667(a) priors . . . the file which has been received by the court charge [sic] as a 667(a) prior does not appear to qualify since the first degree residential burglary was accomplished without anyone present in the residence. [] In light of that, although it is a serious felony, it would not qualify as a 667(a) prior. The court also commented about what a good lawyer might do to benefit defendant, who again declined representation. The court then considered, and denied, defendants motion under section 995.

On December 14, 2005, the prosecutor filed a motion requesting reconsideration of dismissal of the prior conviction and reinstatement of the allegation, noting that first degree burglary qualifies as a serious felony under section 1192.7, subdivision (c)(18). At a hearing conducted that day, the trial court acknowledged its mistake and ruled that the People could reinstate the allegation on the burglary conviction under section 667, subdivision (a)(1).

Defendant contends that the trial court erred in permitting reinstatement of the allegation under section 667, subdivision (a)(1), and further argues that the prior should be stricken under section 1170.12. We disagree.

In all criminal prosecutions, the trial court has the power to amend its orders to conform to law and justice and to correct in limine rulings. (See People v. Jackson (1996) 13 Cal.4th 1164, 1205.) In a non-capital prosecution, an appellate ruling reversing a finding of a prior conviction on the ground of insufficient evidence does not bar retrial of the prior conviction allegation. (Monge v. California (1998) 524 U.S. 721, 724-726, 734 [118 S.Ct. 2246]; People v. Monge (1997) 16 Cal.4th 826, 845; People v. Barragan (2004) 32 Cal.4th 236, 239, 243259.) Also in non-capital cases, a trial courts ruling that a prior conviction does not qualify under section 667, subdivision (a)(1), may be reconsidered and reversed during the course of trial without constituting double jeopardy. (People v. Hernandez (1998) 19 Cal.4th 835, 836838, 843, disapproved on another point in People v. Seel (2006) 34 Cal.4th 535, 550, fn. 6.) Based on the foregoing, defendants contention that reinstatement of his prior conviction allegation under section 667, subdivision (a)(1) must fail.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

WEISBERG, J.^*

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^[1]Faretta v. California(1975) 422 U.S. 806 [95 S.Ct. 2525] (Faretta).

^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.