P. v. Behbahani
Filed 5/15/13 P. v. Behbahani CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
|
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MOHAMMAD BEHBAHANI,
Defendant and Appellant.
D059705
(Super. Ct.
No. SCD223358)
APPEAL from
a judgment of the Superior Court
of
County, Laura H. Parsky, Judge. Affirmed as modified.
Thomas K.
Macomber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
In a second
trial, a jury convicted Mohammad Behbahani of the unlawful
Pen. Code, § 12280, subd. (b)). The
imposition of sentence was suspended pending his successful completion of 18
months of formal probation.
On appeal,
Behbahani contends the trial court erred by granting his motion under
806 (Faretta motion) to represent
himself, without first conducting a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden motion) to determine why he was dissatisfied with his
appointed counsel, and whether new counsel should be appointed, and by
conditioning his right of self-representation on no continuance of trial. Further, he challenges a probation condition
requiring the probation officer's approval of his choice of residence and
employment as overbroad and unconstitutional.
We agree with the latter point and modify the probation order to strike
these particular conditions. In all
other respects, we affirm the judgment.
FACTS
On October 8, 2009, Detective Jethro
Hudgins of the San Diego Police Department, with a team of police officers and
investigators, went to a residence in the Scripps Ranch area of San
Diego to conduct a welfare check. Behbahani came out of the house, and after a
brief discussion, he invited Hudgins and others into the house.
Detective Hudgins asked Behbahani if there were guns in the
house. Behbahani said there were four
guns present. Behbahani showed Detective
Hudgins the guns, including a rifle in a zippered case, which Behbahani
referred to as an AK-47, along with two loaded magazines. Behbahani produced a receipt for the rifle,
which was actually a Norinco MAK-90, a semiautomatic rifle.
DISCUSSON
I
Validity of
Behbahani's Waiver of Right to Counsel
A
Behbahani
contends the trial court committed reversible error by granting his
a Marsden hearing to give him a
meaningful opportunity to specifically explain why he was dissatisfied with his
appointed counsel, and determining whether he would rather have new appointed
counsel than self-representation. We
find the contention unconvincing.
" 'A
defendant in a criminal case possesses two constitutional rights with respect
to representation that are mutually exclusive.'
[Citation.] '[T]he Sixth
Amendment guarantees a defendant a right to counsel but also allows him to
waive this right and to represent himself without counsel.' " (People
v. Sullivan (2007) 151 Cal.App.4th 524, 545.) "In Faretta,
the United States Supreme Court declared that a defendant 'must be free
personally to decide whether in his particular case counsel is to his
advantage,' even though 'he may conduct his own defense ultimately to his own
detriment . . . .'
[Citation.] Thus, a state may not
'constitutionally hale a person into its criminal courts and there force a
lawyer upon him, even when he insists that he wants to conduct his own
defense.' " (
323, 329.)
"A
criminal defendant may not waive his right to counsel, however, 'unless he does
so "competently and intelligently," [citations].' [Citation.]
'The right to representation by counsel persists until a defendant
affirmatively waives it, and courts indulge every reasonable inference against
such waiver.' [Citation.] '[T]he waiver of counsel must be
the defendant must "actually . . . understand the significance and
consequences" of the decision, and the decision must be
"uncoerced" [citations].' "
(People v. Sullivan, supra, 151
Cal.App.4th at p. 545.)
" '
"When confronted with a request" for self-representation, "a
trial court must make the defendant '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.]
. . . " [Citation.]' [Citations.]
'In order to deem a defendant's Faretta
waiver knowing and intelligent,' the trial court 'must insure that he
understands 1) the nature of the charges against him, 2) the possible
penalties, and 3) the "dangers and disadvantages of
self-representation."
[Citation.]' [Citation.] The admonishments must also 'include the
defendant's inability to rely upon the trial court to give personal instruction
on courtroom procedure or to provide the assistance that otherwise would have
been rendered by counsel.
. . . .'
[Citation.]" (
pp. 545-546.)
" 'A
defendant may challenge the grant of a motion for self-representation on the
basis the record fails to show the defendant was made aware of the risks of
self-representation.' [Citation.] ' "Whether there has been a waiver is a
question of fact." [Citation.]' [Citations.]
'The burden is on the defendant to
demonstrate he did not knowingly and intelligently waive his right to
counsel.' [Citations.] On appeal, the courts 'review the entire
record¾including
proceedings after the purported invocation of the right of self-representation¾and
determine de novo whether the defendant's invocation was knowing and
voluntary.' " (People v. Sullivan, supra, 151 Cal.App.4th at pp. 546-547.)
The
following procedural background is relevant.
At his arraignment on October 19,
2009, Behbahani appeared with retained counsel and pleaded not
guilty to the weapon charge. On February 3, 2010, Behbahani requested to
represent himself. The court asked
Behbahani if he wanted to obtain new counsel, and he initially said no. He then said he was "just fed up with
his lawyer." The court advised
Behbahani that in its view he would be better off with an attorney. It offered to continue the preliminary
hearing to March 15, 2010,
to give him time to retain another attorney, and he accepted the offer.
On March 15, 2010, the court called the
Behbahani matter, and he was not present.
His retained attorney explained Behbahani had fired him, and the court
relieved him as attorney of record.
Behbahani showed up late and requested appointed counsel, and the court
granted the request. On March 18, 2010, the court appointed a
public defender for Behbahani.
At a
readiness conference on October 26,
2010, Behbahani again requested to represent himself. He presented the court with a
but he had not initialed the paragraph acknowledging a maximum prison term of
three years. He advised the court he was
not prepared to initial that paragraph, and the court denied his request
because he had not given "an unambiguous complete waiver."
On December 9, 2010, the first day of
trial, Behbahani again requested to represent himself. The court denied the request. The jury was unable to reach a unanimous
verdict (11 to 1 for conviction) and on December 16, 2010, the court declared a mistrial.
On December 22, 2010, Deputy Public
Defender Michael Ruiz represented Behbahani at a scheduling hearing. The court set a readiness conference for February 23, 2011, and trial for March 2, 2011.
At the
readiness conference, Behbahani again requested to represent himself. He advised the court he had signed a
the trial date," and his appointed counsel responded, "Mr. Behbahani
is well aware of that. He's prepared to
go to trial next week." Behbahani
stated, "The lawyer is not willing to tell the truth, and I want to tell
the truth." The following colloquy
then took place:
"THE COURT:
Mr. Behbahani, I'm handed this form.
It's a form called Acknowledgment Regarding Self-Representation and
Waiver of Right to Counsel. We sometimes
call it a Faretta or
one box, and it appears to bear your signature.
Did you read this form?
"THE DEFENDANT:
Yes.
"THE COURT:
Did you understand everything in it?
"THE DEFENDANT:
Yes.
"THE COURT:
Did you sign it?
"THE DEFENDANT:
Yes.
"THE COURT:
This form tells you the following¾It tells me, in fact, that
you wish to exercise your constitutional right to represent yourself without
the help of a lawyer. Is that what
you're asking to do?
"THE DEFENDANT:
Yes. The lawyer is not willing to
tell the truth, and I want to tell the truth.
"THE COURT:
Well, my question is, regardless of your reason, you're telling me
clearly and unequivocally that you want to represent yourself; is that correct?
"THE DEFENDANT:
In that circumstances, yes.
"THE COURT:
Don't tell me about that circumstance.
Do you want a lawyer or do you want to represent yourself?
"THE DEFENDANT:
I want to represent myself.
"THE COURT:
Thank you. You understand that
you have the right to an appointed lawyer, and in fact you have one right
now. You understand you have the right
to a lawyer?
"THE DEFENDANT:
Yes.
"THE COURT:
By representing yourself, you give up that right?
"THE DEFENDANT:
Yes.
"THE COURT:
You're charged in this case with one count of violation
of . . . Section 12280(b).
This is sometimes called possession of an assault weapon. It is a felony. It carries a maximum penalty of three years
in state prison, a fine of $20,000, and a period of parole that could last as
long as four years. Do you understand
that?
"THE DEFENDANT:
No.
"THE COURT: What
don't you understand about that?
"THE DEFENDANT:
Is California Penal Code for the first time I sold the weapons if I'm
convicted I'm going to be on probation $500 fine?
"THE COURT:
That is not correct. If you are
convicted, a judge may send you to state prison for three years. Do you understand this?
"THE DEFENDANT:
I don't know that's the law you're saying¾
"THE COURT:
Do you understand that I am telling you that the law is that if you get
convicted, a judge may send you to state prison for 16 months, two years, or
three years? Do you understand that that
is what I'm telling you?
"THE DEFENDANT:
I'm not sure. The way you're
explaining, maybe that is.
"THE COURT:
Well, let's put it this way. One
of the risks that you are taking, sir, by representing yourself, is that if you
are found guilty and if a judge thinks it is appropriate, a judge can send you
to prison for three years. The risk is
that you are taking is that every judge in this courthouse is going to read the
law the same way I'm reading it and will be saying, 'Yes, I can send you to
prison for three years if you are convicted.'
Do you understand that is the risk that you are taking?
"THE DEFENDANT:
I've been told.
"THE COURT:
You understand that, yes?
"THE DEFENDANT:
Yes."
Further
questioning revealed that Behbahani holds a Ph.D., in nuclear engineering, he
is a business owner, and he is literate in English. Additionally, the court warned Behbahani
about the dangers of self-representation, as follows: "Do you understand that it is almost
always unwise for you to represent yourself, for any person to represent
himself, and most people who represent themselves end up conducting their cases
in a way that turns out to be harmful to their interests. Do you understand that?" Behbahani responded, "I understand what
you're saying. It's a very bad choice,
but I have no other choice."
The court
proceeded to advise Behbahani it would not give him any legal advice or special
treatment just because he was representing himself, and it would hold him to
the same standards as an attorney.
Further, the court explained "the prosecutor may be represented by
a very experienced and skilled lawyer[,] [s]o it would be like you getting in
the ring with Mike Tyson."
Behbahani said he understood.
Behbahani
does not challenge the sufficiency of the court's advisements during the
court's questioning¾that
"[t]he lawyer is not willing to tell the truth, and I want to tell the
truth," and that self-representation was "a very bad choice, but I
have no other choice," put the court on "notice that [he] believed
the only way he could present the jury with the truth was to have substitute
counsel, and his only option was self-representation." In Behbahani's view, his comments triggered
the court's duty "to conduct a Marsden
hearing, and the court's failure to inquire led to [his] ineffectual waiver
of his right to appointed counsel."
"When
a criminal defendant seeks substitution
of counsel on the ground that appointed counsel is providing inadequate
representation, a trial court must give the defendant an opportunity to explain
the reasons for the request.
[Citations.] Although no formal
motion is necessary, there must be 'at least some clear indication by defendant
that he wants a substitute attorney.' "
(People v. Mendoza (2000) 24
Cal.4th 130, 156-157, italics added, citing Marsden,
supra, 2 Cal.3d at pp. 123-125; People
v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)
"[T]he trial court's duty of inquiry is triggered only when the
nature and degree of defendant's dissatisfaction amounts to an '[assertion]
directly or by implication that his counsel's performance has been so
inadequate as to deny him his constitutional right to effective counsel.'
" (People v. Cruz (1978) 83 Cal.App.3d 308, 316 (Cruz).)
We disagree
that Behbahani's statements constituted a clear indication he wanted substitute
counsel, or that he was accusing his appointed attorney of ineffective
assistance. Ordinarily, a "request
for self-representation does not trigger a duty to conduct a
substitution of counsel as an alternative." (People
v. Crandall (1988) 46 Cal.3d 833, 854-855.)
"Requests under both Marsden and
Faretta must be clear and
unequivocal; the one does not imply the other." (People
v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.)
Moreover,
Behbahani would have been aware of his right to substitute counsel, because he
had previously brought a Faretta motion,
in which he agreed with the trial court's assessment that he would be better
off with counsel, and he accepted the court's offer to continue the matter for
three weeks so he could obtain new counsel.
He ultimately replaced his retained attorney with a court-appointed
attorney rather than opting for self-representation. Behbahani could have sought another
substitution, but he chose not to. We
conclude the court had no duty to conduct a Marsden
hearing.
Behbahani
submits that Cruz,
point and shows he did not effectively waive his
the defendant's appointed counsel advised the court he wanted to represent
himself because he had "a general conflict of interest with the public
defender's office." (
have been represented by the public defender's office and each and every time
the record will show there's never been any investigation into the cases I've
had, there's been nothing as far as anything I've asked them to do, certain
things and they said, no, there is no such thing. And we just got a definite conflict. [¶] I
wrote a letter to the public defender's office and I got a letter back stating,
well, that I shouldn't . . . look to them for any more
assistance and so forth." (
stated, " 'Because of what has taken place since this [
beginning in Municipal Court, I cannot and do not accept Public Defender as
counsel.' " (Ibid.)
The
appellate court held the trial court should have inquired further into the
defendant's claims before allowing him to represent himself, explaining the
record indicated the defendant's request for self-representation "was
based on a lack of viable alternatives."
(Cruz, supra, 83 Cal.App.4th at
p. 318.) Cruz is unhelpful, because there is no suggestion Behbahani had any
system-wide conflict with the public defender's office or that believed he
lacked access to another competent appointed counsel.
This case
is more akin to People v. Mendoza (2000)
24 Cal.4th 130, in which the defendant sought to represent himself for the
stated reasons, "I feel I'm not getting a defense," "I don't
know anything about my case," and "I haven't had a chance to"
speak to appointed counsel. (
contention a Marsden inquiry was
necessary based on these "fleeting reference[s] to dissatisfaction with
counsel." (Id. at p. 157.) The court
explained, "Given defendant's insistence on self-representation, the trial
court was under no obligation to conduct an inquiry into any dissatisfaction
defendant might have with his appointed counsel so as to necessitate
substitution of counsel." (
B
Alternately,
Behbahani contends reversal is required because the court conditioned its grant
of his Faretta motion on his
foregoing a continuance of trial. Again,
we disagree.
"[T]o
invoke an unconditional right of
self-representation, the defendant must assert the right 'within a reasonable
time prior to the commencement of trial.'
[Citations.] A motion made after
this period is addressed to the sound discretion of the trial court. [Citations.]
[¶] The 'reasonable time'
requirement is intended to prevent the defendant from misusing the motion to
unjustifiably delay trial or obstruct the orderly administration of
justice. 'For example, 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. . . . .' [Citations.]" (People
v. Burton (1989) 48 Cal.3d 843, 852-853, italics added;
1380, 1397 [motion made three days before trial held untimely].)
In
110, the court explained, "Although a necessary continuance must be
granted if a motion for self-representation is granted, it is also established
that a midtrial Faretta motion may be
denied on the ground that delay or a continuance would be required." Given the proximity of trial, a court may
"deny [a] Faretta motion as
untimely if a continuance would be necessary," and it may also grant a
untimely "when defendant expressly represented he was able to proceed
without a continuance." (
timely when it is unaccompanied by a
continuance request]; accord, In re
Justin L. (1987) 188 Cal.App.3d 1068, 1076-1077.)
At the
beginning of the Faretta hearing,
appointed counsel represented that Behbahani knew trial was a week away and he
would be ready to proceed. The court
asked Behbahani directly if he understood "that we're going to go to
trial," and he stated, "I need a little more time." The court explained, "If you need a
continuance or postponement or more time, then I'm not going to let you
represent yourself. If you're ready to
go to trial on this date, then if we go through the rest of this [
your request. He responded that he would
be ready to proceed with trial. The
court questioned him further, and he stated, "I have no choice. I got to be ready." The court then asked, "[A]re you going
to be ready? That's a yes or
no." He clarified, "Yes, I'm
ready."
Behbahani
asserts, "the court was required to
grant his request for a continuance" because his Faretta motion was timely, and thus subject to the liberal rule of
continuing the trial to give him additional time to prepare. When a Faretta
motion is granted as timely, meaning unconditionally, the defendant is
ordinarily "entitled to a reasonable continuance to enable him to prepare
for trial. 'To deny him that opportunity
would be to render his right to appear in propria persona an empty formality,
and in effect deny him the right to counsel.' " (People
v. Hill (1983) 148 Cal.App.3d 744, 756.)
"However, if the court determines the defendant's request [for a
continuance] is merely a tactic designed to delay the trial, the court has the
discretion to deny the continuance and require the defendant to proceed to
trial as scheduled either with his counsel or in propria persona." (People
v. Douglas (1995) 36 Cal.App.4th 1681, 1689, citing United States v. Flewitt (9th Cir. 1989) 874 F.2d 669,
674-675.) A request for a continuance
that accompanies a Faretta motion is
strong evidence the defendant's purpose is dilatory. (People
v. Burton (1989) 48 Cal.3d 843, 854.)
Behbahani
relies on People v.
supra, 148 Cal.App.3d 744, which
held that "regardless of whether the grant of the Faretta motion was mandatory or discretionary, once the court
granted that motion, it was obliged also to grant appellant's request for a
continuance." (Id. at p. 757.) Behbahani,
however, expressly represented that he was ready for trial without any continuance. His fleeting comment at the beginning of the
more time," does not constitute a continuance request or assertion of the
inability to prepare a defense, in light of his later assurances to the
contrary in response to the court's careful questioning intended to clarify his
position. The People's attorney asked
the court to inquire of Behbahani again, because "maybe it wasn't
sufficiently clear to me that [he] is ready and prepared to go on the trial
date as set. It seemed like he was just
saying he's not but he'll do it anyway."
The court did so, and he cannot now reasonably claim it should have
known he needed a continuance. Further,
he points to nothing in the record to support his assertion that at the time of
the Faretta hearing he was unprepared
to go to trial.
title="">[2] Thus, the court's granting of the
proper.
II
Probation
Conditions
Additionally,
Behbahani contends probation conditions requiring him to obtain his probation
officer's approval of his residence and employment are overbroad because they
infringe on his constitutional rights of freedom to travel and freedom of
association. We review constitutional
challenges to probation conditions de novo.
(In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143.)
"Trial
courts have broad discretion to set conditions of probation in order to 'foster
rehabilitation and to protect public safety pursuant
to . . . section 1203.1.'
[Citations.] If it serves these
dual purposes, a probation condition may impinge upon a constitutional right
otherwise enjoyed by the probationer, who is 'not entitled to the same degree
of constitutional protection as other citizens.' [Citation.]
[¶] However, the trial court's
discretion in setting the conditions of probation is not unbounded. A term of probation is invalid if it: ' "(1) has no relationship to the crime
of which the offender was convicted, (2) relates to conduct which is not in
itself criminal, and (3) requires or forbids conduct which is not reasonably
related to future criminality." '
[Citation.] Conversely, '. . . a
condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which
the defendant was convicted or to future criminality.' " (People
v. Lopez (1998) 66 Cal.App.4th 615, 624.)
We agree
that nothing in the record indicates Behbahani's living situation contributed
to his crime or future criminality. We
disagree with the People's assertion that since Behbahani possessed an illegal
gun in his home (as opposed to in his vehicle or workplace), there is a
sufficient relationship to justify the probation officer's absolute authority
to approve his residence. The probation report states Behbahani owned a
home and had lived there for about 24 years, and there is no suggestion he
intended to move. While the probation
officer presumably would not act capriciously, that alone does not permit the
court to unnecessarily limit his rights.
Similarly, we agree the employment condition is unrelated to his crime
or future criminality. We note that the
"Order Granting Probation" form lists the residence and employment
conditions in the section titled "VIOLENCE AND SEX CONDITIONS," which
does not apply here.
Behbahani
does not challenge other probation conditions, which for instance prohibit him
from knowingly owning or possessing any firearm or other weapon, and from
knowingly associating with any persons with firearms or other weapons in their
possession. Further, he is required to
notify his probation officer of any change of residence or employment within 72
hours.
DISPOSITION
The
probation conditions requiring the probation officer's approval of Behbahani's
residence and employment are stricken.
In all other respects, the judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
name="_ftn1" title="">[1] "In People v.
Lopez (1977) 71 Cal.App.3d 568, 571 . . . , the court
suggested a set of advisements 'designed to ensure a clear record of a
defendant's knowing and voluntary waiver of counsel.' " (People
v. Goodwillie (2007) 147 Cal.App.4th 695, 705, fn. 5.)
name="_ftn2" title="">[2] On the first day of trial, Behbahani requested a continuance
to subpoena unspecified witnesses to support the argument police officers
conducted a warrantless search of his home.
The court explained a continuance was unnecessary for that purpose
because a suppression motion was untimely.
Contrary to his position, the request for a continuance at trial does
not show he also requested a continuance during the Faretta motion. He did not
argue at the Faretta motion that he
needed time to subpoena any witnesses or perform any other task. The People's case consisted of only two
witnesses, Detective Hudgins and a firearms expert. Behbahani's appointed counsel represented to
the court at the Faretta motion he
had given Behbahani a copy of all the discovery and a copy of the preliminary
hearing transcript.
