P. v. Allen
Filed 8/3/12 P. v. Allen CA4/1
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COURT OF APPEAL, FOURTH APPELLATE
DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE
PEOPLE,
Plaintiff and Respondent,
v.
RICHARD
ALLEN,
Defendant and Appellant.
D060211
(Super. Ct.
No. SCD230891)
APPEAL from a judgment of the Superior
Court of
County, Kerry Wells, Judge.
Affirmed.
A jury convicted Richard Allen of
& Saf. Code, § 11352, subd. (a)); possession
of cocaine base for sale (§ 11351.5); resisting a peace officer (Pen.
Code, § 148, subd. (a)(1)); and destroying
evidence (Pen. Code, § 135).
The court found true four prison priors within the meaning of Penal Code
section 667.5, subdivision (b); four prior convictions for violation of section
11352 (within the meaning of § 11370.2, subd. (a)), and a prior conviction
for transportation of a controlled substance within the meaning of Penal Code
section 1203.07, subdivision (a)(11).
Allen was sentenced to a determinate term of 11
years in prison.
Allen appeals contending the trial court
prejudicially erred in denying his motion, on the day of trial to terminate his
pro per status and again appoint defense counsel. We will find no abuse of discretion by the
trial court based upon this record, which supports the trial court's view that
this last minute request was but one in a series of delays and manipulation of
the system by Allen. We will affirm the
judgment.
STATEMENT
OF FACTS
This appeal does not challenge either the
admissibility or sufficiency of the evidence to support Allen's
convictions. Accordingly, we will adopt
the brief statement of facts from the appellant's opening brief:
On November 23, 2010, Narcotics Detective Joseph Harper
called appellant in a sting operation and set up a meeting to purchase $100
worth of cocaine. Appellant arrived with
his girlfriend at the agreed upon location and appellant and Detective Harper
began talking. Appellant did not
recognize Detective Harper and because he did not know him, appellant refused
to sell him any drugs. Appellant drove
away from the location and was almost immediately stopped by officers and
arrested.
Appellant was searched at the scene
and an officer felt a lump around the area of his buttocks. During a strip search at the police station
officers found a plastic baggie in his pants.
Detective Harper, who participated in the search, testified that the
baggie smelled like cocaine base. Inside
the bag were approximately 30 small rocks which Detective Harper believed was
cocaine base. Detective Harper placed
the cocaine base on the interview table and while he was pulling up appellant's
pants, appellant bent himself over and started eating the bag. Detective Harper tried to stop him but
appellant swallowed the substance, which left a white residue around his
mouth. Detective Harper used two DNA
swabs to take samples of the residue.
Appellant began having
to the hospital. Appellant's urine
tested positive for consumption of marijuana, sedatives, and cocaine. An expert testified for the prosecution that
the seizures and medical condition was most likely caused by a reaction to
cocaine ingestion or overdose.
A presumptive test completed by
Detective Harper on one of the swabs was positive for cocaine base. Lab tests revealed the presence of cocaine
base on the swab.
Officers also found $265 and a cell
phone in appellant's clothing. The cell
phone listed Detective Harper's calls in the history section and while
Detective Harper was reviewing and monitoring the phone, he received two calls
from a person asking to purchase $50 of cocaine.
In Detective Harper's opinion
appellant possessed the drugs for purposes of sale.
The prosecution presented evidence
that in 2004, appellant sold an undercover narcotics officer cocaine base,
which he had hidden in a baggie in his pants.
DISCUSSION
Background
In November 2010, Allen was arraigned and the
public defender was appointed to represent him.
On December 27, 2010, Allen substituted retained
counsel in place of the public defender.
Allen discharged his retained counsel on February 8, 2011, and the
public defender was again appointed to represent him. A week later Allen successfully moved the
court under People v. Marsden (1970)
2 Cal.3d 118, to replace appointed counsel.
On February 15, 2011, Allen made his first request
for self-representation. He declined
however, to sign the "Lopez waiver"
(People v. Lopez (1977) 71 Cal.App.3d
568) evidencing a waiver of his right to
counsel. On February 25, 2011, Allen
made his second request for self-representation and again refused to sign a
written waiver of his right to counsel.
At that hearing the court observed that Allen "has demonstrated [a]
proclivity both to seek to substitute counsel as well as to manipulate the
system whenever things don't go the way he thinks they ought to go . . .
." Allen's request for
self-representation was denied and the case set for trial on April 25, 2011.
On March 21, 2011, the court granted
defense counsel's request to be relieved and new counsel was appointed. On April 22, 2011, Allen made his second
motion for self-representation. This
time he did make a knowing waiver of his right to counsel as required by
806 and signed the appropriate written waiver.
The court granted Allen's request and also granted his request to set
the trial for June 20, 2011.
When the case was assigned to the
trial department (Judge Wells), Allen, representing himself, made a number of
motions, including a motion to suppress evidence and to dismiss counts. The trial court denied those motions. Allen informed the court he was not ready for
trial because he had not prepared for the actual trial. Evidently, Allen's plan was to get the case
dismissed. If that did not happen, he
planned to again ask for counsel for the trial.
Accordingly, Allen requested the court to again appoint counsel and
continue the trial. The court denied
Allen's request finding he was attempting to manipulate the system and that he
did not have a valid reason to once again have counsel appointed.
Legal Principles
A defendant in a criminal case has a Sixth
Amendment right to self-representation, provided the person makes a timely
request and provides a knowing and intelligent waiver of the right to
counsel. (Faretta v. California, supra, 422 U.S. at pp. 820-821;
124; People v. Stanley (2006) 39
Cal.4th 913, 931-932.) However, when a
defendant who has elected self-representation decides to forego that status and
again seek appointed counsel, the decision to grant or deny that request is
within the discretion of the trial court.
(People v. Lawrence (2009) 46
Cal.4th 186, 188 (Lawrence);
163-164.) We therefore review such
decisions under the abuse of discretion standard.
The court in Lawrence
determined that review of the trial court's decision must include the totality
of circumstances presented to the trial court.
Five factors have been identified as proper considerations in evaluating
a request to set aside pro per status.
Those factors are: (1) the
defendant's history of substituting counsel; (2) the reasons the defendant
gives for requesting reappointment of counsel; (3) the length and stage of the
trial court proceedings; (4) the disruption or delay that might reasonably
result from granting the request; and (5) the likelihood the defendant would be
effective in defending against the charges if required to proceed as his or her
own attorney. (Lawrence, supra, 46 Cal.4th at p. 192.) While the court has set out criteria for
evaluating requests to be relieved from pro per status, the court recognized
they are no absolutes because the trial court's decision must be evaluated based
on the totality of circumstances. (
Analysis
We have set out in tedious detail the history of
the case as it relates to representation by counsel in order to provide context
for this discussion. Two different trial
court judges found that Allen was attempting to manipulate the system. Allen denies that in his appeal. However, one of the best indicators of
Allen's motives may be found in his statement, made in the trial court when he
was asking for delay and new counsel.
Allen said: "Your Honor, the
thing is, you asked me was I ready for trial earlier, and I told you no, I
wasn't, because I based everything on these motions. Well, for trial itself, I was going to give
up my right as pro per and have counsel reappointed."
Allen's somewhat remarkable
statement indicates that at the time he asked for, and was granted
self-representation, he never intended to represent himself at trial. Although he was very thoroughly warned of the
consequences and responsibilities when he made his third request, Allen never
intended to actually go to trial without counsel. If we consider the timing of his request for
reappointment of counsel, his statement of reasons and his history in this
case, we can certainly understand why a reasonable trial judge would think
Allen was manipulating the system. In
fact, it would be difficult to reach a contrary conclusion.
Allen was very experienced in the
prior prison commitments. He tried to
destroy the evidence when arrested by eating it. He was facing a lengthy prison sentence if
convicted and appears to have taken every opportunity to delay the
process. Perhaps most telling, however,
is the fact he made three motions for self-representation, although he refused to
make an intelligent waiver of his right to counsel on the first two
attempts. Once being granted the right,
and given the trial date he requested, he waited until trial and then advised
the trial judge that he never intended to actually try the case, because he was
only going to deal with the motions.
Simply put, Allen was playing the system in an attempt to avoid what
would be his fifth prison commitment.
The trial court was not required to allow that conduct. Applying the totality of circumstances set
forth in Lawrence, supra, 46 Cal.4th
at page 192, we are satisfied there was no abuse of discretion in this case.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE
CONCUR:
HALLER,
J.
IRION,
J.
