P. v. Baul
Filed 4/2/12 P. v. Baul CA2/2
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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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOEL BAUL,
Defendant and Appellant.
B225051
(Los Angeles
County
Super. Ct.
No. LA063524)
APPEAL from
a judgment of the Superior Court
of
County. Martin Herscovitz, Judge. Affirmed as modified with directions.
Karyn H.
Bucur, 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, Victoria B. Wilson and
Erika D. Jackson, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________
A jury convicted appellant Joel Baul of
(count 1); two counts of assault with a
deadly weapon (§ 245, subd. (a)(1)) (counts 2 & 5);
220, subd. (a)) (count 3); and attempted
robbery (§§ 664, 211) (count 4).
With respect to counts 1, 3 and 4, the jury found that appellant
personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The jury also found true the allegations that
appellant had suffered three prior prison term convictions within the meaning
of section 667.5, subdivision (b), that he had suffered two prior serious
felony convictions within the meaning of section 667, subdivision (a), and that
he had suffered six prior serious or violent felony convictions within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds.
(a)-(d)).
The trial
court sentenced appellant to state prison
for a total of 119 years to life as a third-strike defendant. In count 1 (carjacking), the trial court
imposed the high term of nine years tripled, or 27 years, with a one-year
enhancement for knife use, 10 years for two 5-year priors, and three years for
three 1-year priors for a total of 41 years to life in count 1. In count 3 (assault with intent to commit
rape), the trial court imposed a consecutive term of 25 years to life with one
year for knife use, 10 years for two 5-year priors, and three years for three
1-year priors for a total of 39 years to life in count 3. In count 4 (attempted robbery), the trial
court imposed a consecutive term of 25 years to life, with one year for knife
use, 10 years for two 5-year priors, and three years for three 1-year priors
for a total of 39 years to life in count 4.
The trial court stayed sentences of 38 years to life in counts 2 and 5
under section 654.
Appellant
appeals on the grounds that: (1) he was
deprived of his constitutional right to self-representation; (2) there was
insufficient evidence to support the jury’s verdict in count 3; (3) the trial
court erroneously denied new counsel a copy of the trial transcript to prepare
a defense for postconviction and sentencing proceedings; (4) appellant is
entitled to per se reversal of his sentence because he was completely denied
the assistance of counsel during his sentencing hearing; and (5) two of the
one-year prison prior enhancements imposed in counts 1 through 5 should be
stricken because the prior convictions for these prison priors were used to
enhance appellant’s sentence under section 667, subdivision (a)(1).
FACTS
Prosecution Evidence
A. Counts 1 & 2
On February
18, 2009, at approximately 7:30 p.m., Jasmine Irving drove into the underground
parking garage of her apartment building on Vanowen Street in Canoga Park. She parked in her assigned space and got out
of the car to fix a light inside the car in the backseat area. A man, later identified as appellant, came
from behind and put a knife to her throat and held her. He pushed her inside the backseat with his
body and closed the car door. He told
her to be quiet and not to scream. He
then choked her with both hands. She
could not breathe and believed she was going to pass out. He tied her hands behind her back. Appellant put Irving on the floor in a
crouching position, moved up to the driver’s seat, and started the car. He began backing up and leaving the parking
lot. Irving asked appellant if he wanted
her car or money and told him to take everything. Appellant said he wanted money and Irving
told him to take it. Her purse was in
the front passenger seat. However,
appellant just started driving the car.
Irving managed to untie one of her hands, opened the back door, and
jumped out of the car when appellant stopped at a stop sign. Irving ran to a gas station as appellant
drove off with her car with her purse inside.
Irving
called the police and reported what had happened. Irving’s car and her purse were recovered
later the same day in the parking lot of a Home Depot store that was less than
a mile away. The police returned
Irving’s purse but retained custody of the car to search for evidence. Irving’s pink slip for the car and $400 cash
were missing when she got her purse back.
Irving was unable to identify anyone in a six-pack photographic lineup
and a live lineup.
Counts 3, 4, & 5
On March 5,
2009, at some time before 7:00 p.m., A.K. drove into the gated parking area of
her condominium building on Sherman Way in the San Fernando Valley. The parking garage was under the building and
protected by a sliding iron gate. She
parked her car in her parking spot. As
she was texting a friend while seated in the driver’s seat, the rear passenger
door opened and a man later identified as appellant got into the backseat. Appellant grabbed A.K.’s hair and pushed her
head to the side, almost to the passenger seat.
He held a knife to her left cheek underneath her ear and told her to
move to the passenger seat. Appellant
said, “Just shut up,” “Be quiet,” and “Just move.” A.K. took the key from the ignition and moved
to the passenger seat. Appellant kept
telling her to be quiet. Appellant moved
to the driver’s seat. He smelled of
alcohol. Appellant asked A.K. personal
questions, such as her name, her marital status, whether she had any children
or a boyfriend, if she lived alone, and what her job was. Appellant took the keys from her. He told her to take her shoelace from her
shoe. A.K. took off her shoe and removed
the shoelace.
A.K.
noticed that appellant wore gloves with the finger portion cut off. Appellant tried to tie her hands behind her
back with the shoelace but could not.
A.K. kept talking and trying to raise her head to see appellant and he
told her several times to just shut up.
Appellant told her that if she did not shut up he would hurt her. Appellant tried to use A.K.’s keys to start
the car, but he could not figure out how they worked and began swearing. Appellant put the shoelace around A.K.’s neck
at one point, and she managed to move her right hand and place it between the
shoelace and her neck. Appellant also
told A.K. to take off her pants. She
refused.
A.K.’s car
alarm went off twice as appellant tried to start the car. The first time, appellant pushed A.K.’s head
down and told her to just shut up. When
it went off the second time, A.K. managed to get free and get out of the car. She ran from the car to her neighbor, Dmitry
Voznenko, who was nearby. She told him
that there was a man in her car trying to kill her. Voznenko had heard a terrible scream and had
seen two silhouettes in her car. He saw
A.K. get out of her car without shoes and with a shoelace on her neck.
Appellant
eventually got out of the driver’s seat and headed toward A.K. and Voznenko
while holding something in his right hand.
Voznenko put A.K. behind his back, and appellant stared at them for
around 10 seconds. When another
neighbor, Starling Jenkins, opened the gate to the parking area, appellant
left. A.K. yelled that he had her keys
and appellant threw them down to the side.
Voznenko called 911. Jenkins saw
a hooded figure walking away “aggressively.”
Jenkins followed appellant on foot.
Appellant headed west, up an alley, until he reached a bicycle chained
to a pole. Jenkins then went to get his
truck to follow appellant, but he lost track of him.
The police
arrived shortly thereafter and talked to everyone about what had happened. A.K. was shown a six-pack photographic lineup
but was unable to identify anyone.
Brent
Epstein is a parole agent employed by the Department of Corrections. He supervises registered sex offenders within
the San Fernando Valley, and he supervised appellant from January 12, 2009,
through March 13, 2009, the date of appellant’s arrest. Appellant wore a GPS device to monitor his
movements. The device results in red
dots on a grid on a computer screen that indicate whether the parolee is moving
or standing still. The dots also show
the pace of movement, i.e., whether the person is walking, on a bike, or in a
car. The device is tamper-resistant.
During
March 2009, at the request of law enforcement, Parole Agent Steve Reinhart
performed a crime scene correlation with the tracking data on appellant’s
monitoring device. The monitoring
bracelet can lose its signal when underground or under buildings. Reinhart used appellant’s GPS monitoring
bracelet to track his location on February 18, 2009, between 7:00 p.m. and 9:00
p.m. Reinhart found that appellant had
been lingering near Irving’s apartment complex at 7:05 p.m. There was also a 30-minute lapse in tracking
between 7:12 p.m. and 7:58 p.m. The 7:12
p.m. signal was directly at the entrance to the underground parking
structure. From 7:58 p.m. to
8:08 p.m., the tracking device showed appellant had gone to the Home Depot
parking lot. He then left the Home Depot
parking lot on foot. At 8:23 p.m., the
GPS monitor showed appellant was back at his residence.
Reinhart
also tracked appellant’s location for March 5, 2009, between 5:45 p.m. and 7:45
p.m. He discovered appellant was in the
vicinity of an alley near the parking garage for a complex near Sherman Way. He was moving back and forth in the
alley. At 7:17 he was at the entrance to
the underground parking structure of an address on Sherman Way that was A.K.’s
address. From 7:17 p.m. to 7:30 p.m.,
the monitoring bracelet did not receive a signal. Reinhart discovered several other instances
in the month of February and March where it appeared that appellant was
lingering outside apartment complexes— areas that had underground parking
structures—during the period between 6:00 p.m. and 8:00 p.m.
On July 8,
1990, F.M. arrived home at her apartment complex in Los Angeles at
approximately midnight. She drove into
the parking garage under the building and parked her car. F.M. got out of her car and noticed a man standing
near the entry door to the building. The
man, later identified as appellant, was standing against the wall with a knife
in his hand. Before F.M. could react,
appellant grabbed her with his left arm and began squeezing her. He put the knife to F.M.’s neck, and said,
“Shut up or I’m going to kill you.”
Appellant tried to move F.M. to a corner of the parking garage and they
struggled. F.M. was cut on her thumb and
index finger. Appellant pulled her
behind her car and made her sit on the ground.
He put tape over her mouth and took some of her jewelry. She tried to talk and he said, “Don’t talk or
I’m going to kill you.” Appellant had
F.M. pull her sweater over her head, and then he removed her pants and
underwear. Appellant then raped F.M. He also inserted his fingers into her
vagina. At some point after the assault,
appellant left. A piece of her jewelry
was later found on appellant. She
identified appellant in a preliminary hearing.
Defense Evidence
Appellant
presented no evidence or testimony in his defense.
DISCUSSION
I. Denial of Faretta
Motion
Appellant
contends the trial court abused its discretion in denying his motion under
806 (Faretta), since his legitimate
interest in representing himself was supported by consideration of the factors
set out in People v. Windham (1977)
19 Cal.3d 121 (Windham). A short continuance for appellant to prepare
would not have disrupted or significantly delayed the proceedings. Moreover, his Faretta motion was made on the morning of trial and was not
untimely, since it was made at the defendant’s earliest opportunity. The record shows that appellant was not
misusing the Faretta motion to
unjustifiably delay the trial or to obstruct the orderly administration of
justice.
B. Relevant Authority
“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, the United States Supreme Court has held that 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. (Faretta
v. California [1975] 422 U.S. 806, 819 . . . .)” (People
v. Marshall (1997) 15 Cal.4th 1, 20.)
The erroneous denial of a timely Faretta
request is reversible per se. (
824.) An erroneous denial of an
of People v. Watson (1956) 46 Cal.2d
818, 836 (Watson). (People
v. Nicholson (1994) 24 Cal.App.4th 584, 594-595; People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.)
The right
of self-representation is not self-executing.
Rather, the defendant must make a knowing, voluntary and unequivocal
assertion of the right “within a reasonable time prior to the commencement of
trial.” (Windham, supra, 19 Cal.3d
at pp. 127-128, fn. omitted.) The
timeliness requirement is to preclude a defendant from misusing the motion to
unjustifiably postpone trial or frustrate the orderly administration of
justice. (Id. at p. 128, fn. 5.)
In
California, there is no bright-line test for determining the timeliness of a
v. Clark (1992) 3 Cal.4th 41, 99.)
The Windham court noted that
“a defendant should not be permitted to wait until the day preceding trial
before he moves to represent himself and requests a continuance in order to
prepare for trial without some showing of reasonable cause for the lateness of
the request. In such a case the motion
for self-representation is addressed to the sound discretion of the trial
court.” (Windham, supra, 19 Cal.3d
at p. 128, fn. 5.) Consequently, courts
have held that Faretta motions
accompanied by a request for continuance were untimely when made shortly before
commencement of trial, subject to the court’s discretion. (See, e.g., People v. Burton (1989) 48 Cal.3d 843, 853.)
To insure
an adequate record, the trial court should inquire sua sponte into the factors underlying the request. (Windham,
supra, 19 Cal.3d at p. 128.) In assessing an untimely Faretta motion, “‘[t]he court should consider such factors 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.’” [Citation.]’
[Citation.]” (
98-99, citing Windham, at p. 128;
799, 827.)
C. Proceedings Below
On February
22, 2010, the case was called for trial, and the trial court informed the parties
that 70 jurors were on their way.
Appellant waived his right to wear civilian clothing, stating that he
was under the impression that the trial was going to be postponed to a later
date. Appellant told the court that he
had been studying, and he understood that he had a Faretta right. He preferred
“to do that” because he did not believe his attorney, Mr. Budde, had his best
interests at heart. When asked if he was
ready for trial, appellant replied, “No, I’m not ready for my trial for
today. I haven’t had access to a legal
law library.” Appellant told the court
that he was illiterate to the law and it might take him a month or so to come
up to speed.
When the
trial court pointed out that the information had been filed on December 7,
2009, appellant said he had tried to talk to the court on February 18, 2010,
but he was not allowed to come in the courtroom. When asked again how long he would need to be
ready, appellant said he did not know the exact amount of time, but that,
tentatively, it would not take long. He
would inform the trial court when he was ready to proceed. It would be perhaps a month, but perhaps less
because he was “very intelligent” and could read and retain information very
well.
The trial
court told appellant that his request was not timely, since it was made on the
day set for trial with a panel of 70 jurors having been summoned to hear his
case. The court stated “[i]t would be a
perversion of justice to delay your trial when you made such a late request to
represent yourself.” The court added
that it was concerned that appellant was asking the court to represent himself
merely for the purpose of obstruction or delay.
Appellant
then complained to the court about motions that he wanted to be filed that had
not been filed by Mr. Budde. In
addition, Mr. Budde had said it was not a good idea to subpoena certain items
that appellant wanted to have subpoenaed.
Appellant wanted the call sheets of the GPS monitors in order to show
that he frequented the crime locations and the Home Depot on more than one
occasion. Mr. Budde had told him that
this information was not relevant. The
district attorney confirmed to the court that the GPS records would confirm
what appellant said, and she added that this was not an issue. Appellant then stated that he did not feel
confident in his attorney because he had told appellant that he was going to
prison.
When asked
by the court, Mr. Budde said he had tried hundreds of cases. He denied telling appellant that he was going
to prison. The trial court then informed
appellant that he was not eligible for probation in any event. Appellant reiterated that he and his family
were not comfortable dealing with his attorney.
Appellant clarified, however, that he was seeking to represent himself
and not appointment of a different attorney.
The trial
court respectfully denied appellant’s motion stating, “I
feel . . . requesting this today, with the jury panel on
their way over here—and even if it was done last week, late last week, when you
were last in court and not brought into the courtroom, where Mr. Budde
announced ready on your behalf, that was not timely.” Appellant replied, “So it is on the record
that I was denied pro per” The trial
court stated that it was. Appellant
replied, “Thank you.”
D. Motion Properly Denied
We conclude
appellant’s Faretta motion was
untimely, having been made on the day of trial and just before the start of
jury selection. At this point,
appellant’s right of self-representation was no longer absolute, but subject to
the court’s discretion. “When a trial
court exercises its discretion to deny a motion
for self-representation on the grounds it is untimely, a reviewing court
must give ‘considerable weight’ to the court’s exercise of discretion and must
examine the total circumstances confronting the court when the decision is
made. [Citation.]” (People
v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398 (Howze).)
Although
the trial court here may not have expressly considered each of the
not mandatory. (Windham, supra, 19 Cal.3d
at p. 129, fn. 6.) The record reflects
that the trial court implicitly considered many, if not all, of these
factors. (See People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) The record indicates that the trial court
inquired as to the extent of Mr. Budde’s experience and learned that he had
tried hundreds of criminal trials. The
trial court also learned that appellant’s problems with his counsel consisted
of disagreements over tactics, which is not a sufficient reason for granting an
untimely Faretta request. (People
v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4; see also
had been filed on December 7, 2009. The
record shows that appellant had been in court on January 12, 2010, well over a
month after that, and had not made a Faretta
motion. The trial court also noted that,
although appellant claimed he was not allowed to make a motion on February 18,
any such motion would also have been untimely, since it was the eve of
trial. Appellant said that he was not
sure when he would be ready for trial and told the court he would let the court
know, since he was “illiterate to the law.”
Clearly the trial court considered such a delay a disruption in the
orderly process of justice, since the jurors were on their way, and everyone
had announced ready for trial.
In
claimed that his Faretta motion was
timely because it was made two days before trial and was not accompanied by a request for a continuance. (Howze,
supra, 85 Cal.App.4th at pp.
1396-1397.) The Howze court concluded “the decision whether to grant
self-representation status to a defendant is discretionary when the motion is
made within days of the trial date. . . .” (Id.
at p. 1397.) Under the circumstances
present in this case, where appellant made his motion on the very day of trial
while seeking an indefinite
continuance, we conclude that the trial court did not abuse its discretion when
it denied appellant’s Faretta
motion. In People v. Ruiz (1983) 142
Cal.App.3d 780, 789-791, for example, the court stated that a
trial was untimely and subject to the trial court’s discretion.
Moreover,
even if the denial of a continuance were erroneous, appellant suffered no
prejudice. Denial of an untimely
per se, but is subject to the “‘harmless error’” test of Watson, supra, 46 Cal.2d
818. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) In that case, the court noted that in light
of the subsequent proceedings and the fact that a pro se defendant never
improves his situation or achieves a better result than a trained professional,
any error was harmless. In the instant
case, given the overwhelming evidence of appellant’s guilt, it is not
reasonably probable the outcome of the trial would have been more favorable to
appellant had he been granted a continuance to prepare his own defense. (Watson,
at p. 836.)
II. Sufficiency of the Evidence in Count 3
Appellant
contends the jury’s guilty verdict in count 3 cannot stand because there was no
evidence of appellant’s intent to commit rape.
The testimony established only that A.K.’s attacker’s intent was to kill
her or seriously harm her with a knife.
Her testimony did not establish that he asked her to take off her pants,
and her pants never came off.
B. Relevant Authority
In reviewing a
challenge to the sufficiency of the evidence, we review the whole record in the
light most favorable to the judgment, presuming in support of the judgment the
existence of every fact the jury could reasonably deduce from the evidence. (People
v. Proctor (1992) 4 Cal.4th 499, 528.)
Given this court’s limited role on appeal, appellant bears an enormous
burden in claiming there was insufficient evidence to sustain the verdict. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Although a reviewing court “may not ‘go beyond inference and into the
realm of speculation in order to find support for a judgment’” (
695, disapproved on another point in People
v. Gaines (2009) 46 Cal.4th 172, 181), “[i]f the circumstances reasonably
justify the jury’s findings, the reviewing court may not reverse the judgment
merely because it believes that the circumstances might also support a contrary
finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) “The test is whether substantial evidence
supports the decision, not whether the evidence proves guilt beyond a
reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) Reversal for insufficiency of the evidence
“is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’” (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
The standard of review is the same in cases where the prosecution relies
primarily on circumstantial evidence. (
11; People v. Bloom (1989) 48 Cal.3d
1194, 1208.)
To
demonstrate the insufficiency of the evidence of assault with intent to commit
rape, appellant cites the following exchange on direct examination of A.K.
“Q. . . .
Did he ask you to take any other items of your clothing off
“A. No.
No.
“Q. Do you remember if he asked you to take your
pants off
“A. Yeah, I did, but—yeah, I did.
“Q. Okay.
Did he ask you to take your pants off
“A. I think he wanted to take the string,
probably, off the pants.”
D. Evidence Sufficient
In count 3,
appellant was charged under section 220, subdivision (a), with assault with
intent to commit a felony; specifically, with the intent to commit rape. To convict appellant of this crime, the
People had to show that he intended to engage in sexual intercourse with A.K.
and to use force to overcome her resistance.
(People v. Craig (1994) 25
Cal.App.4th 1593, 1597 (Craig),
citing People v. Nye (1951) 38 Cal.2d
34, 37.) The specific intent with which
an act is committed may be shown by the conduct of the defendant and the
circumstances surrounding the commission of the act. (People
v. Bradley (1993) 15 Cal.App.4th 1144, 1154.)
We conclude
the evidence was sufficient to show that appellant had the specific intent to
commit the rape of A.K. In
circumstances,” including evidence of two similar acts by the defendant, led to
the conclusion that a reasonable trier of fact could infer that appellant
assaulted the victim with the specific intent of committing rape. (Id.
at p. 1604.) Although other reasonable
inferences could have been drawn, it was up to the jury to draw them. (Ibid.)
At the
outset, the record shows that A.K. was obviously nervous, and at first answered
“No” to the prosecutor’s question, “Did he ask you to take any other items of
your clothing off” A.K. continually
interrupted the prosecutor’s questions and gave nonresponsive answers. When the prosecutor succeeded in momentarily
slowing down A.K., the prosecutor asked, “Did he ask you to take off your
pants” A.K. answered, “Yes.” A.K. did not recall telling police officers
that appellant told her to take off her pants and that she refused. She acknowledged that she tried not to
remember what happened, and for that reason she remembered it better right
after it occurred. Officer Vincent
Allard testified that A.K. told him that appellant told her to take off her
pants while holding a two-inch chrome knife to the left side of her face. She told Officer Allard that she refused to
comply. It was reasonable to infer that
appellant told A.K. to take off her pants while holding a knife to her cheek
for the purpose of raping her in the garage (or perhaps elsewhere) as he had
done before.
Moreover,
appellant did not ask for any money and expressed little interest in money as
he was tying up A.K. A.K. herself stated
she knew appellant was going to “tie [her] down” and drive her away because he
did not want any money or jewelry. This
fact, along with the other evidence, leads to a reasonable inference that
appellant’s intent was to commit rape.
(See People v.
1180-1181 [fact that assailant did not attempt to steal victim’s purse or any
other property was a circumstance that supported conclusion that his intent was
to commit rape]; People v.
[fact that victim’s attacker did not ask her for money was a circumstance justifying
the inference that rape was intended].)
Significantly,
as in the Craig case, the jury also
had before it evidence of appellant’s similar conduct on a prior occasion,
conduct that culminated in the rape of the prior victim. (See Craig,
supra, 25 Cal.App.4th at pp.
1596-1597.) Indeed, the circumstances of
the prior crime were strikingly similar.
The jury’s consideration of appellant’s rape of F.M. as circumstantial
evidence of his intent with A.K. was not improper. (Evid. Code, § 1108; see People v. Maury (2003) 30 Cal.4th 342, 399-400;
693, 718; People v. Rehmeyer 19
Cal.App.4th 1758, 1765-1766; People v.
Poon (1981) 125 Cal.App.3d 55, 82.)
The trial
court gave the jury instructions on the lesser included offense of assault in
count 3, and the jury rejected this alternative. (CALCRIM Nos. 3517, 915.) Considering the totality of the circumstances
in this case, we conclude that a rational trier of fact could have concluded
beyond a reasonable doubt that appellant committed the assault of A.K. with the
required specific intent.
III. Denial of Trial Transcript to New Counsel
Appellant
contends that the attorney who represented him at sentencing, after his trial
counsel became medically unavailable, was not able to provide effective
assistance of counsel, since the trial court denied new counsel’s request for
trial transcripts. Appellant’s new
counsel was not present during trial, and former counsel was medically
unavailable for consultation. Citing
erroneous denial of an indigent defendant’s motion for a free transcript
requires automatic reversal.
B. Relevant Authority
An indigent
criminal defendant must be provided a free transcript of prior proceedings
where the transcript is necessary for an effective defense or appeal. (Hosner,
supra, 15 Cal.3d at p. 64.) However, “an indigent defendant is not
entitled, as a matter of absolute right, to a full reporter’s transcript of his
trial proceedings for his lawyer’s use in connection with a motion for a new
trial; but, since a motion for a new trial is an integral part of the trial
itself, a full reporter’s transcript must be furnished to all defendants, rich or
poor, whenever necessary for effective representation by counsel at that
important stage of the proceeding.” (
83.) Whether the denial of transcripts
for a motion for new trial is so arbitrary as to violate due process must be
determined on a case by case basis. (
Two factors relevant to the determination of the need for transcripts
are the value of the transcript to the defendant in connection with the
proceeding for which it is sought, and the availability of alternatives that
would fulfill the same functions as a transcript. (Hosner,
at p. 65.) The trial court therefore may
deny a motion for free transcripts for use in preparing a motion for new trial
where the defendant fails to show a particularized need for the transcripts in
order to decide an issue presented. (
1689, 1702.)
On May 26,
2010, the date set for sentencing, a different public defender, Bradley Siegel,
appeared for appellant. Mr. Siegel
announced that the defense was not ready for sentencing, stating, “The court is
aware that I’ve sought transcripts of this trial. I was not trial counsel. I know very little to nothing of this
matter. I cannot make a determination,
in the absence of transcripts, whether or not there are valid motions to submit
to this court.” He added that he had no
information relevant to making a motion under Romero
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or for concurrent time to any of the charges.
He argued that to proceed would be to deny appellant effective
representation of counsel in violation of the Fifth, Sixth, and Fourteenth
amendments. Since it appeared the court
was not going to generate transcripts, Mr. Siegel requested that sentencing be
continued until Mr. Budde could be before the court. He requested a continuance of a month to six
weeks in order to see if trial counsel’s medical issues were resolved.
The trial
court inquired if Mr. Siegel had filed a motion under section 1050, and counsel
replied that he had filed only the request for transcripts and had advised the
court that he could not proceed without them.
The trial court replied that it had repeatedly advised counsel that it
could not order transcripts and had cited case authority to that effect on two
occasions. The trial court stated it had
given counsel two opportunities to explain which portions in particular of the
trial transcript he needed for a motion for new trial or to make any effective
argument. The trial court pointed out
that counsel had before it the probation report and the transcript of the
preliminary hearing. Counsel could also
have conferred with the district attorney and his own client. The trial court noted that the verdicts were
rendered on February 26, 2010 (three months earlier). The court stated that issues such as
application of section 654 and concurrent sentencing in a three-strike case
were issues that were readily apparent from the preliminary hearing transcript
and the summary of facts in the probation report. The trial court ruled that there was no good
cause to continue the case or to produce trial transcripts merely for the
purpose of studying them to see whether or not someone can bring a motion for
new trial.
D. Motions Properly Denied
The record
shows that, after appellant’s verdicts were rendered on February 26, 2010, the
probation and sentencing hearing was set for March 16, 2010. Mr. Siegel represented appellant on that
date, and the People filed their sentencing memorandum. Mr. Siegel requested a continuance to review
the court file, and the trial court granted this request. The sentencing hearing was continued to April
14, 2010. On that date, F.M. gave a
victim impact statement, and Mr. Siegel requested another continuance. The trial court issued a denial of Mr. Siegel’s
oral request for trial transcripts “absent a showing of specific need” on April
16, 2010. As noted, on May 26, 2010,
almost six weeks later, Mr. Siegel appeared and stated he was not ready for
sentencing because he had no trial transcripts.
We conclude
that the facts and circumstances presented to the trial court support the trial
court’s denial of free transcripts. “The
court must decide each case on its own facts and circumstances in determining
whether the defendant has made a sufficient showing of need. [Citations.]”
(People v. Markley (2006) 138
Cal.App.4th 230, 241.) Mr. Siegel did
not show a particularized need for the transcripts, as the trial court
ruled. Mr. Siegel did not express a need
for transcripts in his first two appearances and then mentioned only the issues
of concurrent sentencing and a Romero
motion in connection with his need for transcripts. As the trial court stated, information was
available in the probation report as to the Romero
motion. The People’s sentencing memorandum,
which was provided at the March 16 proceeding was extremely informative on the
issues of consecutive versus concurrent sentencing and also on any
information” as he claimed. Mr. Siegel
could also have consulted with appellant, who had told the court that he was
very intelligent and retained information well.
Appellant’s was a short trial of approximately four days with only a few
principal witnesses. Furthermore, Mr.
Siegel made no showing that Mr. Budde had provided him with no information
whatsoever about the case or that Mr. Budde was completely unavailable for
consultation. (See People v. Lopez, supra, 1
Cal.App.3d at p. 83.) Mr. Siegel made no
indication that there were any ineffective assistance of counsel claims that
would have precluded his office from proceeding with sentencing. (Ibid.) Moreover, the verdict had been rendered three
months earlier, and a trial court’s concern about delay is a wholly legitimate
basis for denying a request for a full transcript, especially absent a showing
of particularized need. (See
Cal.App.3d at p. 1704.) Under these
circumstances, the trial court did not abuse its discretion in denying Mr.
Siegel’s request.
Moreover,
appellant was not prejudiced by the denial of trial transcripts. With respect to sentencing, the record shows
that the trial court carefully considered the issues of section 654 and
concurrent versus consecutive sentencing as well as the issue of which three
strikes sentencing formula to employ.
The trial court clearly believed that appellant deserved the maximum
sentence available, and the court gave reasons for its decision.
information, and neither below nor on appeal does appellant say how the
transcripts would have assisted him. The
time for providing a defense had long since passed, and appellant has not set
out any “significant trial errors or issues” on appeal. Thus any error in refusing the transcripts
was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (See People
v. Markley, supra, 138
Cal.App.4th at p. 244.)
IV. Assistance of Counsel at Sentencing
Appellant
contends he is entitled to per se reversal of his sentence because he suffered
a complete denial of assistance of counsel during his sentencing hearing, a
critical stage of trial. This was the
result of his being denied trial transcripts, even though prior counsel was
medically unavailable. His newly
appointed counsel was unable to put the prosecution’s sentencing arguments to
meaningful adversarial testing or to present any evidence in mitigation. New counsel was “completely unable to participate
in the sentencing proceedings to defend his client against the prosecution’s
case against him.”
B. Relevant Authority
In
648 (Cronic), the United States
Supreme Court held that prejudice need not be shown where the trial lost “its
character as a confrontation between adversaries,” (id. at pp. 656-657, 659), i.e., where there was a “complete denial
of counsel” at a critical stage, where “counsel entirely fail[ed] to subject
the prosecution’s case to meaningful adversarial testing,” or where even a
competent attorney would have been unable to provide effective assistance under
the circumstances. (Id. at pp. 659-660.) In
Supreme Court explained that its holding in Cronic
was extremely narrow: “When we spoke in
prejudice based on an attorney’s failure to test the prosecutor’s case, we
indicated that the attorney’s failure must be complete.” (Bell,
at pp. 696-697.)
Similarly,
the California Supreme Court has deemed the Cronic
exception to be quite limited:
“Defendants have been relieved of the obligation to show prejudice only
where counsel was either totally absent or was prevented from assisting the
defendant at a critical stage.” (
353.)
Exception Not Applicable
In the instant
case, defense counsel was not “totally absent” during appellant’s sentencing
proceeding. He was clearly present, and
the court in no way prevented Mr. Siegel from participating. A denial of counsel requires some state
action that denies or deprives a defendant of the presence of counsel. (Bell
v. Cone, supra, 535 U.S. at pp.
695-696, fn. 3.) Therefore, there was no
complete denial of counsel at a critical stage of the trial in this case.
As we have
determined, the denial of trial transcripts did not prevent Mr. Siegel from
participating in the sentencing proceeding.
Moreover, in this three strikes case, the sentencing proceeding cannot
be characterized as “a confrontation between adversaries” to the degree that
the constitutional guarantee of effective assistance of counsel was
violated. (Cronic, supra, 466 U.S.
at pp. 656-657, fns. omitted.) In
Cronic’s case also, the high court determined that his case was not one where
the circumstances made it unlikely that he could have received effective
assistance of counsel. (
of ineffective assistance of counsel by pointing to counsel’s specific errors
and the resulting prejudice. (
Likewise,
in In re Visciotti, supra, 14 Cal.4th
325, the California Supreme Court determined there had not been a total
breakdown of the adversarial process at the penalty phase of Visciotti’s trial
so as to render the verdict of death unreliable. In that case, defense counsel failed to
present evidence at the penalty phase of trial that Visciotti had suffered
continual abuse during his childhood.
Counsel chose instead to employ “the ‘family sympathy’ defense.” (Id.
at p. 336.) The court determined that,
despite counsel’s multiple failings, Visciotti’s case was “not a case in which
there was a total breakdown of the adversarial process within the meaning of
Visciotti, at p. 352.) The court
stated, “The failure of counsel to present the mitigating evidence petitioner
has now identified, or any specific type of mitigating evidence, does not
reflect such a breakdown of the adversarial process as to render the verdict
presumptively unreliable.
[Citations.] And, as we explained
in [an earlier case], notwithstanding the broad language in the
that when ‘counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing,’ the right to competent counsel has been denied and the
result of the trial is presumptively unreliable, the actual application of
obligation to show prejudice only where counsel was either totally absent or
was prevented from assisting the defendant at a critical stage. Neither factor is present here.” (Id.
at pp. 352-353; see also In re Avena
(1996) 12 Cal.4th 694, 726-728.) Thus,
Visciotti had failed to show he was constructively denied his right to
counsel. He therefore had to show he had
suffered prejudice in order to obtain relief.
(In re Visciotti,
In the
present case, a review of the record fails to indicate that “counsel was either
totally absent or was prevented from assisting the defendant at a critical
stage” of the proceedings. (
Therefore, to obtain relief, appellant must show that counsel’s
deficient performance caused him prejudice.
(Ibid.) “[A] defendant seeking relief on the basis of
ineffective assistance must show both that trial counsel failed to act in a
manner to be expected of reasonably competent attorneys acting as diligent
advocates, and that it is reasonably probable a more favorable determination
would have resulted in the absence of counsel’s failings.” (People
v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694.) A
reviewing court need not determine whether counsel’s performance was deficient
before examining whether the defendant suffered prejudice as a result of
counsel’s alleged deficiencies. (
As
indicated in the preceding section, we have concluded that no prejudice
resulted from Mr. Siegel’s failure to argue against appellant’s three strikes
sentence. Therefore, any claim of
ineffective assistance fails.
V. Enhancements Under Section 667.5, Subdivision
(b)
Appellant
contends that his prison prior enhancements (§ 667.5, subd. (b)) that derive
from the same prior convictions used for the five-year serious felony
enhancements (§ 667, subd. (a)(1)) must be stricken. He argues that section 667, subdivision (b)
permits only the greater enhancement to be imposed.
B. Some Enhancements Must Be Stricken
The
information alleged in counts 1 through 5 that appellant had suffered the
following three prior convictions pursuant to section 667.5, subdivision (b),
which provides for a one-year sentence enhancement for each prior separate
prison term: (1) case No. LA044653, a
violation of section 666; (2) case No. SA004025, a violation of section 211;
(3) case No. A620492, a violation of section “261(2).” The jury found true these three prior prison
term allegations.
The
information alleged in counts 1 through 5 that appellant had suffered pursuant
to section 667, subdivision (a)(1) the following prior convictions of a serious
felony: (1) case No. SA004025, a violation of section
211; (2) case No. A620492, a violation of section “261(2).” The jury found true these two allegations of
a serious felony, which entail a five-year sentence enhancement for each prior
conviction.
statutory enhancement provisions are available for the same prior offense, one
of which is a section 667 enhancement, the greatest enhancement, but only that
one, will apply.” (Id. at p. 1150.) Under
prior prison term must be stricken. (
Respondent
urges that, since case Nos. SA004025 and A620492 involved other crimes, the
prior prison term enhancements need not be stricken, citing
1607 (Gonzales). In Gonzales,
the court found it was faced with a wrinkle in the Jones rule. (
enhancements that the defendant challenged involved a concurrent prison
sentence imposed for two separate crimes, one of which was a serious prior
felony under section 667, subdivision (a).
(Gonzales, at p. 1610.) Gonzales
held that a prior prison term enhancement could be imposed for that concurrent
prison term, even though part of that single prison term was served for a crime
for which a five-year section 667, subdivision (a)(1) enhancement was also
imposed. This is because there was also
a portion of that one concurrent prison term served for a crime for which a
five-year enhancement was not imposed (because the crime was not a serious
felony). (Gonzales, at p. 1610.)
The
the prior prison term in question was based partially on the same case that was
the basis for the enhancement under section 667, subdivision (a), and partially
on a separate, independent case.
(Gonzales,
1610-1611.) The two cases for which
Gonzales received a concurrent prison term had two different case numbers. (Ibid.) In the instant case, although the strike
allegations in the information show that appellant was sentenced for three
crimes in each of case Nos. SA004025 and A620492, these additional crimes were
not from independent cases with different case numbers. Therefore, the Jones rule rather than the holding in Gonzales appears to apply to appellant’s case. Consequently, the enhancements imposed for
the prior prison terms alleged for crimes that correspond to the enhancements imposed
for these same crimes alleged as serious felonies must be stricken. (People
v. Langston (2004) 33 Cal.4th 1237, 1241; Jones, supra, 5 Cal.4th
at p. 1153.)
DISPOSITION
The judgment is modified to
strike two of the three prior prison term enhancements imposed in counts 1
through 5. Appellant’s sentence is
therefore reduced by 10 years (six years imposed in counts 1, 3, & 4; four
years imposed and stayed in counts 2 & 5).
In all other respects the judgment is affirmed. The superior court is directed to amend the
abstract of judgment in accordance with this opinion and to forward an amended
copy to the Department of Corrections and
Rehabilitation.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________,
P. J.
BOREN
We concur:
_________________, J.
DOI TODD
_________________, J.
CHAVEZ
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[1] All further
references to statutes are to the Penal Code unless stated otherwise.
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[2]
