P. v. Solorza
Filed 7/18/12 P. v. Solorza CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ALFREDO SOLORZA,
Defendant and Appellant.
D058184
(Super. Ct.
No. RIF132370)
APPEAL from
a judgment of the Superior Court
of
Jean P. Leonard, Judge. Affirmed and
remanded with directions.
A jury
convicted Jose Alfredo Solorza of first
degree murder (Pen. Code,
name="_ftnref1" title="">[1]
§ 187, subd. (a)) and arson (§ 451, subd. (c)).
It also found true a special circumstance allegation that the murder was
intentional and involved the use of torture.
(§ 190.2, subd. (a)(18).) Because
Solorza was 15 years old at the time he committed the crime, the court
sentenced him to 29 years to life.
Codefendant
Anthony Bobadilla pleaded guilty to voluntary
manslaughter (§ 192, subd (a)) and other charges, and was sentenced to 23
years in prison in exchange for his truthful testimony against Solorza and
Roman Aldana, who were tried together before separate juries. Aldana's jury convicted him of first degree
murder (§ 187, subd. (a)), found true a special circumstance allegation of
torture (§ 190.2, subd. (a)(18)), and sentenced him to death.
Solorza
contends the trial court committed reversible
error by (1) denying his motion to represent himself under
806 (Faretta); and (2) by refusing to
instruct the jury with a pinpoint instruction regarding the defense of
duress. He also contends (3) the
prosecutor committed misconduct during closing argument and (4) the court
erroneously calculated his custody credits.
The People concede the latter point, and we modify the judgment to award
Solorza six additional days of custody credits, but otherwise affirm the
judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
We rely
principally on Solorza's confession to police when he was arrested on September 14, 2006, one month after
he had turned fifteen years old. His
recorded video interview with police was played for the jury.
Solorza
told police that on or about September
8, 2006, he and his cousin, Bobadilla, traveled from Riverside,
California to Moreno
Valley, California, where they
met Solorza's friend, Aldana, who was accompanied by a teenage girl, Kayla
Wood. They all needed a place to spend
the night; therefore, Solorza took them to an abandoned duplex where he used to
live. Solorza, Aldana and Wood drank a
large quantity of vodka and beer, and eventually fell asleep.
The next
morning, the same three resumed drinking alcohol. Aldana confided to Solorza that Wood might be
pregnant with Aldana's child. Aldana
also told Solorza that once, while he was with Wood, Aldana had fired a gun at
someone; therefore, Aldana feared Wood might report him to police. Aldana questioned whether he could count on
Solorza's support in addressing those problems, and Solorza suggested they
could take Wood to a distant place, and knock her out with a pan so that she would
not remember her way back to the duplex.
Later that
day, while Solorza and Aldana were both having sex with Wood, Solorza urinated
on Wood and also partly on Aldana.
Solorza described that incident to police, "And then it was like,
oh, and then um, I used the restroom and I was like well, you [Aldana] didn't
kill her? So I was like fuck it, so I, I
pee on her a little bit." When
asked why he urinated on Wood, Solorza told police, "Oh, because it,
[Aldana] was like oh, he was like, um, he was like oh, my I'm gonna kill
her. Oh, whatever, you know I'm about to
leave, too." Solorza concluded he
had urinated on Wood, "because she was mine."
Aldana
became upset that Solorza had urinated on him, and they argued. Aldana hit Solorza in the head, knocking him
out momentarily. Solorza dozed off for a
few minutes. Aldana was about four years
older than Solorza and bigger than him, and had served time at the California
Youth Authority, but Solorza challenged him, "fool[,] I ain't scared. You want to do something? (Unintelligible) put me in check you know
letting me know what's going on."
At one point, Solorza poked Wood with a screwdriver. Aldana did the same to her. Wood protested and moaned as she lay in a
bathtub where they had placed her. Wood
hid in a closet, but they found her and returned her to the bathtub. Solorza said that Wood asked "[W]hy [are
you] doing this?"
Aldana gave
Wood more alcohol to drink as she lay in the bathtub. Solorza and Aldana took turns penetrating
Wood's vagina or anus with a bottle.
Aldana threw the empty bottle at her, hit her head, and the bottle
broke. Both Solorza and Aldana cut her
throat with a blade. Aldana continued
stabbing her because he wanted to kill her.
Afterwards,
Aldana squeezed something on Wood's hair and tried to set it on fire, but she
put out the fire. Aldana sprayed some
product, and Solorza described the result:
"[Aldana] got torching and he went whoosh. And I say, oh, shit. And I did it, too." Aldana told Solorza to set the house on fire,
although Wood was still alive. Solorza
turned on the water in the bathtub. Wood
got out of the bathtub and started walking toward Solorza with a screwdriver. Solorza took the screwdriver from her and
"socked her." She fell in the
bathtub, which was filling up with water.
Aldana tried to light the house on fire, and at first Solorza put it
out, telling him that the fire would attract the neighbors' attention and,
moreover, since Aldana was homeless, he needed to stay at the duplex. Soon, they both lit mattresses and other
items, and left the house while it was on fire.
Solorza said he and Bobadilla returned to Riverside
by bus.
Before the
incident, at Aldana's invitation, Solorza had searched Aldana's father's
belongings housed in a shed, and found a gun, which Aldana promised to give
Solorza. Solorza wanted to sell it to
get money, but Aldana kept stalling him.
Solorza told police in the interview, "The only reason[] that, I,
all this happened was because um, I don't know because I went back with
[Aldana] to go try to get my gun."
Solorza added, "I stayed too long and I should a known he was
forcing me into something." Solorza
said that during the incident at the duplex, he started thinking that Aldana
might harm him too. However, when police
asked Solorza if Aldana had a gun with him during the incident, Solorza said he
was unsure.
During the
interview, after Solorza repeated that Aldana had hit him hard during the
incident, police expressed doubt that Solorza was scared of Aldana, telling
Solorza, "Doesn't sound like you were afraid of him because you're telling
him, hey, fuck this. I'm not doing
that. You know what I mean? It doesn't, you're not afraid of the
guy. I don't know why you even suggest
it. As far as, I mean, you're trying to
suggest that, that you're not as, you're not responsible for this. And that's not true, you're
responsible." Aldana conceded,
"Yeah, I'm responsible. I'm
responsible. I could have, you know, you
know run out and if [Aldana] find me, you know . . . ."
Police
asked Solorza how long the incident lasted from the time they started cutting
Wood's hair until they left the duplex, and he said between thirty and
forty-five minutes. Police also
questioned Solorza, "If I asked you if you thought [there] was torture,
what would your answer be?" Solorza
responded in apparent reference to photos police had shown him, "Just by
looking at her, yes." During a
break in the interview, a detective escorted Solorza to the restroom. Solorza asked him, " 'What is it I did?'
" The detective told him the crime
was murder. Solorza said, " 'No,
what's the number?' " The detective
said, "[Penal Code, section] 187."
Solorza repeated, "187," paused and said,
" 'That's cool.' "
Solorza
testified at trial in accord with his police interview on the material issues
of his involvement in the murder and
arson, his argument with Aldana in which Aldana knocked him out, and how much
he and Bobadilla feared Aldana during the incident. Solorza testified that Bobadilla's recollection
of the incident likely was better because Bobadilla had not drunk alcohol
during that time.
Bobadilla's Testimony
Bobadilla confirmed that he did
not drink alcohol or consume drugs while at the duplex. When counsel asked him on cross-examination
if therefore he was "essentially very clearheaded" on the day of the
incident, Bobadilla responded, "A little bit. I was tired." He testified that on that next day, Solorza
woke him up, called him to the bathroom, and said, " 'Watch this,' "
and immediately slit Wood's throat with something like a razor blade. Bobadilla became afraid, and left the
bathroom and started pacing.
Aldana and
Solorza got into an argument, and Solorza held a blade to Aldana's throat. Aldana told Bobadilla to check on Wood. Bobadilla reported that she had moved. Aldana and Solorza searched for her, and
found her in a closet. Solorza told her,
" 'Come here, bitch.' " As
Solorza was stabbing Wood, Bobadilla heard him tell her, " 'You're gonna
die in seven days.' "
Bobadilla
was scared for his life and for Solorza because of Aldana. Bobadilla testified he did not leave the
duplex after Solorza had slit Wood's throat because "[Solorza] told me
[Aldana] was gonna kill us, and I couldn't leave my cousin behind. I mean, I didn't want to run out and leave my
cousin here because he would have got killed." At one point, Aldana called Bobadilla,
grabbed him by the arm, and forced him to watch Solorza stab Wood with a screw
driver. Aldana threatened to harm
Bobadilla if he did not also stab Wood.
Aldana handed Bobadilla a tool, and Solorza indicated it was Bobadilla's
turn to stab Wood, but Bobadilla refused.
Aldana told Bobadilla to throw a toaster at Wood, and Bobadilla
complied. Aldana ordered Bobadilla to
punch Wood. Bobadilla started
questioning Aldana why he should do so, but he saw Aldana reaching for what
Bobadilla thought was a weapon; therefore, Bobadilla punched Wood. Bobadilla did not see Aldana
rather, he saw only Solorza do those things.
Solorza
used a lighter and hairspray to set a T-shirt on fire and said, " 'We need
to hide the evidence so let's burn the house down.' " Solorza also said he was trying to burn
Wood's face. Bobadilla decided to leave,
and he and Aldana went to a swap meet.
According to Bobadilla, Solorza said he would stay behind, kill Wood,
and "finish the job." About
fifteen to twenty minutes later, Solorza met them at the swap meet. Solorza told them he had burned Wood and
drowned her.
The medical
examiner who conducted the autopsy determined the cause of Wood's death was 133
sharp-force injuries she received on different parts of her body. Some injuries indicated Wood had struggled
with her assailants.
Solorza's Early
Motions Under People v. Marsden (1970) 2 Cal.3d 118 (Marsden)
On October
3, 2008, Solorza brought his first Marsden
motion before Judge Paul Zellerbach, explaining that over a year earlier he
had hit his appointed attorney in court, and therefore he did not think defense
counsel could adequately represent him.
The court pointed out that after that incident, Solorza had apologized
and defense counsel had accepted his apology.
The court recalled it had appointed separate counsel to assist Solorza
to independently determine whether defense counsel should be replaced, and both
Solorza and the appointed attorney had agreed defense counsel would continue
representing Solorza. The court pointed
out defense counsel was one of the best attorneys around, and saw no reason to
replace him. Accordingly, the court
denied the motion.
On December
18, 2009, Solorza brought a second Marsden
motion before Judge Zellerbach, alleging defense counsel was not sharing police
reports and other documents with him, and he again brought up the incident in
which he had assaulted defense counsel.
Defense counsel promised to produce most of the documents Solorza
sought. The court noted it had addressed
the assault incident in the past and it denied the motion.
Solorza's First
At a
January 15, 2010 pretrial hearing, Judge Zellerbach postponed the trial date
from January 25 to February 16, 2010.
Defense counsel told the court Solorza might seek to represent himself
at trial: "[T]his morning Mr.
Solorza asked me for the paperwork to proceed pro per status [
I indicated I wanted him to think about that, read that paperwork. He is going to take that back with him. He is asking if he can come back this coming
Tuesday, the 19th, so that he can let me know if he still wants to go pro per,
then address the Court, and the Court talk to him; or if he changed his
mind."
The court
set a January 19, 2010 hearing date to address any possible motion for
self-representation, but notified Solorza he would not get a continuance: "[I]f you want to represent yourself,
you know, ultimately I will decide that issue.
But let's assume that I agree that you should be allowed to represent
yourself, we are still going to proceed to trial on the dates we set today. I am not going to agree to continue your case
simply to allow you to represent yourself in this matter. [¶] So
you would have to be prepared to proceed to trial, really, with the motions
that [defense counsel] has filed, or any additional motions that you would want
to file on your own before [February 16, 2010].
And you would have to be ready to begin jury selection on [February 22,
2010]. So you should keep that in mind
as well in determining whether or not you want to represent yourself."
At the
scheduled hearing, the court denied Solorza's motion to dismiss his appointed
attorney under Marsden. Solorza had complained his counsel had failed
to provide him certain documents for his review. The court asked Solorza how much time he
needed for that review, and Solorza said "[m]ore than a week." The court granted him more than two weeks for
that review, and scheduled another hearing for February 4, 2010 to discuss
Solorza's progress with the document review.
The court pointed out to Solorza a challenge in his case that no change
of counsel could overcome: "And the
problem is, whether it's you representing yourself or [defense counsel]
representing you, or some other attorney representing you, they have to deal
with [the confession] you gave law enforcement.
They can't—no one can change that.
And so you have to try and work with that."
In what he
regards as a Faretta motion, Solorza
stated, "That's why I was
considering going pro per, because then I can have all the things I need
and stuff." (Italics added.) The Court responded, "Well, I indicated
what I would do before I allow you to go pro per and that is I would appoint a
psychologist to evaluate you, because I am not confident that you are capable—I
am not—[.]" Accordingly, the court
postponed further consideration of that issue pending completion of a
psychologist's evaluation of Solorza and his preparation of a confidential
report to help the court determine whether Solorza was competent and qualified
to represent himself at trial. The court
clarified the issue was not Solorza's competence to stand trial (§ 1368);
rather, the court sought a psychologist's expert opinion under Evidence Code
section 730.
Solorza's Second
Faretta Motion
On February
11, 2010, the case was transferred to Judge Leonard, who heard Solorza's
renewed Marsden motion. She asked Solorza why he wanted to replace
his attorney and Solorza said he was bothered because his attorney was talking
to the District Attorney in court that day.
Solorza added, "And I wanted to know, too, like who could explain
to me how can they set trial dates, then set dates in between them? And then what if those aren't ready or
prepared, or whatever dates they are, and then coming up to the trial date,
those days were in between them aren't, you know, like—you know what I
mean—[.]" Solorza clarified, "How
are they able to have court days in between your trial dates if your trial date
was already set? You know what I
mean? Like, I'm noticing they were
saying court dates, like, in between those.
What are those about? The court
responded, "Well that's—that concerns me that you asked that
question. Because what we just did was a
very simple kind of procedure, basically setting trial dates and setting court
dates. Because you don't just go to
trial. You have motions heard. You have to talk to the judge about
scheduling. You have to talk to the
judge about questions that are going to be asked the jury." Solorza also said he had not received some
documents from his attorney. The court
denied the Marsden motion, stating,
"there's nothing that I've heard you say or have heard from [defense
counsel] or read that makes me think that [he] is not doing an excellent job
for you."
Defense
counsel briefed Judge Leonard regarding Solorza's Faretta motion: "We had
set today's date . . . to come before Judge Zellerbach on the issue of whether
or not Mr. Solorza would be allowed to go pro per if that's, in fact, what he
still wants to do, and after communicating with him this afternoon, he would
prefer that." The court denied the
concern is this, Mr. Solorza: First of
all, based on the report from [the psychologist], I do believe that you are
competent to stand trial within the meaning of Penal Code section 1368. . . .
[¶] Now, as far as you
representing yourself, I do not think you are capable of representing
yourself. I do think that you have some
issues as far as your educational background.
I am concerned that you cannot read the documents that you need to read,
the cases you need to read. I am
concerned about your ability to understand abstract concepts. I am concerned about your ability to focus,
to question jurors. You're very
young. You're only 18. You have little or no life experience. And I do think that representing yourself
would be a huge mistake. . . . This is your life we have to consider
here."
The court
noted that for purposes of avoiding a dismissal of Solorza's case under section
1382, his time waiver would expire on February 26, 2010. However, the court did not anticipate
reaching that deadline because it planned to start motion hearings on February
22, 2010.
Solorza's Third
Faretta Motion
On February
22, 2010, the court denied Solorza's renewed Faretta motion, noting that the psychologist had stated Solorza's
knowledge of the law was "very, very superficial." The court explained to Solorza, "[Y]ou
are not able to grasp the nuances or the abstract understanding—issues
regarding the law. You are in no way
able to go up against the experienced lawyers in this case. The court cannot assist you and would not
assist you because that would not be fair, wouldn't be right . . . . [¶] I
have considered your education, your familiarity with the legal process. I have read a psychiatric or psychological
examination . . . . I have advised you
that you have the right to counsel at no cost."
The court
also noted the Faretta motion likely
was untimely: "Probably I could
even have denied your motion as untimely because we are [o]n the eve of trial
now. But I have not done that yet
because I wanted to hear your point. I
had never heard your point before. And
I—as I said, I could have denied your request outright. But I don't think that would have been fair
because you needed a chance to talk to me and you needed a chance to tell me
your side of the story. [¶] I've explored the nature of the proceedings
and the outcome with you, and I don't think you understand either. I've explained to you that your right to
self-representation can be terminated for disruptive behavior. I've also advised you that you may not claim
inadequate counsel on appeal after representing yourself at trial. Do you understand that?" Solorza indicated he understood.
Solorza
renewed his Marsden motion at that
hearing, stating he was not ready for trial, although his attorney was ready. The court denied that motion, stating,
"Based on what I've seen and heard so far, I do think [defense counsel] is
very effective counsel. . . . And we are, again, on the eve of trial. And it appears that, although there are some
disagreements between . . . the attorney and [Solorza], I don't see that
there's enough to relieve him of his duties at this point."
Solorza's Last Marsden
Motion
On March 8,
2010, the day trial was scheduled to start, Solorza informed the court he
sought to replace appointed counsel with new, hired counsel. Solorza said he had not agreed to start trial
because he was not ready; therefore, he needed a continuance. The court denied both Solorza's
continuance as untimely. Jury selection
started that day.
DISCUSSION
I.
Solorza
contends his convictions must be reversed because the court denied his first
unequivocal; and, it also was timely because he brought it seven weeks before
jury selection and eight weeks before opening statements. He alternatively argues that if the motion
was untimely, the trial court abused its discretion when it failed to address
the factors outlined in
"A
defendant in a criminal case possesses two constitutional rights with respect
to representation that are mutually exclusive.
A defendant has the right to be represented by counsel at all critical
stages of a criminal prosecution.
[Citations.] At the same time,
the United States Supreme Court has held that because the Sixth Amendment
grants to the accused personally the right to present a defense, a defendant
possesses the right to represent himself or herself." (People
v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall),
citing Faretta, supra, 422 U.S. at p. 819.)
The right of self-representation is not self-executing. Rather, the defendant must make a knowing,
voluntary and unequivocal assertion of the right of self-representation
"within a reasonable time prior to the commencement of trial." (Windham,
"The
court faced with a motion for
self-representation should evaluate not only whether the defendant has
stated the motion clearly, but also the defendant's conduct and other
words. Because the court should draw
every reasonable inference against waiver of the right to counsel, the
defendant's conduct or words reflecting ambivalence about self-representation
may support the court's decision to deny the defendant's motion. A motion for self-representation made in
passing anger or frustration, an ambivalent motion, or one made for the purpose
of delay or to frustrate the orderly administration of justice may be
denied." (Marshall, supra, 15
Cal.4th at p. 23.) "Equivocation of
the right of self-representation may occur where the defendant tries to
manipulate the proceedings by switching between requests for counsel and for
self-representation, or where such actions are the product of whim or
frustration." (People v. Lewis (2006) 39 Cal.4th 970, 1002.) "A reviewing court, in determining
whether a motion for self-representation is unequivocal, is not bound by the
trial court's apparent understanding that the defendant was making a motion for
self-representation." (
1044, 1087.)
In
California, there is no bright-line test for determining the timeliness of a
"reasonable time" requirement is to ensure that a defendant does not
"misuse the Faretta mandate as a
means to unjustifiably delay a scheduled trial or to obstruct the orderly
administration of justice. . . . When the lateness of the request and even the
necessity of a continuance can be reasonably justified the request should be
granted. When, on the other hand, a
defendant merely seeks to delay the orderly processes of justice, a trial court
is not required to grant a request for self-representation without any ability
to test the request by a reasonable standard." (Windham,
supra, 19 Cal.3d at p. 128, fn. 5;
852-853 (Burton).)
An untimely
Faretta motion is addressed to the
trial court's discretion. In exercising
its discretion, the court should consider certain criteria, including "the
quality of counsel's representation . . . the defendant's prior proclivity to
substitute counsel, the reasons for the request, the length and stage of the
proceedings, and the disruption or delay which might reasonably be expected to
follow the granting of such a motion."
(Windham, supra, 19 Cal.3d at p. 128; People
v. Jenkins (2000) 22 Cal.4th 900, 959; People
v. Marshall (1996) 13 Cal.4th 799, 827.)
The erroneous denial of a timely Faretta
request is reversible per se. (
824.) An erroneous denial of an untimely
Faretta motion, however, is reviewed
under the harmless error test of People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
(People
v. Nicholson (1994) 24 Cal.App.4th 584.)
In
610, 636–643, the California Supreme Court held that a Faretta motion filed two weeks before trial was untimely. (Lynch,
at pp. 719, 726.) The court held: "[A] trial court may consider the
totality of the circumstances in determining whether a defendant's pretrial
motion for self-representation is timely.
Thus, a trial court properly considers not only the time between the
motion and the scheduled trial date, but also such factors as whether trial
counsel is ready to proceed to trial, the number of witnesses and the
reluctance or availability of crucial trial witnesses, the complexity of the
case, any ongoing pretrial proceedings, and whether the defendant had earlier
opportunities to assert his right of self-representation." (Id.
at p. 726.) A trial court need not
explicitly rely on the Windham
factors, but may do so implicitly. (
"[T]imeliness
for purposes of Faretta is based not
on a fixed and arbitrary point in time, but upon consideration of the totality
of the circumstances that exist in the case at the time the self-representation
motion is made." (
"The fact that the granting of the motion will cause a continuance,
and that this will prejudice the People, may be evidence of the defendant's
dilatory intent. Similarly, the
defendant's pretrial delays, in conjunction with a motion for continuance for
the purpose of self-representation, would be strong evidence of a purpose to
delay. [Citation.] In most of the cases finding a motion timely
as a matter of law, no continuance would have been necessary." (Burton,
state it is denying a Faretta motion
on the ground of untimeliness, we independently review the record to determine
whether the motion would properly have been denied on this ground." (People
v. Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15.)
Solorza claims that on January
15, 2010, he made a Faretta motion
that was unequivocal, and that the trial court improperly relied on "irrelevant
criteria" like Solorza's lack of education, training in the law, and life
experience.
We
disagree. On January 15, 2010, Solorza
did not formally make a Faretta
motion. Rather, defense counsel said
Solorza had requested documentation regarding such a motion, and would
communicate his decision to defense counsel on January 19, 2010. Defense counsel merely informed the court a
request might be forthcoming. On January
19, 2010, Solorza still did not make an unequivocal Faretta motion. After the court
denied his Marsden motion, Solorza
limited himself to saying, "I was considering
going pro per." (Italics
added.) This comment appears to be
Solorza's rash reaction, borne out of frustration because minutes earlier the
court had rejected his Marsden
motion. In any event, Solorza accepted
the trial court's decision to
appoint a psychologist to evaluate Solorza before ruling on any
defense counsel, on Solorza's behalf, articulated an unequivocal
discuss below. Therefore, we need not
address the trial court's comments regarding Solorza's inadequate education. "Even though the trial court denied the
request for an improper reason, if the record as a whole establishes
defendant's request was nonetheless properly denied on other grounds, we would
uphold the trial court's ruling." (
v. Dent (2003) 30
Cal.4th 213, 218.)
As noted,
Solorza's first unequivocal Faretta
motion was made on February 11, 2010, less than two weeks before the start of
jury selection. By this time, the
psychologist had evaluated Solorza. The
trial court addressed the merits of the Faretta
motion and denied it. Judge Leonard
stated that she could have denied the motion on the ground it was untimely, but
she declined to do so because she had wanted to hear Solorza's point of
view.
Solorza
said he needed a continuance at the January 19, 2010 hearing. He sought another continuance as late as
February 22, 2010, saying he still was not ready for trial, despite his
attorney being ready. He claimed he
wanted to delay the trial partly to improve his knowledge of the law. But although the court did not inquire
regarding the anticipated length of the continuance he sought, we can infer he
would have needed a lengthy time because he showed he did not understand a
simple matter like the court's ability to schedule pretrial motions. Case law makes clear the request for a continuance
that accompanies a Faretta motion is
strong evidence that the defendant has a purpose to delay the trial. (Burton,
Other
factors weighing against granting Solorza's Faretta
motion include that when he made the motion, over three years had passed
since the crime was committed. Despite
having previous opportunities to raise the motion, including at the preliminary
hearing in April 2008 and his previous Marsden
motions, Solorza had not previously sought to represent himself. In these circumstances, we conclude a trial
delay would have been disruptive to the witnesses and others, and was not
reasonably justified.
Further,
the court noted Solorza's appointed counsel was doing an excellent job. This case involved complex issues, including
the possibility of conflicts of interest among the three defendants, one of
whom pleaded guilty in exchange for his testimony against the other two. Two juries were chosen, one each for Solorza
and Aldana. The charges involved murder with
a special circumstance allegation regarding torture, and a separate charge of
arson. Solorza's defense was that he was
placed under duress from codefendant Aldana's conduct. Experts at trial included the coroner who had
performed the autopsy. Finally, we note
that Solorza was 18 years old at the time of trial, and had been incarcerated
since he was 15 years old. He did not
show he was minimally capable of handling his own defense in this complex
trial. In light of the above
complicating factors, we conclude that the trial court did not abuse its
discretion in denying the Faretta
motion as untimely.
"It is
candidly recognized that a defendant who represents himself virtually never
improves his situation or achieves a better result than would trained
counsel." (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051-1052.) Here, the evidence against Solorza was
overwhelming. He confessed to
participating in the murder and arson, and detailed his actions, which he
admitted involved torture. Solorza urinated
on Wood, knowing she would soon be killed.
He slit her throat. He and Aldana
stabbed her, inserted a bottle in her vagina and anus, and set her on fire. Solorza ignored her plea of, "Why are
you doing this to me?" When she
tried to escape into a closet, he and Aldana found her and returned her to the
tub. Solorza hit her when she tried to
defend herself. In his police interview,
he also accepted responsibility for his role in the crimes. He undermined the duress defense by saying he
could have run out and not participated in the crimes. Solorza also testified in accord with his
confession.
Bobadilla's
testimony showed Solorza was aware of what he was doing and was deliberate
about his actions. Solorza woke up
Bobadilla for him to witness his act of murder.
Bobadilla said of Solorza's and Aldana's actions, " '[I]t was like
they were inflicting torture.' "
During the incident, Solorza held a blade to Aldana's throat, thus
further undermining Solorza's claim of duress.
At the end of the incident, Solorza decided to stay behind and
"finish the job" by burning Wood's face and drowning her. A detective testified Solorza specifically
asked what his crime was, and when he was told the specific statute he had
violated, he replied, " 'That's cool.' " Therefore, we conclude that any error in
denying Solorza's motion for a continuance for him to prepare to represent
himself at trial was harmless beyond a reasonable doubt under the more
stringent standard set forth in Chapman
v. California (1967) 386 U.S. 18.
II.
Solorza
contends the court committed reversible error by declining to instruct the jury
with his pinpoint instruction regarding duress, thus violating his federal due
process rights.
The court
instructed the jury with a modified version of CALCRIM No. 3402 regarding
duress: "The defendant is not
guilty of Arson as alleged in Count 2 if he acted under duress. The defendant acted under duress if, because
of threat or menace, he believed that his or someone else's life would be in
immediate danger if he refused a demand or request to commit the crime. The demand or request may have been express
or implied. [¶] The defendant's belief that his or someone
else's life was in immediate danger must have been reasonable. When deciding whether the defendant's belief
was reasonable, consider all the circumstances as they were known to and
appeared to the defendant and consider what a reasonable person in the same
position as the defendant would have believed.
[¶] A threat of future harm is
not sufficient; the danger to life must have been immediate. [¶]
The People must prove beyond a reasonable doubt that the defendant did
not act under duress. If the People have
not met this burden, you must find the defendant not guilty of Arson. This instruction does not apply to the crime
of murder as alleged in Count 1."
Solorza's
proposed pinpoint instruction would have eliminated the last sentence in the
above instruction, replacing it with this sentence: "However, evidence of duress may be
relevant to determining whether the defendant acted with the required mental
state for murder." The court denied
Solorza's proposed pinpoint instruction, but it permitted defense counsel to
argue to the jury that duress may be relevant to a determination of mental intent
necessary for murder, ruling: "[I]t
is not appropriate to give [CALCRIM No. 3402] regarding the mental state
necessary to form the intent as to the special circumstance—because the special
circumstance is really tied to the murder.
[¶] . . . it is the special
circumstance itself which makes the murder a capital offense, not a crime of
torture. And so I think I've made my
ruling on that. Although I do agree that
you can certainly argue that point to the jury.
And we'll probably get a [jury] question."
But
following a break in the proceedings, defense counsel explained he had been
mistaken regarding his proposed modification of CALCRIM No. 3402:
"[Defense
counsel:] Actually, Your Honor, I don't
know what I was thinking. Let me see if
I can make this easy on us all. We
agreed duress is a defense to arson. And
I did a modification and I gave that to your clerk. She made the changes, and it was
correct. Then I started talking to the
Court about allowing me to argue great bodily harm, and I was not asking the court to modify any of the instructions, and
somehow—I must be tired. It's Friday or
something—I modified the arson
instruction which should not have been modified.
"[Prosecutor:] The duress instruction?
"[Clerk:] The duress instruction.
"[Defense
counsel:] The duress instruction for
arson. So I'm not asking the Court to
insert any language about great bodily harm in any instruction. I'm just letting everybody know that it's my
intent to argue that." (Italics
added.)
Preliminarily,
we may treat this contention as forfeited, because Solorza withdrew his
proposed pinpoint instruction. At any
rate, his claim also fails on the merits.
In People v. Anderson (2002)
28 Cal.4th 767, the California Supreme Court interpreted section 26 and held
that "duress is not a defense to any form of murder." (Anderson,
jury with CALCRIM No. 3402 that although duress was applicable to the charge of
arson, it was not a defense to the murder charge. Solorza's proposed pinpoint instruction
contradicted the law by stating "duress may be relevant to determining
whether the defendant acted with the required mental state for murder."
We conclude
that even if the court had committed instructional error, there was no
prejudice to Solorza. To the contrary,
he arguably benefitted from being able to argue to the jury regarding duress,
despite the clear law that duress is not a defense to murder. In any event, the jury convicted him of
arson, notwithstanding the availability of
the defense of duress for that charge.
Therefore, it is unlikely he would have received a more favorable result
on the murder charge if the court had instructed with his proposed pinpoint
instruction. (Accord,
99 and fn. 31.) Further, as noted, the
evidence against Solorza was overwhelming, and any error would have been
harmless beyond a reasonable doubt.
III.
Solorza
contends the prosecutor committed misconduct during his closing argument by
refuting defense counsel's closing argument to the jury about the law regarding
duress.
During
defense counsel's closing argument, he
had argued that Solorza and Bobadilla were afraid of Aldana: "[Solorza] said [Aldana] kept getting
mad at him because he wasn't doing it right.
[Solorza] would do it a little bit.
He'd do it on—cut [Wood] on her leg, and [Aldana] would get mad. [Solorza] said they would argue the whole
time. . . . [Bobadilla] said that too. . . .
[¶] Throughout [Solorza's]
interview he kept telling the officers, 'I just wanted to leave. I just wanted to get out of there.' That's what [Bobadilla] was saying. [']I just wanted to leave.['] But they were so afraid, these 15-year-old
boys, of this 19-year old man [Aldana], that they wouldn't leave. And they didn't leave. They even went so far as to throw a toaster
and hurt [Wood]. [¶] They acted under fear. Fear is a powerful motivator. Okay?
That's what's happening here. [Aldana] is using fear to get these two boys
to do what he wants them to do. And
[Solorza] says, you know, [Aldana] was doing a lot of it too. He's cutting, throwing the bottle at [Wood],
he's stabbing her."
The
prosecutor refuted that claim in his closing argument: "[Defense counsel] spent a lot of time
up here telling you that you should consider duress in deciding . . . whether
the defendant is guilty of murder. But [CALCRIM
No. 3402 states:] 'The defendant is not guilty of arson as alleged in Count 2
if he acted under duress.' 'Arson.' You notice what's not in there? Murder, the special circumstance of torture. [¶]
And then it goes a step further because at the end of that instruction
it says, 'this instruction does not apply to the crime of murder as alleged in
Count 1.' So even if that story that the
defendant took that witness stand and told you were true, even if you threw out
everything that he said to the police ahead [sic] or in September of 2006, everything his cousin testified to,
everything that his cousin told the police, and took his testimony, duress
would not apply to murder."
Defense
counsel objected to the prosecutor's argument on the ground it misstated the
law, but the trial court overruled the objection. The court asked defense counsel what relief
he sought, and he replied, "I would have loved it if the Court would have
instructed initially. . . . If the Court does instruct the jurors they can
use circumstantial evidence of duress as it applies to somebody's intent, I
think that's the law. And, I mean,
obviously you allowed me to argue it so it has to be correct. It does run a risk of highlighting an area of
my argument, but that was pretty much my entire argument."
The trial
court again declined to instruct the jury regarding duress as defense counsel
sought, telling him, "You explained how [the jurors] can use the duress in
their deliberations. And, obviously,
[the prosecutor] disagrees, and he made his argument, and now [the jurors are]
gonna have to decide what they're gonna do."
Solorza
unsuccessfully moved for a mistrial on the same grounds: that the prosecutor in closing argument had
misrepresented defense counsel's argument regarding duress. Outside the presence of the jury, the
prosecutor contended he had not committed misconduct. Defense counsel agreed and disavowed any
claim of prosecutorial misconduct, telling the court, "[The prosecutor]
did nothing wrong. There's no prosecutorial
misconduct. [The prosecutor] argued to
the jury based on the jury instructions that the Court ruled it was gonna
give. [The prosecutor] did nothing
wrong. My issue is the way the Court
ruled on how it was gonna instruct on duress as it relates to murder and
whether it's a defense—that, in fact, is not a defense to murder, but it's
something the Court would allow me to argue to the jury. I feel like I've had my legs cut out from
underneath because so much of what I do with the argument during closing
argument is they have to believe me."
"Prosecutorial
misconduct implies the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.
[Citation.] To establish
prosecutorial misconduct, it is not necessary to show the prosecutor acted in
bad faith, but it is necessary to show the right to a fair trial was
prejudiced. [Citation.] If the defendant fails to object to the
asserted misconduct and does not
request an instruction or admonition to lessen any possible prejudice, then the
asserted objection is thereby waived."
(People v. Nguyen (1995) 40
Cal.App.4th 28, 35-36.)
Solorza did
not object on the specific ground of prosecutorial misconduct, and in fact
disavowed any such claim. Thus, the
contention is arguably forfeited.
Further, the relief he sought was instruction of the jury with the same
erroneous and confusing instruction regarding duress, which we concluded the
court properly declined to give. Like
defense counsel did at trial, we conclude the prosecutor did not commit
misconduct by correctly pointing out that duress is not a defense to murder
under California law.
IV.
Solorza
contends he is entitled to six additional days of custody credits because the
start date for calculating his custody credits was his September 14, 2006
arrest date. By contrast, the court had
adopted a later date based on the probation office's view that when Solorza was
arrested, he had been "subject to arrest" on a bench warrant for an
unrelated matter, which was not dismissed until September 20, 2006. Relying on In re Marquez (2003) 30 Cal.4th 14, 20, the People concede the
point, and we agree that the operative date for calculating Solorza's custody
credits was his arrest date. Further,
because the charges against Solorza in the unrelated matter were dismissed,
there was no possibility of him getting a windfall in the form of duplicate
credit. (Id. at p. 23.)
DISPOSITION
The matter
is remanded and the superior court is directed to amend the abstract of
judgment to grant Solorza six additional days of custody credits and forward a
certified copy of the amended abstract to the
O'ROURKE, J.
WE CONCUR:
McCONNELL,
P. J.
BENKE,
J.
name="_ftn1" title="">[1] Statutory references are to the Penal
Code unless otherwise stated.
