P. v. Jones

Filed 8/22/08 P. v. Jones CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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After a jury trial, defendant Willie Ray Jones was convicted of assault using force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1))^[1]and battery inflicting serious bodily injury ( 242, 243, subd. (d)). The jury also found true an enhancement allegation that as to each offense defendant inflicted great bodily injury under circumstances involving domestic violence. ( 12022.7, subd. (e).) After a subsequent bench trial, the court found true enhancement allegations that defendant had two prior convictions of serious or violent felony offenses. ( 667.) Sentenced to 25 years to life in state prison, defendant appeals.

Defendant contends that the trial court erred in: (1) denying his motion for reappointment of counsel; (2) denying a motion for a continuance during trial; (3) terminating his cross-examination of a witness; and (4) failing to instruct sua sponte that the jury must find each element of the offense true beyond a reasonable doubt. Finding no merit in his contentions of error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants contentions do not implicate the facts of the offense. It suffices to say that the evidence shows he went to the home of his erstwhile paramour and, after restraining her when she attempted to flee, punched her in the face, fracturing two bones of the orbit structure around her left eye, lacerating her brow, knocking her to the ground unconscious, and rendering the vision in her left eye permanently blurry.

On January 22, 2007, trial was set for March 12, 2007. On February 21, 2007, the court heard and granted defendants motion under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] to relieve his appointed counsel and make his own defense personally. The case had been pending for more than three years; he had previously alternated several times between representation by counsel and self-representation. On March 8, 2007, defendant filed a motion to disqualify the judge assigned for trial. The disqualification motion was not decided until April 23, 2007, which, of necessity, delayed the trial.

On April 26, 2007, the matter came before the court once again for trial setting. Defendant did not respond to the courts repeated inquiry concerning his readiness for trial. The court set the trial for May 1, 2007. Defendant then moved for a continuance. The court denied the request for a continuance, noting that defendant refused to waive time. After several further motions were denied, defendant asked that counsel, once again, be appointed to represent him. The court denied the motion for appointment of counsel.

Shortly after 9:00 a.m. on the third day of trial, Ronald Flockhart, who witnessed the incident, testified. The direct examination was fairly brief. Defendants cross-examination was belabored, repetitive, replete with long pauses between questions and sustained objections. Shortly before 11:30 a.m. the trial court cautioned defendant that he needed to proceed and cease long pauses between questions. When defendant continued to lag, the court warned him that waiting two or three minutes before posing a question was not appropriate and told him that the examination was going to finish by noon. The aforementioned problems persisted and at 10 minutes to noon the court noted the time. After defendant took four minutes to produce three more short questions, the court asked defendant if he was through. He said he was not.

At three minutes to noon when the court announced the time, defendant said he believed that he was at the end right here. The court told him to continue. Two simple and repetitive questions later it was noon and the court announced that it was terminating cross-examination. Defendant objected that he was not finished. He did not suggest the nature of any additional examination.

On the afternoon of the third day of trial the prosecution rested its case-in-chief. The court released the jury so defendant would have time to arrange for attendance of his witnesses. The following day, a Friday, a juror called in sick and, when defendant objected to seating an alternate, the matter was put over until the next court day, the following Tuesday.

On Tuesday morning defendant called one witness, a doctor who treated the victim. Thereafter he requested a continuance as he had no other witnesses available to testify. Outside the presence of the jury the trial court patiently listened to defendants excuses about his inability to get any witnesses present to testify. Finally, the court asked if defendant intended to be a witness in his own defense. Defendant replied that he refused to testify until it could be determined if another witness, the victim, could be summoned. The court told defendant, in effect, the time had come and it was now or never. Defendant refused. The court learned that the victim might be available the next morning. The court put the matter over, yet again, until that time.

The next morning the prosecutor suggested that, notwithstanding the admonition of now or never, defendant should be afforded another opportunity to testify after the witness. The court agreed. Defendant said that he had intended to testify from notes written on a tablet that he had not brought to court with him. He said the only way he could testify would be if the court would agree to a continuance to get his notes. The victim was called and reexamined, at length. Defendant had no other witnesses and refused to testify on the ground that he could not do so without his notes.

DISCUSSION

I. Request for Reappointment of Counsel

Defendant contends that the trial court erred when it denied his request for reappointment of counsel. He argues the court abused its discretion because, notwithstanding his record of manipulating the Faretta right and the imminence of trial, his previously appointed counsel may have been available on short notice or new counsel could have taken the matter to trial in a week. The argument is unpersuasive and the contention of error lacks merit.

In People v. Gallego (1990) 52 Cal.3d 115, 164 (Gallego), the Supreme Court endorsed the following approach to the exercise of discretion in such matters: Relevant factors should include, among others, the following: (1) defendants prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendants effectiveness in defending against the charges if required to continue to act as his own attorney. [] As in [People v. Windham (1977) 19 Cal.3d 121], a trial judge must establish a record based upon the relevant factors involved and then exercise his discretion and rule on defendants request for a change from self-representation to counsel-representation. (Quoting from People v. Elliott (1977) 70 Cal.App.3d 984, 993-994.)

The Gallego court also approved the following caveat from People v. Smith (1980) 109 Cal.App.3d 476, 484: While the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial. (Gallego, supra, 52 Cal.3d at p. 164.)

In this case the record supports the trial courts denial of another switch. Given defendants prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, it was reasonable to find defendant was playing games. The reasons defendant set forth for the request were not persuasive, as nothing new or unforeseen had come to light since he insisted on self-representation. Trial was imminent and appointment of counsel, with the inevitable scheduling problems, would likely entail yet another substantial delay. Finally, the court was familiar from long experience with defendants legal aptitude. In these circumstances we discern no basis to deem the trial courts decision an abuse of discretion.

II. Request for Continuance During Trial

Defendant contends that the trial court erred when it denied his request for a continuance during trial to obtain his notes to help him to testify. He argues that the trial court was wrong to insist that he testify while awaiting the outcome of his efforts to recall the victim to the stand, and thus was constrained to grant him a continuance to obtain his written notes before ruling that the defense had rested. The argument is unpersuasive and the contention of error lacks merit.

In Brooks v. Tennessee (1972) 406 U.S. 605 [32 L.Ed.2d 358], the United States Supreme Court overturned a statutory requirement that a defendant in a criminal proceeding testify before any other testimony for the defense is heard, holding this violates the defendants privilege against self-incrimination. (Id. at p. 609 [32 L.Ed.2d at p. 362].) The court noted the generic uncertainty of the defense which could not tell if its witnesses would impress the jury as honest and reliable and might not, absent provision of discovery mechanisms, know whether potentially hostile witnesses would prove to be favorable. (Id. at pp. 609-610 [32 L.Ed.2d at p. 362].) Thus, [r]ather than risk the dangers of taking the stand, he might prefer to remain silent at th[e] point [when the state rests its case], putting off his testimony until its value can be realistically assessed. (Id. at p. 610 [32 L.Ed.2d at p. 362].)

Defendants analogy to Brooks is strained. Here the only defense witness left in issue was the victim, who had already testified on direct at the trial. Moreover, the demand that defendant take the stand was occasioned not by an arbitrary rule, but by his failure to produce any other witness, in keeping with his obligation to move the trial forward with ordinary diligence. In any event, the trial court recanted and offered him an additional opportunity to testify after every other witness. Thus, the question is whether the court was constrained to grant a continuance and continue the case for another day so that defendant could obtain his notes.

As defendant concedes, the grant or denial of a continuance is a matter that rests in the discretion of the trial court. The court must weigh the equities of the proffered need for delay and the advantages gained thereby against the costs of delay. Here defendant claimed to need his written notes to facilitate his testimony. This is a simple case involving a few material facts, all within the perception of defendant. Did he chase the victim down and punch her savagely in the face? If not, how was she wounded? Assuming that defendant had notes about his testimony, it is implausible to assert that they were necessary for his testimony. Even if such notes would be helpful, they could have been reconstructed in a few minutes at most. The trial court did not abuse its discretion in denying defendants request to continue the trial to another day on this pretext.

III. Termination of Cross-examination

Defendant contends that the trial court erred when it terminated his cross-examination of Flockhart. He argues the trial court abused its discretion because Flockhart was a critical prosecution witness and, if he had been allowed to continue he would have inquired further about Flockharts interaction with [the victim] and his relationship with [Thomas] Reed [another eyewitness]. The argument is unpersuasive and the contention of error lacks merit.

It is axiomatic that the accused in a criminal trial must be provided a reasonable opportunity to effectively cross-examine the witnesses against him. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 683-684].) At the same time, however, the trial judges retain wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on . . . cross-examination[,] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness[s] safety, or interrogation that is repetitive or only marginally relevant. (Id. at p. 679 [89 L.Ed.2d at p. 683].) (People v. Ducu (1991) 226 Cal.App.3d 1412, 1414-1415 [time limitation imposed by the court on cross-examination was reasonable].)

As related, defendant did not suggest any further areas warranting cross-examination at trial. He had already cross-examined Flockhart on his relationship with the victim (none) and Reed (only acquainted as coemployee who commuted on the same bus). In view of the extensive cross-examination, defendants improper and repetitious questioning, persistent improper delay in formulating questions, and failure to suggest any grounds of examination that remained, the trial court acted reasonably within the range of its discretion in terminating cross-examination.

IV. Instructional Error

Defendant contends that the trial court erred in failing to instruct sua sponte that the prosecution is required to prove every element of the alleged crimes. He argues that, notwithstanding that the trial court gave CALCRIM No. 220,^[2]the standard jury instruction on reasonable doubt, it erred because that instruction fails to use the term element. We find no error.

Defendant relies on People v. Phillips (1997) 59 Cal.App.4th 952, where the trial court did not define reasonable doubt and did not instruct the jury about the defendants presumption of innocence or the Peoples burden to prove guilt beyond a reasonable doubt at all. (Id. at pp. 953-954.) The Court of Appeal reversed and said the error could not be deemed harmless on the ground that counsel addressed the point in argument: The attorneys references to the requirement of proof beyond a reasonable doubt fell short of apprising the jurors that defendants were entitled to acquittal unless each element of the crimes charged was proved to the jurors satisfaction beyond a reasonable doubt buttressed by additional instructions on the meaning of that phrase. (People v. Vann [(1974)] 12 Cal.3d [220,] 227.) (Phillips, at p. 958.)

Defendants insistence on use of the term element is unwarranted. The jury must be instructed that each element of the crimes charged has to be proved beyond a reasonable doubt, but that term does not have to be used. CALCRIM No. 220 contains the direction that each element must be so proved in telling the jury: Whenever I tell you the People must prove anything, I mean they must prove it beyond a reasonable doubt. This direction, coupled with the instructions on the offenses, suffices. The courts instructions on the offenses tell the jurors that [t]o prove that defendant is guilty of this crime, the People must prove the following things and then the court separately, numerically lists the elements of the offenses. Combined with CALCRIM No. 220, this informs the jurors: The People must prove those elements beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

RAYE , Acting P.J.

HULL, J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] CALCRIM No. 220, despite defendants assertion to the contrary, is virtually identical to CALCRIM No. 103. Both are captioned reasonable doubt and similarly instruct as follows:

The fact that a criminal charge has been filed against the defendant in this case is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove anything, I mean they must prove it beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. (CALCRIM No. 220.)