P. v. Porter
Filed 6/20/12 P. v. Porter 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN PORTER,
Defendant and Appellant.
C064977
(Super.
Ct. No. 09F04344)
Following an
18-day trial, during which defendant represented himself, a jury found
defendant guilty of 11 counts of second
degree robbery (Pen. Code, § 211)
and five counts of second degree attempted robbery (§§ 664/211). In a bifurcated proceeding, the jury found
true an allegation defendant had a prior serious felony conviction that also
qualified as a strike. (§§ 667, subd.
(a)(1) and (b)-(i); 1170.12.) Defendant
was sentenced to an aggregate term of 41 years and 8 months in state prison.
Represented by
appellate counsel, defendant appeals, contending the trial court erred in (1)
denying his motions to suppress all or at least part of his post-arrest
statements to law enforcement, (2) allowing him to represent himself and
failing to appoint standby counsel, and (3) calculating his aggregate prison
term. Having reviewed the entire record,
we shall affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Defendant was
charged in an amended information with committing or attempting to commit 16
robberies in
County during a roughly two-week period from May 19 through June 5, 2009. During pre-trial proceedings, defendant
requested to represent himself. After
advising defendant of the perils of self-representation, the trial court
granted the motion. On the seventh day
of trial, after 21 witnesses had testified, defendant advised the court that he
wanted a lawyer. The trial court denied
the motion as untimely, explaining that “[t]here’s no attorney that [
request to represent himself and subsequent request for counsel are set forth
below.
I
The Prosecution
A. Second Degree Robbery of Wendy’s (Count 1)
On May 19, 2009, a man entered the
Wendy’s restaurant on Watt and El Camino Avenues and handed an employee a note
that read, “[G]ive me all the money in your drawer right now, or I’ll shoot
you.†The man lifted up his sweatshirt
to reveal the handle of a black gun. The
employee opened the register and gave the man roughly $170 in cash. The employee described the man as African
American, 23 to 24 years old, 160 to 170 pounds, approximately 5’7â€, and
bald. Two weeks after the robbery, the
employee identified defendant from a photographic lineup as the robber. She also positively identified him at trial.
B. Second Degree Robbery of Subway (Count 2)
On May 23, 2009, a man entered a Subway
restaurant on El Camino Avenue
and threw a note onto the counter that read, “Give me the $. Don’t do anything stupid.†The employee gave the man $200, and the man
ran out of the store. The employee
described the man as African American, about 5’7â€, 170 pounds, and with short
hair. The employee was unable to
positively identify the man that robbed her from a photographic lineup or at
trial. The store manager, who was
present during the robbery, also was unable to positively identify the robber
from a photographic lineup but identified defendant as the robber at trial.
C. Second Degree Robbery of McDonald’s (Count 3)
On May 24, 2009, a man entered a
McDonald’s restaurant on Madison Avenue and handed the shift manager a
note. The shift manager was unable to
read the note and turned to ask a co-worker for assistance. The man said he was not stupid and that he
had a gun. The shift manager gave the
man about $100 from the register. The
shift manager described the man as African American, between 19 and 20 years
old, 5’11â€, and 170 pounds. The robbery
was captured on videotape, portions of which were shown to the jury. The videotape showed the robber wearing the
same blue shorts defendant was wearing when he was arrested less than two weeks
later. The shift manager identified
defendant from a photographic lineup and in court as the robber. A customer, who was present during the
robbery, identified defendant as the robber on the videotape and at trial.
D. Attempted Second Degree Robbery of Taco Bell
(Count 4)
On May 26, 2009, a man entered a Taco
Bell on Madison Avenue and gave a cashier a note that read, “Give me all the $
now†and “Don’t be stupid.†The cashier
ran to the back of the restaurant and into the manager’s office. The cashier described the man as African
American, 20 to 27 years old, between 5’7†and 5’9â€, and between 200 and 235
pounds. The cashier could not identify
anyone in a photographic lineup and could not identify defendant as the man who
handed him the note at trial.
E. Second Degree Robbery of Arby’s (Count 5)
On May 26, 2009, a man entered the
Arby’s restaurant on Madison Avenue and Fair Oaks
Boulevard and handed a cashier a note that read,
“Give me all the $ in the register†and “Don’t do anything stupid.†The note also indicated the man had a
gun. The cashier gave the man between
$150 and $200. The man ran out the front
door and got into the passenger side of a gold-green Malibu. The cashier described the man as African
American, approximately 20 years old, 5’9â€, 175 to 180 pounds, and with a
“little fro.†A witness provided law
enforcement with a partial license plate number from the Malibu, and following
defendant’s arrest it was determined that the car was registered to Cynthia
Adcock, one of defendant’s roommates.
The cashier identified defendant from a photographic lineup and at trial
as the robber. A witness also selected
defendant from a photographic lineup but was unable to identify him as the
robber at trial.
F. Second Degree Robbery of Baskin Robbins
(Count 6)
On May 27, 2009, a
man entered a Baskin Robbins store on Sunrise Boulevard and handed a cashier a
note that read, “Give me all the $ now.
I have a gun. Don’t be
stupid.†The cashier gave the man about
$80. She described him as African
American, approximately 20 years old, with black hair, and wearing white and
blue basketball shorts. The man was
caught on video surveillance leaving the store, and that portion of the
videotape was shown to the jury. The cashier identified defendant as the
robber at trial. She also identified the
shorts he was wearing at the time of the robbery as the same shorts he was
wearing at the time he was arrested. A
co-worker who was present during the robbery identified defendant from a
photographic lineup and at trial as the robber.
G. Second Degree Robbery of K-Mart (Count 7)
On May 28, 2009, a
man entered a K-Mart store on Sunrise Boulevard and handed a cashier a note
that read, “Give me your money,†and “I have a gun.†The cashier gave the man about $260. She described the man as African American and
wearing dark jeans with designs on the pockets and a white shirt. The robbery was captured on video
surveillance, portions of which were shown to the jury. The cashier identified defendant from a
photographic lineup and at trial as the robber.
H. Attempted Second Degree Robbery of Taco Bell
(Count 8)
On May 28, 2009, a
man entered a Taco Bell on Sunrise Boulevard and handed a cashier a note that
said, “Give me all your money now! I
have a gun.†The cashier told the man he
would have to order something first, and the man told her to give him a “Gordita.†The cashier then ran to the back of the
restaurant, and the man ran out the door.
The cashier described the man as African American, in his mid-twenties,
with “trim†hair, about 5’9†to 5’10â€, and 180 to 185 pounds. The attempted robbery was captured on video
surveillance, portions of which were shown to the jury. The cashier identified defendant from a
photographic lineup and at trial as the attempted robber.
I. Second Degree Robbery of Round Table (Count
9)
On May 30, 2009, a
man entered a Round Table Pizza on Manzanita Avenue and handed a supervisor a
note that read, “I have a gun. Give me
all the money.†The supervisor gave the
man about $100, and the man ran out the side door. The supervisor described the man as African
American, between 20 and 25 years old, about 5’9†to 5’10â€, and 180
pounds. The robbery was captured on
video surveillance, portions of which were shown to the jury. The supervisor was not able to identify the
robber from a photographic lineup but identified defendant as the robber at
trial. The supervisor’s boyfriend, who
observed the robbery, also identified defendant as the robber at trial.
J. Attempted Second Degree Robbery of Metro PCS
(Count
10)
On May 30, 2009, a
man entered the Metro PCS store on Sunrise Boulevard and Madison Avenue and
handed an employee a note that read, “[G]ive me all the money in the register
or you’ll die.†The cashier asked the
man if he was serious, and when he said that he was, she threw up her hands and
told him he would have to get the money himself. She then walked the man outside, and he
left. She described the man as African
American, in his twenties, with a “low haircut,†5’7†to 5’8â€, 170 pounds, and
wearing blue jeans with designs on the back pockets. She identified defendant from a photographic
lineup and at trial as the attempted robber.
She also testified that the jeans he was wearing at the time of the
attempted robbery were the same jeans defendant was wearing when he was
arrested a week later.
K. Second Degree Robbery of Togo’s Eatery (Count
11)
On May 31, 2009, a
man entered a Togo’s Eatery on Madison Avenue and handed an employee a note
that read, “Give me all the money now.
Don’t be stupid. I have a
gun.†The cashier deliberately opened
the register so that the drawer would fly open and the change would spill onto
the ground. The man took $420, ran out
of the store, and got into a black car.
Witnesses described the man as African American, between 18 and 21 years
old, between 5’8†and 6’, 160 to 165 pounds, with short hair, and wearing a
black “Mac Dre†t-shirt.
name="_ftnref3" title="">[3] The employee identified defendant from a
photographic lineup and at trial as the robber.
Two co-workers and the store manager also identified him as the robber
at trial.
L. Second Degree Robbery of Dairy Queen (Count
12)
On June 2, 2009, a
man entered a Dairy Queen on Fruitridge Avenue and passed an employee a note
that read, “Give me all your money. I
have a gun.†The employee gave the man
approximately $180, and the man told the cashier to get on his knees and then
left. The employee described the man as
African American, in his early twenties, about 5’10â€, between 160 and 170
pounds, and with a “short Afro.†The
employee identified defendant from a photographic lineup and at trial as the
robber.
M. Second Degree Robbery of McDonald’s (Count
13)
On June 4, 2009, a
man entered a McDonald’s restaurant on Florin Road and gave the supervisor a
note that read, “Don’t be stupid. I have
a gun. Give me all the money.†The supervisor gave him $100. She described the man as African American,
between 5’5†and 5’8â€, 150 pounds, with very short hair, and wearing a black
Mac Dre t-shirt. The robbery was
captured on video surveillance, portions of which were shown to the jury. The supervisor was unable to identify the
robber from a photographic lineup or at trial.
N. Second Degree Robbery of Subway (Count 14)
On June 5, 2009, a
man entered a Subway on Fair Oaks Boulevard and ordered a sandwich. Instead of paying, he handed the employee a
note that said, “Give me all your money.
Don’t be stupid. I have a
gun.†The employee gave him
approximately $100. She described the
man as African American, between 19 and 20 years old, 5’8†to 5’9â€, between 140
and 150 pounds, and with very little hair.
She could not recognize the man again.
Her co-worker, who witnessed the robbery, identified defendant from a
photographic lineup and at trial as the robber.
O. Attempted Second Degree Robbery of Dairy
Queen
(Count
15)
On June 5, 2009, a
man entered a Dairy Queen on Arden Way and handed an employee a note that
instructed the employee to give him all the money in the cash register and
advised the employee that he had a gun and not to be stupid. The “$†symbol was used for the word
money. The employee “freaked out†and
attempted to talk to his manager about the note. The manager read the note, said she did not
“have time for this,†and pushed the panic button to call the police. The man grabbed his note and ran out the
door. The employee described the man as
African American, in his twenties, approximately 5’10â€, between 160 and 170
pounds, and wearing a black shirt and blue jeans. The manager identified defendant from a
photographic lineup as the attempted robber but was unable to do so at
trial. The employee identified defendant
from a photographic lineup and at trial as the attempted robber. A co-worker identified defendant as the
attempted robber at trial.
P. Attempted Second Degree Robbery of Subway
(Count 16)
On June 5, 2009,
defendant entered a Subway on Fair Oaks Boulevard and handed one of the store
owners a note that read, “Give me all your money. Don’t be stupid. I have a gun.†The owner asked, “Are you robbing me?†When defendant responded, “Give me your
money,†she told him, “No.†She said, “I
work too hard. I work 12 hours a
day. My whole family’s working over
there.†She told him, “Just shoot
me. I’m not giving you my money.†When defendant started to leave, the owner
called 9-1-1. Meanwhile, her husband, who had been washing
dishes in the back, ran after defendant.
A car pulled up and defendant tried to get in, but he fell out. He then squeezed through a fence and into a
residential back yard. The resident
telephoned 9-1-1 after seeing defendant in his yard. Defendant was found hiding behind a trash can
and was placed under arrest. Minutes later,
the store owner and her son identified defendant as the attempted robber.
At approximately
10:15 p.m. that evening, defendant was interviewed by a Sacramento Sheriff’s
detective. Following the denial of
defendant’s motions to suppress all or part of his statements, jurors were
given copies of the transcript and shown a videotape of the interview. The substance of the interview is detailed
below.
The jury also
heard audio tapes of four telephone conversations between defendant and
girlfriend Sharlie Donaldson following defendant’s arrest. During those conversations, defendant
admitted doing “one a day†and said “they got me for all of em [
charge him with 12 robberies. He
instructed Donaldson to have his brother go to his grandmother’s house and get
rid of all the evidence. He also asked
Donaldson if she knew “what incompetent to stand trial is†and whether she
thought he “should do that[.]†He told
her “I can get out . . . in three years from now, if I take that route.â€
II
The Defense
Defendant did not
testify in his defense at trial. During
his closing argument, he acknowledged the evidence against him was “compellingâ€
and stated that he was “not saying that . . . [he was] not the one who committed
these robberies.†Rather, he argued that
he lacked “the specific intent†to commit robbery because he had “a valid
reason†for what he did. He also
emphasized that he did not harm anyone.
DISCUSSION
I
The
Trial Court Properly Denied Defendant’s Motions
To
Suppress His Post-Arrest Statements, And Any Possible
Error
In Admitting His Statements Was Harmless
Defendant contends
that under the totality of the circumstances he did not knowingly,
intelligently, and voluntarily waive his Miranda
enforcement, and thus, the trial court erred in refusing to suppress statements
made by him during the interrogation.
Alternatively, he asserts the trial court erred in admitting his “pre-
claim that he did not knowingly, intelligently, and voluntarily waive his
pre-Miranda questioning amounted to
interrogation lacks merit. In any event,
any error in admitting his post-arrest statements was harmless beyond a
reasonable doubt.
“Pursuant to
interrogation unless he or she knowingly and intelligently has waived the right
to remain silent, to the presence of an attorney, and, if indigent, to
appointed counsel.’ [Citations.]†(People
v. Dykes (2009) 46 Cal.4th 731, 751.)
“The prosecution bears the burden of demonstrating the validity of the
defendant’s waiver by a preponderance of the evidence.†(Ibid.)
“As is well known,
Miranda . . . and its progeny apply
to exclude certain evidence obtained during custodial interrogation.†(People
v. Thornton (2007) 41 Cal.4th 391, 432.)
Interrogation “refers to questioning initiated by the police or its
functional equivalent, not voluntary conversation.†(Ibid.) Moreover, “not all questioning of a person in
custody constitutes interrogation under Miranda.†(People
v. Ray (1996) 13 Cal.4th 313, 338.)
“The police may speak to a suspect in custody as long as the speech
would not reasonably be construed as calling for an incriminating
response. [Citations.]†(People
v. Clark (1993) 5 Cal.4th 950, 985, disapproved of on other grounds as
stated in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
In considering a
claim on appeal that a statement is inadmissible because it was obtained in
violation of a defendant’s Miranda
rights, we independently review the trial court’s legal determinations and
accept its resolution of disputed facts and inferences and evaluations of
credibility if supported by substantial evidence. (People
v. Dykes, supra, 46 Cal.4th at p. 751.)
Following
defendant’s arrest, he was taken to the centralized investigation office and
interviewed by a Sacramento County Sheriff’s detective. The interview began as follows:
“Det. You alright dude?
“No answer.
“Det. I know you’ve said this a million times, but
I’ve got to hear it myself. What’s your
name?
“K.P. Kevin.
“Det. Say it again.
“K.P. Kevin Lamar Porter.
“Det. Lamar?
“K.P. Porter.
“Det. What’s your date of birth?
“K.P. 11-6-85.
“Det. Say it again.
“K.P. 11-6-85.
“Det. Where do you live?
“K.P. Right now?
“Det. Uh-huh.
“K.P. Off of Fair Oaks. You know where Country Village Apartments is
at? It’s by Valero and GameStop, country
village.
“Det. Who do you live there with?
“K.P. My girlfriend.
“Det. Who is she?
“K.P. Sharlie Donaldson.
“Det. Spell that for me.
“K.P. S-h-a-r-l-i-e, D-o-n-a-l-d-s-o-n.
“Det. You know her date of birth?
“K.P. I know she’s 32, she be turning 33 on August
8th.
“Det. That’s your girlfriend?
“K.P. Her birthday’s August 8th, yeah.
“Det. Okay.
So, if you’re not living with her, who do you live with?
“K.P. If I’m not living with my girl?
“Det. Yeah.
“K.P. That’s where I’m staying the whole time.
“Det. That’s who you always stay with?
“K.P. Yeah.
“Det. At this address on Fair Oaks?
“K.P. Is my face fucked up?
“Det. No, you’re fine.
“K.P. Fuck, I feel like shit.
“Det. No you’re fine dude. Here’s the deal. You’re sitting here, the police brought you
in here, you’re in handcuffs or at least a leg shackle.
“K.P. They brought me here to question me about all
the robberies?
“Det. Right.
“K.P. About all the fast food robberies, right?
“Det. Right.
“K.P. I already know.
“Det. Okay.
“K.P. And I had something to do with it, but I’m
not about to take all this shit like this because right now, I mean I don’t
care, like I don’t know the whole thing, but about being blackmailed and stuff,
I really don’t know the whole scope of that, but like me, as far as me here, I
admit that the first robbery I did was at Subway.
“Det. Uh-huh.
“K.P. And uh --
“Det. Okay, hold on, hold on.
“K.P. I mean, I just saying for you like right now
---
“Det. I know, but there’s [sic] rules we have to go by.
“K.P. I know, the Miranda Rights.â€
At that point, the
detective advised defendant of his Miranda
rights. Defendant asked questions
concerning his rights, which the detective answered, and defendant ultimately
indicated he understood his rights. In
the process of advising defendant of his rights, the detective asked him if he
was “high,†and defendant said he smoked marijuana earlier that day. The detective also asked him if he was on any
“mental health medication,†and defendant said he took various medications
twice a day -- at breakfast and at dinner -- “for depressions, schizophrenia,
bipolar.†The last time he had his
medication was that morning at breakfast.
After being
advised of his Miranda rights,
defendant admitted robbing or attempting to rob a Subway and another fast food
establishment earlier that day (June 5, 2009) and made various non-specific
statements about being forced to rob fast food restaurants every day by two
white women.
Prior to trial,
defendant moved to suppress his post-arrest statements on the ground he “told
the detective that [he] didn’t understand the Miranda rights.†He claimed
that when he was asked if he understood his rights he responded “nuh-huh,â€
which meant “no,†and asked the trial court to review the videotape of the
interview along with the written transcript to confirm that he told the
detective he did not understand his Miranda
rights. After reviewing the
videotape, the trial court denied the motion to suppress, finding defendant
“clearly knowingly, intelligently and voluntarily waived his rights. He understood them. He was the person that actually brought up
his Miranda rights, and the Court can
certainly consider the Defendant’s level of criminal sophistication when the
detective says, there are rules we need to go by, and the Defendant said, I
know, Miranda rights. The officer then clearly, carefully went
though the rights, and there is no question in this Court’s mind that the
Defendant understood these rights, the rights were given appropriately, and he
knowingly, intelligently, and voluntarily waived these rights.â€
During trial,
defendant moved to suppress the statements he made before he was advised of his
Miranda rights on the ground they
were the product of an interrogation.
The court denied the motion, finding the detective did not ask defendant
any questions; rather defendant started “volunteering things,†and the detective
stopped him.
We turn first to
defendant’s claim that under the totality of the circumstances, he did not
knowingly, intelligently, and voluntarily waive his Miranda rights. Defendant
relies on the following circumstances in support of his claim: evidence he was mentally impaired when questioned
by law enforcement; the detective impermissibly “soften[ed] him up for further
confessionsâ€; and the detective’s advisement that defendant would not be
appointed an attorney for four days.
this claim because he failed to raise any of the circumstances upon which he
bases his claim below. The People are
correct.
Under Evidence
Code section 353, subdivision (a), a judgment can be reversed because of an
erroneous admission of evidence only if “[t]here appears of record an objection
to or a motion to exclude or to strike the evidence that was timely made and so
stated as to make clear the specific
ground of the objection or motion . . . .â€
(Italics added.) More
particularly, “unless a defendant asserts in the trial court a specific ground
for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal, even if the defendant
asserted other arguments under the same decision.†(People
v. Polk (2010) 190 Cal.App.4th 1183, 1194.)
Here, defendant
argued below that he did not knowingly, intelligently, or voluntarily waive his
Miranda rights because he told the
detective he did not understand them. At
no point, however, did he raise any of the grounds he asserts on appeal -- that
he was mentally impaired when questioned by law enforcement, the detective
impermissibly softened him up, or the detective impermissibly or erroneously
advised him that he would not be appointed an attorney for four days. Accordingly, defendant forfeited his claim
that he did not knowingly, intelligently, or voluntarily waive his
v. Polk, supra, 190 Cal.App.4th
at pp. 1194-1195.)
Next we turn to
defendant’s claim that the trial court erred in failing to suppress statements
he made before he was given his Miranda warnings. While this claim was preserved for appeal, it
fails on the merits. Defendant was asked
a series of preliminary questions before he was given his Miranda warnings -- his name, date of birth, and where and with
whom he lived. Defendant asserts that
because the detective “knew there was a female getaway driver, his question
about who [defendant] lived with was directed at ascertaining a possible
accomplice.†Defendant, however, fails
to explain, and we are unable to ascertain, how the detective’s question
reasonably could be construed as calling for a response that would incriminate
of a person in custody constitutes interrogation under Miranda.†(
338.) “‘The police may speak to a
suspect in custody as long as the speech would not reasonably be construed as
calling for an incriminating response.
[Citations.]†(
Defendant further
asserts that under the circumstances the detective’s statement, “Here’s the
deal,†was intended to be interpreted as “what’s the deal†and was taken as
such. Defendant’s assertion is not
supported in the record. When considered
in context, it is clear the detective was responding to defendant’s concern
regarding his physical condition, and defendant’s subsequent statements
concerning “all the robberies†and his involvement in the same were voluntary. (See People
v. Thornton, supra, 41 Cal.4th at pp. 432-433; People v. Clark, supra, 5 Cal.4th at p. 985.) “Nothing in the substance or tone of [the
detective’s preliminary] inquiries was reasonably likely to elicit information
that defendant did not otherwise intend to freely provide.†(People
v. Ray, supra, 13 Cal.4th at p.
338.)
This case is
unlike People v. Honeycutt (1977) 20
Cal.3d 150 (Honeycutt), relied upon
by defendant. There, prior to advising
the defendant of his Miranda rights,
an officer “engaged defendant in a half-hour unrecorded discussion†concerning
“unrelated past events and former acquaintances and, finally, the victim.†(Id. at
p. 158.) “Although [the officer] stated
that he did not expect defendant to talk about the offense, [the officer]
testified that ‘It was my duty to continue the efforts to try to get him to
talk. And I was successful in it.’†(Ibid.) The court found the officer’s pre-
“the conversation-warning-interrogation sequence was intended to elicit a
confession from the inception of the conversation.†(Id. at
p. 159.)
The instant case differs from
minute, as opposed to half an hour, and was limited to defendant’s name, date
of birth, and where and with whom he lived.
As the court acknowledged in Honeycutt,
“It is clear that routine booking questions and responses as to a
defendant’s identity and other statistical information do not render
involuntary a later waiver of constitutional rights.†(20 Cal.3d at p. 159.)
The trial court
did not err in admitting defendant’s post-arrest statements. In any event, any possible error in admitting
defendant’s statements was harmless beyond a reasonable doubt. (People
v. Davis (2009) 46 Cal.4th 539, 598.)
The evidence of defendant’s guilt was overwhelming as to each and every
crime charged. Defendant concedes that
counts 3, 6, 9, 11, and 16 were “slam dunks.â€
The modus operandi in each of the 16 robberies and attempted robberies
was identical: the perpetrator entered
an open business and used a handwritten note demanding money. In five of the robberies and attempted
robberies (counts 2, 4, 5, 6, and 15) the “$†symbol was used in place of the
word “moneyâ€, and in nine of the robberies and attempted robberies (counts 2,
4, 5, 6, 11, 13, 14, 15, and 16) the note instructed the recipient, “Don’t be
stupid,†or words to that effect. In 11
of the robberies or attempted robberies (counts 1, 3, 5, 6, 7, 8, 10, 11, 12, 14,
15) one or more witnesses identified defendant from a photographic lineup as
the perpetrator, and in all but two (counts 4 and 13) one or more witnesses
identified defendant as the perpetrator at trial.
As defendant
correctly observes, “no identifications had been made by anyone in counts 4 and
13 and there was no surveillance evidence in count 4.†Nevertheless, the evidence supporting
defendant’s conviction on those counts is overwhelming. The attempted robbery charged in count 4 was
committed on the same street as and within an hour of the robbery charged in
count 5, and two witnesses identified defendant as the perpetrator in count
5. In both robberies, the perpetrator
was described as an African American man, in his twenties, and approximately
5’9â€. Both robberies involved the use of
a note, and the phrasing in the note used in the attempted robbery charged in
count 4 is identical in key respects to that used in the notes employed in many
of the other robberies and attempted robberies, including the robbery charged
in count 5, namely the note states, “Don’t be stupid,†and uses the “$†symbol
in place of the word “money.â€
The second degree
robbery charged in count 13 was captured on video surveillance, portions of
which were shown to the jury. As in the
other robberies, the perpetrator used a note, and like the notes employed in
many of the other robberies and attempted robberies, the noted stated, “Don’t
be stupid.†Perhaps most significantly,
the man who committed the robbery charged in count 13 was wearing a black Mac
Dre shirt just like the perpetrator of the robbery charged in count 11, which
defendant acknowledges was a “slam dunk.â€
On the record
before us, we have no trouble concluding that any error in admitting
defendant’s post-arrest statements was harmless beyond a reasonable doubt. That the jury deliberated 10 hours does not
convince us otherwise where, as here, the case involved 16 separate robberies
and attempted robberies and a substantial amount of evidence.
II
The
Trial Court Did Not Err In Allowing Defendant To
Represent
Himself Or In Failing To Appoint Standby Counsel
Defendant next
contends the trial court erred in granting his Faretta
title="">[7]
status.†He also asserts that the trial
court’s “[f]ailure to appoint standby counsel at the outset [or] to appoint an
attorney during trial or declare a mistrial deprived [him] of his Sixth and
Fourteenth Amendment rights to counsel,
due process, and a fair trial.†We are
not persuaded.
“A trial court
must grant a defendant’s request for self-representation if the defendant
unequivocally asserts that right within a reasonable time prior to the
commencement of trial, and makes his request voluntarily, knowingly, and intelligently.†(People
v. Lynch (2010) 50 Cal.4th 693, 721, abrogated in part on other grounds as
stated in People v. McKinnon (2011)
52 Cal.4th 610, 637-638.) However, the
right of self-representation is not absolute.
(Indiana v. Edwards (2008) 554
U.S. 164, 171 [171 L.Ed.2d 345, 353] (Edwards).) “[A] Faretta
motion may be denied if the defendant is not competent to represent himself
[citation], is disruptive in the courtroom or engages in misconduct outside the
courtroom that ‘seriously threatens the core integrity of the trial’
[citations], or the motion is made for purpose of delay [citation].†(People
v. Lynch, supra, 50 Cal.4th at
pp. 721-722.)
“When a criminal
defendant who has waived his right to counsel and elected to represent himself
under Faretta . . . seeks, during
trial, to revoke that waiver and have counsel appointed, the trial court must
exercise its discretion under the totality of the circumstances, considering
factors including the defendant’s reasons for seeking to revoke the waiver, and
the delay or disruption revocation is likely to cause the court, the jury, and
other parties.†(People v. Lawrence (2009) 46 Cal.4th 186, 188.) “The trial court possesses much discretion
when it comes to [granting or] terminating a defendant’s right to
self-representation and the exercise of that discretion ‘will not be disturbed
in the absence of a strong showing of clear abuse.’ [Citations.]â€
(People v. Welch (1999) 20
Cal.4th 701, 735.)
On December 11,
2009, prior to trial, defendant advised the trial court that he wished to
represent himself. The court provided
defendant with the requisite warnings, both orally and in writing, and
defendant indicated he understood each of them.
Among other things, defendant was orally advised: “If you are disruptive, you’re going to be
removed from the courtroom. During your
trial, if you don’t follow all of the rules of etiquette and decorum, you can
be removed from the actual courtroom during your trial and an attorney will be
brought in to finish the case for you.â€
counsel was knowing, intelligent, and voluntary, the court stated that it had
been advised that defendant “may be on some type of medication.†Defendant responded that the only medication
he was taking was Tylenol and “a supplemental for the Tylenol for pain.†The trial court granted defendant’s request
to represent himself. Standby counsel
was not requested or appointed.
Trial commenced on
February 22, 2010. On the seventh day of
trial, immediately after the trial court denied defendant’s motion to strike a
witness’s testimony and dismiss the case because the prosecutor met with
witnesses before trial, defendant advised the court that he was “getting a
lawyer†because he was not receiving a fair trial. Outside the presence of the jury, the trial
court explained that it was not improper for the prosecutor to speak to
witnesses prior to trial and denied defendant’s request for an attorney as
untimely, explaining that “there is no attorney that [sic] is prepared to try your case.â€
Defendant responded, “Well, then I’m going to be rude, and I’m not going
to follow no laws in the court. So you
either give me an attorney or I’m going to just act rude for the whole time,
because I know that you’re not treating me fair. So I’m not about to just sit here and just
listen to you all the time if you’re not going to treat me fair in court.â€
Thereafter, the
trial court contacted the Conflict Criminal Defenders Panel and requested the
assistant director speak to defendant.
She did so and advised defendant that the trial was too advanced to have
an attorney step in and represent him.
Defendant told her “that he knew that an attorney would come in if he
was disruptive†and asked her to tell the court that he intended to “do
everything he ha[d] to do to stop the trial,†including throw a chair at the
judge. Defendant denied stating that he
intended to throw anything at anyone.
Rather, he told the assistant director that when he waived his right to
counsel, he was told “that if there’s disruption . . . in the courtroom by me,
then it would be that an attorney would be placed in to finish the case.†He then asked the assistant director, “[W]hat
do I have [to do] to be, disruptive? Do
I have to throw things for everyone to see in court?â€
The court advised
defendant that it was in his best interest to conduct himself in a professional
manner and observed that he had been “making some good points with some of
these witnesses.†The court credited the
assistant director’s version of her conversation with defendant and ordered
that defendant be “attached†to his chair for the remainder of the trial to
insure the safety of those in the courtroom.
When the jurors returned, the court advised them that they “must consider
only the evidence from the witness stand and . . . not . . . [the]
personalities of either attorney or person representing themselves as an
attorney.â€
Thereafter, the
trial was delayed on those occasions when defendant refused to come to court and
special transport had to be arranged.
The proceedings were never conducted in defendant’s absence. When defendant refused to come to court on
March 16, 2010, the court requested defendant’s investigator go to the jail and
read defendant a statement from the court advising defendant, among other
things, that if he chose not to come to court, the trial would continue in his
absence. In doing so, the trial court
made the following findings: “The court
has observed [defendant] in trial and makes a finding that he does not suffer
from any physical or mental problems that render him incapable of representing
himself. [Defendant] understands his
role and understands the issues. [¶] The court finds he’s engaging in manipulative
behavior.†The investigator read the
court’s message to defendant, and defendant returned to court.
On appeal,
defendant claims he did not knowingly, intelligently, or voluntarily relinquish
his Sixth Amendment right to counsel because his waiver was conditioned upon
the false representation that he would be provided with counsel if he was
disruptive in court. Defendant
misconstrues the court’s warning, which plainly stated that he would be
provided with counsel if he was
removed from the courtroom. The court’s
warning is consistent with case law that provides that “the involuntary
exclusion from the courtroom of a defendant who was representing himself,
without other defense counsel present,†constitutes error. (People
v. Carroll (1983) 140 Cal.App.3d 135, 142; see also People v. Soukomlane (2008) 162 Cal.App.4th 214, 234-235.)
Here, defendant
was never excluded from the courtroom.
On those occasions when he refused to come to court, the trial was
delayed and a special transport was sent to bring him to court. Defendant’s suggestion that he was advised
that he could unilaterally revoke his waiver of counsel and have counsel
appointed at any time during trial simply by being disruptive is not supported
by the record, the law, or common sense.
We also reject
defendant’s assertion that “after Edwards
a reasonable trial court must make a reasonable inquiry into the mental
health status of a defendant requesting to represent himself or herself.†In Edwards,
supra, 554 U.S. at page 178 [171
L.ed.2d at p. 357], the United States Supreme Court held that “the Constitution
permits States to insist upon
representation by counsel for those competent enough to stand trial under
illness to the point where they are not competent to conduct trial proceedings
themselves.†(Italics added.) As our Supreme Court explained in
878, “‘Edwards did not alter the principle that the federal constitution
is not violated when a trial court permits a mentally ill defendant to
represent himself at trial, even if he lacks the mental capacity to conduct the
trial proceedings himself, if he is competent to stand trial and his waiver of
counsel is voluntary, knowing and intelligent.’
[Citation.]â€
As discussed
above, defendant’s waiver of counsel was voluntary, knowing, and intelligent,
and defendant has never asserted in the trial court or on appeal that he was
not competent to stand trial. Thus, the
trial court did not err in allowing defendant to represent himself. (People
v. Taylor, supra, 47 Cal.4th at pp. 866-867 [“In the absence of a separate California test of mental
competence for self-representation, the trial court had no higher or different
standard to apply to the question. In
that circumstance, the court did not err in relying on federal and state case
law equating competence for self-representation with competence to stand
trial.â€]
While this case
was pending on appeal, our Supreme Court held that “[c]onsistent with
long-established California law, . . .
trial courts may deny self-representation in those cases where
v. Johnson (2012) 53 Cal.4th 519, 528.)
In deciding whether to exercise their discretion to deny
self-representation, trial courts should apply the following standard: “whether the defendant suffers from a severe
mental illness to the point where he or she cannot carry out the basic tasks
needed to present the defense without the help of counsel.†(Id. at
p. 530.) The court also observed that a
trial court need only inquire into the mental competence of a defendant seeking
self-representation “if it is considering denying self-representation due to
doubts about the defendant’s mental competence.†(Ibid.) The court further cautioned that
“[s]elf-representation by defendants who wish it and validly waive counsel
remains the norm and may not be denied lightly.†(Id. at
p. 531.)
Assuming without
deciding that Johnson applies in
cases such as this one where the trial court grants a defendant’s request to
represent himself and the trial court proceedings pre-date Johnson, we note that here there is no indication the court
considered denying or revoking defendant’s self-representation due to doubts about
his competence to represent himself. To
the contrary, having observed defendant in trial, the court specifically found
that “he does not suffer from any physical or mental problems that render him
incapable of representing himself. [He]
understands his role and understands the issues.†There is ample support for the trial court’s
findings in the record.
Defendant next contends the trial court
“abused its discretion and violated [his] right to due process and a fair trial
by granting [his] Faretta request
without appointing standby counsel and by failing to appoint counsel after
serious courtroom disruption had occurred and [he] had requested appointment of
an attorney to represent him.†In
support of his contention, he asserts that “the trial court was on notice
before trial regarding the potential for disruption†insofar as it had reviewed
the transcript of his post-arrest questioning by law enforcement during which
defendant stated he was taking anti-psychotic medications for bipolar disorder,
schizophrenia, and depression. Having
been so informed, defendant argues the trial court should have made “[an]
inquiry on the record into [defendant’s] jail conduct or his potential for
disruption.†He further argues that
having been informed of defendant’s need for “medication for psychiatric
disorders, and observing [his] inability to restrain his conduct during trial,â€
defendant claims “the trial court further abused its discretion by refusing to
appoint counsel or declare a mistrial.â€
Again, we are not persuaded.
There is no
constitutional right to standby counsel.
(See People v. Stanley (2006)
39 Cal.4th 913, 932-933.) Rather, the
decision whether to appoint standby counsel is within the discretion of the
trial court. (Ibid.) As we shall explain, there
was no abuse of discretion here.
Defendant’s
behavior at the hearing at which he requested to represent himself and waived
his right to counsel was impeccable.
Having reviewed the transcript of the hearing in its entirety, we
discern nothing that would have put the trial court on notice that defendant
might be disruptive at trial. He
answered each of the court’s questions politely. He indicated he understood each of the
warnings he was given and made no extraneous or rude comments. When asked what medication he was taking,
defendant responded “Tylenol.†When the
court followed up by asking whether he was taking “any prescriptive medication
of any kind,†he responded, “Ultram,†which he described as “a supplemental for
the Tylenol for pain.†Even assuming the
trial court knew defendant may have had mental health issues, the trial court
did not abuse its discretion in failing to inquire into defendant’s conduct in
jail or in not appointing standby counsel when it granted defendant’s request
to represent himself given defendant’s conduct before the court and his
representation that he was not taking prescription medication of any kind.
Nor did the trial
court abuse its discretion in failing to revoke defendant’s pro per status and
appoint counsel after defendant became disruptive at trial. Defendant’s own statements at trial show that
his disruptive and rude behavior was a ploy to get the court to appoint counsel
or declare a mistrial. As previously
discussed, the trial court, which is in the best position to evaluate
defendant’s behavior and mental state, found that “he does not suffer from any
physical or mental problems that render him incapable of representing himselfâ€
and that “he’s engaging in manipulative behavior.†Again, there is ample support for the court’s
finding in the record, and we have no trouble concluding that the court acted
well within its discretion in not appointing standby counsel.
III
The
Trial Court Correctly Sentenced Defendant to 16 Months on Each of His Attempted
Second Degree Robbery Convictions
Finally, defendant
contends, and the People concede, the trial court miscalculated his sentence on
the five counts of attempted robbery.
More particularly, he asserts that the trial court erred in sentencing
him to 16 months rather than one year for each conviction because under section
664, attempted second degree robbery is punishable by one-half of the otherwise
designated term. According to defendant,
the subordinate term for attempted second degree robbery should be calculated
using one-third of the three-year middle term for second degree robbery,
divided in half pursuant to section 664, and then doubled for the prior strike
(1 year/2 = 6 months x 2 = 1 year). As
we shall explain, section 664 is inapplicable to convictions for attempted
second degree robbery, and the trial court correctly sentenced defendant to a
consecutive term of 16 months in state prison on each of his five attempted
second degree robbery convictions.
Section 664
provides in pertinent part: “Every
person who attempts to commit any crime, but fails, or is prevented or
intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts,
as follows: [¶] (a) If the crime
attempted is punishable by imprisonment in the state prison . . ., the person
guilty of the attempt shall be punished by imprisonment in the state prison for
one-half the term of imprisonment prescribed upon a conviction of the offense
attempted.†(Italics added.) As we explained in People v. Moody (2002) 96 Cal.App.4th 987, 990, “section 213,
subdivision (b) specifically provides for the punishment of attempted second
degree robbery, stating: ‘
robbery in violation of paragraph (2) of subdivision (a) [robbery of the second
degree] is punishable by imprisonment in the state prison.’ (Italics added.) Section 18 further provides that ‘[e]xcept in
cases where a different punishment is prescribed by any law of this state,
every offense declared to be a felony, or to be punishable by imprisonment in a
state prison, is punishable by imprisonment in any of the state prisons for 16
months, or two or three years . . . .’
[¶] Thus, the appropriate triad for
. . . attempted second degree robbery offense is . . .: 16 months, two years, or three years.â€
Here, the trial
court correctly sentenced defendant to one-third the middle term of two years
(or eight months), doubled to 16 months pursuant to section 667, subdivision
(e)(1) on each of his attempted second degree robbery convictions.
DISPOSITION
The judgment is
affirmed.
BLEASE , Acting P. J.
We concur:
HULL , J.
BUTZ , J.
name="_ftn1" title="">[1] Further unspecified statutory references
are to the Penal Code.
name="_ftn2" title="">[2] Defendant was sentenced to 10 years (the
upper term, doubled for the prior strike) on count 1, a consecutive two years
(one-third the middle term, doubled for the prior strike) for each of the 10
additional counts of robbery, a consecutive 16 months (one-third the middle
term, doubled for the prior strike) for each of the five counts of attempted
second degree robbery, plus a consecutive five years for the serious felony
enhancement.
