P. v.
Filed 1/16/13 P.
v. Lawrence CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ALEX
LAWRENCE,
Defendant and Appellant.
D060783
(Super. Ct. Nos.
SCD233950; SCD234531)
APPEAL
from a judgment of the Superior Court of
County, John S. Einhorn, Judge. Affirmed.
Robert
Lawrence appeals from a judgment convicting him of
based on his attack on a homeless man in downtown San Diego. He argues the trial court erred in denying
his day-of-trial request for a continuance to replace appointed counsel with
retained counsel, and in denying his alternative request for
his request that the jury be instructed on defense of property. We find no reversible error and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On
the evening of May
3, 2011, defendant assaulted Michael Kelly
by kicking him, punching him, and cutting his face with a box cutter. At the time of the attack, Kelly was sitting
by a building in downtown San
Diego in an area where food is
provided to homeless persons. Several
witnesses testified at trial to describe the circumstances of the attack,
including Kelly and five individuals who were in the area receiving or serving
food.
The
witnesses testified that prior to the attack they noticed defendant because he
was dressed distinctively in a gray or silver suit and a brimmed hat, and he
was acting in a loud, belligerent manner.
He was going up and down the street, drinking from a bottle, cursing and
talking loudly, and "just messing with everybody." Witnesses heard defendant say that "he
wanted to cut a White person"; he was "looking for a White
boy . . . to cut"; he was going to get "a
motherfucking White boy' "; or he was "going to mess somebody
up." People were trying to get
defendant to leave the area, saying things like " 'Boo' "; "
'Move on' "; " 'The people are trying to feed' "; and the lady
serving food was "a Christian" and there were children in the
area. At one point defendant got into an
altercation with a woman (Laticia Nelson) who told him to "shut
up." While Nelson and defendant
were arguing, defendant threatened to "slice [her] ass up"; defendant
pulled out a box cutter and Nelson pulled out a knife; and Nelson and defendant
threw objects at each other. One or more
males walked towards defendant telling him to leave, and defendant backed away
down the street.
However,
shortly after, defendant returned to the area and attacked Kelly. Kelly testified that while he was sitting by
a building, defendant came up to him and started screaming at him. Kelly started to stand up, but defendant kicked
him. Kelly stated that after this
"[e]verything else went black" until he woke up in the emergency
room. Witnesses who saw the attack
testified that defendant kicked Kelly, punched him, and slashed him in the face
with a box cutter. Defendant then fled
down the street. The police were
summoned and defendant was apprehended as he was walking on a street several
blocks away.
As
a result of the attack, Kelly sustained facial cuts to both sides of his face,
including a six- to 10-inch cut on his cheek (from his eyelid down to under his
jaw), a sliced ear, and a one-inch cut by his eye. He also suffered a broken hand and
lacerations on the back of his head. He
was hospitalized for three or four days.
The cut on his cheek damaged a facial nerve, causing some paralysis of
his facial muscles. At the time of trial
he had a large scar on his cheek, and he continued to experience "extreme
pain" and numbness in his cheek, blurred vision, constant tearing of his
eye, and pain and swelling in his hand.
Defense
Testifying
on his own behalf, defendant did not deny that he cut the victim, but claimed
he acted in self-defense when a group of people assaulted and robbed him. Defendant testified he was visiting San
Diego from another state. While he was
sitting inside a homeless shelter, Nelson took defendant's hat off the rack
where he had placed it. He followed
Nelson outside, where she had joined two men who were passing his hat around
and "messing" with him.
Defendant demanded his hat back and the men ran off. Defendant, feeling very angry, went down the
street after the men, where he encountered a group of homeless people who were
telling him to go away if he was not from the area. Nelson arrived with a knife and said he was
not from "around here" and he should go away. People were throwing ice at him.
One
of the men who had defendant's hat said defendant should "shoot dice"
for his hat. Defendant kicked or threw
the dice in the street, walked out in the street, and a "church lady"
who was passing out food asked him if he was from "around here." Defendant told the lady he was looking for
his "white hat," not for food.
According to defendant, Nelson threw something at him and pulled out her
knife, and he threw his alcohol bottle at Nelson.
Three
young men then "jumped out of the [food] line" and started "war
talk," saying "they going to do this and they going to do
that." Defendant was trying to
leave, and he stepped back out in the street.
When he reached the sidewalk on the other side, the man he was shooting
dice with hit him twice. He was then
backed up against a tree. About six
people started "going all through [his] pockets." Nelson tried to stab him with her knife, and
he tried to grab her knife, which injured his finger. He started kicking, and he removed his knife
from his belt loop. Describing the use
of his knife, defendant stated: "I
closed my eyes and I just crossed my heart to God, they better kill me, and I
just went to swinging."
After
defendant started swinging with the knife, someone said he had a knife and the
people "backed off" him.
Defendant walked towards an alley with the bloody knife in his hand,
intending to call the police. Unable to
find a phone, he decided to return to his motel. In addition to his hat, he discovered that he
was missing items that had been in his pockets, including his dentures, his
watch, and $200 cash.
Defendant
testified that during the attack by the group of people, he was punched in his
face with a hand, and his hand was cut.
He claimed he did not see himself cut anyone, but he knew he cut
"one of the Black guys." A
police officer told him that he also cut "the White guy" (i.e.,
victim Kelly). Explaining why he cut the
two people, he testified: "To get
them off of me. I was afraid. They was in my pocket, taking my things and
calling me an old man." Defendant
denied that he assaulted Kelly in the manner described by the prosecution's
witnesses. Also, he denied he said he
was "looking for a White boy" or "looking to get somebody[,]"
instead claiming he said he was looking for a "white hat."
Jury Verdict and Sentence
The
jury convicted defendant of mayhem and assault
with a deadly weapon, and found true enhancements that he personally inflicted
great bodily injury and personally used a deadly weapon.
prison.
DISCUSSION
I. Trial Court's Denial of Request for Continuance To Hire Retained
Counsel
Self-Representation
Defendant
argues the court abused its discretion and violated his constitutional rights
by denying his pretrial request for a continuance to hire retained counsel and
his alternative request to represent himself.
A. Background
On
May 17, 2011, after defendant was charged with mayhem and assault based on his
attack on Kelly, deputy public defender John O'Connell was appointed to
represent defendant. On May 19 (the date
for set for the preliminary hearing), O'Connell told the court that defendant
was requesting a Marsden hearing
because he wanted several witnesses to be interviewed before commencing the
preliminary hearing, whereas O'Connell had explained to defendant that the
investigation was not necessary for the preliminary hearing. At the Marsden
hearing, defendant told the court that O'Connell was not acting for his
benefit, stating: "[E]verything I'm
trying to get him to do, he's telling me what the State got on
me. . . . [¶]
. . . [¶] . . . I want him to establish there
was a robbery . . . before all this happened." The court explained to defendant that his
counsel might pursue that line of defense if counsel determined it was in
defendant's best interest, but the preliminary hearing was a probable cause
hearing where the prosecution need only show enough evidence to continue with
the case. After defendant stated he
understood this and the court ascertained he had no other complaints about his
counsel, the court denied the Marsden
motion.
O'Connell
represented defendant at the May 19 preliminary hearing on the mayhem/assault
case. Defendant was bound over for
trial, and the court set a readiness conference date for June 30 and a trial
date for July 8.
On
June 2, defendant was charged with attempting to dissuade a witness. (See fn. 1, ante.) On June 13, defendant
requested that he be allowed to represent himself in the mayhem/assault and
witness dissuasion cases, apparently because he believed O'Connell's case load
unduly interfered with his time to work on defendant's case. Finding defendant's request was knowingly,
intelligently and voluntarily made, the court granted him
self-representation. Defendant
represented himself at the preliminary hearing for the witness dissuasion case
held on June 15, and the court ordered him bound over for trial on this
charge. The court set the trial
readiness date (June 30) and the trial date (July 8) to coincide with the dates
on the mayhem/assault case.
name="_ftnref2" title="">[2]
Defendant
represented himself at the June 30 readiness conference, on which date the
prosecution filed an amended information adding an allegation of aggravated
mayhem. On July 7 (the day before the
trial date), defendant requested that counsel again be appointed to represent
him. He told the court that when someone
gave him the statistics on pro. per. representation, he thought he "would
be a crazy man" to continue with self-representation because the
statistics were not in his favor.
name="_ftnref3" title="">[3] The court granted his request, ordering that
his pro. per. status be revoked and the public defender's office be
reappointed. After making this ruling,
the court noted the trial was set to start the next day (July 8) and discussed
this matter with the prosecutor and the deputy public defender (not O'Connell)
present at the hearing. The prosecutor
noted that any continuance beyond a week would be problematic because she had
"about six homeless people" who had been served to appear on July
8. The court decided to retain the July
8 trial date, stating that O'Connell could appear the next day and they would
discuss the scheduling issues at that time.
On
July 8, O'Connell appeared on behalf of defendant, and the court set another
readiness conference for August 16 and reset the trial date for September
1. The court ordered five prosecution
witnesses to return to court on September 1 for the trial.
O'Connell
represented defendant at the August 16 readiness conference. On September 1, the case was called for trial
and O'Connell appeared on behalf of defendant.
Apparently determining that the case would not be ready for witness
testimony that day, the court ordered four prosecution
witnesses to return to court on September 7, and issued a bench warrant for
a fifth prosecution witness who had apparently failed to appear. After a break in the September 1 proceedings,
O'Connell told the court that defendant wanted to make another
At
the September 1 Marsden hearing,
defendant stated he wanted O'Connell relieved as his attorney, explaining: "[He's] [n]ot working hard
enough[,]" and "everything I ask of him, he either say no real quick,
wouldn't give me no reason."
Defendant complained about O'Connell's handling of certain defense
witnesses that defendant had identified, and about O'Connell's failure to review
with defendant photographs depicting defendant's injuries arising from the
incident. In response, O'Connell
explained the problems with the witnesses identified by defendant, and stated
the photographs were prepared for submission as exhibits at trial.
After
the denial of the Marsden motion, the
September 1 proceedings resumed with in limine motions. Once the motions were argued and ruled upon
by the court, the court set the proceedings to resume on September 6, when jury
selection would commence.
On
the morning of September 6, the court announced that the jury panel would
arrive in about 45 minutes. O'Connell
then told the court that defendant wanted to request pro. per. status. Defendant responded that he did not want
"to go pro. per." but wanted a continuance because he was "going
to get [his] own lawyer." Defendant
explained: "As of this moment at
this time after the holiday, they already working on it. And I do have someone here in San
Diego." The court told
defendant: "This is
untimely . . . .
This is the time and place set for trial, sir." Defendant answered, "I been trying to
get somebody work my case for four months.
I hadn't been able to do that through the courts. So the only thing I can do is take matters
into my own hand and get my own attorney.
Because if I don't, I feel like . . . I wouldn't
have a just trial." When the court
stated defendant had an opportunity to get his own attorney since he was
arrested, defendant said: "I didn't
know they were going to help me until I asked them over the weekend."
The
court denied defendant's request for a continuance to obtain retained counsel,
finding that it was untimely. The trial
court noted the trial had been set to start the previous week, and they were
picking the jury that day. Defendant
then said, "Well, I'd rather go pro. per. then. If I got to go to trial, I want to go pro.
per. . . . I won't have
Mr. O'Connell representing me. I'll
represent myself." The court
reviewed the history of the case, including the denial of defendant's
self-representation followed by reappointment of counsel, and the fact that
jury selection was set to start that morning.
The court then denied defendant's self-representation request as
untimely. After the court's ruling,
defendant reiterated, "It better be stated that I still want to go pro.
per."
The
case proceeded to jury selection, which was completed that same day (September
6). Witness testimony commenced the
following day, September 7.
B. Analysis
1.
Denial of Request for Continuance To Obtain Retained Counsel
To
effectuate the constitutional right to effective assistance of counsel, a
defendant generally has the right to retain counsel of his or her own choosing. (People
v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) However, when an indigent defendant is
represented by appointed counsel, the
defendant may obtain a new appointed attorney only if he or she shows the first
appointed attorney is providing inadequate representation or there is an
irreconcilable conflict likely to result in ineffective representation. (People v. Ortiz (1990) 51 Cal.3d 975, 984 (Ortiz); People v. Lara
(2001) 86 Cal.App.4th 139, 150.) This limitation on the right to substitute one appointed attorney
for another is based on the "public expense or drain on the state's
limited resources" that can arise from a change in appointed
attorneys. (Ortiz, supra, at p. 986.)
In
contrast, when the defendant seeks to be represented by retained counsel, the defendant need not make a showing of cause to
justify the substitution. (See
795, fn. 9; People v. Byoune (1966)
65 Cal.2d 345, 346; People v. Blake
(1980) 105 Cal.App.3d 619, 623; see also Ortiz,
supra, 51 Cal.3d at p. 986.) In this
circumstance, there is no concern for "duplicative representation and
repetitive investigation at taxpayer expense." (Ortiz,
supra, at p. 986.)
However,
the right to defend with retained counsel "is not absolute: it must be carefully weighed against other
values of substantial importance, such as that seeking to ensure orderly and
expeditious judicial administration, with a view toward an accommodation
reasonable under the facts of the particular case." (People
v. Byoune, supra, 65 Cal.2d at p.
346.) The trial court must "balance
the defendant's interest in new counsel against the disruption, if any, flowing
from the substitution." (
of counsel requests to the fullest extent consistent with effective judicial
administration, a trial court retains discretion to deny requests made in an
untimely manner that would result in an unreasonable delay in the processes of
justice. (See Courts, supra, 37 Cal.3d at pp. 790-791; People v. Pigage (2003) 112 Cal.App.4th 1359, 1367;
840, 849-850; People v. Lara, supra,
86 Cal.App.4th at p. 155.)
When
deciding whether to grant a continuance to secure retained counsel, the court
may consider whether the defendant has been unjustifiably dilatory in obtaining
counsel or is arbitrarily choosing to substitute counsel at the time of
trial. (Courts, supra, 37 Cal.3d at pp. 790-791.) Further, the court may consider the practical
difficulties of assembling witnesses, lawyers, and jurors that may arise from a
delay. (See People v. Lara, supra, 86
Cal.App.4th at p. 153.) An eve-of-trial
request for a continuance to substitute counsel may properly be denied unless
there are compelling circumstances justifying the delay. (Courts,
supra, 37 Cal.3d at p. 792, fn.
4; People v. Jeffers, supra,
On
appeal, we review a trial court's decision to deny a continuance to secure
retained counsel under the abuse of discretion standard. (Courts,
supra, 37 Cal.3d at pp. 790-791.) We
look to the circumstances of each case and the reasons presented to the trial
court at the time the request was denied.
(Ibid.)
Defendant
made a request for a continuance to obtain a retained attorney after the date
set for trial and when the case was ready for jury selection. Because of the day-of-trial timing of his
request, the trial court was not required to grant the request unless there
were compelling circumstances warranting the delay. The record supports the trial court's
conclusion that there were no such circumstances and that a delay would unduly
disrupt the efficient administration of justice.
Defendant
had made two Marsden motions, both of
which were denied. These rulings are not
challenged on appeal, and there is nothing in the record suggesting that public
defender O'Connell's representation of defendant was deficient. Thus, the delay necessary to secure
representation by retained counsel cannot be justified by defendant's concern
for the competency of O'Connell's representation. In this regard, the trial court could
reasonably deduce that defendant's complaints about O'Connell were primarily a
product of defendant's inability to fully understand various matters related to
his case and that O'Connell would be able to work with defendant as effectively
as any other counsel.
Further,
defendant requested more time to retain private counsel after the trial had
already been delayed for two months when he switched from self-representation
to reappointment of counsel. Although
only a few days lapsed between the trial court's denial of the second
for more time to obtain his own attorney, the trial court could reasonably
conclude that, viewing the pretrial proceedings as a whole, defendant had been
dilatory because he was again seeking to delay a trial that had already been
postponed for two months when he revoked his pro. per. status.
Also,
when balancing defendant's representation desires with effective administration
of justice, the court could consider that the prosecutor had subpoenaed several
witnesses (described by the prosecutor as homeless) who had shown up at court
on several dates and been instructed to return; one of these witnesses had
failed to return; and further delay created a risk that additional witnesses
might fail to appear.
Defendant
argues the trial court erred by denying his continuance request as untimely
without clarifying whether he had a firm commitment from an attorney or how
much more time he needed. We are not
persuaded. As set forth above, the court
could reasonably conclude that even a short delay in the trial was unwarranted
given the absence of a showing that defendant legitimately needed new counsel;
defendant's previous change in representation had already delayed the trial;
and additional delay created a risk of loss of prosecution witnesses. Thus, even if defendant might have claimed he
had a firm commitment and only needed a short continuance, the trial court
reasonably denied his continuance request.
Moreover,
defendant did not produce any documents or bring private counsel with him to
show a private attorney had actually agreed to represent him. Under this circumstance, the trial court
could reasonably deny the continuance based on an assessment that, absent a
direct communication from a private attorney, there were no assurances that
private representation would actually be forthcoming even if a continuance were
granted. (Courts, supra, 37 Cal.3d at p. 791 & fn. 3 [trial courts can
reasonably deny continuances when "confronted with the 'uncertainties and
contingencies' of an accused who simply want[s] a continuance to
"participation by a particular attorney [is] still quite
speculative . . . ."]; People v. Johnson (1970) 5 Cal.App.3d 851, 858-859.) The trial court did not abuse its discretion
in denying defendant's request for a continuance.
2. Denial of Self-Representation Request
A
defendant has a constitutional right to self-representation if he or she
knowingly and intelligently waives the right to counsel. (People
v. Jenkins (2000) 22 Cal.4th 900, 959.)
However, the right of self-representation is not absolute, and the
request may be denied if it is not made within a reasonable time before the
commencement of trial. (
721-722, disapproved on other grounds in People
v. McKinnon (2011) 52 Cal.4th 610, 637-638.) Absent timely assertion of the right, the
trial court has discretion to deny the request, considering such factors as 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 that might result. (Id.
at p. 722 & fn. 10.) "Moreover, whether timely or untimely, a
request for self-representation must be unequivocal." (People
v. Doolin (2009) 45 Cal.4th 390, 453.)
Because
defendant's request for self-representation was made after the day set for
trial and when jury selection was to commence, the trial court did not err in
concluding that it was untimely. (See
have held on numerous occasions that [self-representation] motions made on the
eve of trial are untimely"].) In
this circumstance, defendant's self-representation was "no
longer . . . a matter of right but [was] subject to the
trial court's discretion." (
granted his request for self-representation because there was no showing it
would have delayed the proceedings. He
notes the court did not ask about his readiness to proceed immediately to
trial, and posits that because he requested self-representation after the court
had already denied his continuance request "it can be inferred that [he]
was willing to immediately proceed with trial."
Assuming
defendant was willing to immediately proceed to trial, the court could
reasonably deny the self-representation request based on other factors relevant
to an untimely request. (
1044, 1105-1106 [fact that defendant did not ask for continuance is not
determinative on untimely self-representation request; court may consider other
factors as well]; People v. Jenkins,
supra, 22 Cal.4th at pp.
961-963.) As noted, there was no showing
that O'Connell's representation was deficient.
Defendant had earlier been granted pro. per. status, and then requested
reappointment of an attorney after he determined it was not to his benefit to
represent himself. Although a defendant
may unequivocally request self-representation in response to a court's denial of
an attorney substitution request (see, e.g., People v. Michaels (2002) 28 Cal.4th 486, 524), the court here
could deduce that defendant's pro. per. request, although facially expressed in
unequivocal terms, was not truly what he wanted given his prior statements to
the court recognizing the vagaries of self-representation (see
683, disapproved on other grounds in People
v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [when deciding whether
self-representation request is unequivocal, court should consider all of
defendant's words and conduct]). There
were no assurances that defendant would not resurrect his request for
appointment of counsel once trial commenced, which could disrupt the
proceedings by raising the issue of whether the trial should again be delayed
to bring counsel back on the case.
It
is apparent from the record that defendant's reason for requesting
self-representation did not reflect a true desire to manage the case on his
own, but rather was based on his dissatisfaction with Attorney O'Connell and
the denial of his request for a continuance to obtain his own attorney. The court did not abuse its discretion in
denying defendant's request for self-representation.
II. Trial
Court's Refusal To Instruct on Defense of Property
The
trial court refused defendant's request to instruct the jury on defense of
property, but agreed to instruct the jury on principles of self-defense. Defendant contends the court erred in
refusing to instruct on defense of property as set forth in CALCRIM No. 3476.
support the instruction based on his testimony that he slashed out and cut two
people with his knife in response to the group of people who were searching his
pockets and who stole the items in his pockets.
A
trial court has a duty to instruct on a defense if it is supported by
substantial evidence. (
982.) In deciding whether there is
substantial evidence to support the instruction, "the trial court does not
determine the credibility of the defense evidence, but only whether 'there was
evidence which, if believed by the jury, was sufficient to raise a reasonable
doubt . . . .' " (Ibid.)
We need not decide whether the trial
court erred in refusing to instruct the jury in the language of CALCRIM No.
3476 because the record shows any error was harmless even
under the more stringent harmless beyond a reasonable doubt standard. (See People
v. Salas, supra, 37 Cal.4th at p. 984; People
v. Demetrulias (2006) 39 Cal.4th 1, 23.) In the context of this case, the self-defense
instructions sufficed to tell the jury that defendant had a right to use
reasonable force to defend his property.
The trial court instructed the jury that defendant was not guilty under self-defense principles if
he reasonably believed he was "in imminent danger of suffering bodily
injury or was in imminent danger of being
touched unlawfully"; he reasonably believed immediate use of force was
necessary to defend against that danger; and he used no more force than was
reasonably necessary to defend against that danger. (Italics added; see CALCRIM No. 3470.) Additionally, the trial court incorporated
the concept of robbery into the
self-defense instructions when telling the jury that the defendant was not required
to retreat. This portion of the
instruction stated: "A defendant is
not required to retreat. He or she is
entitled to stand his or her ground and defend himself or herself and, if
reasonably necessary, to pursue an assailant until the danger of death/bodily injury/robbery has passed."
Under
the facts of this case, the self-defense instructions telling the jury that
defendant had the right to defend against an unlawful touching and/or robbery
in effect apprised the jury of his right to protect his property from imminent
harm. The property allegedly taken was
located essentially on his body; thus, reasonable jurors would have understood
that his right to defend himself from an unlawful touching included the right
to defend himself from the searching of and theft from his pockets. Further, the instruction indicating he had a
right to stand his ground and defend during the robbery directly informed the
jurors that he could defend against the forceful taking of property from his
person.
Because
the instructions apprised the jury of defendant's right to use reasonable force
to defend against the taking of his property from his person, his claim of
reversible instructional error fails.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE,
J.
name="_ftn1" title="">[1] Before the case was
submitted to the jury for deliberations, the trial court dismissed an
aggravated mayhem charge. The jury found
defendant not guilty of a charge that he attempted to dissuade a witness from
testifying. Given this acquittal, we
have not included the facts relevant to the dissuasion charge in our factual
summary.
name="_ftn2" title="">[2] The mayhem/assault
and witness dissuasion cases were later consolidated on September 1.
