P. v. Jones

Filed 10/23/07 P. v. Jones CA2/7

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassani, Judge. Affirmed.

Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant Jeremy Jones.

Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant Alonzo Perkins.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Herbert S. Tetef and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

SUMMARY

Jeremy Jones and Alonzo Perkins were convicted of one count each of murder, attempted murder, robbery and felon in possession of a firearm with certain personal use allegations found true. In Joness appeal, he claimed errors in the trial courts denial of his motions for self-representation, exclusion of evidence and sentencing, citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Perkinss appeal challenged the trial courts denial of his motion to suppress the surviving victims identification of him as well as the courts evidentiary and sentencing decisions. In 2005, we affirmed as to both Jones and Perkins.

Our Supreme Court denied Joness petition for review, but the United States Supreme Court granted his petition for writ of certiorari, vacated our opinion and remanded the matter back to us for reconsideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). Perkins apparently did not seek further review.

Upon reconsideration of the Blakely issue as to Jones following Cunningham, we nevertheless affirm.[1]

FACTUAL AND PROCEDURAL SYNOPSIS

On the morning of August 28, 2002, between 10:00 and 11:00 a.m., Donte Terrell and his friend Eric Martinez (aka Eric Saldana) left Terrells house in Martinezs white Mustang and drove to a house on Trafford Street. Jones came out of the house and approached the car. Terrell recognized Jones from junior high school. Martinez and Jones spoke for about 10 or 15 minutes. Then Martinez and Terrell drove to a liquor store, got something to drink and went back to Terrells house.

Later Martinez and Terrell returned to the house on Trafford Street. Jones was at the side of the house and motioned for Martinez to come with him. Martinez left the car running and went with Jones. About 10 or 15 minutes later, Jones came back to the side of the house and motioned for Terrell to turn off the ignition and come back with him. Terrell did so. Halfway between the house and the garage in back, Jones pulled a gun on Terrell, directed him through a side door into the garage and said, You done got caught up in some of Erics mess. Tried to get him to take you home, but we still here.[2] The main door to the garage was closed.

After entering the garage, Terrell saw another man (whom he later identified as Perkins) standing behind Martinez holding a gun. Martinezs hands were taped behind his back. Perkins looked at Terrell and said, Somebodys gonna die in here . . . today. Perkins then taped Terrells hands behind his back and took his money, cigarettes and keys, including the keys to Martinezs car. He put Terrell on the ground on his stomach and said, This is gangster. Terrell said, I dont know what this is all about, but you guys dont have to do this. You can let us go. We wont say anything.

Jones had also put Martinez on the ground. Martinez said, You dont have to do this. I can give you some money, but then Terrell heard a pop. Jones said he wanted $50,000. When Martinez said he didnt have that sum, Jones said, Its not even about the money. Perkins told Jones to hurry up, took Martinezs car keys and left the garage for about three minutes. When he returned, Perkins looked at Terrell and said, Its time to die. He took a belt and put it around Terrells neck. Terrell tucked his chin and kept the belt from cutting off his airway. Perkins lifted Terrell off the ground, but the tape around Terrells wrists snapped. Jones hit Terrell over the head, and Jones and Perkins retied Terrells hands with speaker wire.

With Terrell bound, Jones returned to Martinez and began choking him with a shirt. Jones sat on Martinezs stomach and then used a 12-inch metal bar to push down on Martinezs throat until Martinez made a gurgling sound. After that, Jones wrapped an extension cord around Martinezs neck and pulled on it. By then, Martinezs eyes were glazed over and he had a blank expression, but another person entered the garage to check Martinezs pulse and said, Hes not dead yet. Hurry up. Hes almost dead. After that person left, Terrell broke the wire on his hands, ran out the door and jumped the back gate. He ran into some Cal Trans workers who called the police for him.

Long Beach Police Officer Daniel Molinar responded to the call after noon. Panicky and concerned for Martinez, Terrell told him what had happened and directed him to the Trafford Street address. Terrell had duct tape and speaker wire around his wrists. Long Beach Homicide Detective Robert Erickson traveled to the address which was the home of Jones and his parents. When Erickson entered the garage, he saw speaker wire, an extension cord, a roll of duct tape and a .38 caliber handgun amidst the exercise equipment. There was blood on a towel and on the carpet and there was a weight bar near the blood. Joness fingerprints were found on the side door to the garage and on the clothes dryer.

Carolyn Morris was Joness next-door neighbor. She had known Jones for 25 years and had known Perkins (who used the name Eyeball and was a friend of her son) for about 5 years. That morning, at about 8:00, Perkins had come to Morriss house and asked for a ride. When she told him he would have to wait until she finished washing dishes, he left. Later that morning, she saw Perkins riding his bike in the street and asked him to move a car for her which he did. Although she was unsure of the exact time, she also saw Perkins driving the Joness blue van at around 10:30 or 11:00 a.m.

Later, she saw a white Mustang pull up in front of the Joness driveway with two people inside. She heard a horn honk and then heard Jones say, Cmon back. Later still, she saw the same car being backed into the Joness driveway. After that, she saw Jones drive off in the Mustang, following immediately behind the Joness blue van which had been double-parked in front of the house. Right afterward, the sheriffs pulled up and there was a lot of police activity.

About 45 minutes later, Morris received a call from Perkins who asked what was going on around there. She said, I dont know.  Its a zillion police. After that, she got a call from Jones who also asked what was going on over there. She told Jones, Its a lot of cops around your house. She said she had heard somebody got killed over there.

Jones asked if the police had gone into the garage. When Morris said she didnt know, Jones asked her to go look and see. Looking from her back window, she told him the garage was down. Jones said he didnt do anything to anybody, and Morris told him, you d[o]nt have anything to worry about if you didnt do anything. Jones responded, I cant get out of this and told her the next time [she] saw him it would be at his funeral because he couldnt go back to jail again. Morris continued talking to try to get Jones to get an attorney. She told him, You can fight it. After that he hung up.

Later Jones called back and again asked what was going on. Morris said the police were still there. By that time, there was a detective at Morriss house. She told Jones the detective wanted to speak with him, but Jones hung up.

The next day, a Long Beach detective found the white Mustang in Compton, with Martinezs body in the trunk. Joness bloody palm print was found on the right rear fender near the trunk. An autopsy showed ligature marks on Martinezs neck and a laceration and bruise on his head. Martinez died of asphyxia.

At about 6:30 p.m. on the day of the murder, Terrell identified Jones in one photographic lineup, but was unable to identify Perkins in another.

On September 5, Terrell was shown the same lineup including Perkinss photograph he had been shown the week before and was again unable to identify Perkins. He circled two other photographs and said they most resembled the second person involved and made a notation that if [he] could hear the suspects voice in a line-up[,] that would help.

Two weeks later (on September 19), Terrell identified Perkins in a live lineup at the jail. Then he asked for each participant to say, Somebodys gonna die here tonight. After that, he walked over to a point directly in front of Perkins who was the first person in the line, looked straight at him and asked the deputy to have Perkins say, This is gangster. Because the deputies lineup rules require that all participants speak the same line rather than any one individual, all recited the line. Terrell did this to let Perkins know [Terrell] was there and was gonna put him in jail so Perkins would pay for what he did.

Jones and Perkins were charged with the first degree murder of Martinez (count 1), the attempted murder of Terrell (count 2) and the second degree robbery of Terrell (count 3). Each was also charged with possession of a firearm by a felon (count 4 as to Jones and count 5 as to Perkins). As to each defendant, there were special allegations that Martinezs murder occurred in the course of a robbery and that Jones and Perkins personally used a firearm in connection with the first three counts.

At trial, the People presented evidence of the facts summarized above. Both Jones and Perkins stipulated to prior convictions for purposes of the felon in possession of a firearm counts.

Jones testified in his own defense, claiming he was with Lisa Jones (not related to him) from about 8:30 or 9:00 until almost noon on the morning of the crimes, having breakfast and sex. When he left his house that morning, he said, Carolyn Morriss son Darryl was at Joness house. When Jones returned around noon, he said, he saw a Mustang back into his driveway with the trunk open and saw Darryl Morris with blood all over him. He then entered the garage and found the body of his friend Martinez who wasnt in a good condition. He had a purple extension cord wrapped around his neck and appeared to be dead. Jones helped put Martinezs body in the trunk of the Mustang because he knew if [his] parents found out, especially [his] mother, that she wouldnt want to go back into her house and, dead body in the house, [he] just automatically assumed they would lose the house . . . .  In putting Martinez in the trunk, he got blood on his hand and left the bloody palm print on the car. Jones did not call the police because he did not want to be a rat jeopardizing his own and his parents safety. He said he had been decent friends with Perkins for about eight years.

Lisa Jones testified that Jones was with her on the morning of the crimes as Jones testified. She and Jones had a child together. She lived with another man to whom she was engaged but continued her relationship with Jones, having sex and breakfast with him on a daily basis after her fianc left for work. She did not come forward with the information that Jones had been with her until January 2004 because she was afraid of losing her family. (She was pregnant at the time of trial in March 2004.)

Perkins presented no defense.

The jury convicted both Jones and Perkins of all counts charged. The jury found true the special allegations that Jones had used a firearm in connection with the attempted murder and robbery of Terrell. The jury also found true the special allegations that Perkins had used a firearm in the murder of Martinez.

The trial court sentenced Jones as follows: 25 years to life for the murder of Martinez (count 1), life imprisonment plus a 10-year firearm enhancement for the attempted murder of Terrell (count 2), the upper term of 5 years plus a 10-year firearm enhancement for the robbery of Terrell (count 3) and the middle term of two years on the felon in possession of a firearm count (count 4). The court ordered the sentences on counts 2 and 3 to run consecutively to the sentence on count 1. The sentence on count 4 was stayed.

The trial court sentenced Perkins to 15 years to life plus a 10-year firearm enhancement on count 1, life imprisonment on count 2, one year on count 3 and eight months on count 5. The sentences on counts 2, 3 and 5 were ordered to run consecutively to the sentence on count 1.

Jones and Perkins appeal.

DISCUSSION

I. Jones Has Failed to Demonstrate Prejudicial Error in the Trial Courts

Denial of his Motions for Self-Representation at the Commencement of Trial.

According to Jones, his motions for self-representation (Faretta v. California (1975) 422 U.S. 806), were timely; therefore, he had a right to have them granted. Alternatively, he says, even if they were not timely, the trial court abused its discretion in denying them. We disagree.

Trial Court Proceedings.

At 11:00 a.m. on March 9, 2004, with the jury panel waiting outside the courtroom for the start of jury selection, Joness attorney (Laronda McCoy) informed the trial court that Jones wanted to bring a motion . . . to go pro per. The following exchange occurred between the trial court and Jones:

[The Court:] Miss McCoy said you had a motion. What is that, Mr. Jones?

Defendant Jones: Yes. Id like to exercise my right and go pro per.

The Court: Are you ready to proceed to trial today?

Defendant Jones: No, Im not, Your Honor.

The Court: Do you need a continuance in order to exercise your right?

Defendant Jones: Yes, Maam.

The Court: Your request to go pro per is denied. Its not timely. Were going to

trial.

When Jones protested that he was not ready to go to trial, the trial court responded, Your attorney is ready [s]o youre going to trial. Jury selection commenced.

At 1:30 that same day, with jury selection still underway, Jones asked to address the court about his pro per status. When Jones said there was a conflict of interest between me and my lawyer, the trial court asked the prosecutor to step outside. This sounds more like a Marsden, and the record will be sealed.[3]

Asked to be more specific, Jones said the case could have been dismissed at the outset because there was a videotape that would have exonerated him, he had asked for a live line-up but never got it and his attorney did not agree with him about certain aspects of his case he felt to be important. Indicating that the decision to allow Jones to represent himself was discretionary, the trial court pointed to the lateness of Joness request. Jones said the reason for his late request was that McCoy had only come to see him two or three times although she had been his attorney for 17 months.

McCoy responded that she had seen Jones at least five or six times and had also spoken with him on the phone and in court. She said she attempted to obtain the videotape Jones identified as soon as she was assigned the case but the store owner had already destroyed it. Regarding the live line-up, she said, Terrell had already identified Jones in a six-pack and had said he had gone to school with Jones. Consequently, she did not believe a live line-up was in Joness best interest. With respect to the disagreement Jones had raised, she said the focus of his case was his alibi, not minor points such as whether the person involved had motioned for Terrell to come to the back of the house or called out to him, but, in any case, she would still be cross-examining on those points.

Jones responded that if the person motioned Terrell to come back as Terrell had previously testified, how could his neighbor (Morris) have heard his voice? Terrell had also said the person was already standing on the porch when he and Martinez pulled up, but Morris had said that she heard a horn honk which showed she was lying. He added that he had not gone to school with Terrell.

The trial court found that McCoy had seen and spoken with Jones as she had said and rejected Joness claimed conflict of interest in light of his alibi defense and the fact that McCoy would be cross-examining on the discrepancies Jones had raised in any event. The court admonished Jones: Do not bring up pro per status again. I have denied it. Im not changing my ruling. Its discretionary, and I find this is purely dilatory to try to prevent the trial from going forward, since its been pending since the year 2002.

Applicable Law.

As our Supreme Court has explained, A defendant has a federal constitutional right to represent himself if he voluntarily and intelligently elects to do so. [Citation.] In order to invoke an unconditional right of self-representation, the defendant must assert the right within a reasonable time prior to the commencement of trial.  [Citation.] A motion made after this period is addressed to the sound discretion of the trial court. (People v. Burton (1989) 48 Cal.3d 843, 852.)

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. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation. [Citation.] We directed trial courts to consider the quality of counsels representation of the defendant, the defendants 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. [Citations.] (People v. Burton, supra, 48 Cal.3d at pp. 852-853.)

Jones complains that the trial courts inquiry in this regard was inadequate, but the inquiry reflects the trial courts awareness of the facts established by the record.[4] McCoy had been representing Jones from the time of his arrest for a period of 17 months and had appeared with him in court at least 10 times before. Despite numerous opportunities to raise the issue, however, Jones did not seek to represent himself until the commencement of jury selection on the date set for trial. Further, the matter had been continued numerous times at Joness request, and Jones said he required yet another continuance in order to prepare to represent himself.[5] Given that the videotape he wanted had been destroyed, Terrell had identified Jones in a six-pack immediately after the crimes and McCoy was going to cross-examine Morris on the points Jones raised, the conflicts of which Jones complained did not withstand scrutiny. On this record, the motion was untimely, and we find no abuse of discretion in the trial courts denial of Joness request.[6] (People v. Burton, supra, 48 Cal.3d at pp. 853-854, and citations therein; see also People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398 [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 courts exercise of discretion and must examine the total circumstances confronting the court when the decision is made].)

II. The Trial Court Did Not Err in Denying Joness Motion for Self-Representation

at the Time of the Sentencing Hearing.

The jury returned the verdicts in this case on March 17, 2004. At that time, the trial court set the date of April 1 for the priors trial and for sentencing. On April 1, the trial court first addressed sentencing for Perkins. Turning to Jones, the trial court then recounted the jurys findings as to him. After the prosecutor informed the court that he would not be proving up Joness prior convictions, the trial court asked Joness counsel if she wished to be heard, and, in opposition to the prosecutors sentencing memorandum filed for the hearing, she argued various grounds for sentencing Jones to concurrent terms on the subordinate counts, staying two of them under section 654 and imposing the low term on the robbery count. The prosecutor responded with further argument in favor of consecutive terms and the high term on the robbery count.

Then the trial court began to sentence Jones: This was one of the most vicious murders I have ever heard. It was directly committed by Defendant Jones; that is, he was the main perpetrator. At this point, Jones interrupted, asking to address the Court. The exchange was as follows.

The Court: You want to say something? Of course you can.

Defendant Jones: Your Honor, I have before you a [section] 1050 motion to continue this.[[7]]

The Court: Youre not representing yourself at this point.

Defendant Jones: I would like to go pro per.

The Court: No. You cannot go pro per at this time. Is there anything else you wish to say?

Defendant Jones: I would like to present a new trial motion.

The Court: Youre not pro per. You cannot do any of those things.

Defendant Jones: For the record, I would like these issues heard in order to preserve them for my appeal.

The Court: No. Youre not representing yourself. Is that all? Is that what you wish to talk about, because if it is, youre not going to talk about that.

Defendant Jones: I cannot present my new trial motion?

The Court: No, absolutely not.

After that, the court continued with its description of Joness role in the crimes and sentenced him.

According to Jones, the case of Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 699, a case he calls the mirror image of this case, demonstrates the trial courts error. We disagree.

In the Menefield case, in contrast to this case, the defendant had represented himself at trial, but then requested the assistance of counsel to prepare a motion for new trial. Because the right to counsel is so central to our concepts of fair adjudication, we are reluctant to deny the practical fulfillment of the righteven once waivedabsent a compelling reason that will survive constitutional scrutiny. (Menefield v. Borg, supra, 881 F.2d at p. 700, italics added; see also ibid. [It is not surprising that a criminal defendant, having decided to represent himself and then having suffered a defeat at trial, would realize that he would be better served during the remainder of the case by the assistance of counsel].)

Because this case involves the reverse circumstancea defendant represented by counsel at trial who sought to represent himself at the time of sentencing, Jones cannot invoke the same constitutional rationale.[8] Once trial has commenced, the right to self-representation is no longer based on the Constitution; rather, a motion for self-representation at that time is addressed to the trial courts discretion. (People v. Rivers, supra, 20 Cal.App.4th at p. 1050; People v. Barnett (1998) 17 Cal.4th 1044, 1104.)

Here, the record establishes that the trial court had already made a determination that Jones had sought to represent himself for the purpose of delay. When Jones interrupted the commencement of voir dire to seek a continuance and represent himself, after numerous opportunities to raise the issue before then, the court told Jones: Do not bring up pro per status again. I have denied it. Im not changing my ruling. Its discretionary, and I find this is purely dilatory to try to prevent the trial from going forward, since its been pending since the year 2002.

Similarly, Jones did not raise the issue again until after both his attorney and the prosecutor had made their sentencing arguments and the trial court began to impose sentence, clearly indicating her view that the severity of the crimes warranted an appropriate sentence. Jones again requested a continuance. To the extent Jones argues for the possibilitynay, the near certainty, given what [the trial court] heard pretrial--that . . . Jones[s] request to move for a new trial pro se arose from disagreements with [defense counsel], it is unsupported by the record. Jones never mentioned any interest in having a new lawyer appointed; he asked only for a continuance to represent himself. Indeed, as addressed in section I, ante, although the court conducted a Marsden hearing at that time, Jones never requested another attorney at the commencement of trial either. A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] to suggest substitution of counsel as an alternative. [Citation.] (People v. Crandell (1988) 46 Cal.3d 833, 854-855.) We find no abuse of discretion.

III. The Trial Courts Exclusion of Joness Proposed Testimony Regarding

Darryl Morris Was Harmless.

Jones testified in his own defense that he was approached by his neighbor Darryl Morris on the morning of the crimes. When defense counsel asked what Darryl Morris had said to him, the prosecutor objected and defense counsel made an offer of proof that Darryl Morris asked Jones if he could use his garage for the purpose of seeing some girls and Jones allowed him to do that. She argued Jones would testify that he left the location and found Martinez on his return, showing Jones allowed another person access to his garage. At this point, the trial court found the evidence of mere opportunity insufficient evidence of third party culpability.

Later Joness attorney argued, Mr. Jones left the residence. Mr. Jones returned. Mr. Jones finds Mr. Martinez in his garage. Mr. Morris then asks Mr. Jones to assist him in removing this body. The court stood by its determination that the evidence of these two statements Jones alleged Darryl Morris to have made was inadmissible.

Jones, joined by Perkins, argues that he was prejudiced by the trial courts exclusion of this testimony because it deprived him of a defense and, even if he was not completely deprived of a defense, the trial courts ruling made the testimony presented circumstantial to the point of being trivial. We disagree.

First, as summarized above, Jones did present testimony that when he left his house on the morning of the crimes, Darryl Morris was at his house. When he returned around noon, he said, he saw a Mustang back into his driveway with the trunk open and saw Darryl Morris with blood all over him. He went into the garage and saw Martinez who appeared to be dead, with a purple extension cord wrapped around his neck. Jones then helped put Martinezs body in the trunk of the Mustang. Thus, the trial court's ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense. Accordingly, the proper standard of review is that enunciated in People v. Watson [(1956)] 46 Cal.2d 818, 836. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)

Applying the harmless error standard, we find that Jones was not prejudiced by the exclusion of the further evidence of