v. Boone
Filed
1/16/13 P. v. Boone 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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.
JAMES LESHAWN
BOONE,
Defendant and Appellant.
F062332
(Fresno Super. Ct. No. CF05904824)
APPEAL
from a judgment of the Superior Court of
County. Houry A. Sanderson, Judge.
Kyle
Gee, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In
2001, a masked man broke into a woman’s apartment and sexually assaulted her at
gunpoint. The woman reported the
taken to the hospital for a sexual assault
examination. During that
examination, biological evidence was recovered from her body and a DNA profile
was obtained. In 2005, a “cold hit
report†matched the DNA evidence recovered from the victim, with the DNA of
appellant/defendant James Leshawn Boone, through a search of the CAL-DNA
database. Defendant’s palm print also
matched a latent print which had been found outside the woman’s apartment on
the night of the crime.
Defendant
was charged with multiple felonies based on the
reduced defendant’s bail to $25,000 without making any findings to support the
reduction. Defendant was initially
represented by counsel but then represented himself. The prosecution filed an amended information
which added “One Strike†allegations pursuant to Penal Code
allegations. Just prior to his scheduled
trial date, the prosecution requested the court to increase defendant’s
bail. The court granted the motion and
increased defendant’s bail to $200,000.
Defendant was remanded into custody and requested the appointment of an
attorney to represent him. The
court-appointed counsel represented defendant throughout his jury trial.
Defendant
was charged and convicted of count I, unlawful sexual intercourse by force,
violence, duress, menace, or fear of immediate bodily injury (§ 261, subd.
(a)(2)); and count II, unlawful oral copulation by force, violence, duress,
menace, or fear of immediate bodily injury (§ 288a, subd. (c)(2)). As to both counts, the jury found as to
section 667.61, subdivision (a), that the offenses were committed during a
residential burglary. Also as to both
counts, the jury found that two circumstances existed pursuant to section
661.61, subdivision (e), that defendant personally used a dangerous or deadly
weapon, and he committed the offenses during a burglary. Defendant was sentenced to 25 years to life.
On appeal,
defendant contends that the court improperly granted the prosecution’s motion
to increase his bail, and asserts the court’s ruling violated his Sixth
Amendment right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), because he was remanded into custody, unable to prepare
for his trial, and forced to ask for appointment of counsel. We will affirm.
On
April 8, 2001, G.D. lived in a one-story apartment complex in Fresno with her
three young children. Around 9:00 p.m.,
she was walking to a friend’s apartment when she saw a strange man in her own
apartment complex. He was standing in
the dark, dressed in black, and “sort of meandering†around the area. The man made eye contact with G.D. G.D. felt “a fear†and made sure the windows
of her apartment were locked.
Around
10:30 p.m., G.D. was back in her own apartment.
She had put her children to bed and cleaned the kitchen. She was watching television and decided to
get a beer from the kitchen. She was in
the kitchen when she heard a noise from the children’s bedroom.
G.D. headed to
the children’s bedroom to check them. As
she approached their bedroom door, she was confronted by a gunman. The gunman was dressed in black and wearing a
black hood. He had a ski mask over his
head, so that she could only see his eyes and not his face. The gunman put a small black gun to her
forehead and told her not to make any noise.
G.D. said she would do anything as long as he did not harm the
children. The gunman said he would not
harm the children, but warned G.D. that she was “ ‘gonna do what I tell
you do to.’ â€
The
gunman grabbed G.D.’s arm and pushed her into the other bedroom. He ordered her to get on her knees and
perform an act of oral copulation on him.
G.D. again said she would do what he wanted, if he did not harm her or
her children. The gunman lowered his
zipper, pushed her down to her knees, and made her perform the sexual act. He pushed her head against his body and made
her repeat the sexual act two more times.
The
gunman then ordered G.D. to undress, get on the floor, and lie on her
back. G.D. removed her shorts and
underwear. The gunman got on top of her
and performed sexual intercourse three or four times until he ejaculated. She saw part of his body and realized he was
African-American. He was not using a
condom.
G.D. testified
that the gunman kept the gun aimed at her head during the entire incident, as he
ordered her to undress and perform the sexual acts. He repeatedly said that he was going to kill
her and told her not to make any noise.
G.D. testified the gunman performed the sexual assaults in a short
period of time. The children remained
asleep during the entire incident.
G.D.
testified that after the gunman raped her, he said that he would come back and
kill G.D. and the children if she called the police. He left through the window of her children’s
bedroom. G.D. realized he had also
broken into the apartment through the same window.
G.D.
immediately locked the bedroom window.
G.D. felt nauseous and threw up.
She was going to take a bath to clean herself. However, she remembered a program that she
had seen on television, about preserving evidence after a sexual assault, and
decided not to take a shower. G.D. was
afraid because of the gunman’s threats, but she had the courage to ask for help
because she didn’t want someone else to go through the same experience. G.D. went to a friend’s apartment for help,
and her friend called the police.
The initial investigation
At
11:40 p.m., Officer Eric Ia responded to the apartment complex and interviewed
G.D. G.D. believed the gunman was a
young African-American male, but she said that she could not identify the man
because of the mask.
A police
evidence technician lifted a latent print from the outside of the children’s
bedroom window. There were shoe imprint
marks in the dirt outside the bedroom window.
There was dirt on the inside of the window, the window rail, the
children’s mattress and blanket, and the bedroom floor.
G.D.
was taken to University Medical Center where she received a sexual assault
examination. A nurse observed vaginal
injuries consistent with G.D.’s description of the sexual assault. The nurse obtained evidentiary samples from
G.D.’s vaginal area. A semen sample was
obtained, and a male DNA profile was created from that sample.
According
to the prosecution, the police attempted to match the latent print to known sex
offenders but no matches were found.
The 2005 investigation
According
to the trial evidence, on June 18, 2005, defendant became a suspect in the case
when the latent print lifted from the outside of the bedroom window was
positively matched to defendant’s known palm print.
Also
in 2005, after defendant became a suspect, the police obtained a blood sample
from him. Defendant’s blood sample was
compared to the DNA from the sperm sample found on G.D.’s body. The DNA profile was very rare, and it was
matched to defendant.
PART II
PROCEDURAL HISTORY
Defendant
was arrested in this case in June 2005.
At that time, Judge Cabrera reduced his bail without stating reasons for
the reduction, and he was released on a surety bond. There was a lengthy pretrial period, and his
jury trial did not occur until 2011.
During that time, defendant was alternatively in custody or released on
bail. Defendant was initially
represented by counsel and then moved to represent himself pursuant to
In 2010, the prosecution moved to increase defendant’s bail. Judge Sanderson granted the motion and reset
bail at the scheduled amount of $200,000.
Defendant was remanded into custody, withdrew his pro. per. status, and
requested appointment of counsel for trial.
On appeal,
defendant contends the prosecutor waived any right to contest Judge Cabrera’s
decision to reduce defendant’s bail.
Second, he contends that Judge Sanderson improperly increased his bail
in 2010, simply based on her belief that Judge Cabrera’s decision to reduce bail
was erroneous. Third, he asserts that
Judge Sanderson’s decision to increase bail to $200,000, while he was
representing himself, violated his Sixth Amendment rights because he was
remanded into custody, unable to continue to represent himself, and forced to
ask the court to appoint an attorney to represent him, when he would have
preferred to continue representing himself.
In order to
address these issues, we must review the lengthy procedural history of this
case. As we will explain,
authority to review and increase defendant’s bail during the pretrial period,
the court’s ruling was not erroneous, and the ruling did not violate
defendant’s Sixth Amendment right to represent himself.
initial bail order
On
April 8, 2001, G.D. was sexually assaulted.
While a latent print was found outside the children’s bedroom window,
and DNA evidence was obtained from G.D.’s body, there were no suspects in the
case and no one was arrested.
In May 2002,
defendant was convicted, in an unrelated case, of violating section 261.5,
subdivision (d), unlawful sexual intercourse by a person older than 21 years
old with a minor under the age of 16 years.
He was placed on probation and ordered to register as a sex offender, and
apparently complied with that order.
As to this case,
the trial evidence did not explain the actual sequence of events which led to
defendant’s arrest for the sexual assault of G.D. According to the prosecution’s moving papers,
the DNA sample obtained from the evidence found on G.D.’s body was matched with
defendant’s DNA sample through a “cold hit report†in May 2005, based on a
search of the CAL-DNA database.
Defendant was presumably in the database because he had been ordered to
register as a sex offender in 2002.
On or about June
28, 2005, defendant was arrested for the sexual assault of G.D., and a blood
sample and a palm print were obtained from him.
Defendant’s palm print matched the latent print found outside the
children’s bedroom window, and his DNA again matched the DNA from the evidence
found on G.D.’s body.
On
June 28, 2005, a felony complaint was filed against defendant in case No.
05904824-0, the sexual assault of G.D., alleging count I, unlawful sexual
intercourse by force, violence, duress, menace, or fear of immediate bodily
injury (§ 261, subd. (a)(2)); count II, residential burglary
(§§ 459/460, subd. (a)); and count III, unlawful oral copulation by force,
violence, duress, menace, or fear of immediate bodily injury (§ 288a,
subd. (c)(2)).
On
July 1, 2005, defendant appeared for arraignment. He was represented by attorney Ernest
Kinney. Defendant pleaded not guilty and
remained in custody. According to the
minute order, the court stated that it would consider bail at a later hearing.
On
July 27, 2005, defendant and Mr. Kinney appeared before Judge Cabrera. Defendant was in custody. According to the minute order, the “matter on
bail was addressed†and bail was reduced to $80,000. According to the probation report, defendant
was released on bail that day.
On
August 10, 2005, defendant and Mr. Kinney appeared for a hearing, and defendant
entered a general time waiver. According
to the minute order, defendant was not in custody.
Defendant
remained out of custody throughout 2005 and into 2006 and appeared for all
hearings.
On
July 10, 2006, defendant failed to appear, and the court issued a bench
warrant. On July 11, 2006, defendant
appeared, the court vacated the bench warrant, and defendant remained out of
custody.
B.
hearing and further reduction of bail
On
July 24, 2006, defendant and Mr. Kinney appeared before Judge Cabrera for the
preliminary hearing. Defendant was still
out of custody. Defendant waived his
right to a preliminary hearing. The
court accepted defendant’s waiver and held him to answer.
The court noted
there was “a question on the bail bond which is due to expire soon.†Mr. Kinney stated that based on their
previous discussion in chambers, defendant was employed full time, he had made
all court appearances except for one, and Mr. Kinney claimed responsibility for
defendant’s only failure to appear. Mr.
Kinney requested the court reduce bail to $25,000.
The court
replied: “Bail will be reduced to
$25,000.†The court did not make any
findings in support of the reduction of bail.
The court ordered defendant to appear for the next hearing.
Thereafter,
defendant apparently made bail and was out of custody. Defendant remained out of custody until
August 2006.
C.
case and remand into custody
The
parties agree that at some point during the pendency of the instant case,
defendant was arrested in a second and unrelated criminal case, identified as
case No. F07901226, and felony charges were filed against him. The exact sequence of events is not clear
from the appellate record, except for the fact that defendant was taken into
custody for that second case.
The
record shows that on August 8, 2006, defendant appeared before Judge Sanderson,
apparently on the second case. He was remanded
into custody, and bail was set at $25,000.
According
to the probation report, defendant was rearrested on March 7, 2007. According to respondent, on April 26, 2007,
the court remanded defendant into custody based on the unrelated case No.
F07901226.
On
June 26, 2008, defendant appeared before Judge Sanderson, who noted that Mr.
Kinney had died, and appointed the public defender to represent defendant in
the instant case for the sexual assault of G.D.
Defendant remained in custody. On
August 28, 2008, Judge Sanderson also appointed the public defender to
represent defendant in the unrelated criminal case No. F07901226. Defendant remained in custody.
D.
information
On
April 16, 2009, the prosecution filed a first amended information against
defendant in the instant case No. 05904824-0, the sexual assault of G.D. It alleged the same three counts as the
felony complaint: count I, unlawful
sexual intercourse by force, violence, duress, menace, or fear of immediate
bodily injury; count II, residential burglary; and count III, unlawful oral
copulation by force, violence, duress,
menace, or fear of immediate bodily injury.
In
addition, the amended information further alleged as to both counts I and III,
that defendant committed the sexual assault offenses during a burglary within
the meaning of section 667.61, subdivision (a), an allegation which meant
defendant faced a possible sentence of 25 years to life if he was convicted.
On the same day,
defendant pleaded not guilty and denied the special allegations. Defendant remained in custody.
E.
On
May 14, 2009, defendant appeared before Judge Sanderson with his deputy public
defender. Defendant was in custody. Defendant moved to represent himself pursuant
to Faretta in both case No.
05904824-0, the sexual assault of G.D., and the unrelated case No.
F07901226. The court granted the motion,
relieved the public defender, and defendant assumed representation of himself
in both cases.
During
the course of the hearing, the court advised defendant as follows:
“THE COURT: You understand, sir, you will remain in custody while your trial is progressing or pending,
and you will be required to direct all of your investigation from the jail. And you understand that while in jail you’ll
be subject to Fresno County Sheriff’s Department rules and regulations as to
your access to any of these opportunities, whether it’s law library, phones,
services, supplies. You understand that?
“THE DEFENDANT: Yes, Your Honor.†(Italics added.)
Defendant
asked for the appointment of an investigator, paralegal, and/or legal
runner. The court instructed defendant
to file the appropriate request.
Defendant remained in custody.
The court subsequently granted defendant’s motion for appointment of an
investigator.
Thereafter,
defendant filed several discovery motions.
The court conducted hearings on those motions; defendant appeared and
argued at those hearings; and the court partially granted the motions.
Defendant also
filed a motion to dismiss all charges based on the sexual assault on G.D. and
argued the prosecution was barred by the statute of limitations. Defendant was in custody when he filed these
motions and appeared for hearings on the motions.
F.
charge
On
August 10, 2009, the court heard defendant’s motion to dismiss all charges
based on the sexual assault of G.D. The
court granted the motion only as to count II, residential burglary and found
that count was barred by the statute of limitations.
However, the
court denied defendant’s motion to dismiss as to count I, unlawful sexual
intercourse by force or fear, and count III, oral copulation by force or
fear. In addition, the court did not
dismiss the special allegations that defendant committed counts I and III
during a burglary, within the meaning of section 667.61, subdivision (a), which
meant he still faced a possible life term.
From
August 2009 to June 2010, defendant remained in custody, continued to represent
himself, and filed additional discovery motions.
G.
unrelated case
On
June 17, 2010, defendant appeared before Judge Sanderson. The court granted the prosecution’s motion to
dismiss without prejudice in the unrelated case No. F07901226, because the
alleged victim could not be located.
The
court asked the prosecutor about the status of case No. 05904824-0, the sexual
assault of G.D. The prosecutor stated
that he had just found the victim, who now lived out of state, and needed a
continuance to arrange for the victim’s appearance.
The
court asked defendant if he wanted to continue to represent himself:
“THE COURT: [O]n that case, sir, thus far you have been off and on pro
per and most recently pro per for sometime now with … your investigator,
assisting you. Sir, at this time, do you
still wish to maintain that case as a pro per status?
“THE DEFENDANT: Yes.
“THE COURT: So you do not wish to have the Court reappoint any public
attorneys for your assistance to assist you and to represent you on that case?
“THE DEFENDANT: Not at this time.
“THE COURT: Very well then.
[¶] On that case, you will remain
pro per for the time being until you tell me different. Please make sure you do so if you change your
mind. You understand that?
“THE DEFENDANT: Yes, Your Honor.â€
Defendant
withdrew his general time waiver. The
court set the trial date for July 29, 2010.
The court noted that bail in the instant case had been set $25,000.
According to the
probation report, defendant was released on bail in this case on June 18, 2010.
H.
motion to increase bail
On
July 8, 2010, defendant filed another motion to dismiss the remaining charges
in case No. 05904824-0, the sexual assault of G.D., and claimed the delayed
prosecution violated his due process rights.
On
July 15, 2010, defendant appeared for a hearing in this case. He still represented himself. According to the
custody, having been released on surety bond.
On
July 20, 2010, the prosecution filed a motion to increase bail in this case to
$200,000, pursuant to section 1270.1.
The motion argued that when the court reduced bail to $25,000, on July
24, 2006, the court failed to comply with statutory procedures and state
reasons for the reduction. The motion
further stated that circumstances had changed since the order to reduce bail,
because the first amended information had been filed and it alleged section
661.61, subdivision (a) enhancements for both counts, which exposed defendant
to a life term.
I.
increase bail
We
now reach the court’s decision to increase bail, which is the contested ruling
in this case. On July 22, 2010,
defendant appeared before Judge Sanderson.
Defendant was still representing himself, and he was not in
custody. At this point, defendant was
charged under the first amended information with count I, unlawful sexual
intercourse by force or fear, and count III, unlawful oral copulation by force
or fear, with section 667.61 special allegations. Defendant’s trial was tentatively scheduled
to begin on July 29, 2010.
The court denied
defendant’s pending motion to dismiss the remaining charges in case without
prejudice.
The court next
considered the prosecution’s motion to increase bail. Defendant objected and argued that he had
made every court appearance. The
prosecutor replied that the court’s previous reduction of bail was erroneous,
and there were changed circumstances because the amended information included
special allegations which dramatically increased his exposure. The prosecutor further argued there were
changed circumstances because defendant had been charged in another criminal
case, and bail should be increased to protect public safety, and because he was
a flight risk. The court pointed out
that the other criminal case had been dismissed.
The court
believed the scheduled bail for each count was $50,000, but bail was $100,000
for each count with the special allegation.
The court was concerned because defendant’s bail had previously been
reduced to $25,000 without that court making proper findings of unusual
circumstances to justify the reduction.
The court called a brief recess to determine the bail amounts for each
count in 2006, when bail was reduced.
When the court
returned to the bench, it made the following findings:
“[Section] 1275 of the Penal Code
demands and expects a court to review the case before it, and I have done so,
sir. And this is a serious, violation
and a violent felony that’s been alleged.
The [section 667.61] enhancement, whether or not it’s found to be true
or untrue, is still alleged. And for
purposes of a bail setting this Court has to follow the statutory
language. In order for me to reduce it I
have to find unusual circumstances. I
don’t believe—and I cannot take in consideration the fact that you were in
custody on another case which eventually got dismissed as an unusual
circumstance, sir. That might be what
you think in your own mind that you’ve already done three years on another case
not related to this. Certainly, you’ve
gained credit for time served as well in this case. But I cannot just look at that and say you
should be allowed to remain out of custody pending your trial next week because
you were in custody on another case for three years. So at this time, Mr. Boone, the Court is
denying the request on your part to remain out of custody. Granting the People’s motion to increase this
bail in light of the findings that this is, in fact, a violent and serious offense
that are before the court. I have to
assume them to be true for purposes of bail.
I am also to consider the [section 667.61] enhancement and raise the
bail to the scheduled amount of $200,000.â€
The court asked
defendant if he wanted the existing surety for $25,000, based on the previous
bail amount, to remain if he believed he would be able to come up with the
additional $175,000. Defendant did not
immediately respond to this question.
The court also
asked defendant the following question:
“[THE COURT:] The next question I would like to ask of you, Mr. Boone, do
you still wish to continue with pro per status or do you feel the need to have
an—
“THE DEFENDANT: Yes. I would like
an attorney, Your Honor.â€
name="_ftnref3" title="">[3]
Defendant asked
the court to explain the original bail amount and the reduction. The court replied that defendant’s bail
should have been $130,000 based on the three counts charged in the original
complaint. The court further explained
that while it had dismissed count II, burglary, the People had the right to
file an amended information to allege the section 667.61 special allegations,
which added $50,000 per count. The court
explained that based on the two remaining counts and the special allegations,
defendant’s bail was $200,000.
Defendant asked
why his bail could not be further reduced since count II, burglary, had been
dismissed. The court explained that the
current calculation of bail was based on the still-existing counts I and II,
and the special allegations which applied to both counts, but it was not based
on count II since it was dismissed. The
prosecutor said that he would file another amended information to clarify that
count II, burglary, had been stricken, and to renumber the two remaining charges
accordingly.
The court
reviewed the record from the proceeding where Judge Cabrera reduced defendant’s
bail to $25,000.
“[Y]ou already have the benefit of a
much lower bail long before today’s date, in my impression[] inappropriately,
because unusual circumstances were not stated on the record why a lower bail is
being scheduled. With the Information
the People enhanced your charges with [the] sentencing enhancement which raised
bail. And therefore, whether or not the
[burglary] charge was even considered–which was not, based on what I’ve read,
the enhancements increased your bail to the amount of $200,000. That’s where the Court is going to set the
bail.â€
The court turned
to defendant’s request for an attorney, and reappointed the public
defender. The court remanded defendant
into custody with bail at $200,000.
After a brief recess, the public defender declined to accept the
case. The court appointed David Mugridge
to represent defendant.
The court asked
Mr. Mugridge if he could be ready by the scheduled trial date of July 29,
2010. Mr. Mugridge said no, and that his
own trial calendar would require postponement of this case until at least
October 2010. The prosecutor replied
that he wanted the trial to occur sooner rather than later, in order to ensure
the presence of his witnesses, and said he would expedite forwarding all
discovery to Mr. Mugridge.
After another
recess, Mr. Mugridge stated that he had talked with defendant and explained
that he needed time to prepare the case, and would not be ready until October
2010. The court asked whether defendant
would enter another general time waiver.
Defendant said yes. The court set
the trial for October 25, 2010.
Mr. Mugridge
asked the court about the status of bail.
The court explained that bail had been calculated at $200,000, based on
counts I and III, and the special allegations, in the first amended
information, and that count II had been stricken. The court explained its earlier bail ruling,
which had occurred before Mr. Mugridge was in the courtroom:
“I’ve also noted this morning … on the
record that at the time of the setting of the initial $25,000 bail for this
case, Judge Cabrera did not state on the
record any unusual circumstances that he was taking in consideration to set
bail at a much lower bail amount than the schedule, which is required by
[section] 1275 of the Penal Code in serious and or violence charges. And when [the] People brought the motion to
increase the bail, I have to re-assess all those reasons and found that there
was none available for this Court. I
have noted on the record that I’m aware that Mr. Boone was in custody for
substantial period of time on another case, but the fact that he was in custody
for lengthy period of time on another case is not by itself an unusual
circumstances that this Court would consider.â€
(Italics added.)
The court
advised defense counsel that if he wanted to file any additional motion to
revisit the bail issue, he could do so through a properly filed noticed
motion. Defense counsel replied that he
would “reserve that.†Defense counsel
requested the court to exonerate the previously existing $25,000 bond. The court granted the request, and defendant
was remanded into custody.
J.
information and oral motion for bail reduction
On
October 19, 2010, the prosecution filed the second amended information, which
eliminated the residential burglary charge that had been stricken because it
was barred by the statute of limitations.
The second
amended information charged defendant with count I, unlawful sexual intercourse
by force, violence, duress, menace, or fear of immediate bodily injury; and
count II, unlawful oral copulation by force, violence, duress, menace, or fear
of immediate bodily injury.
As to both
counts, it was alleged as to section 667.61, subdivision (a), that the offenses
were committed during a residential burglary.
Also as to both counts, it was further alleged that two circumstances
existed pursuant to section 667.61, subdivision (e), that defendant personally
used a dangerous or deadly weapon, and he committed the offenses during a
burglary.
title="">[4]
On
the same day, defendant and Mr. Mugridge appeared before Judge Sanderson. Defendant pleaded not guilty and denied the
special allegations. Mr. Mugridge moved
for a continuance to prepare for trial, and defendant entered another general
time waiver. The court granted the
continuance and set the trial for January 2011.
Defense counsel
made an oral motion for bail reduction:
“MR. MUGRIDGE: There was an issue in light of the discovery
problems that we’ve had, we would ask the Court to revisit the issue of bail
again. The discovery request is keeping
him in away from trial, which I would otherwise have tried to [go] to. But now that he’s in custody a little bit
longer due to no fault of the defense, we would ask the Court re-evaluate the
issue of bail.
“THE COURT: On the issue of bail, Mr. Mugridge, I would at this time
deny that request without prejudice.
However, if you wish the Court to re-assess it, it should be filed with
a formal noticed motion and any additional documents or information that you
feel is pertinent to the Court’s decision consistent with [section] 1275 of the
Penal Code.â€
K.
Thereafter,
defendant remained in custody for the rest of the case, and he was represented
by Mr. Mugridge for the entirety of the proceedings. On March 8, 2011, defendant’s jury trial
began with motions in limine. On March
15, 2011, defendant was convicted as charged and the jury found the special
allegations true. On April 13, 2011, he
was sentenced to 25 years to life on count I; the court stayed the life term
for count II.
Defendant never
filed a motion for reconsideration of bail, requested to again represent
himself, or argued that the court’s decision to increase bail on July 22, 2010,
violated his Sixth Amendment right to represent himself.
I.
The court did not abuse its discretion or violate defendant’s Sixth
Amendment rights when it increased his bail.
Defendant
raises several contentions based on Judge Sanderson’s decision on July 22, 2010,
to increase his bail to $200,000. First,
he contends the prosecutor waived any right to contest Judge Cabrera’s July 24,
2006, decision to reduce defendant’s bail.
Second, he contends that Judge Sanderson improperly increased his bail
on July 22, 2010, simply based on her belief that Judge Cabrera’s decision to
reduce bail was legally erroneous.
Third, he asserts that Judge Sanderson’s decision to increase bail to
$200,000, just prior to trial and while he was representing himself, violated
his Sixth Amendment rights because he was remanded into custody, unable to
continue representing himself, and forced to ask the court to appoint an
attorney to represent him, when he would have preferred to continue
representing himself.
A.
We
begin with the well-settled principles regarding the court’s ability to set,
increase, or reduce bail. “Except under
limited circumstances, the California Constitution guarantees a pretrial right
to release on nonexcessive bail.
[Citation.] A defendant is
entitled to one automatic review of the order fixing the amount of bail and the
issue of appropriate bail may be raised at various times throughout the
criminal proceedings. [Citations.] The court in setting, reducing, or denying
bail must primarily consider the public safety.
[Citation.] Additionally, the
court considers the seriousness of the offense charged, the defendant’s
criminal record and the probability the defendant will appear for hearings or
trial. [Citation.] As to the seriousness of the offense charged,
the court, inter alia, considers the alleged injury to the victim, alleged
threats to victims or witnesses, the alleged use of a firearm and the alleged
use or possession of controlled substances.
[Citation.]†(
444.)
“When a
defendant on bail appears for arraignment on an information or indictment, the
court may order an increase in the amount of bail.… The court is not required to show ‘good
cause’ for the increase.
[Citation.]†(
1190, 1195.) “However, once a defendant
has been admitted to bail on the indictment or information, the court may
increase or decrease the amount of bail only upon a showing of good cause or a
change in circumstances.
[Citations.]†(
The court’s
decision to increase or reduce bail is reviewed for an abuse of
discretion. (In re Christie (2001) 92 Cal.App.4th 1105, 1107.) The trial court’s statement of reasons shall
“ ‘contain more than mere findings of ultimate fact or a recitation of the
relevant criteria for release on bail; the statement should clearly articulate
the basis for the court’s utilization of such criteria.’ [Citation.]â€
(Ibid.)
A series of
statutes control the court’s ability to set, increase, or reduce bail for someone
charged with a serious or violent felony, who is awaiting trial. First, section 1270.1 provides that when a
defendant is arrested for a serious
or violent felony, the court must hold a hearing before the defendant may be
released on bail “in an amount that is either more or less than the amount
contained in the schedule of bail for the offense .…†(§ 1270.1, subd. (a).) The prosecutor and the defense attorney must
“be given a two-court-day written notice and an opportunity to be heard on the
matter.†(§ 1270.1, subd.
(b).) At the hearing, the court shall
consider the following factors:
“[E]vidence of past court appearances of the detained person, the
maximum potential sentence that could be imposed, and the danger that may be
posed to other persons if the detained person is released.†(§ 1270.1, subd. (c).) “If the judge or magistrate sets the bail in
an amount that is either more or less than the amount contained in the schedule
of bail for the offense, the judge or
magistrate shall state the reasons for that decision … in the record.†(§ 1270.1, subd. (d), italics added.)
Section 1289
addresses the court’s ability to reconsider bail after the information has been
filed:
“After a
defendant has been admitted to bail upon an indictment or information, the
Court in which the charge is pending may, upon
good cause shown, either increase or reduce the amount of bail. If the amount be increased, the Court may
order the defendant to be committed to actual custody, unless he gives bail in
such increased amount. If application be
made by the defendant for a reduction of the amount, notice of the application
must be served upon the District Attorney.â€
(Italics added.)
Section 1275
states that in setting, reducing, or denying bail, the judge or magistrate
shall take into consideration “the protection of the public, the seriousness of
the offense charged, the previous criminal record of the defendant, and the
probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary
consideration.†(§ 1275, subd.
(a).) “
the offense charged, the judge or magistrate shall include consideration of the
alleged injury to the victim, and alleged threats to the victim or a witness to
the crime charged, the alleged use of a firearm or other deadly weapon in the
commission of the crime charged, and the alleged use or possession of
controlled substances by the defendant.
(Ibid.)
“reduces bail below the amount established by the bail schedule approved for
the county†for a defendant charged with a serious or violent felony, “the
court shall make a finding of
circumstances’ does not include the fact that the defendant has made all prior
court appearances or has not committed any new offenses.†(§ 1275, subd. (c), italics added.)
B.
failure to object to Judge Cabrera’s order
Defendant’s
first issue is that the prosecution waived any right to challenge Judge
Cabrera’s decision to reduce his bail because it did not object at the time of
the order. The procedural history shows
that on July 1, 2005, defendant was arraigned and remained in custody. On July 27, 2005, Judge Cabrera reduced bail
to $80,000, and defendant was released.
On July 24, 2006, defendant waived the preliminary hearing, and the
court noted the bail bond was due to expire.
The court granted defendant’s motion to further reduce bail to $25,000,
and defendant remained out of custody throughout 2006, until the unrelated
criminal case was filed against him.
There is no
evidence that Judge Cabrera made the requisite findings of good cause and
unusual circumstances, pursuant to sections 1275 and 1289, to support the
orders to reduce bail to $80,000, and then $25,000. Judge Sanderson later determined that
defendant’s bail originally should have been set at $130,000, based on the bail
schedule for the three felony offenses that he was charged with at the time of
Judge Cabrera’s orders. Defendant has
not challenged the correctness of Judge Sanderson’s statement about that
amount.
There is also no
evidence that the prosecution objected to Judge Cabrera’s decision to reduce
defendant’s bail to $80,000 and then $25,000.
If the prosecution objected at the hearings, and the objections were
overruled, then the prosecution could have sought review of that denial through
a petition for extraordinary writ with the appellate court, and argued that
Judge Cabrera “erred as a matter of law in the setting of bail by, for example,
considering factors not permitted by law, ignoring relevant information, or
failing to make required findings.†(
421, 431 (Alberto).) The prosecution did not seek any type of writ
review.
Nevertheless,
even though the prosecution failed to object or seek review of Judge Cabrera’s
orders to reduce bail, it still had the statutory authority to ask the court to
increase defendant’s bail during the pretrial period. As explained ante, section 1289 provides in relevant part, that “[a]fter a
defendant has been admitted to bail upon an indictment or information, the
Court in which the charge is pending may, upon
good cause shown, either increase or reduce the amount of bail.†(Italics added.) “[O]nce a defendant has been admitted to bail
on the indictment or information, the court may increase or decrease the amount
of bail only upon a showing of good cause or a change in circumstances. [Citations.]â€
(People v. Annis,
1195-1196.)
The prosecution
was statutorily authorized to file the July 20, 2010, motion to request the
court to increase defendant’s bail. The
next question is whether Judge Sanderson properly granted that motion.
C.
Defendant next
contends that even if Judge Sanderson could have considered the prosecution’s
motion to increase bail, principles of comity prevented the court from granting
the motion simply based on the determination that Judge Cabrera’s original
orders to reduce bail were legally erroneous.
The parties
agree the case on point is Alberto,
addressed a situation similar to the instant case. In Alberto,
the defendant was indicted for attempted murder and robbery. He appeared for arraignment before a judge
who set bail at $35,000, below the scheduled amount, without stating reasons
for the reduction. The defendant posted
bail. The case was later assigned to a
trial judge for all purposes. The
prosecution moved for the trial judge to increase bail to the scheduled amount
of $1,050,000, and asserted that the arraignment failed to consider the
relevant factors and state reasons for departing from the bail schedule. Defense counsel argued that the trial judge
could not increase bail since the prosecution failed to show any changed
circumstances, and defendant had appeared for all hearings. (Id.
at pp. 424-425.) The trial judge
concluded that the arraignment judge had not identified any unusual
circumstances justifying departure from the bail schedule and had not
considered all the relevant factors before setting bail at $35,000. The trial judge further determined this
failure constituted “good cause†under section 1289 to reconsider the amount of
bail, and fixed bail at the scheduled amount of $1,035,000. (Id.
at p. 425.) The defendant filed a
pretrial petition for writ of habeas corpus with the appellate court to review
the trial court’s bail order. (
not overrule the arraignment judge’s bail reduction order based solely on the
belief that the arraignment judge had not complied with the statutory
requirements for departing from the bail schedule, and such a reason did not
constitute “good cause†under section 1289.
(Alberto, supra, 102 Cal.App.4th at p. 426.)
Alberto acknowledged that a
court “generally has authority to correct its own prejudgment errors. [Citation.]â€
(Ibid.)
“Different
policy considerations, however, are operative if the reconsideration is accomplished
by a different judge. Accordingly, the
general rule is just the opposite:
made by another judge is limited.
[Citation.] This principle is
founded on the inherent difference between a judge and a court and is designed
to ensure the orderly administration of justice. ‘If the rule were otherwise, it would be only
a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would
lead directly to forum shopping, since if one judge should deny relief,
defendants would try another and another judge until finally they found one who
would grant what they were seeking. Such
a procedure would instantly breed lack of confidence in the integrity of the
courts.’ [Citations.]†(Id.
at p. 427, italics added.)
superior court judge, no matter how well intended, even if correct as a matter
of law, to nullify a duly made, erroneous ruling of another superior court
judge places the second judge in the role of a one-judge appellate court.†(Alberto,
supra, 102 Cal.App.4th at p.
427.) Alberto acknowledged there were “two narrow lines of cases that
appear to authorize one trial judge to reconsider an issue already decided by a
colleague: one, where the first judge is
unavailable [citation], or two, where the first order was made through
inadvertence, mistake, or fraud.
[Citations.] The People do not
claim that [the arraignment judge] was unavailable to hear a renewed bail
motion or that his order was the product of any inadvertence, mistake, or
fraud.†(Id. at p. 430.)
judge retained the power to conduct a bail hearing pursuant to section 1289 and
could have increased bail upon a showing of good cause. However, the arraignment judge’s alleged
legal error did not constitute good cause to increase bail. (Alberto,
supra, 102 Cal.App.4th at p. 431.)
“[T]he
good cause must be founded on changed circumstances relating to the defendant
or the proceedings, not on the conclusion that another judge in previously
setting bail committed legal error.
Although not necessarily exhaustive, factors to be considered in
‘setting, reducing or denying’ bail are set forth in section 1275: protection
of the public (the ‘primary consideration’), seriousness of the offense,
previous criminal record, and probability of defendant appearing in court. [Citations.]
Whether subsequent to Judge
Wesley’s bail order circumstances have changed in the context of these factors
is an appropriate
in conducting a hearing pursuant to section 1289. [Citation.]â€
(Alberto, supra, 102 Cal.App.4th at pp. 430-431, italics added.)
Alberto remanded the
matter for another judge to conduct a hearing pursuant to section1289 to
determine if there was good cause and changed circumstances to increase
defendant’s bail, or for the arraignment judge to conduct another bail hearing
and reconsider his original ruling. (
increase bail
Defendant
contends that the only reason Judge Sanderson increased defendant’s bail on
July 22, 2010, was because she found that Judge Cabrera’s original orders to
reduce bail were legally erroneous.
Defendant asserts that such a reason did not constitute good cause or
changed circumstances under Alberto.
As
explained in Alberto, Judge Sanderson
retained discretion under section 1289 to consider the prosecution’s motion to
increase defendant’s bail “upon good cause shown.†(§ 1289.) Such “good cause†could not be based on Judge
Cabrera’s legal error when he reduced bail.
(Alberto, supra, 102 Cal.App.4th at p. 431.)
In order to increase bail, the court was required to consider “the
protection of the public, the seriousness of the offense charged, the previous
criminal record of the defendant, and the probability of his or her appearing
at trial or hearing of the case. The
public safety shall be the primary consideration.†(§ 1275, subd. (a).) “In considering the seriousness of the
offense charged, the judge or magistrate shall include consideration of the
alleged injury to the victim, and alleged threats to the victim or a witness to
the crime charged, the alleged use of a firearm or other deadly weapon in the
commission of the crime charged, and the alleged use or possession of
controlled substances by the defendant.â€
(Ibid.) The court could not reduce bail below the
scheduled amount unless it found unusual circumstances, and “ ‘unusual
circumstances’ does not include the fact that the defendant has made all prior
court appearances or has not committed any new offenses.†(§ 1275, subd. (c).)
During
the course of the July 22, 2010, hearing, Judge Sanderson reviewed the entirety
of the record and concluded that defendant’s bail should have originally been
set at $130,000, based on the three felony charges in the complaint, and that
Judge Cabrera improperly reduced bail without stating reasons under sections
1275 and 1289.
As noted
following additional findings when it granted the prosecution’s motion to
increase bail: that defendant had been
charged with serious and violent felonies, a section 667.61 enhancement had
been added, and there were no unusual circumstances to reduce bail. Based on the entirety of the record, Judge
Sanderson decided to increase defendant’s bail to the scheduled amount because
of the nature of the offenses and special allegations that were charged. While she addressed Judge Cabrera’s prior
orders, it is clear that her decision to increase bail complied with sections
1275 and 1289; that she found good cause and changed circumstances because
defendant faced special allegations under the One Strike law for committing the
sexual assaults during a residential burglary. Defendant had not been charged with the
special allegations when Judge Cabrera reduced his bail. While the first amended information had been
filed over a year before the prosecution’s motion to increase bail, the
prosecution’s section 1289 motion to increase bail was not time-barred. The court was required to review the nature
and circumstances of the case at the time it was considering the prosecution’s
motion, and it properly considered the additional “one strike†special
allegations which had not been charged in the original complaint.
We
thus conclude that Judge Sanderson did not abuse her discretion when she
granted the prosecution’s motion to increase defendant’s bail, the ruling was
not based on Judge Cabrera’s error, and the ruling was instead based on the
changed circumstances of the “one strike†allegations that had not been charged
in the original complaint.
E.
Amendment right to represent himself
Defendant
contends that the court’s decision to increase bail, while he was representing
himself and just two weeks before the scheduled trial, violated his Sixth
Amendment right to represent himself because it forced him to withdraw his pro.
per. status and request appointment of counsel.
There is no evidence to support this claim.
In June 2005,
defendant was charged in this case and taken into custody. In July 2005, Judge Cabrera reduced his bail,
and defendant was released. In July
2006, Judge Cabrera further reduced defendant’s bail, and he remained out of
custody.
In August 2006,
however, defendant was taken into custody based on the second, unrelated
criminal case. On May 14, 2009,
defendant moved to discharge his attorney and represent himself in both the
sexual assault of G.D., and the unrelated criminal matter. Defendant was in custody when he made his
defendant about the reality of representing himself while in custody:
“THE COURT: You understand, sir, you will remain in custody while your trial is progressing or pending,
and you will be required to direct all of your investigation from the jail. And you understand that while in jail you’ll
be subject to Fresno County Sheriff’s Department rules and regulations as to
your access to any of these opportunities, whether it’s law library, phones,
services, supplies. You understand that?
“THE DEFENDANT: Yes, Your Honor.†(Italics added.)
The
court granted defendant’s Faretta
motion as to both cases and appointed an investigator to assist him. Thereafter, defendant remained in custody,
but he filed numerous motions for discovery and dismissal in both cases.
In August 2009,
the court dismissed the burglary charge in the instant case because it was
barred by the statute of limitations.
Defendant remained in custody and continued to represent himself.
On June 17,
2010, defendant was still in custody and represented himself. The court began the hearing by dismissing the
second, unrelated case, because the complaining victim could not be
located. The court then asked the
prosecutor about the status of the criminal charges based on the sexual assault
of G.D. The prosecutor replied that he
had just found G.D., she lived out of state, and he needed more time to arrange
for her appearance.
The court
immediately asked defendant whether he wanted to continue representing
himself. Defendant said yes. The court asked whether he wanted an attorney
reappointed to represent him, and defendant said no. Defendant withdrew his general time waiver
and indicated he was ready for trial.
After the June
17, 2010, hearing, and since the unrelated case had been dismissed, defendant
was released on the original, reduced bail of $25,000, in the instant
case. His trial for the sexual assault
of G.D. was set for July 29, 2010.
As
explained ante, on July 22, 2010,
after defendant had been out of custody for one month, the court heard the
prosecution’s motion to increase bail.
He still represented himself, and he objected to the prosecution’s
motion to increase bail since he had made all his appearances. However, defendant never stated that he would
be unable to represent himself if he was returned to custody. Once the court granted the motion to increase
bail, the court asked defendant if he wanted to continue representing
himself. Defendant said no, and asked
for reappointment of counsel.
Defendant
asserts the court violated his Sixth
Amendment rights when it increased his bail on July 22, 2010, because the
court “proceeded directly and immediately from the increase in bail to
[defendant’s] willingness to continue in pro. per., which reveals that the
trial court recognized the two issues to be causally related. It is also telling that [defendant] directly
and immediately abandoned his right of self-representation, which reveals with
indisputable clarity that the two issues were in fact causally related.â€
The record
refutes this argument. First, the timing
and phrasing of the court’s question on July 22, 2010, was virtually identical
to the court’s more extensive inquiry on June 17, 2010, when it dismissed the
unrelated criminal case and repeatedly asked defendant if he still wanted to
represent himself in the sexual assault case.
Second, while
defendant asked for appointed counsel at the July 22, 2010, hearing, defendant
never said that he was forced to do so because he was being remanded into
custody. Defendant had demonstrated that
he could ably file and assertively argue motions before the court while he was
in custody. At this hearing, however,
defendant decided that he wanted the court to reappoint
he waived time and agreed to defense counsel’s request for a continuance. Defendant’s jury trial did not begin until
March 2011, but he never complained that the court’s bail order had forced him
into withdrawing from his pro. per. status.
Defendant
has never claimed, either before the superior court or on appeal, that he was
unable to obtain access to a law library, legal materials, an investigator, or
other services reasonably necessary for his defense when he was in custody, or
that he would be unable to obtain access if he was returned to custody. (See, e.g., People v. James (2011) 202 Cal.App.4th 323, 334-336.) Defendant had spent more time in than out of
custody. He had successfully filed
discovery motions and obtained the dismissal of the burglary charge in this
case while he was in jail.
We
thus find that there is no evidence to support defendant’s specious claim,
based on a silent record, that the court’s decision to increase bail thwarted
his attempt to represent himself.
DISPOSITION
The
judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Wiseman, Acting P.J.
______________________
Levy, J.
citations are to the Penal Code unless otherwise indicated.
the “One Strike†law, “mandates indeterminate sentences of 15 or 25 years to
life for specified sex offenses that are committed under one or more
‘aggravating circumstances,’ such as when the perpetrator kidnaps the victim,
commits the sex offense during a burglary, inflicts great bodily injury, uses a
deadly weapon, sexually victimizes more than one person, ties or binds the
victim, or administers a controlled substance to the victim. [Citations.]
The purpose of the One Strike law is ‘to ensure serious and dangerous
sex offenders would receive lengthy prison sentences upon their first
conviction,’ ‘where the nature or method of the sex offense “place[d] the
victim in a position of elevated vulnerability.†[Citation.]’
[Citation.]†(People v.
Alvarado (2001) 87 Cal.App.4th 178, 186.)
The One Strike law “reflects a legislative finding that the victims of a
residential burglary are more vulnerable because they are inside a structure
rather than out in public.
[Citations.] Moreover, common
experience reveals
their guard at home, especially when they are eating, reading, watching
television, bathing, and sleeping.
However, at those very times, they are unsuspecting and particularly
vulnerable to shock and surprise by an intruder. [Citations.]
[T]he Legislature sought to deter by harsher punishment those who
burglarize homes and exploit the vulnerability of people inside to commit sex
offenses.†(Id. at pp. 186-187.)
