P. v. Grissom
Filed 7/23/13 P. v. Grissom CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTHONY CLARENCE GRISSOM,
Defendant
and Appellant.
E054195
(Super.Ct.No.
RIF148225)
OPINION
APPEAL
from the Superior Court
of
County. Jean P. Leonard
and Michael B. Donner, Judges.
name="_ftnref1" title="">[1] Affirmed.
Jan
B. Norman, 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, Peter Quon, Jr. and
Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Anthony Grissom, of driving/taking a car without the
consent of the owner (Veh. Code, § 10851, subd. (a)) and found true an
allegation that he had been previously convicted of the same offense (Pen.
Code, § 666.5, subd. (a)).
name="_ftnref2" title="">[2] The jury further found true allegations that
defendant had been convicted of six prior offenses for which he served prison
terms (§ 667.5, subd. (b)) and a strike prior (§ 667, subds. (c) &
(e)(1)). He was sentenced to prison for
12 years and appeals, claiming the court erred by granting his request to
represent himself and by denying his request for appointment of counsel. He also claims that the prosecutor engaged in
misconduct justifying reversal of his conviction. We reject his contentions and affirm.
Around
9:40 p.m. on January 11, 2009, the victim’s locked car was stolen from the
place on the street where his brother had parked it. One month later, the victim received in the
mail notification that the car had run a red light at 9:48 p.m. on the same
day, which had been captured by a red light camera. Defendant was seen in the picture, driving
the victim’s car. The following day, the
stolen car was spotted by a police officer parked outside a house. The officer and his partner set up a
surveillance of the car and, eventually, someone got in the car and drove it
away. The officer and his partner
followed it as it sped up and made several turns until it drove into a
cul-de-sac, where it pulled into the parking lot of an apartment complex, while
the officer’s marked police car had its lights and siren on. Defendant was driving the car. Other facts will be disclosed as they are
relevant to the issues discussed.
and Discussion
1.
Granting Defendant’s Request to
Represent Himself
a.
Proceedings Below
A female attorney
from the Conflict Defense Lawyers represented defendant from January 29, 2009
until June 6, 2009, when a male attorney was asked by that organization to take
over representation. During that earlier
period, the female attorney had declared a doubt about defendant’s competence
to stand trial, criminal proceedings were reinstated after the court received
reports from two experts and concluded that defendant was competent, and the
behalf of Conflict Defense Lawyers, until August 5, 2009, when he was released
due to a conflict and a second male attorney from conflict Defense Lawyers was
appointed. During this period,
defendant’s first motion to represent himself was denied, without prejudice, by
the same commissioner who had concluded that defendant was competent to stand
trial.
the second male lawyer informed the court in mid-October 2009, that he would be
on vacation until mid-December. At
defendant’s next appearance, which was on October 30, 2009, the afore-mentioned
female attorney from Conflict Defense Lawyers appeared specially for
defendant’s second male attorney. The
court noted that defendant’s second male attorney had just completed
back-to-back trials and needed a rest, therefore, the court granted the
latter’s request to continue trial until January 11, 2010. The female attorney informed the court that
defendant had been advised of his legal
and constitutional rights and, on his behalf, she waived formal arraignment
on the amended information the People had just filed and entered pleas of not
guilty and denied the enhancements alleged.
The court accepted defendant’s pleas/denials. She then informed the court that defendant was
moving to represent himself and requesting reduction of his bail. She added “this may require the presence of
[defendant’s second male lawyer.]†The
prosecutor pointed out that defendant’s previous request to represent himself
had been denied by the commissioner. The
court told defendant how difficult it would be for him to go up against the
trained prosecutor and it informed defendant that he would be held to the same
standard as a trained lawyer, would be expected to know what a trained lawyer
knew and if he made a mistake, there would be no relief. Defendant said he understood these
things. The court asked defendant to
fill out a Petition to Proceed in Propria Persona, which defendant did. Defendant told the court that he had had an
opportunity to discuss his decision to represent himself with the female lawyer
before filling out the petition, she had answered all his questions and he
understood everything she had said to him and he had no further questions. The court then asked defendant the customary
questions and gave him the customary warnings about representing himself. As part of that dialogue, the court informed
defendant, “ . . . [I]t is the advice and recommendation of
this [c]ourt that you at least wait until you meet the attorney who is
regularly assigned to your case before you give up your most valuable right to
legal representation[.]†Defendant said
he understood this advice and he confirmed that he was aware of his rights and
the pitfalls of self-representation and he had initialed and signed the
Petition. The court then found that
defendant’s waiver of his right to counsel had been made, inter alia, knowingly
and intelligently. The court noted that
it was granting defendant’s request “over the objection of [the female] counsel
who is . . . here on behalf of [defendant’s second male
attorney].†The court noted that
defendant appeared to be happy with its ruling, but it added, to defendant,
that “ . . . there will come a time, I’m fairly confident,
that you won’t be happy that you’re representing yourself because it is like
bringing a knife to a gunfight . . . .†Thereafter, proceedings concerning this case
were held before seven different judges.
Law on Defendant’s Mental Health for Self-Representation
We
begin with the applicable standard for determining whether a defendant’s mental
health is such that he or she may self-represent. In Indiana
v. Edwards (2008) 554 U.S. 164, 174, 177, 178, the
States Supreme Court held that states may, but do not need to, deny
self-representation to defendants who, although competent to stand trial,
“suffer from severe mental
illness to the point where they are not competent to conduct trial
proceedings by themselves.†In
528 (Johnson), decided after
defendant’s motion to represent himself had been granted, the California
Supreme Court concluded that trial courts have discretion to deny
self-representation to such defendants.
Before Johnson was decided,
the California Supreme Court had held in People
v. Taylor (2009) 47 Cal.4th 850, 877, 878 (Taylor), that Edwards did
not mandate a higher standard of mental health for self-representation than is
required for competency to stand trial, so long as the defendant’s waiver of
counsel was, inter alia, knowing and intelligent. The California Supreme Court also concluded
that at the time of trial in the Taylor
case, i.e., early 1996, “[California had not] set a higher or different
competence standard for self-representation than for trial with counsel[,]â€
therefore, under state law, the trial court’s use of the same standard in
granting self-representation was not
error. (Taylor at pp. 866-868, 878-880.)
In Johnson, the California
Supreme Court held that a trial court has discretion to deny
self-representation to defendants who, while competent to stand trial, suffer
from severe mental illness to the point where they are not competent to conduct
trial proceedings themselves. (
Our high court also concluded, “A trial court need[s to] inquire into
the mental competence of a defendant seeking
self-representation . . . only if it is considering denying
self-representation due to doubts about the defendant’s mental
competence.†(Id. at p. 530.)
Defendant
asserts that the standard enunciated in Johnson
for the denial of a request for self-representation should have been applied
here by the court below in granting defendant’s request for
self-representation. He is
incorrect. In Taylor, the California Supreme Court held that because “
law provided the trial court with no test of mental competence to apply other
than the . . . standard of competence to stand trial†the
trial court had not erred in granting defendant’s request to represent himself
without applying a higher standard than competence to stand trial. (Taylor,
supra, 47 Cal.4th at pp. 850,
879.) It is noteworthy that
Johnson announced a new
standard—Edwards did not. In Johnson,
the California Supreme Court concluded that Edwards
had not been applied retroactively by the trial court in that case because the
latter had relied upon it in revoking defendant’s self-representation status
four months after it had been decided. (
In so concluding, the California Supreme Court noted, “‘[A] law
governing the conduct of trials is being applied “prospectively†when it is to
a trial occurring after the law’s effective
date . . . .’
[Citation.]†(
due process mandates a higher standard of mental competence for
self-representation than for trial without counsel. The Edwards
court held only that states may,
without running afoul of Faretta,
impose a higher standard . . . .’ [Citation.]
In Taylor, the trial court had
permitted a defendant who was
competent to stand trial and waive counsel to represent himself. Because
the Edwards rule is permissive, not mandatory, we held [
support a claim of federal constitutional error in a case like the present one,
in which defendant’s request to represent himself was granted.’ [Citation.]â€
(Id. at p. 527, italics
original and added.) As already stated,
the standard enunciated in Johnson
post-dated the granting of defendant’s request for self-representation
here. Therefore, that standard is
inapplicable to this case.
In
determining whether the court below erred in granting defendant’s request for
self-representation, “we must defer largely to the trial court’s discretion. [Citations.]
The trial court’s determination . . . must be upheld
if supported by substantial evidence.†(
Defendant
claims that the court below erred in granting his request to represent himself
because the record demonstrates that he was mentally incapable of
self-representation. Initially,
defendant asserts that the court erred because it did not ask why the
commissioner had previously denied defendant’s first request to represent
himself. However, defendant’s inference
that learning the basis for the commissioner’s ruling would have somehow
persuaded the court to deny defendant’s request some three months later is pure
speculation. Moreover, as the California
Supreme Court cautioned in Johnson,
“To minimize the risk of improperly denying self-representation to a competent
defendant, ‘trial courts should be cautious about making an incompetence
finding without benefit of an expert evaluation . . . .’ [Citation.]
[¶] Trial courts must apply th[e]
standard . . . [that]
self-representation . . . may [be] den[ied]†“to those
competent to stand trial but who ‘suffer from mental illness to the point where
they are not competent to conduct trial proceedings by themselves’[citation]
[cautiously]. [¶] . . . [¶]
. . . [D]efendants still generally have a Sixth Amendment
right to represent themselves.
Self-representation by defendants who wish it and validly waive counsel
remains the norm and may not be denied lightly.â€
Next,
defendant points to a report written by one of the experts who had been
appointed to determine whether defendant was competent to stand trial as
demonstrating that he was mentally incapable of representing himself,
therefore, the court abused its discretion in granting his request. The report was authored on April 30, 2009,
which pre-dated the court’s granting of defendant’s request by six months. In the report, the expert, who was a female,
noted that there had been a prior interview between her and defendant. In a previous report, she had commented that
defendant had refused to participate in that interview.
during the interview with defendant that eventually took place, he “resisted
legitimately participating in the [Competency Assessment
Instrument] . . . .â€
She concluded that defendant was then not competent to represent himself
without the assistance of counsel
name="_ftnref5" title="">[5] because he was “presently hypomanic.†She said that defendant had a personality
disorder, which likely included antisocial and narcissistic features, and a
mood disorder, i.e., bipolar affective disorder, “characterized by
hypomania.†She went on, “The issue is
that he has chosen to terminate the medication he admitted controls him [(Depakote,
a mood stabilizer)], a volitional and considered behavior. However, the manipulation, petulance and
entitlement characteristics of these [p]ersonality [d]isorders would mightily
contribute to this kind of decision-making.
This is consistent with reports in the medical record that indicted
periodic refusals [by defendant] of blood sugar testing [(defendant is
diabetic)—and] insulin and then reporting he had eaten ‘lots of sweets.’ The
apparent manipulative quality of this very dangerous behavior is consistent
with the impairment of these [p]ersonality [d]isorders. While it is unlikely that medication will
ameliorate these symptoms, he is in need of a mood stabilizer for his hypomanic
symptoms. As he has chosen not to take
this, an involuntary order is warranted.
[¶] [Defendant] was considered
purposefully uncooperative with treatment and has put himself at risk of
diabetic events. . . . His hypomania is fueling the
destructive tendencies inherent in the [p]ersonality [d]isorder and rendering
him unable to rationally participate in treatment or judicial decisions
presently.†This expert also noted that
defendant had said that it was possible for him to go to Patton or Atascadero
State Hospitals as a not guilty by reason of insanity inmate, but he insisted
that this was not the motivation for his behavior. Still, he asserted that he needed counseling,
which he claimed he was not receiving while on parole, but he admitted that he
had refused to take his medications and participate in programs his parole
agent had offered him. She concluded
that there was no documentation of defendant having a
history of psychiatric symptoms, although defendant had told the other expert
that he had bipolar disorder and was paranoid schizophrenic, claims he
reasserted later, shortly before he was sentenced.
The other expert concluded
that defendant was competent to stand trial and the commissioner, in
reinstating criminal proceedings,
obviously accepted this over the female expert’s conclusion that he was
not. The male expert found that
defendant was “difficult to evaluate because of the selective nature of his
cooperation . . . .
It is apparent that at least some of his noncooperation is elective in
nature and under his control . . . . He has a antisocial personality
disorder . . . . The
situation has been made worse by significant substance abuse when [he is] not
incarcerated. He obviously wants to
affect the ultimate placement, reporting his first choice is the hospital and
secondly [drug treatment] in prison. . . . [D]efendant
does appear to have some underlying mental issues, which may or may not
exacerbate as time goes on.â€
Even
if we assume the correctness of the female expert’s opinion that defendant was
not, six months before undertaking to
represent himself, capable of doing so, it does not mean that he was not at
the time of his request. Moreover, there
is nothing in the record before us suggesting that defendant was not on a mood
stabilizer at the time of his successful request for self-representation. In fact, on August 18, 2010, the day motions
in limine were heard and trial began, defendant represented to the trial court
that he “take[s] psyche medication. I
have been on psyche medication since [19]92 and I have the records showing the
type of medication I take.†He later
stated that he took lithium. This would
seem to resolve the biggest concern voiced by the female expert in her
report.
Certainly,
the cold record before us does not otherwise suggest that defendant behaved in
a manner that was inconsistent with him being able to represent himself around
the time of his request. Evidently, his
female attorney, who was fairly familiar with him, having represented him for
five months earlier in the year, including during the time she had declared a
doubt about his competency, felt that he was mentally sound enough to enter
pleas and denials of the allegations in the amended complaint the same day he
asked for self-representation and she never stated on the record the nature of
her objection to the latter. Therefore,
contrary to defendant’s assertion, the record does not demonstrate that defendant was mentally incapable of
representing himself at the time of his request. This is the case even if the stricter
standard enunciated in Johnson, i.e.,
that defendant suffered from severe mental illness to the point where he was
not competent to conduct trial proceedings, is applied.
Additionally,
nothing that occurred after the granting of defendant’s motion for
self-representation alters our conclusion that the record does not demonstrate
that he was unable to represent himself.
Between this time and the conclusion of this case, defendant filed
almost all of them. We have read each of
those motions and the transcripts of the hearings on them. What our reading reveals is that defendant
was not, under either of the above-discussed standards, mentally unable to
represent himself. Some of defendant’s
written motions were a bit difficult to understand as to certain points, but he
clarified those points during argument of the motion to the court. Some of his motions and requests were granted. The seventh and final judge before which
defendant appeared over the course of this case commented to defendant
concerning post-verdict written motions, which she reviewed, “I’ve received two
or three written motions from you that make me believe that you understand
exactly what you’re doing.†She also
said of defendant, “ . . . [I]n many respects, he’s argued
[his motions] as well or better than some attorneys that I’ve
met. . . . [¶] . . . [¶] [Defendant] understands the law better than
some attorneys I know, and he’s argued it well.†Concerning whether defendant should be
allowed to represent himself for a post verdict new trial motion, she also
said, “It does appear [the defendant] does have the ability to research and
properly prepare motions.†Finally, she
said, “ . . . [A]fter reading all of the motions that
[defendant] has filed in this case, the court would find that the defendant’s
developmental and emotional issues did not rise to the level contemplated by
Rule 4.423(b)(2)†which concerns mitigation due to defendant’s mental
state. The fifth judge, who denied
defendant’s request for a continuance on the morning defendant had agreed,
after many delays, to begin trial, concluded that defendant was “capable of
writing his [own] motions and arguing his case and representing
himself . . . .â€
at any point any of [the seven judges defendant appeared before] felt that [he]
could not properly represent himself, we could have stopped the entire process
[but we did not].†We agree with these
assessments as to defendant’s conduct throughout the course of this case.
The
record before us contains evidence that defendant was thinking quite clearly
during these proceedings—so clearly, in fact, that he might have had an
exacting strategy. On May 17, 2010,
seven months after he began representing himself, the prosecutor commented
concerning the numerous motions and requests defendant had filed to that point,
“The People feel that [defendant] is basically using the system and filling up
his C[redit for] T[ime] S[erved] time for a paper commitment.†This followed defendant’s request that trial
be put over until the next year. Two months
later, after the defendant was counseled for the third time by the same judge
who granted his motion for self-representation that he had to served his
motions on the prosecutor in a timely fashion, the court said,
“ . . . [T]he more this happens, the more I think there’s
another reason [defendant] want[s] to represent [himself] . . . .†On the eve of the much delayed trial, when
defendant asked for yet another continuance, the fifth judge accused defendant
of “attempting to continue the case by claiming . . . that
he didn’t understand what was happening. . . . [Defendant
is] just trying to delay.â€
accused defendant twice of trying to “game the system.†During trial, defendant refused to have his
fingerprints rolled so they could be compared to the prints on his 969b
packets. During a Marsden
title="">[8] motion following the verdict,
“[m]y whole strategy was not to go to trial.â€
post-verdict motions, the prosecutor asserted that defendant “has, in fact,
informed me while he was pro per, . . . that he just wanted
to stay in the county as long as he could, so he was trying to continue the
case and continue the case.†When
defendant attempted to have sentencing continue so he could retain counsel
(after successfully requesting to represent himself at sentencing), the seventh
judge observed, on the long-delayed day of sentencing (July 29, 2011), “There
has already been a great deal of disruption and delay in this case and some of
that has been caused . . . by [defendant]
and . . . he’s done that on purpose. He’s used the system to continue this matter
out, and . . . he’s done a good job of it. [¶] . . . [O]ne of the
jobs [of] a good defense attorney . . . is to use the
system to get what they want and where they want, and [defendant] has done
that.†The same judge also cited the
male competency expert’s opinion that defendant was “obviously want[ing] to
affect the ultimate placement†as a reason for her denial of defendant’s
request to be evaluated under Penal Code section 1368 for purposes of arguing
his mental state as a factor in mitigation of his sentence.
Defendant
was given opportunities to change his mind about self-representation, but he
refused to do so. On August 2, 2010, the
same judge who granted his request for self-representation offered to appoint
him an attorney because defendant was “making some points [in his motions]
which [defendant] thinks are very valid†and if defendant had an attorney,
defendant’s motions “could be fully vetted and heard.†Defendant said no. On September 30, 2010, with defendant having
previously agreed to start trial on October 18, 2010, the third judge reminded
defendant that he had been warned about the pitfalls of self-representation
when defendant complained that he could not get what he wanted without an
attorney, following the court’s denial of defendant’s motion to challenge the
judge for cause because it had not been properly done. After defendant asked the court what the time
requirement was for serving a Pitchess
motion, the court told defendant if he did not observe that requirement, it
would not likely delay trial, and, “That is why I would give you a lawyer and a
lawyer would be prepared. But you’re
choosing to do it yourself . . . .â€
To
the extent that any possible mental problems by defendant may have been caused,
as the female expert opined in April 2009, by defendant’s failure to be
medicated, defendant asserted the day trial began that he had “been taking
psyche meds while I am here right now.â€
Defendant
behaved appropriately during all the proceedings. However, as many of his motions were denied
and the much delayed time for trial approached,
surface. During an in-camera hearing
concerning defendant’s request for additional funds for his court-appointed
investigator on September 30, 2010, defendant, for the first time since
beginning to represent himself, averred that he was a drug addict, had memory
problems and could not recall what the court had said during its most recent
rulings on his motions. On the day
defendant had agreed to start trial, the fifth judge denied defendant’s motion
for a continuance. Defendant then
unsuccessfully moved to have counsel appointed to represent him. As stated before, the judge concluded that
defendant was merely trying to delay trial and he was capable of representing
himself. Later that day, before the
sixth judge, who presided over the trial, defendant reiterated his request for
counsel, asserting that he takes “psyche medication.â€
judge had denied defendant’s request earlier that day and the former refused to
hear the renewed request. Thereafter,
defendant coherently discussed the People’s motions in limine. The trial judge then attempted to negotiate a
deal with defendant, during which defendant behaved in an entirely rational and
appropriate manner. During this
discussion, defendant represented to the court that he had asked to represent
himself because the attorney who was then representing him had refused to bring
the motions defendant wanted brought.
with no credit for time served, which defendant ultimately rejected, after
rationally dickering with the court.
was competent and had filed numerous motions, defendant represented to the
court that someone else had written them for him.
that his motions were “stupidâ€
name="_ftnref16" title="">[16] and the third judge before whom he appeared
“wouldn’t even read them†and denied all of them.
incompetent and asked to have counsel appointed to represent him.
A
transcript of voir dire is not part of the record before this court. However, apparently, during voir dire,
defendant told the venire, more than once, that he was being denied his right
to appointed counsel. Outside the
hearing of the venire, the prosecutor expressed concern that the People would
not get a fair trial due to defendant’s representations to the venire. The trial court twice asserted that defendant
was “gaming the system.†Defendant
countered, saying a doctor had said that he had delusional thoughts and speech.
jurors that defendant chose to represent himself and had been extensively
questioned about it and it was not until the day of trial that he first
requested appointed counsel. The trial
court offered to read Judicial Council of California Criminal Jury Instruction,
CALCRIM No.107, the standard jury instruction on self-representation. After defendant claimed that he needed a 1368
evaluation because he “couldn’t take†what was occurring, defendant appeared to
become irrational, accusing those present of working against him, “trying to
consume [his] soul†and being “under the Klu Klux Klan.â€
self-representation so his investigator could put money on the books at jail so
he could supposedly buy graham crackers at the commissary for the fellow inmate
he claimed was writing his motions for him.
Thereafter, the trial court told the venire, “From time to time, it
appears that we will have outbursts. The
defendant has a right to be represented by an attorney at this
trial . . . . He has
decided instead to exercise his constitutional right to act as his own attorney
in this case.†The court then instructed
the venire to not allow defendant’s decision to represent himself to affect its
verdicts. After the jury was chosen,
outside its presence, defendant successfully sought advice from the trial judge
about what he should do during his opening statement and he and the trial court
had a reasonable discussion about it. At
the conclusion of this discussion, defendant said, “Thank you, guys, for your
patience . . . .â€
The
following day, defendant refused to “dress out†for trial and again insisted on
being appointed an attorney. Defendant
agreed with the trial court’s statement that he had “chosen not to dress
out . . . .†The
trial judge warned defendant that if he continued this, trial would proceed in
the latter’s absence. Defendant agreed
to this, asked to be taken back to jail and indicated that he was about to
leave. After the prosecutor asserted
that defendant was merely trying to delay trial and had not requested counsel
because he felt incapable of representing himself, defendant reverted to his
previous claim that he had requested self-representation because his then
attorney refused to file motions he wanted brought. However, he also added that he was
representing himself so his investigator could put money “on his books†so he
could hire an attorney to represent him or pay a jailhouse lawyer to help him. Saying, “You got me,†defendant then left the
courtroom. The jurors were brought in
and told by the trial court, “The defendant has decided to excuse himself from
the trial and you are not to consider . . . for any reason
his decision or absence.†Defendant
later stated that the trial court did not remove him from the
courtroom—instead, he refused to stay for trial because he did not have an
attorney. During trial, another deputy
district attorney testified for the prosecution that defendant had executed a
meant and what occurs during a hearing that follows such a waiver and precedes
the court granting a defendant’s request for self-representation. A copy of defendant’s Faretta waiver was introduced into evidence.
Defendant
appeared in the courtroom for the rendering of the verdicts on October 20,
2010, and, thereafter, asked an appropriate question about the jury making
findings as to truth of the allegations of his priors. In mid-December 2010, defendant filed a
number of motions, none of which were irrational, and some of which were
granted. The trial court also granted
defendant’s motion for appointment of counsel to represent him in filing a
sentencing date that was “far, far away.â€
The court responded, “Yeah. You
like to stay in Riverside.†Defendant
retorted, “Yeah. I love Riverside.†Defendant again moved under 1368, asserting
that the female expert had asserted in her April 2009 report that there was
insufficient evidence of defendant’s mental history, and he had requested his
records from prison and the county jail.
The trial court offered to send defendant for an evaluation pursuant to
Penal Code section 1203.03
name="_ftnref22" title="">[22] but defendant put off discussing it until the
next scheduled hearing, about two months later.
By
May 2011, defendant had filed a written Marsden
motion, claiming his appointed counsel had told him that there was no grounds
for a new trial motion and defendant had no history of mental problems. At the hearing on this motion, the seventh,
and final, judge in front of which defendant appeared in this case
presided. Once again, the basis for
defendant’s complaint against his attorney was due to a difference in opinion
over strategy, and the motion was denied.
However, the court allowed defendant to represent himself on his new
trial motion, while his appointed attorney continued to represent him on the
ability to research and properly prepare the motion and to “handle†it. Thereafter, defendant again moved for a 1368
evaluation, which the judge denied, finding, based on two or three motions
defendant had written that she reviewed, that defendant “understands exactly
what [he is] doing.â€
In
July 2011, defendant’s Romero motion
was denied. The same day, and a week
later, defendant filed seven motions, including two for a new trial, and one
each for judgment notwithstanding the verdict and for modification of his
convictions to ones for lesser crimes.
The latter four were denied following a hearing during which defendant
rationally argued the merits of some of them.
When defendant complained that he did not understand his motion
notwithstanding the verdict, because he had merely copied what the jailhouse
lawyer had written for him, the court reminded defendant that it had offered
defendant counsel to prepare all his post-verdict motions, but defendant had
insisted on representing himself except as to the Romero motion. Later,
defendant pointed out to the court that it failed to have him sign a
motion for a new trial and he unsuccessfully asked for a 30 day continuance to
file another new trial motion.
name="_ftnref23" title="">[23] The court offered to appoint for sentencing
the attorney who represented defendant in his Romero motion, but defendant said he did not want him. The court said defendant would get whatever
attorney the conflicts panel sends, and, if that was the attorney who
represented defendant for his Romero
motion, that was who defendant would get and if defendant did not like it, he
could bring another Marsden motion.
announced that he was retaining counsel to represent him at sentencing. A week later, defendant appeared in court
without his retained attorney and defendant said he wanted to hire yet another
attorney, but that attorney was also not in the courtroom. The court refused defendant’s request to
continue sentencing. Defendant
unsuccessfully moved for appointment of counsel to represent him at sentencing
and concerning two other motions he said he had sent to the court
trial. Defendant asked for another 1368
evaluation, which the court denied, saying it had no doubt that defendant was
competent. The court denied defendant’s
last brought motion for a new trial, then sentenced defendant.
As
we stated at the beginning of this lengthy discourse, we see nothing in what
transpired after defendant’s request to represent himself was granted that
shows, under either standard, that defendant was not capable of representing
himself.
In
so concluding, we necessarily have already covered much of the ground defendant
addresses in his second contention that the trial court abused its discretion (
186, 188) in denying his request for the appointment of counsel the day trial
began. Among the factors the court is to
consider is defendant’s prior history in the substitution of counsel and the desire
to change from self-representation to representation by counsel, the reason for
the request, the length and stage of the trial proceedings, disruption or delay
that might be expected to be caused by the granting of the request and the
likelihood of the self-representing defendant being effective in trial. (People
v. Gallego (1990) 52 Cal.3d 115, 163, 164.)
A request for appointment of counsel is properly denied where the trial
court concludes that it is part of defendant’s deliberate attempt to manipulate
the system. (People v. Trujillo (1984) 154 Cal.App.3d 1077, 1087.) Consideration of each of the
conclusion that there was no abuse of discretion.
As
stated before, defendant had been given a second chance to have counsel appointed
nine months after he was allowed to represent himself, at a time when some of
his motions were being denied and the same judge who granted his request for
self-representation felt that defendant having counsel might result in more of
his motions being granted. However,
defendant refused. In fact, as we have
already stated, there was no sign of difficulty until just before the
long-delayed trial in October 2010.
record that supply evidence as to defendant’s motivation for his midnight
request for counsel and they support the reasoning of the court that denied
it. It is beyond dispute that granting
defendant’s request the day of trial would have delayed matters
considerably. Finally, as we have already
stated, both before and after the request, with the exception of defendant’s
brief panic when confronted with the reality that he was not going to be
successful in delaying this trial into the next decade, he behaved
appropriately, filed motions that were not the apparent product of an incapable
mind and argued them rationally. As we
stated before, we are not persuaded by the female expert’s gratuitous
statement, made almost eighteen months before trial began, that defendant was
not able to represent himself as persuasive.
Moreover, as is clear from her report, her main concern was that
defendant be medicated to relieve his hypomania, and, as we have already
stated, according to defendant’s representations to the court, he was at the
time of trial. The fact that defendant
did not understand a particular intricacy of trial, i.e., the bifurcation of
priors so the jury determining guilt does not hear about them, is not unusual
and does not mandate a conclusion that defendant cannot represent himself. We note that at this juncture, defendant was
not so intimidated by the prospect of going to trial that he was willing to
forego his credit for time served in order to accept the court’s offer of a
four year sentence. The fact that
defendant, apparently, engaged in several outbursts during voir dire about his
lack of an attorney can, as defendant here insists, be an indication that he
cannot control himself—it can also be an indication that he is trying
everything he can think of to get a mistrial and delay proceedings
further. The court below was entitled to
accept the latter reasonable inference and so are we, especially, considering
the fact that for almost eighteen months before and for ten months thereafter
defendant was able to comport himself in a reasonable fashion in court.
2.
Conducting Trial in Defendant’s
Absence
Defendant
here contends that his convictions should be reversed because the trial court
erred in conducting trial in his absence in that he did not voluntarily absent
himself—that “[h]is mental disorders so negatively impacted his rationale [
competently choose to be absent.â€
However, because we have already concluded that the record does not
support defendant’s premise, we necessarily reject his claim of error.
135, which defendant cites in support of his position is distinguishable. In Carroll,
the self-represented defendant was
repeatedly removed from the courtroom
by the trial judge. (
“involuntary[ily] exclu[ded]†from the courtroom. (Id.
at pp. 142-143.) Here, in contrast,
defendant removed himself, as already
described. People v. Parento (1991) 235 Cal.App.3d 1378, 1380-1382 held that a
defendant who absents himself from trial cannot claim the trial court erred in
proceeding without him.
3.
Prosecutorial
misconduct violates federal due process
when it comprises a pattern of conduct so egregious that it renders the trial
fundamentally unfair. (
819.) Conduct other than this violates
state law if it involves the use of deceptive or reprehensible methods to
attempt to persuade the jury. (
Defendant asserts that the latter occurred in this case. We review his claim de novo. (People
v. Uribe (2011) 199 Cal.App.4th 836, 860.)
a. Testimony
of a Deputy District Attorney
As
we have already stated, a deputy district attorney other than the prosecutor
testified for the prosecution. She was
shown a copy of the Faretta form
defendant had filled out, which was marked as an exhibit. She testified that it was a petition to
represent one’s self. She said,
“Generally, . . . [w]hat will happen is the form is given
to the defendant first to look over, to read, to think about and to sign. And after [the defendant has] signed it, it’s
given to the judge. The judge goes
through each of these rights and each of these waivers orally in open court at
a hearing.†Finally, she testified that
the form appeared to be signed by one Anthony Grissom. Her testimony covered just over one page of
Reporter’s Transcript. The prosecutor
successfully sought judicial notice that the form was in the court’s records
for the date it was executed, that the exhibit was an exact copy of what the
court had in its records and that the person who was representing himself in
this case was Anthony Clarence Grissom, the same person pictured in another
exhibit, which was defendant’s driver’s license photo.
Defendant
here contends that the presentation of the deputy district attorney’s testimony
constituted prosecutorial misconduct because it lacked foundation and was
irrelevant. Putting aside the matter of
waiver for failure to object below, defendant is incorrect that the testimony
lacked foundation because the witness had no personal knowledge of what
admonitions had been to defendant. This
witness did not testify that defendant was given any specific admonitions. She testified only as to what routinely
happens after a defendant signs a Faretta
form. In his reply brief, defendant
asserts that this evidence was irrelevant because the trial court had informed
the jury that defendant had exercised his constitutional right to represent
himself and had admonished the jury not to consider defendant’s decision to
absent himself from the trial. The first
directive followed defendant’s outbursts during voir dire, which, as we have
already said, are not part of the record before this court. The second directive occurred the next day,
after defendant elected not to be present during trial. The evidence at issue was relevant only to
the former. Because we have no idea what
defendant said during voir dire, we cannot speculate that the evidence was
irrelevant.
b. Argument
to the Jury
A
police officer who pulled the stolen car over testified that in the trunk was a
black leather organizer that contained a number of items, including credit cards
and driver’s licenses, that bore names other than defendant’s. He also testified that inside defendant’s
wallet, which had been removed from defendant’s pocket when he was accosted
outside the stolen car, were similar items.
In arguing to the jury that the evidence showed that defendant was
driving the stolen car with the intent to deprive the owner of it, the
prosecutor called the jury’s attention to the fact, inter alia, that defendant
had stolen property in his wallet and in the black leather organizer when he
was stopped. While the prosecutor
pointed out that defendant had not been charged with possession of those items,
the fact that he had them “shows . . . that [defendant] has
that mind set. . . . [¶] . . . No
person who is driving around in a car missing part of the ignition, using a
shaved key to drive it and has a whole bunch of stolen property on them is
borrowing this car innocently and returning it
to . . . where he picked it up from.â€
First,
defendant asserts that no evidence was presented to support the argument. He is incorrect. The above-discussed evidence supports the
argument. In his reply brief, defendant
asserts that the items in the black leather organizer cannot be tied to
him. He is mistaken. Some of the items in the organizer were in
defendant’s name and others were in the name of the same people as some of the
items in defendant’s wallet, which was in
his pocket. In his reply brief,
defendant asserts, without citation to authority, that his possession of credit
cards, debit cards and driver’s licenses in other people’s names is not
sufficient to allow the jury to make a determination.
Next,
defendant asserts that the prosecutor “improperly†argued that defendant’s
possession of other stolen items could not demonstrate his intent regarding the
stolen car. He cites no authority
holding that using other acts evidence to prove intent is either “deceptive or
reprehensible†as he alleges it was. He
also cites no authority holding that other acts must have been charged as
crimes and convictions rendered in order for evidence of them to be used to
show intent. In fact, Evidence Code
section 1101, subdivision (b) permits the introduction of evidence of “other
those acts have not resulted in charges or convictions. (People
v. James (1976) 62 Cal.App.3d 399, 407; People
v. Harris (1978) 85 Cal.App.3d 954, 958.)
Having
concluded that the prosecutor did not commit misconduct in either aspect as
alleged by defendant, we necessarily conclude that there was no cumulative
error requiring reversal of defendant’s conviction.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
name="_ftn1" title=""> [1] Defendant filed a motion to represent himself
which was granted by Judge Donner on October 30, 2009. He was denied counsel by Judge Leonard on
July 29, 2011.
name="_ftn2" title=""> [2] All further statutory references are to the
Penal Code unless otherwise indicated.
