P. v. Goodwin
















Filed 3/9/17 P. v. Goodwin CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICK GLENN GOODWIN,

Defendant and Appellant.


F073204

(Super. Ct. No. 15CMS7387)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brook A. Bennigson and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Patrick Glenn Goodwin, a prisoner at California State Prison, Corcoran, of battery on a person who was not an inmate. The conviction resulted from a struggle between Goodwin and correctional officers as Goodwin was being escorted to his cell. Goodwin argues the trial court erred by refusing to permit him to testify in his defenseand by refusing to appoint counsel to represent him at the sentencing hearing. We conclude neither argument has merit and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Goodwin with one count of committing a battery on a nonconfined person in violation of Penal Code section 4501.5.[1] In addition, the information alleged Goodwin had two prior convictions constituting strikes within the meaning of section 667, subdivisions (b)-(i).
Prior to the commencement of trial, Goodwin made a motion for substitution of new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The trial court denied the motion.Thereafter, Goodwin made a motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, which the trial court granted.
Correctional officer Richard L. Billings was employed at California State Prison, Corcoran, California. He and another correctional officer were escorting Goodwin from the correctional treatment center to a housing unit on the day in question. As the group approached the housing unit, Goodwin began to resist further movement. A struggle ensued. During the struggle, Goodwin used his shoulder to hit Billings in the left biceps, knocking Billings off balance. Billings and the other officer were eventually able to gain control of Goodwin. Billings suffered minor pain in his left biceps, which did not require medical treatment.
Billings further testified that prior to beginning the transport, Goodwin commented he would “‘see [me] in Ad. Seg. real soon.’”After the struggle, Billings concluded Goodwin may have instigated the confrontation so he would be put in administrative segregation.
Correctional officer Vang Yang was assisting Billings in moving Goodwin from the correctional treatment center to a housing unit.Initially, Yang was walking slightly behind and to the left of Goodwin.When Goodwin started resisting, Yang ordered him to stop.Goodwin then made contact with Billings, causing Billings to stumble.Yang forced Goodwin to the ground.Goodwin continued to resist while on the ground for a short whileand then calmed down.
To prove the two prior conviction allegations, the prosecutor moved into evidence Goodwin’s prison package created pursuant to section 969b.
Goodwin did not call any witnesses in his defense. The jury found Goodwin guilty as chargedand found true the prior conviction allegations.The trial court sentenced Goodwin to a total term of four years, consisting of the mitigated term of two years doubled because of the strike prior.
DISCUSSION
Goodwin makes two arguments in this appeal. First, he argues the trial court erred when it refused his request to testify in his defense. Second, he asserts the trial court denied him counsel at the sentencing hearing.
1. Right to Testify
The prosecution concluded its case when it introduced the prison packet prepared pursuant to section 969b. The trial court then asked Goodwin if he had any witnesses he would like to present. Goodwin responded he did not. The trial court immediately inquired again if Goodwin had any witnesses. Goodwin again confirmed that he did not.[2]The trial court informed the jury it had heard all the evidence in the caseand took a break to finalize jury instructions.
When reviewing the proposed jury instruction with the parties, the trial court asked Goodwin if he wanted the jury instructed with CALCRIM No. 355 since he did not testify in his defense. Goodwin responded, “Your Honor, I’m willing to testify.”The trial court stated the case was over, and returned to the jury instructions.
At the sentencing hearing, Goodwin reiterated he wanted to testify in his defense. In response to the trial court’s reference to the fact Goodwin stated he did not have any witnesses to call, Goodwin explained he did not know he was a witness.
The United States Constitution provides a defendant in a criminal case with the right to testify in his defense. (People v. Robles (1970) 2 Cal.3d 205, 214-215.) The right to testify is not without limitation. The defendant must unequivocally request to testify, and he or she must do so in a timely manner. (People v. Alcala (1992) 4 Cal.4th 742, 805-806; People v. Hayes (1991) 229 Cal.App.3d 1226, 1231.) The failure to inform the trial court unequivocally of the desire to testify results in a waiver of the right. (Ibid.)
Another principle is implicated when the defendant fails to make a timely request. A request to testify after completion of the presentation of evidence will result in a disruption in the order of the proceedings set forth in section 1093. The trial court has discretion to permit a departure from the order of proceedings, but only if good reason to do so exists. (§ 1094.)[3] We review the trial court’s ruling on a motion to reopen evidence for an abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 836.) A trial court abuses its discretion when it acts in an arbitrary, capricious, or patently absurd manner that results in a miscarriage of justice. (People v. Peoples (2016) 62 Cal.4th 718, 745.)
The parties agree on the applicable law, but disagree on its application. The Attorney General contends Goodwin waived his right to testify by stating he had no witnesses to present in his defense, and the trial court did not abuse its discretion when it refused to reopen the evidence to permit Goodwin to testify.
Goodwin, on the other hand, argues he clearly and unequivocally asserted his right to testify. The record, cited above, belies this argument. Goodwin was asked twice if he had any witnesses to present. Both times Goodwin stated he did not. Clearly, the trial court provided Goodwin with the opportunity to testify, and Goodwin refused.
Goodwin focuses on the colloquy that occurred during the jury instruction conference. Relying on his purported ignorance that he was considered a witness, Goodwin argues that when he stated he was willing to testify at the jury instruction conference, he unequivocally asserted his right to testify.
We disagree with Goodwin’s analysis. Goodwin demonstrated his willingness to inform the trial court of his desires or to ask questions throughout the trial. When the trial court inquired, Goodwin twice stated he had no witnesses to testify in his defense. He also failed to object or bring the matter to the attention of the trial court when it informed the jury it had heard all of the evidence in the case. If Goodwin did not understand he would be a witness if he testified, one would expect an immediate objection or comment to the trial court when it informed the jury that the presentation of evidence was complete. Instead, Goodwin did not make any comment about testifying until the jury instruction conference. These facts suggest Goodwin had decided he was not going to testify, but changed his mind during the instruction conference.
In any event, Goodwin’s request to testify was untimely, and the issue is whether the trial court abused its discretion when it refused to reopen evidence. Goodwin argues, in essence, that since his request was made shortly after the close of evidence, and before the jury was instructed, the trial court abused its discretion when it refused his request. We conclude the trial court did not abuse its discretion.
First, we observe Goodwin failed to present any argument to justify his tardy request at the jury instruction conference. Section 1094 permits a departure from the order of proceedings only for good cause. Since Goodwin failed to establish good cause during the jury instruction conference, he failed to comply with the statutory requirements.
Second, Goodwin conceded during trial the confrontation with the correctional officers occurred. It appears the defense he was attempting to convey to the jury was that the correctional officers were taking him to the wrong housing unit, which would place his life in danger. The strength of this argument is diminished by two factors. First, Goodwin’s comment before he was being transported (“‘I’ll see you in Ad. Seg. real soon’”) suggested Goodwin planned on committing an act resulting in his being placed in administrative segregation. It is logical to infer that when Goodwin struggled with the correctional officers, his intent was to end up in administrative segregation. Therefore, his purported justification was inconsistent with his prior statement.
In addition, the fact Goodwin may have felt he was being placed in a dangerous situation did not justify his acts of resistance. His testimony would not have provided a defense to the battery he committed. (People v. Mayes (1968) 262 Cal.App.2d 195, 197-198 [only legal justification for battery is self-defense].) Instead, it would have resulted in consumption of court resources over an issue with little relevance since it is likely Goodwin’s testimony would have required the prosecution to call rebuttal witnesses.
For these reasons, it is clear the trial court did not abuse its discretion when it denied Goodwin’s suggestion that he would testify in his defense after the close of the evidence. Since no error occurred, we reject Goodwin’s arguments that he suffered prejudice as a result of his inability to testify. We note, however, the many cases cited by Goodwin generally involved a situation where a defendant was not permitted to testify. We repeat, here Goodwin waived his right to testify, and then attempted to reopen evidence to present additional evidence.
2. Counsel at the Sentencing Hearing
Goodwin next argues he was deprived of counsel at the sentencing hearing. Goodwin argues the trial court should have asked him at the sentencing hearing if he wished to continue to represent himself. Goodwin fails to identify any evidence in the record supporting the claim that he asked for representation at the sentencing hearing. Instead, he asserts the trial court’s comments discouraged him from asking for an attorney.
After reviewing the entire record, we find no merit to this argument. Goodwin did not ask for counsel to be appointed, nor did he indicate he might want counsel to be appointed to represent him at the hearing. The portion of the transcript cited by Goodwin referred to the trial. Not once during this discussion did Goodwin give any indication he wanted counsel to represent him. Nor did the trial court refuse to appoint counsel for Goodwin at any time during these proceedings. Instead, Goodwin complained about events at the trial that were largely the result of his decision to represent himself.
We reject Goodwin’s argument because he did not request an attorney be appointed to represent him at the sentencing hearing. Consequently, the trial court did not consider the issue.
DISPOSITION
The judgment is affirmed.




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*Before Gomes, Acting P.J., Poochigian, J. and Peña, J.

[1]All statutory references are to the Penal Code unless otherwise stated.

[2]“[THE COURT:]Do you have witnesses that you’d like to present …?

“[GOODWIN]: No, your Honor.

“THE COURT: You have no witnesses to present?

“[GOODWIN]: No, your Honor.”

[3]Section 1094 states in full: “When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in Section 1093 may be departed from.”