P. v. Rucker

Filed 12/15/09 P. v. Rucker CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. John David Lord, Judge. Reversed and remanded.

Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Junior, Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Darrell Rucker appeals his convictions of murder and personal use of a firearm. Before this court, defendant argues his convictions cannot stand because the trial court committed a number of errors: (1) in adjudicating his pre-trial request for counsel and in denying his request for counsel on the first day of trial; (2) in excluding certain lay testimony concerning Youngbloods gang affiliation; (3) in engaging in misconduct during the trial when the court made comments to the jury and allowed extended argument in front of the jury concerning the manner in which defendant had conducted his defense pre-trial; (4) in allowing the prosecutor to use improper evidence to impeach defendant during his cross-examination, and in directing defendant to produce a document to the prosecutor; (5) in improperly using defendants juvenile prior as a strike; and (6) in failing to exercise its discretion in ordering the restitution fine it imposed. Defendant also argues the prosecutor engaged in misconduct, which violated defendants rights to compulsory process when the prosecutor failed to assist defendant in subpoenaing a defense witness. As we discuss, the extended colloquy in the jurys presence, coupled with the courts comments on defendants actions and tactics, prevented a fair trial. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In July of 2006, defendant lived in a one-bedroom apartment in Long Beach; defendant and his wife Lisa Shelbua were separated. She lived with their son Darrell Rucker, Jr. (Junior) in Bellflower. The victim, Malcolm Youngblood was defendants nephewthe son of Shelbuas sister, Sandra Perry. At the time, Youngblood was 19 years old and Junior was a year younger. Youngblood and Junior were very close and Junior considered Youngblood like a brother.

Two months before Youngblood turned 18, he moved out of his parents home and began living with Shelbua. Youngblood lived with Shelbua for 11 months, but moved out after Shelbua had problems with him.

In January 2006, defendant agreed to allow Youngblood to stay with him. According to defendant, Youngblood was a gang member, who called himself 5150, which meant crazy and he hung out with people who carried guns. Defendant suspected that Youngblood had a gun, but never saw Youngblood with one. In March 2006, defendant stated that a shoot-out occurred in front of his house.

Defendant told Youngblood that he could stay with him only until June 26, 2006. On June 26, Youngblood bought a 1995 Ford Taurus from defendant for $1,000 and moved out. Defendant believed that Youngblood would not return.

Two weeks later, on Friday July 7, 2006, the Taurus broke down and Youngblood called defendant. Defendant told Youngblood that he could get the car fixed. When defendant returned home, Youngblood and a few other people were at his apartment. According to defendant, Youngblood told him if you dont fix the car, Im going to smoke you. Defendant understood the term smoke to mean kill. Defendant contacted a friend, James Jones, who was a mechanic. Jones told defendant he would help him try to fix the car. Jones and defendant tried to fix the car. According to defendant, Youngblood said that if the car was not fixed he would smoke them both.

On July 9, 2006, defendant returned home to find Youngblood and Junior at his house and a number of others hanging around outside. Defendant allowed Youngblood to borrow defendants car, but charged him $100 to use it. Youngblood and Junior returned to defendants apartment later that evening.

Defendant awoke at about 5:00 a.m. the next morning and smoked a marijuana cigarette.^[1]

Defendant went into the front room and spoke to Junior about the other people who had been hanging around. Asking whether Junior was having problems with them and needed help, Junior said No. Nonetheless, defendant led his son into defendants bedroom and took out a .357 revolver handgun out of the dresser. Defendant unloaded the gun and gave it to Junior, who held it and then gave it back to defendant. They returned to the front room of the house where Youngblood was located.

Youngblood and defendant got into a heated argument about the Taurus. They argued for over an hour. According to the statement Junior gave to the police later that day, when Youngblood confronted defendant about paying to rent the car, defendant laughed it off. Youngblood told defendant that if the mechanic did not fix the Taurus he was going to fuck him up. Defendant then left and went into his bedroom for a while. Junior told the police defendant returned to the front room several minutes later carrying the .357 handgun defendant had shown Junior earlier. Junior stated that defendant stood about 10 feet away from Youngblood who was seated on the blow-up mattress. Without warning defendant shot Youngblood in the upper chest as he yelled You demon. Youngblood slouched over and stated Im sorry. Im sorry. Junior screamed for defendant to stop shooting, but defendant approached Youngblood within three feet and shot him three to four more times in the chest and back, continuing to yell You demon. Junior screamed and defendant put a towel over his sons mouth and told him that he could not leave until he calmed down. According to Junior, defendant said that Youngblood is carrying the spirit of 50. I had to get rid of him. I am tired of him threatening me. Junior believed that 50 was an old school gangster.

According to defendant during the argument immediately before the shooting, Youngblood made a number of references to his gang, and about having his gang behind him and about not messing with Youngblood. According to defendant, he was trying to keep the peace and offered to return Youngbloods money, but Youngblood again threatened to kill defendant and the mechanic. Defendant stated that he believed that Youngblood was going to kill him. Defendant testified that he thought Youngblood was going for a gun. Defendant testified that he blanked and ran to his room to grab his gun. He ran back and saw a blur, which he thought was Youngblood, standing, pointing at him. Defendant told the jury that he assumed or thought Youngblood held a gun. Defendant thought someone was shooting me, and defendant fired once.^[2]

After the shooting, defendant determined that Youngblood was dead, paced the room, and then put his gun under the couch. At some point some of Youngbloods friends came to the door asking for him. Defendant told them that Youngblood was not there. Defendant then tried to clean up the blood with a bucket of water and soap. He wrapped Youngbloods body in sheets and garbage bags. He advised Junior not to tell anyone what had happened and that if asked, Junior should say that he was never there. Junior drove to his grandmothers house. When he arrived, he told her what had occurred. She called the police.

When the police arrived at Juniors grandmothers home, Junior was crying and hysterical. He shouted He shot him. He shot him. My dad shot [Youngblood.]. He told police the shooting had occurred about an hour before. Later that day Junior gave a complete statement to the police about what had occurred earlier at his fathers apartment. The detective who interviewed Junior stated that he was upset and reluctant to talk about the crime.^[3] He was unsure about whether he was doing the right thing by telling on his father. According to police, Junior denied that either he or Youngblood was a gang member.

On July 13, 2006, defendant was arrested. Defendant was charged with first-degree murder, personal use of a firearm under Penal Code section 12022.53, and it was alleged that defendant had one prior strike conviction. In November 2006, defendant sought to relieve his retained counsel; the court granted his request to represent himself. The jury found defendant guilty of the charges and found the strike allegation true. The court sentenced defendant to a total of 75 years to life in prison.

This appeal followed.

DISCUSSION

Defendant asserts a number of reversible errors occurred prior to trial, during the presentation of the evidence and with respect to sentencing. For the reasons discussed below, we will reach only two of them: the claim of error in denying his request for counsel on the first day of trial; and his claim of misconduct by the court.

I.Defendants Request for Counsel on May 16, 2007, and June 5, 2007.

A.                 Relevant Background.

Proceedings Prior to May 16, 2007. After defendant was arrested and charged he retained private counsel, but at a hearing on November 8, 2006, defendant sought to remove his retained counsel and sought to represent himself. Defendant told the court that he wanted to remove counsel because of a lack of a defense and lack of preparation of the case. The court admonished defendant that it was foolish to represent himself on the charges and that he would probably be convicted. The court stated that it would appoint defendant a public defender if he so desired, but also advised defendant that if he represented himself he would not be permitted to come to court and ask for appointed counsel on the first day of trial. The court indicated that it would not continue the trial date, which was then scheduled for January 5, 2007. Defendant told the court he wanted to represent himself and he completed the necessary paper work to do so. The court appointed an investigator, Mr. Watson, to help defendant prepare his case and gave him $1,000 for the investigation expenses.

In early 2007 the prosecutor provided defendant with discovery. Apparently, during this time, defendant did not use the services of Mr. Watson.

On April 20, 2007, defendant filed a Code of Civil Procedure section 170.6 motion to challenge the judge originally assigned to the case; the motion was based in part on the comments the judge had made to defendant concerning the lack of wisdom of self-representation. The matter was assigned to a new judge. At the first hearing before the new judge, the prosecutor represented that all discovery had been turned over to the defense. Defendant informed the court that he had not prepared for trial because he had not had the services of an investigator to assist him. When the court reminded defendant that an investigator had been appointed in November of 2006, defendant stated that he wanted to choose his own investigator and did not want one assigned by the court. Defendant told the court that he thought Mr. Watson was compromised and that he could not trust him because the judge originally assigned to the case had chosen the investigator. The court explained to defendant that investigators were assigned from an approved list based on their experience and availability and that Mr. Watson was known to be a good investigator. Defendant stated that he wanted an investigator biased in his favor. The court told defendant that it would not assign a new investigator unless defendant came up with a legitimate reason to replace him.

The court then inquired whether defendant wanted counsel. Defendant indicated that he did not, that he would begin using Mr. Watson, would start preparing his case, and would try to be ready to proceed with trial on June 5. The court told defendant that any motion to continue the trial would not be granted without a substantial reason.

At a subsequent hearing on April 30, 2007, defendant asked for appointment of a new investigator of his own choosing. The court denied the request and told defendant to ask Mr. Watson to assist him, and noted that the court would not be delaying the trial if defendant did nothing. The court again asked defendant if he wanted appointed counsel. Defendant requested stand-by counsel instead. The court denied his request.

At the next pre-trial hearing on May 14, 2007, defendant again asked for a new investigator. Defendant complained that he had been denied the opportunity to prepare for his case because he did not have an investigator of his choice. The court denied the request. Defendant then inquired whether, if he had appointed counsel, he would stay housed in the pro-per jail unit.

The court and defendant discussed whether defendant wanted to have appointed counsel. The court stated that it did not want to delay the start date of the trial, so that any counsel would need to be ready by June 5; the court further observed that it was unlikely that any counsel would be ready by that date. Defendant again stated that he did not want appointed counsel. The court told defendant that if he was not going to be ready to defend himself by June 5, he would need to file a motion.

The discussion concerning counsel continued with the court emphasizing that appointment of counsel after that date would mean that the lawyer would not be ready for trial by the start date and that the court would not delay the trial without good cause. Defendant then told the court that he was out of his league; the court summoned a public defender. The public defender stated that it was unlikely that his office could be ready by June 5, that it needed to review the discovery before it could accept the appointment, and that he thought they might need two weeks to prepare. The court observed that it might have to continue the trial to get appointed counsel up to speed on the case, but also stated it would not grant a continuance if defendant served as his own counsel. The court continued the matter until May 16, to determine whether the public defender could accept the case and determine the time needed for the public defender to prepare for the case.

May 16, 2007. When the hearing reconvened on May 16, the public defender who appeared to represent defendant indicated her belief that defendant did not want her to represent him. She further stated that, in any event, her office could not be ready to proceed with trial on June 5. The court explained to defendant how the appointment of counsel workedthat the assignment went first to the public defender and that if they had a conflict it would be sent to the alternative public defender and then to a lawyer on the appointment panel list if the alternative public defender could not take the case. The court asked whether defendant wanted appointed counsel or a specific lawyer. Defendant stated that he wanted to come back in a week to discuss the matter. The following exchange occurred:

THE COURT: Well not to answer that question, but do you want to continue to represent yourself? You, of course, can hire private counsel at any time, and as long as that attorney will be ready on the scheduled date, then that attorney can sub in. You can hire anyone you want. If you want appointed counsel, then it will be a different discussion.

THE DEFENDANT: Yeah, I hear you, Your Honor. But I dont think that any attorney that possibly would take the case would be ready for a June 5th trial date, any attorney that takes over.

THE COURT: Thats probably correct. I think Ive had this conversation with you every time youve come out, that if you wanted appointed counsel you need to let us know right away. I think I repeated many times that I am not going to change the trial date. Its only the last time that you indicated you wanted counsel. But as I understand it, you dont want the attorney that would be assigned from the public defenders office; is that correct?

THE DEFENDANT: Yes, that is correct, Your Honor. Actually, I had a private attorney before I became pro per, so maybe you can appoint a state appointed something of that magnitude.

The court denied the request and again explained how assignments are made to the public defenders office. Defendant expressed a concern that neither he nor any counsel could be prepared to go to trial by June 5; he complained that he did not have time to prepare an adequate defense. The court responded with its belief that defendant was merely trying to delay the trial and stated that the trial would go forward unless defendant showed significant good cause.

May 21, 2007. At defendants request the court appointed defendant a new investigator.

June 5, 2007. The trial began on June 5, 2007. At the beginning of the proceedings defendant made an oral request for a continuance for 30 days so his new investigator could prepare for the trial. He told the court that he wanted to represent himself but did not feel he had enough time to prepare his defense. The court denied the motion, observing that defendant had been appointed an investigator back in November 2006 and thus had made an insufficient showing for a continuance. The court then explained the jury selection process and asked defendant whether he understood how it worked. Defendant said no, and then refused to further respond to the court, stating that he did not understand any of the courts actions, that he felt he was at a disadvantage, and that the process was unfair. He also complained that none of his witnesses had been subpoenaed. He stated if they were going to proceed he was doing so under duress. The court stated that it would instruct the clerk to get in touch with defendants new investigator to see if he could subpoena defendants witnesses.

The court then brought in the potential jurors. After the jury was excused for the noon recess, defendant asked the court to appoint counsel. For the next 25 minutes, the parties discussed the history of the case with respect to the counsel issues. Defendant indicated that if appointment of counsel was the only way he could obtain more time to prepare his defense then he wanted counsel. He stated that he would even accept the public defender he had earlier rejected. The court observed that had defendant previously accepted the public defender as his counsel that would have necessitated a continuance, but an appointment of new counsel (requiring a continuance on the first day of trial) was unfair to the prosecution; that from the prosecutors prospective it probably looked like defendant was playing games with the system; and that although defendant was denying such motives, his conduct was consistent with gamesmanship. Defendant stated that what he really wanted was to have his investigator get the information and witnesses he needed so that defendant could prepare; he did not want to hand over the case to someone else unless that was the only way he could prepare a proper defense. The court stated it would consider the request for appointment of counsel over the lunch break. The court further indicated that defendants investigator was on the telephone and that he would come to court to get the information about defendants witnesses. The court also noted that it is not terribly likely that I am going to allow a delay in this trial, but would consider it.

When the proceedings resumed in the afternoon, the court ruled:

THE COURT: All right. I do not believe that it is reasonable to believe that any competent attorney would be able to come in the case at this point, at a point where were in voir dire on the jury, on a case with this type of charge, I dont believe a competent attorney would be able to come in and take a case and continue on with the trial, which means that the attorney would have to request a continuance in order to be appointed on the case.

In addition to that, the public defenders officer has specifically said that they would not be able to take the case unless there was a continuance.

So Im denying your motion to continue, and denying your late motion if its actually a bona fide decision to accept appointed counsel.

So we are going forward with the trial. I have been saying since the first day I saw you that, we were going forward with the trial and there wouldnt be any delays. And your request today, in the middle of voir dire, is untimely.

B.              Defendants Claims.

1.                Defendants May 2007 Pre-Trial Request for Appointment of Counsel.

The rights of a criminal defendant to counsel and to present a defense are among the most sacred and sensitive of our constitutional rights. (People v. Ortiz (1990) 51 Cal.3d 975, 982.) In general, a defendant is entitled to the counsel of his or her choosing, though there is no absolute right to be represented by a particular lawyer. The courts will make all reasonable efforts to insure that a defendant financially able to retain an attorney of his own choice can be represented by that attorney. Under certain circumstances, due process is denied to a defendant who is not granted a continuance in order to secure a private attorney of his own choosing. (People v. Reaves (1974) 42 Cal.App.3d 852, 855-856.) The Supreme Court has held that a criminal defendant cannot be deprived of the opportunity to retain counsel of his choice except when bestowal of that benefit would prejudice him or unreasonably disrupt the orderly administration of justice. [Citation.] (People v. Haskett (1982) 30 Cal.3d 841, 852.) '[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. [Citation.] (People v. Crovedi (1966) 65 Cal.2d 199, 207.)

However, once waived the right to counsel is no longer absolute and consideration of a defendants post-waiver request for counsel is within the discretion of the court. (United States v. Leveto (3d Cir. 2008) 540 F.3d 200, 207.) Although the courts have an interest in safeguarding a defendant's access to professional legal representation, other factors necessarily play an important role in the court's deliberation of a post-waiver request for counsel, including evidence of a defendant's dilatory motive as well as the practical concerns of managing its docket and the impact that a request may have on the administration of justice. (Ibid.; see also United States v. Criden (3d Cir. 1981) 648 F.2d 814, 818 [A criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that the judge will hold him to his original decision in order to avoid the disruption of the court's schedule that a continuance granted on the very day that trial is scheduled to begin is bound to cause].)

In addition, the granting of a continuance is within the discretion of the trial court; it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. (Ungar v. Sarafite (1964) 376 U.S. 575, 589; People v. Crovedi,supra, 65 Cal.2d at pp. 206-207.) A continuance may be denied if the accused is unjustifiably dilatory in obtaining counsel, or if he arbitrarily chooses to substitute counsel at the time of trial. (People v. Byoune (1966) 65 Cal.2d 345, 346-347.)

Defendant makes two arguments with respect to his May 14, 2007, request for appointment of counsel. First, he asserts that the court erred during the May 16, 2007, hearing when it suggested that it would grant defendant a continuance if he accepted appointed counsel, but would not delay the trial otherwise. Defendant further argues the court erred when it stated that it would not grant a continuance for counsel to prepare, no matter what, that the court would only allow defendant to have counsel if his lawyer was ready to begin trial on June 5. Defendant asserts that it was improper to condition defendants right to counsel on the requirement that he agree to accept counsel that could proceed on June 5 even if that counsel was unprepared to defend him. Defendant maintains that the courts rulings at the May 16, 2007, hearing effectively denied his right to counsel.

We disagree. Preliminarily, defendants arguments mischaracterize the record. The court did not rule that it would never grant defendant a continuance for new counsel to prepare for trial. Instead at the outset of the May 14 hearing, prior to defendants request for counsel, the court stated that it did not want to delay the trial and observed that it was unlikely that any counsel would be ready by June 5. The court emphasized that appointment of counsel after the May 14 hearing would mean that the lawyer would not be ready for trial by the scheduled start date and that the court would not delay the trial without good cause. Later in that hearing, after defendant requested appointment of counsel and after the public defender arrived to discuss the potential appointment, the court observed that it might have to continue the trial to get appointed counsel up to speed on the case. By the end of the May 14 proceeding, the courts comments indicated a willingness to grant a continuance. The courts position on a continuance was later underscored on June 5 when the parties revisited the issue and the court stated that had defendant accepted the appointment of counsel in May, a continuance would have been warranted.

Second, also lacking support in the record is defendants characterization of the courts comments that it would grant a continuance for appointed counsel, but not for retained counsel. The courts statements about private counsel were made during the May 16 hearing in the context of the courts explanation that defendant could not choose a particular public defender, that absent good cause he had to accept the defender assigned to him, while in contrast he could hire any private lawyer of his choosing. The courts remarks concerning private retained counsel do not suggest a view that the court would not have granted private counsel a continuance had defendant timely made the request for private counsel.

In view of the record of the proceedings on May 14 and May 16 and in light of the circumstances of prior proceedings, we conclude that the trial court did not deny defendant due process in adjudicating the pre-trial request for counsel. It appears that the trial court, although reluctant to do so, would have entertained a motion to continue the trial if defendant had accepted the appointment of counsel or had retained his own counsel by May 16. However, it is also clear that by the conclusion of the May 16 proceeding, after defendant rejected the public defender without clear or sound reason in favor of some other unnamed state lawyer, the court did not believe that defendants request for counsel was genuine but was instead an attempt to delay the proceedings. The courts action and comments do not demonstrate a violation of defendants constitutional right to counsel or an unreasonable inflexibility with respect to granting a continuance. Indeed, even after defendant rejected the appointment of the public defender on May 16, the court indicated that it could grant a continuance on a showing of significant good cause. In view of the foregoing, we conclude the court did not abuse its discretion with respect to the pre-trial request for appointment of counsel.

2.                Defendants June 5, 2007, Request for Appointment of Counsel.

When a criminal defendant who has waived his right to counsel and elected to represent himself . . . 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 defendants 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 Lawrence court referred to factors set out in People v. Elliott (1977) 70 Cal.App.3d 984. In Elliott, the court set forth a nonexclusive list of factors for a court to consider in connection with a mid-trial request of a defendant to revoke his pro. per. status: (1) defendant's prior history in the substitution of counsel and in 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. (Elliott, at pp. 993-994.) The Lawrence court also referred to People v. Gallego (1990) 52 Cal.3d 115, 163-164, in which the Supreme Court had examined the Elliot factors and concluded that the trial court's discretion was to be based on the totality of the circumstances, not strictly on the listed factors: While the consideration of these criteria [listed in Elliott] 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, at p. 164.) The Lawrence court rejected the arguments that the trial court was required to review on the record each factor mentioned in Elliott or that any one factor was necessarily determinative: The standard is whether the court's decision was an abuse of its discretion under the totality of the circumstances . . . not whether the court correctly listed factors or whether any one factor should have been weighed more heavily in the balance. (People v. Lawerence, supra, 46 Cal.4th at p. 196.)

Defendant argues that the court erred in denying defendants request for counsel on June 5. He claims there is no evidence in the record to show that the court considered any of the Elliott factors in denying his request for counsel.

The trial court did not abuse its discretion in resolving this issue. Even though the trial court did not specifically mention any of the Elliott factors by name or use any particular words like bad faith in making its ruling, the court considered the totality of circumstances addressed in Elliott before reaching its decision. During the lengthy discussion of the issue, the court referred to the history of defendants request for counsel, and defendants failure to prepare for trial or use his investigator to prepare. The court referred to the burden on the prosecution to be ready to go forward. The court mentioned defendants gamesmanship during the proceedings. These matters were relevant under Lawrence and Elliott and are supported by the record. In the abstract, his motivation for requesting counsel may not be patently unreasonable. In view of the history of this case, however, defendants rationale for seeking appointment of counsel suggests improper motive and delaying tactics.

Defendant had time, opportunity and resources to prepare for his defense well prior to June 5, 2007. Defendant initially discharged his retained counsel in November 2006 on a claim that counsel had not been preparing defendants case. The court appointed an investigator and ordered funds for defendant to prepare his defense at that time. This notwithstanding, it appears based on the record before this court that defendant did very little to prepare for trial over the next six months other than request discovery from the prosecutor. Even after defendant received all discovery from the district attorneys office, defendant did not use his investigator to work on the defense. Defendants statements on the first day of trial concerning his need to locate witnesses reflect that defendant had still not prepared for trial or asked his new investigator to find his witnesses. Based on all of the circumstances of the case concerning the appointment of counsel, and in light of Lawrence, we conclude the court did not abuse its discretion in denying defendants request for counsel during voir dire on the first day of trial.

II. Claimed Judicial Misconduct

Defendant asserts that the courts comments in the presence of the jury, on both June 11 and June 13, 2007, were misconduct which deprived him of the right to a fair trial. Although we are sympathetic to the difficulties defendant caused the court in managing this trial, we agree that the extensive proceedings and comments crossed the line and became so prejudicial as to prevent a meaningful defense.

While a trial court must control the proceedings in front of it (Pen. Code,  1044), it commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. (People v. Carpenter (1997) 15 Cal.4th 312, 353, superseded by statute on other grounds.) We must determine whether the conduct was so prejudicial as to deny the defendant a fair trial. (People v. Harris (2005) 37 Cal.4th 310, 347.)

Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. [Citation.] When the trial court persists in making discourteous and disparaging remarks to a defendants counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge . . . it has transcended so far beyond the pale of judicial fairness as to render a new trial necessary. [Citation.] (People v. Sturm (2006) 37 Cal.4th 1218, 1233.)

Here, defendant was both his own counsel and his own witness. The extended colloquy in the presence of the jury was both disparaging and discrediting, and placed information before the jury that the court, in almost the same breath, was required to tell the jury to disregard. The effect was to deprive the defendant of the opportunity for the jury to draw their own conclusions as to the matters before them unaffected by the clear conclusions of the court.

Proceedings on June 11 - Morning

From the beginning of the trial, the court had warned defendant that there would be consequences if he disrupted the proceedings or attempted to mislead the jury; the court was clear that those consequences could be devastating and very, very damaging. On June 11, when defendant persisted in trying to call a witness, a request the court had already denied outside of the presence of the jury, the court engaged in a discussion with defendant and the prosecutor in the jurys presence which encompassed more than 20 pages of the trial transcript. The court elicited an offer of proof from defendant, and advised him that the proposed testimony was inappropriate. Defendant asked the court not to display a dispute between them to the jury, and the prosecutor argued why he believed the testimony should not be permitted and why defendants actions were inappropriate and causing unwarranted delay of the trial. Finally, and still in the presence of the jury, the following exchange took place:

THE COURT: Mr. Rucker, I told you that you would be held to the same standard and have to follow the same rules as an attorney. I explained that to you, and I have done my best to try to get you to accept appointed counsel from the very first day that I saw you, and you have declined, choosing instead to represent yourself, knowing at all times that you would be held to the same standards as any other attorney.

THE DEFENDANT: Actually, Your Honor

THE COURT: And any attorney would know that if theyre going to call a witness and theyre asked for an offer of proof, they would have to tell me, give me some indication of what new evidence or relevant evidence that witness was going to present. And if they dont have a witness here and under subpoena, they know that they cant simply keep repeating the name of a witness that they do not have here and do not have under subpoena.

THE DEFENDANT: Actually, Your Honor

THE COURT: Youve chosen to represent yourself. The law says you have that absolute right and there is nothing that the court can do about that, if you choose to represent yourself. Despite all of the advice that I have given you from day one, that you should accept appointed counsel, youve chose to represent yourself, as your own attorney.

Call a witness who is here to testify.

(Pause)

THE DEFENDANT: I ask forgiveness to you 12 people over there, ladies and gentlemen.

[THE PROSECUTOR]: Your Honor, please. I would ask to cut off any more dissertations to the jury or otherwise and have him ordered to respond to the courts direction.

THE DEFENDANT: Actually, Your Honor, dealing with this situation and dealing with you is really a tense situation, where youre establishing all of the roadblocks instead of giving assistance to the defense. Because all of my expense comes through you. Whether I have an investigator, it comes through you. Whether I have a psychologist here, it comes through you. Whether I have these witnesses here, it comes through you.

So what Im saying is if youre denying me the things that I need to put on an adequate defense, how can I put on a defense if youre prohibiting, youre telling me youre a referee, but at the same time

THE COURT: Well, Mr. Rucker, Im simply not going to let you mislead the jury in that regard.

Youve had an investigator on this case from early on, when you were even in another court, and you told me that you didnt like that investigator. You gave me no reason, whatsoever, you just didnt want to use that investigator, so I gave you a new investigator.

And after I gave you the new investigator, then you said you didnt want that investigator, for no reason. You wanted that investigator, but you wanted him appointed for some other reason other than to be your investigator.

I have appointed virtually every expert that you have asked for. I have done everything that I could. Ive granted virtually every request that you have made to this court. And Ive already told you that I have a great suspicion about why youre engaging in the conduct and in the pattern that youre engaging in.

It is not an appropriate issue for this jury, and Im going to explain to them, ladies and gentlemen, your duty is to decide the facts in this case. Now, there are other proceedings, some proceedings that run parallel, some proceedings that run subsequent or in a different lineal path, all right, but at this point the only issue that is relevant to this jury is just the facts of this case, the criminal charge in this case, and whether the elements have been proven beyond a reasonable doubt.

And I want to caution you not to let this exchange have an effect on your decision in this case. And, certainly, you cannot think about other issues that are not relevant to this case. If there is something relevant for your decision, I will give you that instruction as to what is relevant for you to decide, and that is narrowly the decision for this jury.

All right. Its time for you to call a witness, Mr. Rucker.

THE DEFENDANT: Look, Your Honor, Im not trying to be a problem to the court, Im trying to put on a defense here. Foundation has to be laid all the way up from the beginning, the evening, and ending to the beginning of this case.

THE COURT: Well, Im not going to waste any more time with this. Ive already told you that I wanted to get your one witness on the way to other duties.

The court, defendant and prosecutor then returned to a lengthy discussion of why defendant wished to call his witness, ending only when the court dismissed the jury for the noon recess. The discussion continued outside of their presence. During that discussion, the court made clear that if defendant did not himself testify after the recess, the court would proceed directly to argument and instructions.

Proceedings on June 11-afternoon

After the noon recess, the court again engaged defendant in extensive discussions outside the presence of the jury. When the jury returned, defendant indicated that he had no witness present, and that he did not wish to testify until his witnesses had testified. The court again indicated that defendants actions were inappropriate, and in the jurys hearing discussed at length its views of the relevancy of defendants witnesses. The court again permitted the prosecutor to make disparaging comments concerning defendants statements. The prosecutor then made his closing argument, after which defendant testified.

During the lengthy colloquy, the court again displayed its recognition that these matters were not properly before the jury, and instructed the jury as follows:

THE COURT: Now, ladies and gentlemen, Im going to be giving you instructions about the issues that are before this jury. All right. And youre going to have to follow those instructions. My concern is that some jurors may have a concern in an area that is not really an appropriate issue for the jury to consider, one of which might be that the court is excluding a witness that could be favorable to the defense.

All right. Ive had a long discussion, several discussions with Mr. Rucker, and there may be relevance to certain witnesses, depending on what evidence is offered, and Mr. Rucker has a right to offer that evidence.

He has stated in his in kind of argument, you know, his statements from counsel table, he has used the term relating to self defense. So Mr. Rucker has a right to testify and cover that issue. He has a right not to testify, if he doesnt want to. But you cannot allow any consideration of any exchange that were having, you cant allow an indication that there is another witness out there if a witness doesnt testify, then its not in the evidence, its just as simple as that, and you have to decide the case based solely on the evidence.

There are many rules and protections in the law, and Im doing my best to follow the law. I have to be fair to both sides. There are two sides to a case, a criminal case or civil case, there are two sides to it, and both sides have a right to a fair trial.

This was followed by the following exchange:

[THE COURT:] All right. Do you want to testify, Mr. Rucker?

THE DEFENDANT: I would like to testify after my witnesses come in and lay a foundation for the circumstances of this case to the point where the incident happened. And if I dont have those witnesses come in, it would jeopardize the defense, for the people to get a clear picture of what happened and what went on. And the only way I can do that is through the establishment of witnesses.

THE COURT: Neither side could call a witness to support a claim on a justifiable use of force, unless there is first evidence presented to the jury that there was a justifiable use of force from either side. The defense side, thats normally what were talking about when we use the term self defense.

So there would first have to be evidence of self defense, before any other witnesses, their testimony would be relevant, if there are other witnesses that could support that claim.

I have explained that to you, Mr. Rucker, so if you want these other witnesses that you indicated exist, then its up to you to present the preliminary evidence, that is, its up to you to testify, if you want to.

THE DEFENDANT: I will testify, Your Honor, after the foundation is laid for my testimony.

THE COURT: Well, you told me on Friday you were the first witness, that you were going to be the first witness, and Ive been waiting patiently and trying to explain this in every fashion that I can. I dont want this jury to decide the case based on issues that are not before them.

There are not witnesses that I am withholding from you. In fact, there are witnesses that we have, we have gotten for you, or the People, because the court doesnt get the witnesses directly, prepared, so that you can call those witnesses, if there is evidence before this jury that makes any of their testimony relevant.

So its up [to] you. This is the time. If youre going to testify, this is the time, or were going to go to argument and instructions. Ive repeated this this is probably, well, I cant even begin to count. If you want to testify, take the stand and testify. None of the other witnesses that youve talked about have any relevance unless you testify and tell the jury your version of the events.

Proceedings on June 13

During defendants testimony on June 13, a dispute arose concerning a document to which he had referred but did not wish to provide to the prosecutor. Defendant referred to the fact that he was not a lawyer, and this exchange followed:

[THE DEFENDANT:] I ask you guys for forgiveness. Im not a lawyer. Im just holding my ground.

THE COURT: The jury has to make the decision in this case solely on the evidence thats presented. I have done my best to try to get Mr. Rucker to accept court-appointed counsel. He has a right to court-appointed counsel. At no cost to him, and despite all that, he has chosen to represent himself. And that fact that hes representing himself has absolutely no bearing on the decision that this jury does make.

[THE PROSECUTOR:] Your Honor, with the courts permission

THE DEFENDANT: Actually, the truth is

THE COURT: That is the truth, Mr. Rucker. Every time I saw you, I tried to get you to accept court-appointed counsel and you declined.

THE DEFENDANT: Actually, Your Honor, the truth before

THE COURT: That is the truth.

THE DEFENDANT: -- before the jurors came

THE COURT: All right. Ladies and gentlemen, could you step out, please.

THE DEFENDANT: I asked for a lawyer.

Before they came in, I asked for a lawyer.

Later that day, during the testimony of another witness, the following took place in the jurors presence:

THE DEFENDANT: Your Honor, you restricted all testimony.

THE COURT: No, I didnt.

THE DEFENDANT: Yes, you actually did.

THE COURT: Do you have any other witnesses?

THE DEFENDANT: Yes. Lisa Shelbua.

THE COURT: Well, weve finished that witness.

Any other witnesses?

THE DEFENDANT: Im not finished with her. Its things I need her to say.

THE COURT: Out of the presence of the jury, I asked you to establish some relevant testimony that that witness would offer, and you were unable to do that, or unwilling to do that, and so that witness is done.

Do you have another witness?

THE DEFENDANT: Actually, the things that I want her to verify

[THE PROSECUTOR]: Your Honor, at this point weve had a discussion out of the presence of the jury for a specific reason, to not go into ridiculous, irrelevant information. Id ask not to have a dissertation of what the very reason this jury spent all this time away from us.

THE COURT: Do you have another witness, other than Ms. Shelbua?

THE DEFENDANT: Actually, I need her right now to verify some things.

THE COURT: Shes done.

Defendant presented his closing argument later that day. He referred at the outset to his request for a lawyer; the court then stated:

THE COURT: As I explained to Mr. Rucker

THE DEFENDANT: -- as I explained to the jury

THE COURT: -- if he attempted to mislead Mr. Rucker

THE BAILIFF: One at a time.

THE COURT: Mr. Rucker. Mr. Rucker.

THE DEFENDANT: They ushered you guys out.

THE COURT: Have him have a seat.

THE DEFENDANT: Such as now. Every time I say something, the truth

THE COURT: Have him have a seat.

THE DEFENDANT: -- they restrain me like this. Im unable to get you guys my defense and tell you the truth.

THE COURT: Okay.

THE DEFENDANT: They have the manpower. They have the gun. They have the prosecution.

THE COURT: Mr. Rucker

THE DEFENDANT: You guys are the People. I am the People. Hes a prosecutor. Hes the judge. These gentlemen work for the court. I cannot have a voice, unless I am free to tell my truth. And Im willing to give you guys that all along the way, to tell you guys whatever it is about the truth. And every[ ]time I state the truth, Im made to shut up or he ushers you guys out of here really quick and restrains me, and that is putting me in a position to not to be able to tell the truth about the matters in my case.

Now, Im willing to say that Im in this fire, but, for the record, I need it to reflect the truth, things that are taking place in this case that are not legal, based on the law, number one.

But before you guys entered that box, I asked for a lawyer. It was refused me. He said, Im not going to give you a lawyer, because a lawyer is going to have to take the time to go through your case, and I dont want a lawyer to take the time to go through your case, because I want to prosecute you now.

So Im hereby forced, forced, not by choice, but trying to do the best that I can to make sure I can bring the light to this situation, with my lack of experience as being a lawyer.

May I proceed with my rebuttal, or do you want to usher them out again and tell me not to say such things? Its on you.

THE COURT: As I explained to you, Mr. Rucker, if you sought to mislead the jury, I would have to correct and disabuse them.

THE DEFENDANT: Im not misleading the jury, Your Honor. Its only right that I use my voice.

THE COURT: The first time Mr. Rucker was here

THE DEFENDANT: If I dont, I will be a fool. If I dont speak up and tell them the truth, it would be foolish.

THE COURT: If I have to, Ill have you out of the courtroom.

The first time that I saw Mr. Rucker he has a constitutional right to represent himself. I urged him to accept court-appointed counsel. On every subsequent meeting that I had with Mr. Rucker here in court, I told him he should accept court-appointed counsel.

I told him that the trial date was set for June 5th, and that we were not going to continue the case absent good cause to continue the case. I told him that a lawyer could not come in on the day of trial, because no competent attorney can accept a case on the day of trial and then somehow prepare, instantaneously, certainly on a charge this serious.

I went through this with Mr. Rucker repeatedly, and with very long explanations. I sought to appoint an attorney for Mr. Rucker again in May, even though that would have required a continuance, but he rejected the attorney that I sought to appoint, and rejected the entire second offer [sic] that would have been appointed, if he wasnt appointed an attorney from the first office. And I again warned Mr. Rucker that on the day of trial we are not going to continue the case. Because the People have an obligation to be ready for trial, and if theyre not ready for trial on the day of trial, they face dismissal of the case. So the People have an obligation to be prepared for trial on the day of trial.

And I have gone through this with Mr. Rucker, and I told him that on the day of trial I would not appoint an attorney that would then require, after the People are ready and announce ready, to appoint an attorney and then have the case delayed.

Before we brought the jury down, Mr. Rucker had several motions. We went through those motions, and I asked him if he had any other motions, and he said no, and thats when we called the jury down to begin the voir dire process.

At that time, then Mr. Rucker said he wanted an attorney. All right. The court cannot allow people to do gamesmanship with the court. Both sides have a right to a speedy resolution of this case. The defendant, of course, has a right to a speedy and fair trial.

So the fact that Mr. Rucker said, after we brought you down for voir dire, at that point that he wants an attorney, thats true, thats what he said. I cannot appoint an attorney for someone under those circumstances, the system simply will not work. And Mr. Rucker was aware of that, I made him aware of it, as clear as I possibly could at every meeting, every hearing, every appearance that Mr. Rucker has had before me.

All right. And his case started with a different judge, and he was dissatisfied with that judge, and thats how it came to my court. Ive done everything that I can to make sure that Mr. Rucker has a fair trial in this case, but I cannot it would be inappropriate for me to first require that the People are ready for trial or face a dismissal, and then if they are ready for trial and now we get past that, and then to allow the defense sort of one free bit, where first Im going to see if the People are ready, and if theyre not I get my case dismissed, and if they are, then I can force a continuance by asking for an attorney at that late moment.

I explained this to Mr. Rucker many times. I also explained to him that if he brought this up in front of you guys, that I would then have to explain a more full explanation of what the history of this case is.

All right. Now, in saying that, again, I want to stress, this is not an issue for this jury. No decision that you make in this case should be based, in any fashion, on the fact that Mr. Rucker either chose to represent himself, or that he asked for an attorney, or what his motivation was for asking for an attorney at the last minute, after we called you for voir dire. None of those issues have any bearing on whether the People have proved all of the elements beyond a reasonable doubt.

So you must separate your mind from that. But I dont want you to think that anyone is being unfair to Mr. Rucker, and for you to make any decision based on a conclusion that anyone is being unfair to Mr. Rucker.

I have expended a great deal of time and energy in trying my best to be as fair as I possibly can to Mr. Rucker, but the law is that Mr. Rucker has an absolute right to represent himself, period, and I cannot change that; I simply cant.

The Totality of the Courts Actions Deprived Defendant of a Fair Trial

The trial court was confronted with a difficult situation: a defendant, representing himself at trial, who failed to comply with court procedures and rulings. Nonetheless, the court had the duty to control the courtroom and the conduct of the proceedings. As the United States Supreme Court stated nearly 40 years ago in Illinois v. Allen (1970) 397 U.S. 337, 343-344, [i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least