In re J.H.
P. v. Mays
Filed 8/1/13 P. v. Mays CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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.
WILLIE MAYS,
Defendant and Appellant.
B234843
(Los Angeles
County
Super. Ct.
No. BA374931)
APPEAL from
a judgment of the Superior Court
of
County. John S. Fisher,
Judge. Affirmed as modified.
Karli
Sager, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A.
Lehman, Deputy Attorneys General, for Plaintiff and Respondent
______
>
Willie Mays
appeals from the judgment after a jury found him guilty of one count of
attempted second degree commercial
burglary and the court found the prior prison term allegations true. Mays argues that the court erred in revoking
his pro per status at the commencement of the trial and in excluding him from the
courtroom during a portion of the trial.
Those arguments have no merit. We
agree, however, that Mays’s custody credits should be recalculated.
In the
early morning hours Mays attempted the burglary of a Los
Angeles dress shop.
The store’s security camera captured Mays attempting to enter the store
through its shattered front window. Jang
Lee, the owner of the store, happened to be present and heard the window
break. As Lee walked toward the front of
the store, he saw Mays outside. Lee
testified that he got a good look at Mays for approximately five seconds before
Mays ran away. Lee called 911 and
described the suspect as a black man wearing a red ski cap and dark
clothing. The video from the store’s
surveillance camera showed Mays wearing a red knit cap, using a cane or crowbar
to try to clear glass from in front of the store.
Police
officers detained Mays shortly after the 911 call as he walked down a sidewalk
near the dress shop. Mays was wearing
dark clothing and in his backpack the officers found a red knit cap, a hammer,
three gloves and a seven to eight-inch blade.
Other officers drove Lee to Mays’s location and Lee identified Mays as
the person he had seen at the window of his dress shop. Lee identified Mays again at trial. In an interview following his arrest Mays
confessed to the police that he broke the window.
A. Revocation of
Self-Representation
The court
granted May’s request to represent himself at the trial.
On the
first day of trial, prior to jury selection, the court asked the prosecutor to
“explain who she plans to call and in a nutshell what they would say so that I
can get a feel for the time estimate.â€
Before the prosecutor finished her second sentence, Mays
interjected: “I object to all of that.†The court responded: “Just a second. Let her talk and I’ll let you be heard.†The prosecutor was about to describe a field
show-up involving Mays when Mays asked:
“Can I say something, your honor?â€
The court ignored Mays and the prosecutor continued. While the prosecutor was describing the prior
crimes evidence she proposed to introduce, Mays interrupted stating: “What she’s alleging . . . .†Before he could complete that sentence the
court broke in and said: “Time out. That’s the last time I’m going to tell you to
stop interrupting.â€
Mays
interrupted the prosecutor three more times as she was describing the pretrial
motions that had been heard. After the
third interruption, the court stated:
“Sir, listen to me one more time. . . . I told you two times not to
interrupt. . . . Do you want to really go pro per? Because you’re on thin ice with me already
and we haven’t even been in here 10 minutes.
So here’s the deal . . . I [will] let you speak when it’s
appropriate. I will give you a chance,
ample opportunity to say your p[ea]ce.
But you can’t interrupt. You just
can’t do it. A lawyer’s not allowed to
do it so certainly you’re not. . . . So if you can do it, more power to
you. But if you can’t [I’ll get standby
counsel to] come in and take over.†The
court then allowed Mays to give his version of the pre-trial motions. After Mays finished his explanation the court
asked him whether he was “willing to follow the rules and be a
pro per[.]†Mays answered: “I’m going to follow the rules as far as I
can.â€
The trial
then moved to the jury selection phase.
Outside the presence of the prospective jurors, Mays, an
African-American, objected that there were no African‑Americans in the
venire. He asked the court to “get rid
of this panel and bring a new panel in.â€
The court denied Mays’s request.
While the court was discussing the jury panel with the court clerk, Mays
interrupted complaining that “[n]one of them are my peers. There are no black people.†The court addressed Mays: “Time out.
I didn’t ask you to speak. The
next time you do that you’re out of here and you’re not going to be a pro
per. So don’t do that anymore. That’s the final time.â€
Prior to
the parties’ opening statements, the court explained the procedure to
Mays: “[A]ll you’re going to do if you
want to make [an opening statement] is just tell the jury what you think the
evidence is going to be in the case. No
editorializing, no argument.†Mays began
his opening statement by telling the jury: “I’m at a handicap here. The D.A. gets to walk around, states her
story—â€
colloquy took place.
“The
court: Time out. There’s no handicap. Do you want to tell the jury what your side—
“The
defendant: Can I get to that?
“The court: Go ahead.
“The
defendant: I’m at a handicap here. I don’t have a fancy law—
“The
court: Time out. Time out.
Time out. Mr. Mays, one more shot
or you’re not going to make any statement.
You can tell what the evidence is going to be.
“The defendant: Let’s get on with it.
“The
court: All right. He declines to make a statement.
“The
defendant: I don’t decline to make a
statement. They put their time on my
hands and my mouth.
“The
court: Time out. Jurors to go in the jury room. Thank you.â€
Outside the
jury’s presence, the court revoked Mays’s pro per status and directed standby
counsel to take over Mays’s representation.
The court explained for the record that “[b]ased on his inappropriate
behavior in court and his failure to obey court orders the defendant’s pro per
privileges are now revoked[.]â€
From Trial Proceedings
The
prosecution’s first witness was the dress shop owner. In the midst of defense counsel’s
cross-examination, the court halted proceedings, sent the jury to the jury room
and directed the bailiff to remove Mays from the courtroom. Shortly afterward the bailiff brought Mays,
handcuffed, to the courtroom door. The
court addressed Mays and his counsel:
“All
right. Mr. Mays, during the testimony
you’ve been laughing and smiling and making noises. You are disruptive to the court. You have forfeited for now your privilege to
be in this courtroom, at least during [this] testimony.
“I’ll
reconsider . . . based on my assessment of . . . your stability with respect to
following the rules, in a while. But for
now you’re going in the back. Thank you
. . .
“It’s too
disruptive and he’s been doing it the whole time. But that final one was a little too much for
me.â€
The court
noted Mays’s counsel’s objection to his client’s removal.
When the
jurors returned, the court admonished them not to “speculate about why†Mays
was not present. “[It] doesn’t have
anything to do with the case whether he’s guilty or not guilty.â€
After
Mays’s exclusion, his counsel completed his cross-examination of the dress shop
owner. The jury then heard the direct,
cross and redirect examinations of the police officer who apprehended Mays, the
officer who witnessed the owner’s field identification of Mays and the officer
who reviewed the store’s surveillance video.
Mays was not present for any of this testimony.
Outside the jury’s presence the
court brought Mays to the door of the courtroom to determine whether he
could be identified by the officer who apprehended him. While waiting for Mays to appear his counsel
suggested that the court ask him whether “he wants to play nice
now[.]†The court responded: “Not yet. The reason is he hasn’t obeyed or cooperated
on anything that I’ve asked him.
Anything. . . . I’ve told him very clearly what the rules are and I
have been, in my opinion, more than patient with this guy as far as his antics,
you know. So, we’ll take another look at
it when I feel it’s appropriate.â€
The officer
identified Mays. Before being removed
from the courtroom, Mays asked the court:
“Am I being barred from the proceedings?
Not even a hearing?â€
The court began to answer, “Well, you forfeited your right to be
here by your conduct. When I—†Mays interrupted, saying: “I’ve been in county jail since this. You could have left me in county jail and
railroaded me and give me what you going to give me.†The court ignored Mays’s interruption and
again ordered him removed from the courtroom.
When the jurors returned, the court
instructed them that “for the record the officer identified the defendant.â€
After the
officers completed their testimony, the court questioned Mays outside the
presence of the jury as to whether he wanted to be present for the remainder of
the trial. Mays replied: “I want to be here, but you made my mind up
throwing me back here where I can’t hear nothing that’s going on.†The court told Mays that if he remained in
the courtroom he could not smile or laugh “because you’re looking right—and in
a sense you’re mocking and laughing at the witness.†Mays said that he wanted to remain in the
courtroom and promised that he would behave.
He caused no further disruptions.
Mays testified in his own defense
and denied having anything to do with the attempted burglary of the dress
shop. He admitted two convictions for
commercial burglary and one conviction for attempted
commercial burglary. After his
testimony he remained in the courtroom until he voluntarily withdrew
in order to pray. He was not present for
the rebuttal testimony of the officer who interviewed him following his arrest
nor for the closing arguments and jury instructions. He was present when the jury read its
verdict.
C. Verdict And Sentence
The jury
deliberated 44 minutes before finding Mays guilty of attempted second degree
commercial burglary. Mays waived his
right to a jury trial on the prior prison term allegations. The court found the allegations true. Mays was sentenced to an aggregate term of
seven years and given 449 days of presentence custody credits calculated as 333
days of actual custody and 116 days of conduct credits.
DISCUSSION
COURT DID NOT ERR IN TERMINATING MAYS’S SELF‑REPRESENTATION.
In
806, the United States Supreme Court recognized that the Sixth Amendment
gives a criminal defendant the right of self‑representation. The court also recognized, however, that a
trial court “may terminate self-representation by a defendant who deliberately
engages in serious and obstructionist misconduct.†(Id.
at pp. 834-835, fn. 46.) Our own Supreme
Court has recognized that the trial court “possesses much discretion when it
comes to terminating a defendant’s right to self-representation and the
exercise of that discretion ‘will not be disturbed in the absence of a
strong showing of clear abuse.’
[Citation.]†(
701, 735.)
No abuse of
discretion occurred here.
The record
shows that Mays interrupted the prosecutor and the court on
numerous occasions and continued doing so even after the court warned him
four times that if he did not cease his interruptions the court would revoke
his pro per status. Mays continued
arguing a point after the court had ruled.
In addition Mays twice ignored the court’s instruction to limit his
opening statement to “just tell[ing] the jury what you think the evidence
is going to be in the case. No
editorializing, no argument.†Instead of
describing the evidence from his point of view, Mays began his opening
statement by telling the jury: “I’m at a
handicap here. The D.A. gets to walk
around [and state] her story—†After
being admonished by the court to limit his statement to his side of the case,
Mays again began by stating: “I’m at a
handicap here. I don’t have a fancy
[lawyer.]â€
In summary,
by the time the court terminated Mays’s self-representation, Mays had persisted
in interrupting the court and the prosecutor despite the court warning him that
if he continued to do so the court would terminate his self-representation. Mays also continued arguing a motion after
the court denied it and refused to obey the court’s instruction not to use his
opening statement to curry sympathy from the jury. Revocation of Mays’s self-representation was
well within the court’s discretion.
ERROR IN EXCLUDING MAYS FROM THE COURTROOM WAS HARMLESS BEYOND A REASONABLE
DOUBT.
Implicit in
the Sixth Amendment to the
States Constitution and explicit in the California Constitution (art. I, §
15) is the right of a defendant to be present in court during the trial. (Illinois
v. Allen (1970) 397 U.S. 337; People
v. Jones (1991) 53 Cal.3d 1115, 1140.)
Like other constitutional rights, however, this right is not
absolute. In Allen, the court “explicitly [held] that a defendant can lose his
right to be present at trial if, after he has been warned by the judge that he
will be removed if he continues his disruptive behavior, he nevertheless
insists on conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him in the
courtroom.†(Illinois v. Allen, supra, 397
U.S. at p. 343.) The court’s holding is
incorporated into Penal Code section 1043, subdivision (b)(1), which provides
that when a felony trial has commenced in the defendant’s presence it may
continue in his absence if “the defendant, after he has been warned by the
judge that he will be removed if he continues his disruptive behavior,
nevertheless insists on conducting himself in a manner so disorderly,
disruptive, and disrespectful of the court that the trial cannot be carried on
with him in the courtroom.â€
Mays
maintains that the court erred procedurally and substantively in excluding him
from the courtroom.
The court erred procedurally, he
argues, because it did not warn him not to laugh, smile or make noises during
the witnesses’ testimony as the court was constitutionally and statutorily
required to do (Illinois v. Allen,
Pen. Code § 1043, subd. (b)(1)) and therefore the court failed to
consider alternatives to exclusion, such as moving Mays to the rear of the
courtroom where his conduct would not be as easily noticed by the jury (see
alternatives to removal]). The court
erred substantively, Mays argues, because his misconduct was not serious enough
to warrant exclusion, the court prevented him from hearing the trial
proceedings while he was excluded from the courtroom, the court unreasonably
delayed its determination to allow him to return and it unreasonably kept him
from returning after prayer.
We need not
address Mays’s contentions because, even under the most rigorous test for
prejudicial error, excluding Mays was harmless beyond a reasonable doubt. (See People
v. Davis (2005) 36 Cal.4th 510, 532.)
When the
court first removed Mays from the courtroom it instructed the jury not to
speculate why Mays was not present because “it doesn’t have anything to do with
the case whether he’s guilty or not guilty.
Mays’s
attorney cross-examined the dress shop owner and the police regarding Mays’s
identification. Mays has not shown how
his presence during the testimony of these prosecution witnesses would have
assisted his defense. Moreover, there
was overwhelming evidence of Mays’s guilt.
A video from the store’s surveillance camera showed Mays wearing a red
ski cap, standing in front of the broken window, holding a cane or crow
bar. He had the red cap with him when
the police detained him shortly afterward.
The store owner positively identified Mays in the field and at trial. Mays admitted to the police that he broke the
store window. The court allowed Mays to
return to the courtroom and testify in his own defense. It took the jury less than an hour to reach a
verdict of guilty.
DISPOSITION
court is ordered to amend the abstract of judgment to reflect 664 total
presentence custody credits, and forward the amended abstract of judgment to
the California Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
NOT
TO BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY,
J.
JOHNSON,
J.
was confined to his chair at the counsel table during the trial.
credits should have been calculated at the “2‑for‑2†rate under
former Penal Code section 4019, subdivision (f). Mays served a total of 333 days prior to the imposition
of his sentence. Accordingly,
Mays’s work and conduct credits are to be calculated by dividing the number of
actual days in custody by two, rounding down to the nearest whole number, and
multiplying by two. Presentence work and
conduct credits are equal to actual credit days, unless the actual number of
credit days is odd, as it is in this case. Therefore, the total number of presentence
work and conduct credits is calculated by subtracting one from the number of
actual custody days. Applying this
formula, Mays had 332 actual custody days, so he is entitled to 332 days
of work and conduct credits, or a total of 664 days of presentence credits.
