P.v . Jackson

Filed 1/21/10 P.v . Jackson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments of the Superior Court of Los Angeles County, John V. Meigs and Lauren Weis Birnstein, Judges. Affirmed.

Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant Quincy Jackson.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Amatari Hobobo.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendants and appellants, Quincy Jackson and Amatari Hobobo, appeal the judgments entered following their convictions, by jury trial, for robbery, assault with a firearm, making criminal threats, and possession of a firearm by a felon, with arming, firearm use, prior prison term (Jackson only) and prior serious felony conviction enhancements (Pen. Code,  211, 245, subd. (a)(2), 422, 12021, 12022, 12022.5, 12022.53, 667.5, 667, subd. (a) (i)).[1] Sentenced to state prison for terms of 30 years (Jackson) and 38 years (Hobobo), defendants appeal.

The judgments are affirmed.

BACKGROUND

1. Prosecution evidence.

On November 14, 2005, Chevelle and Chanel Morrison were living in Inglewood. Early that morning, Chanel returned home after taking the children to school. She parked in front of the house and walked up the driveway. As she entered the garage, defendants Jackson and Hobobo jumped out from beneath Chevelles car. Hobobo was holding a gun. He ordered Chanel to open the door to the house, but she said she didnt have the key and would have to knock. Hobobo handed the gun to Jackson and left the garage to make a phone call. He returned and told Chanel to open the door. She again said she didnt have the key.

Hobobo banged on the door. He put Chanel against the wall, choked her, and said, Open this door or we gonna kill yo bitch. Chevelle opened the door. Hobobo hit Chanel on the top of her head with the gun, saying, Thats for bullshitin. Blood ran down Chanels hair and face. Jackson then hit Chevelle in the face with the gun.[2] Jackson asked Chevelle where the safe and the money were. Chevelle said he didnt have a safe. Hobobo pointed the gun at Chanel and said if Chevelle didnt give them the money, he was going to kill her. Chevelle began struggling with Hobobo for the gun, but Jackson hit Chevelle on the back of the head and Hobobo regained possession of the gun. Chevelle said there was some cash in the house. The defendants took rings and necklaces Chanel was wearing.

Chevelle took the defendants upstairs to a bedroom. There was a revolver on the headboard and a shotgun leaning against the wall. Hobobo took the revolver and Jackson took the shotgun. Jackson put the shotgun to the back of Chevelles head and threatened to kill him if he didnt hand over the money. He also hit Chevelle in the head with the shotgun. Chevelle gave Jackson about $2,000. This was money Chanel had obtained from the bank to pay for remodeling the house. Hobobo took some marijuana he found in a closet.[3] Jackson told the Morrisons to lie down on the floor and the defendants left.

Chanel locked the house and called 911. Chanel told the 911 operator she had just been the victim of a home invasion robbery. As the operator was trying to get her cell phone number, Chanel said, Theyre coming back. Hey, theyre coming back, and Oh, God. Please hurry, police.

Chanel testified she had been looking out the window for the police to arrive when she saw the defendants return in a blue car. Hobobo started running around the house and yelling something she could not hear. Then Chanel heard sirens and she saw the defendants drive away. Chanel was treated at the hospital for a head injury; eight staples were put into the top of her scalp. Chevelle had a protruding black eye, knots on the back of his head and an injury to the bridge of his nose.

Police Officer Luis Rodriguez responded to the 911 call. On the way to the Morrison house, he saw a speeding blue car and followed it. He lost sight of the car after it made several turns. While he was cruising the area trying to locate it, someone called police to report that two men in a blue car had pulled into a driveway on West 82nd Place and exited the car with guns. Rodriguez responded to the location and saw the blue car parked in the driveway. The doors were open and nobody was inside. He found a loaded 12-gauge shotgun behind the drivers seat. He also found a loaded .40-caliber handgun on the other side of a brick wall that separated the neighboring property.

Police Officer Joel Marquez, responding to the same location, saw Hobobo jumping over a wall on 83rd Place. Marquez pursued and apprehended him. A few hours later, Jackson was discovered in the back of a dump truck on West 83rd Street. A police dog was used to apprehend him. Marquez searched Jackson and found $2,378 in the pockets of his jeans

Marquez searched the blue car and found a leather jacket containing a bag of marijuana which Chevelle later identified as hers. Marquez went to the Morrison house to take statements from the victims. Chanel had a large laceration on her head and was bleeding profusely. Chevelle had a swollen face and was bleeding.

At trial, Chanel identified two rings subsequently found in Jacksons jeans as the ones he took from her fingers the day of the robbery. One was her wedding ring and the other her engagement ring. Chanel also identified some other rings, necklaces and a key that had been found in Hobobos pants pocket. She identified the shotgun found in the blue car as the one Jackson had taken from her bedroom.

Chanel testified she tried to avoid testifying because she had received death threats. She had been warned by at least two different people not to testify, and at one point she had been arrested for failing to obey a subpoena to appear in the case.

Chevelle did not testify. He was afraid to come to court because, shortly before the preliminary hearing, he had been shot in the leg. He refused to testify at the preliminary hearing and then he disappeared. Chanel did not know his whereabouts at the time of trial. According to a detective, Chevelle had admitted selling drugs out of his house.

The prosecution did not contend the defendants were responsible for either the death threats or Chevelles shooting.

2. Defense evidence.

Wesley Jones, a friend of Hobobo, testified he had been to the Morrison house with Hobobo. He saw Hobobo and Chevelle exchange money and drugs. Hobobo testified he had known Chevelle for several years. Hobobo was a drug dealer and he provided Chevelle with drugs to sell. Hobobo and Chevelle would split the proceeds. On the day of the incident, Hobobo and Jackson drove to the Morrison house at the same time as Chanel. Hobobo asked if Chevelle were home. Chanel said she didnt know and told Hobobo to call him. Hobobo phoned Chevelle, who told him to come in. Chevelle opened the door for them. They sat in the living room and Chevelle said, Let me go get that for you. Chevelle left the room and when he returned, he said he wanted to talk with Hobobo in the kitchen.

In the kitchen, Chevelle handed Hobobo $2,000 and said hed have to give him the other $2,000 at a later time. Hobobo said, No, I need my money. Wheres the money? An argument ensued. Chevelle pulled out a gun and they struggled for it. Jackson and Chanel ran into the kitchen and also struggled over the gun. Everyone fell down including Chanel, who hit her head on something. Hobobo gained control of the gun and again demanded his money. Chevelle left the room and returned with some jewelry and a shotgun. He asked Hobobo to hold onto this stuff until he could get the rest of the cash. Hobobo agreed and left.

But after driving halfway down the street, Hobobo called Chevelle and said he wanted his money and was going to return the stuff. Hobobo drove back to the house and started yelling for Chevelle, who answered but would not come out of the house. Upon hearing the police sirens, Hobobo drove away.

Hobobo had prior convictions for grand theft and armed bank robbery.

CONTENTIONS

1. Defendants waivers of their right to counsel, under Faretta, were defective.

2. The trial court erred when it refused to let the defendants revoke their Faretta waivers and have counsel reappointed.

3. The trial court erred when it failed to advise defendants of their right to counsel when they were rearraigned.

4. The trial court erred by admitting into evidence two of Chanels rings.

5. The trial court erred by admitting evidence of Hobobos prior convictions for impeachment purposes.

6. There was insufficient evidence Hobobos federal bank robbery conviction qualified as a prior serious felony conviction under California law.

DISCUSSION

1. Defendants Faretta waivers were not defective.

Defendants contend their convictions must be reversed because their purported waivers, under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525], of the right to counsel were defective. This claim is meritless.

The original information was filed on January 11, 2006,[4] at which time the defendants, represented by appointed counsel, were arraigned. On February 8, the defendants told the trial court (John Vernon Meigs, J.) they wanted to waive counsel and represent themselves at trial. The trial court explained the disadvantages of self-representation, both defendants signed written Faretta waiver forms, and the court granted their requests.

a. Legal principles.

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. [Citation.] [] . . . [] . . . [U]nlike the right to be represented by counsel, the right of self-representation is not self-executing. In Faretta, . . . the court held that a knowing, voluntary, and unequivocal assertion of the right of self-representation, made weeks before trial by a competent, literate defendant, should have been recognized [citation]; subsequent decisions of lower courts have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation. [Citations.] (People v. Marshall (1997) 15 Cal.4th 1, 20-21.)

A defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.  (Faretta v. California, supra, 422 U.S. at p. 835.) [A] knowing and intelligent waiver of the right to counsel is required before the criminal defendant is permitted to represent himself or herself. [Citations.] (Peoplev.Hall (1990) 218 Cal.App.3d 1102, 1105.)

A defendant may challenge the grant of a motion for self-representation on the basis that the record fails to show that the defendant was made aware of the risks of self-representation. (Peoplev.Bloom (1989) 48 Cal.3d 1194, 1224.) However, [t]he test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. (Id. at p. 1125.) California courts review the entire record including proceedings after the purported invocation of the right of self-representation and determine de novo whether the defendants invocation was knowing and voluntary. (People v.Marshall, supra, 15 Cal.4th at p. 24.)

b. Trial court did not err by failing to treat defendants Faretta requests as Marsden motions.

Defendants contend their Faretta waivers were defective because the trial court should have treated their requests for self-representation as motions for substitution of appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. We disagree.

Marsden motions are subject to the following well-established rules.   When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]. [Citations.]   (People v. Barnett (1998) 17 Cal.4th 1044, 1085, italics added.)

But it is not the rule that whenever a defendant makes a motion to represent himself on the basis of dissatisfaction with counsel, the court automatically should inquire whether he would like to make a motion for substitution of counsel. [Citations.] . . . [T]he two motions are fundamentally different, one raising the question of defendants competency to waive his right to counsel, and the other raising the question of existing counsels competency. (People v. Burton (1989) 48 Cal.3d 843, 855.) Although a formal motion is not required, the trial courts duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides  at least some clear indication  that the defendant wishes to substitute counsel. [Citations.] (People v. Martinez (2009) 47 Cal.4th 399, 418.)

When Hobobo announced he wanted to exercise his Faretta right to self-representation, he told the trial court: My attorney is not fully capable of defending me the way I need to be defended. He now argues the trial court should have responded to this statement by conducting a Marsden inquiry. We disagree, however, because Hobobos statement did not provide a clear indication he wanted substitute counsel. (See People v. Burton, supra, 48 Cal.3d at p. 855 [although defendant expressed dissatisfaction with his attorney, Marsden inquiry was not required because he never suggested he would like a different attorney].)

Hobobo argues his intention to seek substitute counsel was manifest because he expressed doubt in [counsels] ability to defend him . . . . But Hobobo did not make any specific assertion that counsels representation had been inadequate; he did not complain about any particular thing counsel had done or failed to do. As a result, Hobobos statement, My attorney is not fully capable of defending me the way I need to be defended, amounted to no more than the sentiment often expressed by defendants that they would be better off representing themselves because, as the person with the most at stake, they are likely to be more effective and persuasive than any attorney.

The Attorney General properly points out Hobobos reliance on several cases for a contrary result is misplaced. In People v. Cruz (1978) 83 Cal.App.3d 308, 317, the defendant did not merely complain about counsels performance; he asserted he had a conflict of interest with the entire public defenders office. In People v. Hill (1983) 148 Cal.App.3d 744, 750-751, 755, the defendant said he was only waiving counsel because the trial court had refused to appoint substitute counsel. Hobobo neither asked for substitute counsel nor asserted he had a conflict of interest with current counsel.

Jackson points to a declaration he filed stating he only waived counsel because, although he was completely dissatisfied with his attorneys performance, he did not know he could request substitute counsel. [5] But this declaration was part of a post-conviction new trial motion Jackson filed in October 2007, 20 months after he told Judge Meigs he wanted to represent himself at trial.

Moreover, this declaration is contradicted by what Jackson told the trial judge (Lauren Weis Birnstein, J.) when, on the eve of trial, she asked about his Faretta waiver: The Court: [M]y understanding is that you never brought a Marsden motion to relieve your counsel because you had no conflict with your alternate public defender. There was never any closed hearing held between just you and the judge to relieve your counsel; is that right? [] Mr. Jackson: Right. [] The Court: Okay. So you just decided you wanted to represent yourself at that point in time? [] Mr. Jackson: Yes. Judge Birnstein later summed up her impression of this colloquy by saying, Ive now heard that there was no Marsden motion, that you just decided that you wanted to represent yourself, not based on anything Mr. Powell did or any representation problems . . . . Jackson did not contradict the judge. Hence, the record indicates Jacksons decision to represent himself was not motivated by any dissatisfaction with counsels performance.

We conclude Judge Meigs did not err by failing to treat defendants requests for self-representation as Marsden motions for substitution of appointed counsel.

c. DefendantsFaretta waviers were knowing and voluntary.

Defendants contend their Faretta waivers were not knowing and voluntary because the trial court misled them to believe they could revoke their Faretta waivers at any time, and the court did not explicitly correct this false impression. This claim fails because the record is clear defendants could not have reasonably believed the court was saying they could have counsel reappointed whenever they wanted.

The basis for defendants claim is an exchange between Judge Meigs and their attorneys on February 8, the day defendants requested self-representation. The parties were in court that morning for pretrial matters and both defendants asked to represent themselves at trial. After confirming that defendants had read the courts pro per policy memorandum, Judge Meigs gave the standard Faretta advisements about the dangers of self-representation. The following colloquy then occurred:

The Court: Okay, Im going to have you fill out the [Faretta] waiver forms. Once those have been completed well recall the case and if at that point you still wish to proceed pro per we will grant your motions. So the bailiff will provide you with those forms, you can again review them and return them to the bailiff. Well recall the case. . . .

Mr. Garber [Hobobos attorney]: As long as we can do it before noon, that would be fine, Your Honor. I have to be someplace else at 1:30 this afternoon.

The Court: Okay, so well see you back here at about five to 12:00.

Mr. Garber: Thats fine, Your Honor.

The Court: Both of you should maintain your files because if they should change their minds youre probably going to have to proceed with the case. (Italics added.)

The claim is that, because Judge Meigss comment about defense counsel hanging onto their files was made in front of the defendants, and because there was no advisement to the contrary, they were led to believe they had the right to revoke their Faretta waivers if they later changed their minds about representing themselves.

Defendants claim is meritless. This interpretation of Judge Meigss remark completely ignores its context. When the judges comment was made, the defendants had not yet been granted self-representation. Rather, they had been given Faretta waiver forms to fill out and time to reconsider before making a final decision. This is clear from Judge Meigss statement, Once those [forms] have been completed well recall the case and if at that point you still wish to proceed pro per we will grant your motions. (Italics added.) This was the context in which Judge Meigs advised defense counsel to maintain your files because if they should change their minds youre probably going to have to proceed with the case. It is quite apparent the judges intent was to alert defense counsel to the possibility the defendants might change their minds before proceedings resumed. To read this remark as referring to the entire period between the grant of self-representation and the completion of trial is unwarranted.

Moreover, to read this remark as implying that, after self-representation was granted, the defendants had a right to reappointed counsel any time they wanted, is completely unwarranted. Saying if they should change their minds youre probably going to have to proceed with the case (italics added) implied no more than that reappointment was a possibility. And this, as the record clearly demonstrates, was a true statement. Two months later, on April 10, when Hobobo asked for appointment of standby counsel, Judge Meigs denied the request but also said, If you wish to represent yourself, youll represent yourself. If you dont want to represent yourself, well reappoint the attorney who represented you before, Mr. Hobobo. And, as will be discussed post., when the defendants asked for reappointment of counsel on the eve of trial, Judge Birnstein did not refuse out-of-hand, but gave extensive and thoughtful consideration to the requests before denying them.

In sum, defendants Faretta waivers were not defective, either because they should have been treated as Marsden motions or because they were not knowing and voluntary.

2. Trial court properly denied defendants requests to have counsel reappointed on the eve of trial.

Defendants contend the trial court erred when, at the commencement of trial, it denied their requests to revoke their Faretta waivers and have counsel reappointed. This claim is meritless.

a. Background.

On May 18, defendants announced they were ready for trial. However, Chanel did not appear and the People were unable to proceed. The case was dismissed and, per stipulation, it was refiled under section 1387.2 [rearraignment on original accusatory pleading]. On July 13, the parties announced they were ready for trial.

On July 17, a panel of prospective jurors was brought into the courtroom for voir dire and given questionnaires to fill out.[6] Then, outside the jurors presence, there followed a discussion about the voir dire process. Jackson interrupted this discussion to say, Your Honor, I feel this is a little bit too much for me, and I dont think I can handle it. Judge Birnstein noted Jackson had been warned about the perils of self-representation, and characterized the request as a delaying tactic because trial was about to begin. The following colloquy then occurred:

The Court: . . . I will look at the record to make sure you were advised of all of the pitfalls of self-representation. And Im sure Judge Meigs did that and Im sure you signed a Faretta waiver and it talks about that in the Faretta waiver. [] Do you remember signing it?

Mr. Jackson: Yes.

The Court: Do you remember being advised of all those things?

Mr. Jackson: Also advised if I cant handle the case, I can get a lawyer back.

The Court: Well, when were you told that?

Mr. Jackson: When I signed the Faretta waiver.

The Court: Well, I dont believe that that would be the case, but we can check on that. But no judge would do that and say you can get a lawyer back right at the last minute like this. So I dont believe that thats the case.

The following day, July 18, the trial court revisited the issue. The court noted Jackson had never made a Marsden motion, which Jackson affirmed. Jackson confirmed discovery was complete and acknowledged the only issue was that he felt incapable of acting as his own attorney. Asked what had changed since the time he waived counsel, the following colloquy occurred:

Mr. Jackson: Well, I dont really think I can pick an accurate jury or cross-examine the witness [sic].

The Court: Werent you advised that you would have to do that in the first instance?

Mr. Jackson: Yes. I never knew I had to pick my own jury.

The Court: . . . [W]ho did you think was going to pick it for you?

Mr. Jackson: I just didnt know. [] . . . [] . . . Its just the point that those people me talking to them and them knowing what I did what Im accused of.

The trial court said it was concerned because the victims were deathly afraid, afraid for their lives, that one victim was not available because of that fear, and the Peoples ability to obtain [the other victim] for trial is kind of hanging on a thread, thats No. 1. Shes definitely afraid. She doesnt want to be in the same room with the defendants. Doesnt want to be interviewed by their investigator. Didnt want to come to court.

The prosecutor had previously explained about the threats on the Morrisonss lives and that Chevelle had been shot in the leg shortly before the preliminary hearing. Because the Morrisons were reluctant to testify at the preliminary hearing, body attachments were issued and they were brought to the preliminary hearing in handcuffs. But Chevelle still refused to testify. At one point, the case had to be dismissed because the Morrisons went into hiding. Once Chanel had been found, she was taken into custody and released on the condition she have daily contact with police investigators. The prosecutor believed the defendants were aware of these witness problems.

Jacksons former attorney, Terrell Powell, was called into the court. He said he would have to examine his files, but he thought it would take him at least two weeks to be ready for trial. The trial court said, given the circumstances, it intended to start the trial as soon as possible. The court refused to continue the case for two weeks because the victims were afraid for their lives. The trial court also said Jacksons discomfort about talking to the jury because they know the seriousness of the charges, and having to cross-examine witnesses, was an insufficient reason to reappoint counsel because he had been warned he would have to perform just like any lawyer would perform . . . these things.

Still, the trial court put off making a final decision to see if Powell might be ready to try the case in a few days. In the meantime, voir dire would continue. On July 19, Powell told the court he would need more than two weeks to prepare for trial.

On July 20, while jury selection was still going on, Hobobo told the trial court he was not ready for trial: Were not ready. Im not a lawyer and were not ready. The trial court pointed out Hobobo knew he wasnt a lawyer when he waived the right to counsel. When Hobobo said he and his attorney had verbal clashes, the trial court said, Well, you never brought a Marsden motion. You never brought that to the attention of the court, not in any instance. I looked through the record. There was no complaint.[7]

When Hobobo again indicated he wanted counsel reappointed, Jackson said, Same here. The trial court responded: It just seems to me that now you see that the victim is potentially available and thats the reason. That, and these people have been threatened. Their lives have been in jeopardy for a long time. The prosecution happens to have their witness now at this time and it seems to be that you just want to delay the proceedings.

On July 24, the trial court examined Chanel under oath and in camera. Chanel explained why she was afraid: Because Ive been threatened. My home has been shot up. My husband was shot, now hes gone. I dont know where he is. Now, Im just . . . the victim and I just want it to be over. . . . [B]ut I just want to do the right thing so they stay in jail. Back in open court, the in camera transcript was read to the parties and the trial court described Chanel as very emotional and very teary eyed . . . .

At that point, the trial court announced: Both of your motions Ive done as much as I can do to make sure that I exercise my discretion properly, and I am exercising my discretion and both of your motions to have counsel appointed are denied . . . .

Following their convictions, the defendants, now being represented by counsel, filed new trial motions challenging the validity of their original Faretta waivers and the trial courts refusal to reappoint counsel. The trial court denied the motions, saying its rulings had been based on its belief the requests for reappointment were intended to delay the trial because Chanels fear had put the prosecution into a precarious situation: [T]he Peoples witness was hanging by a thread. I saw in my interview with her she was a basket case.

b. Legal principles.

A trial court has discretion to grant or deny a subsequent request to revoke a Faretta waiver and have counsel reappointed. In People v. Lawrence (2009) 46 Cal.4th 186 (Lawrence), the trial court denied a request for reappointment, but the Court of Appeal reversed. Lawrence then reversed the Court of Appeal: When a criminal defendant who has waived his right to counsel and elected to represent himself under Faretta . . . seeks, during trial, to revoke that waiver and have counsel appointed, the trial court must exercise its discretion under the totality of the circumstances, considering factors including the 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.[8] [Citation.] Here, the revocation request by defendant, who was being tried jointly with a codefendant, was not heard until after the jury had been selected and sworn and the prosecutions first witness had begun to testify. We hold that considering all the circumstances, especially defendants failure to articulate a compelling reason for revoking his Faretta waiver and the likely delay and disruption that continuing a joint trial after the jury was empanelled would cause, the trial court did not abuse its discretion in denying the revocation request. (Id. at p. 188, italics added.)

Lawrence explained its reasoning: Buyers remorse may not be an illegitimate reason for wanting to revoke a Faretta waiver, but neither is it a compelling one. (Lawrence, supra, 46 Cal.4th at p. 195.) That defendant was told of and affirmed his understanding of the risks and disadvantages of self-representation before he waived counsel reflected on his reasons for later seeking to revoke the waiver. The colloquy[[9]] tended to show not that he had suddenly learned he would be at a disadvantage in the trial, but that . . . he had simply reweighed the pros and cons of self-representation and changed his mind as to the best course. (Ibid.) As far as the record shows, defendant was not trying to manipulate the system or create an issue for appeal in making his request to revoke in propria persona status. Nevertheless, he had no compelling reason to do so, and granting his request would likely have caused serious disruption to the administration of justice, considerations strongly supporting denial. (Id. at p. 196.)

Like Lawrence, the defendants here gave no compelling reasons for wanting to revoke their Faretta waivers. They said they now felt incapable of acting as their own attorneys, but as Lawrence said, Buyers remorse may not be an illegitimate reason for wanting to revoke a Faretta waiver, but neither is it a compelling one. (Lawrence, supra, 46 Cal.4th at p. 195.)

Defendants seek to distinguish Lawrence on the basis of several California decisions that found error where trial courts denied requests for reappointment of counsel. Defendants reliance on these cases is misplaced.

In People v. Cruz, supra, 83 Cal.App.3d 308, the defendant asked to revoke his Faretta waiver on the day set for trial, saying he felt incompetent to proceed further in pro. per. (Id. at p. 320.) Although Cruz ruled the trial court abused its discretion by denying the request, Cruz also held the defendants original Faretta waiver had been defective. It was defective because the trial court failed to make a Marsden inquiry after the defendant charged the entire public defenders office with misconduct and conflict of interest.[10] This failure completely undermined the purported decision to waive counsel in the first place: [T]he record that is before us clearly indicates that defendants decision to go pro. per. was not based on trial tactics that he could better persuade the jury, but was based on a lack of viable alternatives. (Id. at p. 318.) In the case at bar, as discussed ante, there was no such problem: Jackson and Hobobo neither asked for substitute appointed counsel nor asserted they had conflicts of interest with their attorneys, and their Faretta waivers were not defective.

In People v. Elliott (1977) 70 Cal.App.3d 984, after the jury had been selected, the prosecutor indicated he wanted to introduce evidence of an uncharged offense to prove the defendants identity as the perpetrator of the charged offenses on a modus operandi theory. Faced with this new development, the defendant sought to revoke his Faretta waiver: Defendant stated to the trial judge that his reasons for desiring the deputy public defender back in the case was [sic] because of the other witnesses that the prosecutor intended calling regarding the alleged uncharged crime. Except for that, the defendant said he was prepared to proceed with the trial. (Id. at p. 995, italics added.) In this situation, the trial courts denial of reappointment was held to be error: [T]he trial court failed to consider . . . the likelihood of defendant being effective in defending against the charges in light of the new factor which the prosecutor had mentioned of offering evidence that defendant had committed an offense other than the two for which he was being tried. (Id. at p. 996.) When Jackson and Hobobo requested reappointment of counsel, they did not mention any change of circumstances as the reason.

In People v. Hill, supra, 148 Cal.App.3d 744, as in Cruz, the initial grant of self-representation was defective. Hill said he was only requesting self-representation because the trial court had refused to appointment substitute counsel. In part because of this underlying Marsden error, Hill concluded the trial court abused its discretion by refusing to reappoint counsel.

Moreover, the problem for Jackson and Hobobo is not just that buyers remorse is the most benign characterization of their motive for seeking reappointment. The real problem is that the trial court concluded they were purposely trying to delay the proceedings in hopes a crucial witness would be unavailable and the prosecution case would fall apart. On our reading of the record, we cannot say this conclusion was unreasonable.

The trial court did not abuse its discretion by denying defendants requests to revoke their Faretta waivers and have counsel reappointed. (See Lawrence, supra, 46 Cal.4th at p. 188 [trial court must consider 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].)

3. Error in failing to readvise defendants of right to counsel at rearraignment was harmless.

On February 8, the defendants waived their right to counsel and chose to represent themselves. On May 18, the People were unable to proceed with the case because they could not get Chanel to court. Upon agreement of the parties, the case was dismissed and then refiled under section 1387.2. The defendants were then rearraigned on the existing information, but they were not readvised of their right to counsel. Defendants contend this failure to readvise violated their Sixth Amendment rights and requires the reversal of their convictions. This claim is meritless.

Section 1387.2 provides, in pertinent part: Upon the express consent of both the people and the defendant, in lieu of issuing an order terminating an action the court may proceed on the existing accusatory pleading. For the purposes of Section 1387 [dismissal as bar to prosecution], the action shall be deemed as having been previously terminated. The defendant shall be rearraigned on the accusatory pleading . . . .

Section 987, subdivision (a), provides: In a noncapital case, if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ counsel the court shall assign counsel to defend him or her.

As the Attorney General concedes, under the plain language of section 987, subdivision (a), it appears that appellants should have been informed of their right to counsel when they were rearraigned, notwithstanding that appellants had previously been informed [of] their right to counsel and had waived that right. However, the Attorney General goes on to argue the error was no more than a harmless violation of a state statute.

The Attorney General relies on People v. Crayton (2002) 28 Cal.4th 346, which concluded a violation of section 987, subdivision (a), is only an error of state law reviewable under People v. Watson (1956) 46 Cal.2d 818, 836. Prior decisions of this court have held that under section 987, the superior court is required to advise a defendant of his or her right to counsel in superior court whenever the defendant appears without counsel at the arraignment, even when the defendant previously has been advised of the right to counsel and has expressed an intention to waive counsel throughout the proceedings. [Citations.] (People v. Crayton, supra, 28 Cal.4th at p. 361.) The question presented here is whether the superior courts error was prejudicial under either federal or state law. To answer this question, we employ the analytical framework relied upon by the Court of Appeal. As that court explained: Defendants enjoy two distinct rights: (1) a constitutional right to the assistance of counsel under the Sixth Amendment, which may be waived, and (2) a statutory right under section 987, subdivision (a), to be informed at arraignment in superior court of the right to counsel and to have counsel appointed. Although both provisions protect the right to counsel, they derive from different sources and are not coterminous.  (Ibid.)

In Crayton, the defendant was advised of the right to counsel at his arraignment in municipal court. Following the preliminary hearing, however, the defendant was not readvised when he was arraigned in superior court. In finding this lack of rearraignment was not a constitutional violation, Crayton reasoned: Federal authority holds that once a defendant gives a valid waiver, it continues through the duration of the proceedings unless it is withdrawn or is limited to a particular phase of the case, and [i]n federal practice, a waiver of counsel has been held to remain in effect despite various breaks in the proceedings. (People v. Crayton, supra, 28 Cal.4th at p. 362.) Hence, the failure to readvise Crayton in superior court only violated section 987 and this error could be harmless under Watson.

Hobobo argues Crayton was wrongly decided. We are, however, bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)

Alternatively, defendants contend the error was prejudicial under Watson because they would have requested reappointment at the rearraignment had they been advised of their right to counsel. Hobobo argues, The question in assessing prejudice for this type of error is not whether the defendant knew of his right to counsel but whether he would have reconsidered his previous decision and exercised his right to counsel had he been advised of it. But, as Crayton explained, both elements are important to the harmless error analysis: The complete record of the trial court proceedings often will shed light upon whether a defendant, despite the absence of an explicit readvisement by the superior court at arraignment, nonetheless was aware that he or she had the right to appointed counsel at the subsequent proceedings and whether an explicit advisement at the arraignment would have been likely to lead the defendant to reconsider the decision to represent himself or herself and request that counsel be appointed. [Citation.] (People v. Crayton, supra, 28 Cal.4th at p. 365, italics added.)

Here, the record shows defendants knew, both before and after the May 18 rearraignment, that they could request reappointment of counsel: Judge Meigs offered to reappoint counsel for Hobobo in April, and Jackson was present when that offer was made; the defendants asked Judge Birnstein to reappoint counsel in July. As for the likelihood defendants would have asked for reappointment at the rearraignment, it is significant that the May 18 rearraignment had been necessitated by Chanels refusal to testify. Delay was not in defendants interests at that point; it only became tactically advantageous when, on the eve of trial, they were faced with the prospect of Chanel taking the witness stand.[11]

Hence, we conclude the trial courts error in failing to readvise the defendants of their right to counsel at the section 1387.2 rearraignment amounted to harmless error because the record shows that despite the absence of an explicit readvisement they were aware of their rights, and that an explicit advisement at the arraignment would [not] have been likely to lead the defendant[s] to reconsider their self-representation choice. (People v. Crayton, supra, 28 Cal.4th at p. 365.)

4. Evidence of rings found in Jacksons jeans was properly admitted.

Defendants contend the trial court erred by admitting into evidence two rings, found in Jacksons jeans, which Chanel identified as having been taken from her fingers during the robbery. This claim is meritless.

a. The evidentiary hearing.

At an evidentiary hearing, Sheriffs Deputies Jose Espino and Alfonso Esqueda testified they were working in the courtroom on July 24 when they opened sealed bags of evidence to see if they contained any weapons that needed to be made inoperable. The evidence bags were sealed with red tape. At one point, Espino heard Esqueda say he found rings in a pair of pants. When Espino looked over, Esqueda was holding some clothing and a gold object.

Esqueda testified that, as he looked through an evidence bag filled with clothing, he felt some objects in a pair of jeans. He removed the objects from a pocket in the jeans. The objects turned out to be two rings. He put the rings back into the jeans pocket and told the investigating officer, Detective Thomas, what he had found. He also notified the court clerk.

Officer Marquez, who had searched Jackson on the day of the incident, identified the jeans as the ones Jackson had been wearing when he was arrested. Marquez testified he did a pat-down search of [Jacksons waistband] at the time of his arrest and found wads of cash . . . in the front right pants pocket and . . . right rear pants pocket. Marquez did not find anything else at that time. After the pat-down search, paramedics treated Jackson at the scene for injuries he had sustained while being apprehended by a police dog. When the paramedics left to take Jackson to the hospital, they left behind his torn clothing, consisting of the jeans, a long-sleeved shirt, a tank top, and a pair of sneakers. The jeans were torn and had been cut with scissors. Marquez picked the clothes up, drove them to the police station, and booked them into evidence. He put the clothes into an evidence bag which he sealed with red tape. He did not search the jeans pockets again before putting them into the evidence bag because he assumed there was nothing else to be found.

The prosecutor said Chanel Morrison would testify the two rings belonged to her. The defendants argued the evidence should be excluded because the chain of custody had been broken. Jackson said, How do we know the deputies didnt put [the rings] in the bag? However, the trial court said, Doesnt seem . . . the chain of custody has been broken because Marquez testified that hes the one that placed the pants in the bag. The court found the defendants arguments went to the weight of the evidence only and that the rings were admissible.

b. Discussion.

In a chain of custody claim,  [t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight. [Citations.] ( . . . see also Mendez, Cal. Evidence (1993)  13.05, p. 237 [While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering].)[[12]] The trial courts exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion. [Citation.] (People v. Catlin (2001) 26 Cal.4th 81, 134.)

testimony at the evidentiary hearing established there was no significant break in the chain of custody, and therefore the trial court did not abuse its discretion by admitting the rings. Marquez testified he personally put Jacksons jeans into a sealed evidence bag. Esqueda testified he personally opened that sealed evidence bag and discovered the rings in a pocket of the jeans. There was no vital link in the chain of custody unaccounted for, and no further foundational detail was required. (See, e.g., People v. Lozano, supra, 57 Cal.App.3d at p. 495 [The fact that the envelopes were properly sealed when the chemist received them, and properly sealed when Carreon picked them up and brought them to court, establishes the integrity of the remaining vital links in the chain of custody.].) Hobobo asserts Marquez would necessarily have found the rings had they actually been in Jacksons pocket when he was apprehended. But not if Marquez accidentally overlooked them.

The trial court did not abuse its discretion by admitting this evidence.

5. Hobobos prior convictions were properly used for impeachment.

Hobobo contends the trial court erred by letting the prosecution impeach his trial testimony with evidence he had prior convictions for grand theft and bank robbery. This claim is meritless.

a. Legal principles.

For impeachment purposes, article I, section 28, subdivision (f), of the California Constitution authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty, subject to the trial courts discretion under Evidence Code section 352 to exclude probative evidence that create[s] [a] substantial danger of undue prejudice.(People v. Castro (1985) 38Cal.3d 301, 306.) In exercising its discretion, the trial court should consider the four factors set forth in People v. Beagle (1972) 6 Cal.3d 441: (1)  the relationship between the prior felony and credibility; (2)  the nearness or remoteness in time of the prior felony; (3)  the similarity of the prior felony to the crime for which the accused is being tried; and (4)  what the effect would be if the defendant chooses not to testify. (Id. at p. 453.)

 The nearness or remoteness of the prior conviction is . . . a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.  (People v. Beagle, supra, 6 Cal.3d at p. 453.) Conversely, remote priors have been approved for impeachment use where the defendant did not subsequently lead a legally blameless life. (See People v. Green (1995)34 Cal.App.4th 165, 182-183 [where prior conviction was 20 years old]; People v. Muldrow (1988)202 Cal.App.3d 636, 647-648 [where prior conviction was 20 years old].)

[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes . . . . The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded. (People v. Collins (1986) 42 Cal.3d 378, 389.) A trial courts ruling under Evidence Code section 352will not be disturbed on appeal absent a reasonabl[e] probab[ility] that a result more favorable to [the] defendant would have occurred in the absence of [the] error. (People v. Castro, supra, 38 Cal.3d at p. 319.)

b. Discussion.

Hobobo had a 1994 conviction for grand theft ( 487) and a 1995 conviction for federal bank robbery (18 U.S.C.  2113). The trial court ruled these convictions were not prohibitively remote because Hobobo had not led a legally blameless life since being convicted of those crimes. The trial court also ruled that, although the priors were substantially similar to the charged offenses, any resulting prejudice was outweighed by their highly probative nature because both priors involved dishonesty and therefore reflected directly on Hobobos credibility.

Hobobo acknowledges that even identical prior convictions are not excludable per se, but argues the remoteness of his priors favored their exclusion. He faults the trial court for relying on his failure to subsequently lead a legally blameless life. Hobobo argues his only subsequent conviction was for driving with a suspended license, a misdemeanor, and therefore he did not suffer any serious felony conviction since the time of his prior convictions up until trial. We do not agree Hobobos priors were improperly admitted for impeachment purposes.

California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendants credibility. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Hobobos convictions for grand theft and bank robbery directly impeached his credibility.

Serious felony convictions are not the only signs of a legally blameworthy life. (See People v. Campbell (1994) 23 Cal.App.4th 1488, 1496-1497, fn. omitted [defendant had not led a legally blameless life in the interim: he had been convicted twice for driving under the influence (Veh. Code,  23152, subd. (a)) and once for driving an unregistered vehicle. (Veh. Code,  4000, subd. (a))]. Moreover, the Attorney General points out Hobobo has been either in custody, or on probation, or on supervised release his entire adulthood. In 1995, when appellant Hobobo was on probation for grand theft person, he committed the armed bank robbery. In 2002, he received supervised release, but the supervised release was revoked that same year. In 2003, he again received supervised release, but he was later arrested for the instant offenses while he was still on supervised release.

In addition, Hobobo was in prison for the bank robbery conviction from 1995 until 2002, which is a substantial chunk of the time between his priors and his trial in 2006. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1056 [that defendant had been incarcerated for all but two years following his 17-year-old prior convictions mitigated the remoteness factor].) Finally, despite knowing he would be impeached with these priors, Hobobo testified anyway. (See ibid [that defendant testified mitigated remoteness factor].)

The trial court did not abuse its discretion by admitting evidence of Hobobos prior convictions to impeach his testimony.

6. Sufficient evidence of strike prior.

Hobobo contends there was insufficient evidence his prior federal conviction for bank robbery (18 U.S.C.  2113(a)), constituted a prior serious felony for California enhancement purposes. This claim is meritless.

Where . . . the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.] This rule applies equally to California convictions and to those from foreign jurisdictions. [Citations.