P. v. Lake
Filed 2/24/12 P. v.
Lake CA4/3
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN LAKE,
Defendant and Appellant.
G044599
(Super. Ct. No. 07NF3638)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Richard M. King, Judge. Affirmed.
Thomas
Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Steve Oetting and Lise S. Jacobson,
Deputy Attorneys General, for Plaintiff and Respondent.
An information charged
John Lake with 10 counts of residential
burglary (counts 1-10), two counts of vehicle theft (counts 11-12), one
count of receiving stolen property (count 13), and two counts of unauthorized
use of an automated teller machine (ATM) access card (counts 14-15). In addition, the information alleged Lake had
sustained five prior felony convictions or “strikes,” under the “Three Strikes”
law, two prior serious felony convictions pursuant to Penal Code
section 667, subdivision (a)(1),
and had served one prior prison term (§ 667.5, subd. (b)).
Lake,
acting as his own attorney, successfully moved to dismiss counts 1, 2 and 4 at
the conclusion of the prosecution’s case-in-chief. The jury found him not guilty of count 8, but
guilty of counts 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, and 15. The jury also found true allegations he had
suffered three prior strikes and one prior serious felony conviction. The court dismissed the prior prison term
allegation on motion of the district attorney and sentenced Lake to consecutive
terms of 25 years to life on all counts except count 13 (which the court stayed
pursuant to section 654) and added 10 years for each of the prior serious
felony convictions to each count for a total term of 350 years to life.
On
appeal, Lake challenges the sufficiency of the evidence to support
count 10, claims the court erroneously denied his request to revoke his propria
persona status and appoint counsel for trial, and argues error in denial of his
request for the appointment of counsel for sentencing. He also claims the court erroneously denied
his request to strike priors pursuant to section 1385. None of these contentions has merit and we
affirm the judgment.
FACTS
Because
Lake’s challenge to the sufficiency of the evidence is
limited to a single count, we need not provide details related to all the
charges. As an overview, Lake
was found guilty of burglarizing five hotel rooms, using the credit cards of
two of his victims to make purchases, and stealing two cars. He was apprehended driving a stolen car into
a motel parking lot on October 6, 2007. He had the
keys to another stolen car in his pocket.
During
September and the early part of October 1997, Lake
entered several motel rooms while the occupants were out and their rooms were
being cleaned. He sometimes represented
himself as the room’s occupant and asked the housekeeper to wait outside while
he used the restroom. On other
occasions, he was seen leaving motel rooms occupied by other people after he
removed various items including their credit cards. Subsequent unauthorized charges to these
credit cards and his apprehension in a stolen vehicle led to Lake’s
arrest and the recovery of a number of stolen items.
Count
10 alleged that on October 3, 2007, Jeffrey Zobell stayed in room number 733 of the
Anaheim Doubletree Hotel. On that day,
he left his room at approximately 1:00 p.m. and returned around 9:00 p.m. When he returned, he noticed a
number of personal items were missing, including his iPod and articles of
clothing. When police officers responded
to the hotel, a maid told officers she had been cleaning room 733 earlier in
the day when a man entered the room and told her to leave so he could use the
restroom. She complied. Later, she identified Lake
as that man from a photographic lineup.
At trial, the woman’s testimony differed somewhat. In court, she said she had been cleaning
rooms on the fifth floor on September 28, 2007, and Lake entered room 527.
None of Zobell’s property was recovered.
DISCUSSION
Sufficiency of the Evidence to Support Conviction on
Count 10
Count
10 of the information charged, “On or about October 03, 2007, in violation of
Sections 459-460(a) of the Penal Code (FIRST DEGREE RESIDENTIAL BURGLARY), a
FELONY, JOHN LAKE did unlawfully enter an inhabited dwelling house, trailer
coach, and inhabited portion of a building, inhabited by J. Zobell (Doubletree
Hotel), with the intent to commit larceny.”
Relying on the discrepancy between the maid’s initial statement and her
trial testimony, Lake argues there was insufficient evidence to prove he
stole items from Zobell’s motel room on October 3, 2007. We disagree.
“When
an appellant challenges the sufficiency of the evidence to support a
conviction, the appellate court reviews the entire record to see ‘“whether it
contains substantial evidence – i.e., evidence that is credible and of solid
value – from which a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt.””
[Citation.] We view the facts in
the light most favorable to the judgment, drawing all reasonable inferences in
its support. [Citations.] We do not reweigh the evidence, resolve
conflicts in the evidence, or reevaluate the credibility of witnesses. [Citations.]”
(People v. Cochran (2002) 103
Cal.App.4th 8, 12-13.)
Our
review of the whole record reveals substantial
Lake’s conviction of burglarizing Zobell’s hotel room on October 3, 2007. Despite the discrepancies between the maid’s
out-of-court statement and her trial testimony, Lake’s conduct
is not in dispute.
positively identified him as the person who impersonated the hotel room’s
occupant and asked her to leave while he used the restroom. The jury was charged with weighing the
credibility of the testimony of both the maid and the
investigator who later interviewed her and testified the theft took place in
room 733 on October 3, 2007.
part or none of any witness’s testimony,”
and instructed to consider various factors, including the passage of time, when
making a credibility call. We do not,
and need not, know whether the jury believed every aspect of the maid’s trial
guilty. (See People v. Reyes
(1987) 195 Cal.App.3d 957, 965.)
responsibility for determining what happened, the jury found enough of the
maid’s statement and the corroborative testimony
of the investigating officer credible to establish beyond a reasonable doubt
that Lake burglarized Zobell’s hotel room on or about October 3, 2007. We find no legal cause to second-guess the
jury’s determination.
Faretta Motion
After
the felony complaint was filed in October 2007, Judge James E. Rogan granted
Lake’s request to represent himself under Faretta
v. California (1975) 422 U.S. 806.
Over the next three years, Lake filed over 100 motions, which together
comprise the bulk of seven volumes of clerk’s transcript. Topics ranged from requests for non-collect
telephone calls and access to legal materials to demands for a Kosher diet and
special orthotics.
Interspersed
between his complaints about jail conditions, Lake would periodically request
the appointment of counsel or advisory counsel, but invariably he became
dissatisfied with any attorney appointed and then would file a
and request self-representation. The
court appointed and relieved three defense investigators after Lake repeatedly
complained about each one. One of the
investigator’s, Joseph Szeles, was replaced after an unflattering article
appeared in the March 11, 2010 OC Weekly, about his past employment with the
Riverside Sheriff’s Department and his apparent monopoly over the court’s
appointment of defense investigators The
other two investigators ultimately declared a conflict of interest and were
relieved. At various times, Lake also
accused the district attorney’s office and the court of misconduct and/or bias,
and he filed several unsuccessful Code of Civil Procedure section 170.6
motions to disqualify the judge.
By
October 2010, Lake’s case had been continued numerous times at his request, but
it had a trial date in November. On
October 27, he filed a motion complaining about monitored telephone calls and
jail personnel interfering with his legal materials. On November 1, he requested the appointment
of advisory counsel which the court denied after finding Lake had abused his
propria persona status. Lake renewed his
request for advisory counsel and claimed the jail staff mistreated him and withheld
his medication which interfered with his ability to prepare for trial. With a jury trial scheduled to start on
November 1, 2010, Lake said he no longer wanted to represent himself “because
of the court’s rulings . . . .” The court stated, “Mr. Lake, I am not
entertaining any further motions that I have already ruled on on your
behalf. It is time to go to work.” The court also denied Lake’s renewed request
for advisory counsel. When the court
asked Lake if he had retained counsel “that is available,” Lake said “No, I do
not, your honor.”
After
some further discussion, the court ruled as follows: “[T]he court at this time is denying the
defendant’s request for withdrawal or for a waiver of counsel. The court has taken into account the fact
that the defendant has represented himself for almost three years. The stage of the proceedings: we are about ready to pick a jury. To allow this to happen at this time would
substantially disrupt and delay the orderly administration of justice. [¶]…[¶] So your request, if it is a request,
and I am not even confident it is a request to withdraw your pro per status and
have the court appoint counsel at this time is denied.”
Generally,
when a defendant who is representing himself requests the reappointment of
counsel, the court must exercise its discretion by considering “‘the totality
of the facts and circumstances.’” (People
v. Gallego (1990) 52 Cal.3d 115, 164.)
Some of the relevant factors to consider are: “‘(1) defendant’s 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 defendant’s effectiveness in defending
against the charges if required to continue to act as his own
attorney . . . .’
[Citation.]” (Ibid.) “‘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 . . . .’” (Ibid.)
Lake’s
numerous pretrial maneuvers, which included multiple Faretta
motions, requests for reappointment of counsel and advisory counsel,
ample evidence in support of the court’s conclusion that his latest somewhat
ambivalent request for counsel was merely part and parcel of his ongoing
attempt to manipulate the court and thereby avoid trial. As the court noted, Lake took full advantage
of his propria persona status to delay and obfuscate. Enough is enough.
Moreover,
the reason for Lake’s request is unpersuasive.
Although he claimed incompetence, the record reveals that he is
well-versed in the law, loquacious and tenacious. Thus, his last-minute professed inability to
effectively represent himself is contradicted by the record.
Lake’s last-minute request for counsel would have caused substantial disruption
to the court’s administration of justice.
The case had been continued several times at Lake’s request which was
the reason the case remained on the court’s calendar for over three years. Furthermore, Lake provided no information
concerning how long a continuance would be required had the court granted his
request. He had not contacted or
retained counsel, and the appointment of counsel or advisory counsel would have
further delayed a long-overdue trial to permit counsel to adequately prepare. Thus, considering the totality of the circumstances
we conclude Lake engaged in a kind of game-playing courts need not
tolerate. (People v. Clark (1992) 3 Cal.4th 41, 115.) In short, the record amply supports the
court’s ruling Lake’s request for the appointment of counsel or advisory
counsel was both untimely and an improper attempt to manipulate the
proceedings.
We
reach the same result with Lake’s contention the court abused its discretion
and violated his constitutional rights by not appointing counsel to represent
him at the sentencing hearing. In the
first place, Lake failed to articulate a clear desire for representation at the
sentencing hearing. But even if he had,
we would find no error in the court’s various rulings and the imposition of
sentence.
The
sentencing hearing was scheduled for December 17, 2010. The court ordered the preparation of a
probation and sentencing report, and advised the prosecution a restitution
hearing would be conducted on the same date.
Lake requested the court appoint an investigator to assist him. The court denied his request. A few days later, Lake telephoned the court
and spoke to a court clerk. According to
the court’s minutes, Lake said he wanted the court to appoint Alfredo Rasch to
be his investigator. The court denied
the request. The court did however
grant Lake leave to file a motion for a new trial to be heard in conjunction
with the sentencing hearing. A few days
later, Lake filed a motion to continue, a motion and declaration for ancillary
services, and a motion for court-ordered transcripts. The court permitted Lake to file the motion
to continue. However, the other two
motions were not filed “due to the Defendant’s history of filing multiple and
frivolous motions.”
Undeterred,
Lake filed a document with this court in which he challenged the trial court’s
ruling. We treated the document as a
petition for extraordinary writ and granted him five days to file any
supplement documents, petitions, declarations, or any other document he deemed necessary. Meanwhile, the prosecution filed its
sentencing brief and statement in aggravation, the gist of which was that Lake
should be sentenced to a determinate term of 110 years in addition to an
indeterminate term of 250 years to life.
On
December 15, the court ordered a deputy sheriff to be present at the sentencing
hearing so that the court could question him under oath because Lake claimed
the deputy removed legal materials from his cell. On December 17, the date set for the
sentencing hearing, the court questioned Orange County Deputy Sheriff Kevin
Archambault and received two exhibits, both of which were related to Lake’s
access to legal materials. After the
hearing, the court denied Lake’s motion to continue the sentencing hearing.
A
lively sentencing hearing
followed. When the court tried to advise
Lake of the charges and the verdicts against him, he interrupted the court and
said he “ha[d] other motions to file.”
The court warned Lake to stop interrupting or face removal pursuant to
section 1043, subdivision (b)(1), and then proceeded to arraign Lake for
sentencing. When the court inquired if
there was any legal cause why sentence should not be imposed, Lake mentioned
the writ proceedings, and a request to disqualify the judge, and a motion for a
new trial. When the court asked for
specific grounds for Lake’s motion for new trial, Lake complained he had been
denied “substantial rights during the trial, not having an investigator to be
able to be called on, not being allowed to have my investigators that were
previously in my case to be called on to be able to give testimony in my case,
not to be allowed the opportunity and sufficient time.” He also claimed to have newly discovered
evidence, which he explained meant that one of the witnesses had been under
duress during her testimony. He also
mentioned judicial and prosecutorial misconduct. The court denied Lake’s request to file a
written motion for new trial because it was untimely, heard further argument on
the matter and denied the motion.
The
court determined there was no legal cause why judgment should not be entered
and imposed a total prison sentence of 350 years to life. As discussed below, there was little counsel
could have done to remediate the sentence.
The court followed the dictates of the Three Strikes sentencing scheme
in sentencing a career criminal. While
we agree a sentence of 350 years to life seems meaningless when compared with
Lake’s probable lifespan, this is not grounds for reversing the judgment or modifying
the sentence. In short, Lake fails to
demonstrate a denial of constitutional rights or an abuse of discretion.
Section 1385
Lake
claims the court abused its discretion by denying his request to strike prior
convictions pursuant to section 1385. We
disagree.
Section
1385, subdivision (a) provides, “The judge or magistrate may, either of his or
her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set
forth in an order entered upon the minutes.
No dismissal shall be made for any cause which would be ground of
demurrer to the accusatory pleading.”
This section authorizes a court to dismiss findings a defendant
committed one or more prior serious or violent felony convictions to avoid the
application of the Three Strikes law. (
Cal.4th 148, 151-152, 158-159; People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) We review such decisions for an abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) There was no abuse of the court’s discretion
here.
Lake
asked the court to dismiss the five prior residential burglary convictions
alleged in the information as strikes because they occurred in 1991. As Lake explained, “Your honor, the judge in
Riverside stated that I had no previous strikes and struck all my strikes at
that time. That’s the superior court
making that same thing. Plus, those
strikes when – that you’re talking about, when I received way back in ’93, at
that time, your honor, that’s more than five years, let alone more than 20
years ago, and at that time, there was no Three Strikes law. There was no – at that time, as I mentioned
before, the contract that I had with my public defender at that time was that
there is no strikes. So at the same
time, your honor, because of the amount of time in between that crime and this
so-called crime that I committed now, that’s more than 30 years, they should
not be considered strikes as the judge in Riverside stated himself.”
This
argument would have been more persuasive if
Lake’s criminal record were limited to those crimes he mentioned to the
court. However, according to the
probation report, Lake’s contacts with law enforcement started around
1979. “Between 1979 and 1988, [Lake] was
documented to have come in contact with law enforcement on eight occasions for
offenses including Hit and Run, Use of Checks with Nonsufficient Funds, Vandalism,
Driving on a Suspended License, False Identification to an Officer,
Forgery, Receiving Stolen Property, Burglary, Grand
Theft, and Theft. For these crimes, he
was convicted of three misdemeanors for Use of Checks with Nonsufficient Funds
(1982/Case: M106865/3 yrs. prob.); Vandalism (1982/Case: M165679/12 mos.
prob./10 days jail); and Theft (1988/Case: GGW159745P0/36 mos. prob.).” In 1990, he entered the hotel rooms of the
victims while they were being cleaned and acted as though the rooms were his
and removed personal property, he opened a bank account with a forged check and
cashed a stolen check, and he was convicted of multiple counts of burglary,
forgery, receiving stolen property, vehicle theft and receiving stolen
property. In 1993, Lake was convicted of
forgery and grand theft after signing a contract for construction work, cashing
the check he received, and failing to perform the work as agreed. He tried the same ploy in 2000, and in 2003
he stole his mother’s car, money and jewelry.
His record while incarcerated is no better with rule violations for
lying, tampering with security devices, possession of contraband, failure to
follow directives, creating disturbances, and on a few occasions, he has been
placed in isolation for up to 10 days as
an habitual rules violator. As the court noted, Lake “is the person that
the Three Strikes [law] is about.” It is
difficult to find fault with that conclusion.
DISPOSITION
The judgment is
affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
ARONSON, J.
name="_ftn1" title=""> [1] All further statutory references
are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2]
People v. Marsden (1970) 2 Cal.3d 118.
