P. v. Ruiz
Filed 4/4/13 P. v. Ruiz CA2/4
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES RUIZ,
Defendant and Appellant.
B238485
(Los Angeles County
Super. Ct. No. GA083697)
APPEAL
from a judgment of the Superior Court of
County, Suzette Clover, Judge.
Reversed and remanded.
Maureen
L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
introduction
A
jury convicted defendant James Ruiz of corporal injury to a spouse. (Pen. Code, § 273.5, subd. (a) (count 1).)
bodily injury. (§ 245, subd. (a)(1)
(count 2).) In a bifurcated trial, the
jury found Ruiz had suffered four prior convictions (§ 667.5, subd. (b)), one
of which was a prior conviction within the meaning of the “Three Strikes†law
(§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Ruiz was sentenced to 12 years in state
prison, consisting of the upper term of four years, doubled pursuant to the
Three Strikes Law, plus one additional year for each of the four prior prison
term convictions.
Ruiz
contends on appeal that the trial court erred by (1) failing to hold an
adequate Marsden
about his dissatisfaction with appointed counsel; (2) denying Ruiz’s midtrial
motion to represent himself; (3) admitting evidence of prior bad acts; and (4)
instructing the jury that Ruiz had a motive to commit the charged offenses. Ruiz further contends that the cumulative
effect of these errors requires reversal of his conviction. As we agree with the first contention, we
reverse the judgment and remand the matter to the trial court. Because after holding an appropriate
could be reinstated, we proceed to consider the remaining contentions raised by
Ruiz on appeal and find no further error.
factual and procedural background
Evidence
A. Current crime
Olga
Marquez and her son and two daughters lived in North Hollywood along with Marquez’s
brothers. Marquez had been married to
Ruiz for 16 years but he lived in Burbank with his mother and
brother. On July
4, 2011, she and her daughters, Lydia (16 years old and Ruiz’s
daughter with Marquez) and her half-sister Danielle (11 years old), went to
Ruiz’s home. Marquez called Ruiz when
they arrived at his home and he came downstairs. He asked to talk to Marquez alone and they
went upstairs while the girls stayed in the car. After awhile, the girls heard their mother
call for help. Lydia told Danielle to go see
what was happening; Lydia did not want to go because
Ruiz tended to be aggressive. Danielle
walked to a place where she could see Marquez and Ruiz. She could not hear what Ruiz was saying but
she saw her mother crying and heard her telling Ruiz not to hurt her. Ruiz’s hands were on Marquez’s
shoulders. Danielle told Lydia what she had seen and then
returned to the stairs but her mother and Ruiz were not there.
Marquez
testified that Ruiz had taker her cell phone a few days before the incidents at
issue here. When they went upstairs on
July 4th, Ruiz questioned her about a telephone number he saw on her phone. He dialed the number and gave the phone to
Marquez, telling her to have a normal conversation. She said into the phone, “Hi, Carlos. This is Lydia. This is Jimmy’s wife.†Ruiz jumped up, pulled a knife from his
pocket, and said, “You played me, bitch.â€
He put the knife against her lower right abdomen and said if she made
any noise he would stick her. Marquez
opened the door to Ruiz’s mother’s apartment and yelled for help. Ruiz grabbed her as she opened the door,
preventing her from entering the apartment and scratching her. He said, “Shut up, bitch†and “If my mother
comes out, I’ll stick you, bitch.†She
begged him not to hurt her and he again told her, “Shut up, bitch.†He said, “If the cops come, I’m going to
stick you.†She considered throwing
herself down the stairs to get away from him but instead decided to hug him to
calm him down. He said, “It’s over,
bitch, and you played me.†She told him
“no†and said she loved him.
She
said she needed to use the bathroom and went into the apartment. She saw that his mother’s bedroom door was
closed although it had been open when she had looked inside before. She went into the bathroom then returned to
Ruiz and the two of them went downstairs to Marquez’s car.
They
got into her car, and the girls noticed their mother looked nervous; her eyes
were watery. They drove to Marquez’s
house. While Ruiz stayed in the car,
Marquez and the girls went into the house.
Marquez told her 24-year-old son, Ricky, that Ruiz had almost killed
her, and began crying. Marquez told
other members of her family what had happened and someone called the police.
Marquez’s
mother and her sister Maria went to Marquez’s car and Maria told Ruiz to get
out of her sister’s car. Ruiz said he
was waiting for Marquez. Maria said,
“You think you can come and pull a knife on my sister? Get the fuck out of my sister’s car.†Ruiz said he did not know what she was
talking about. Marquez’s mother tried to
take the keys from Ruiz and he grabbed her hand. Maria demanded he let go. Just then the police arrived.
Marquez
told the police that Ruiz had a knife in his pocket. She did not know if the police ever recovered
a knife. The police placed Ruiz under
arrest. Marquez had bruises and
scratches on her neck and under her arms where Ruiz had grabbed her. She had a cut behind her ear from Ruiz’s
knife.
Ruiz
called Marquez from jail several times.
He told Marquez to file a complaint against the police for visiting
their daughter’s school to question her about the incident. Marquez feared that her children might be
removed from her custody. Ruiz told
Marquez more than once to take her daughters and hide at a house in Twentynine
Palms until the case was over. He told
her to hide to avoid being served with a subpoena and she responded by taking
her children to a restaurant; detectives found her there and served her with
the subpoena. Ruiz said Marquez should
refuse to allow her daughters to talk to the police and to convey to her mother
that she should tell the police she had nothing to say. Ruiz told her to tell the police he had only
grabbed her and that she had caused her own injuries. She had indeed told the police that she
injured herself. She told Ruiz that they
did not believe her. Ruiz said that he
did not want to be hurt anymore and if she did what he asked of her he would be
released. Marquez visited Ruiz in jail a
few times along with her daughters. She
also wrote letters to him.
Marquez
testified that she had lied at the preliminary
hearing by saying that she had inflicted her own wounds and that she did
not see Ruiz holding a knife. She lied
because she was afraid of Ruiz.
In
1996, when Ruiz and Marquez were living separately and Ruiz had their infant
daughter in his custody, Marquez had reported to the police that Ruiz had
attacked her. The police arrested him
and returned their daughter to Marquez.
Marquez’s
sister Maria testified in the current proceedings with regard to the dispute
that occurred in 1996. She was at the
courthouse with Marquez and saw Ruiz getting close to Marquez and using foul
language. She intervened and Ruiz cursed
at her and spat in her face. A deputy
sheriff separated Ruiz from the women.
Acts Evidence
Annie
Mariscal testified that she has two children fathered by Ruiz. She met him through a dating service in 2004;
he did not tell her that he was already married and had a child.
In
November 2006, Mariscal lived with her father, Hipolito Mariscal (Hipolito),
and her three children. She was pregnant
with Ruiz’s child for the second time.
She awoke early one morning and found Ruiz in her apartment. Her father was not at home and Mariscal did
not know how Ruiz got into her apartment.
Ruiz slapped her and said, “You didn’t expect me to see you, you stupid
bitch.†He took her to the kitchen and
took a knife from a drawer, saying, “I should kill you right here.†He grabbed her by the hair and forced her
into the den. He told her to get the
children out of the room because they should not see what he was going to do to
her. She told the children to watch
television.
Ruiz
took Mariscal into her room and looked through her telephone bills and put her
wallet in his pocket. He was looking for
telephone numbers, seemingly to find evidence that she was cheating on him with
another man. He wanted her to call the
telephone numbers so he could find out who she was talking to. He pocketed the telephone bill then slapped
her several times and threw her on the floor.
blood, then threw her on the bed. He sat
astride her and stabbed the bed with the knife six or seven times.
Ruiz
remained in Mariscal’s apartment for about 12 hours. Mariscal made both breakfast and lunch for
everyone and each time everyone sat down to eat. Ruiz did not keep the knife with him the
entire time. At around 6:00 p.m., Ruiz
left when Mariscal’s father returned home.
Mariscal showed her father her injuries—her face was swollen and she had
bruises on her stomach—and her father called the police. The police arrived and took photographs of
the holes in Mariscal’s mattress but they did not mention the damage to the
mattress in the report regarding the incident.
The
following day Ruiz telephoned Mariscal and said he wanted to work things
out. He asked her not to press charges
but she followed through with the case against him.
When
Hipolito (Mariscal’s father) returned home on the day of the incident he saw a
drop of blood on the refrigerator and bruises on Mariscal’s cheek and by her
ear. Her face was swollen and she had a
cut on the right side of her jaw near her ear.
She had several large bruises on her stomach. He also saw three or four holes in Mariscal’s
mattress. Shortly thereafter, Ruiz told
Hipolito that he was going to kill him and his daughter. Hipolito was frightened and thought Ruiz
would follow through with his threat.
Hipolito
had once accused Ruiz of taking about $800 from him. He later realized that his daughter had taken
the money.
II. Defense Evidence
Marquez’s
mother, Maria del Carmen Sanchez de Marquez (Maria del Carmen), testified that
on July 4, 2011, when she and Maria went to the car to see Ruiz he did not
attempt to drive away. Maria del Carmen
said Ruiz had threatened her and her children.
About seven years before, Ruiz drove his car into her car, causing her
to swerve. On another occasion he used
his fingers to pantomime shooting at her and Marquez.
Ruiz’s
mother, Irene Arredondo, said on July 4, 2011, she saw Marquez at her
apartment. Arredondo heard the door open
and saw Marquez, who was giggling.
Arredondo never heard Marquez yell for help. She looked through the peephole at one point
and saw Marquez and Ruiz standing there.
She did not see any kind of weapon.
Marquez was holding a cell phone.
Arredondo
said that years before Marquez had asked Arredondo to accompany her to the Van
Nuys courthouse for support after Marquez had accused Ruiz of hitting her. Marquez recanted, however, saying that Ruiz
had not touched her and she only accused him of doing so because she was angry
with him.
Arredondo
said that 16 years before she had seen Marquez hit herself. Marquez was crying and hit herself in the
face and head with a telephone.
Ruiz
testified that on July 4, 2011, he did not have a knife and did not pull a
knife on Marquez. He did not threaten to
stick her, stab her, or kill her. He
said he did not hit, pull, punch, or scratch her. When he was standing on the stairs with
Marquez he had both her cell phone and his own in his hands.
Ruiz
said the girls wanted to go to their uncle’s house and Ruiz told Marquez to
take them, but Marquez wanted to do something with the girls and Ruiz. Ruiz told her he would give her a kiss and go
upstairs and she could visit him later.
He started up the stairs but she followed him and did not want to
leave. Ruiz said he had learned she was
texting someone and therefore he did not want to be with her. He dialed a number on her cell phone and put
the call on the speaker phone so he could find out whose number it was. When the person answered, Marquez said,
“Yes. This is Jimmy’s wife.†Ruiz felt that confirmed his suspicion about
Marquez. He got upset, called her abusive
names, and accused her of “playing†him.
Ruiz said Marquez began to panic and when she panics she scratches herself. He grabbed her to stop her from scratching
herself, but continued telling her that it was over. Marquez asked him to give her a chance and
said they should just go.
Marquez
needed to use the bathroom so they went into the apartment. When she finished they went down to the car
and drove to her mother’s house so she could get money to buy a new battery for
the car.
Ruiz
said Marquez visited him in jail and wrote him letters saying she loves him and
they were meant to be together. They
spoke on the telephone as well. She
mentioned to him that the police wanted to talk to her sister and mother and
said she did not want to cause them problems.
Ruiz said he told Marquez they were not required to speak to the
detectives. He denied saying that they could
not speak to the detectives. During
another conversation she told him that detectives had taken the girls out of
school to talk to them without her consent; she sounded panicked when she told
him. Ruiz also testified that he merely
suggested Marquez and the girls go visit his son in Twentynine Palms because
they get along well with his son. He
told Marquez she should tell the truth when she testified.
Regarding
Marquez’s report to the police in 1996 that he had hit her, Ruiz said that they
had been arguing frequently and Marquez wanted to go live with her mother. Their daughter was six months old at the
time. They drove to her mother’s house
and she got out of the car to speak to her mother. When she returned to the car she said she was
going to stay there. Ruiz responded that
she was not going to keep his daughter from him and drove away. The daughter lived with him for about one
month and Marquez would come to visit.
He was then arrested and placed in custody. After their daughter was returned to
Marquez’s custody he was released.
In
1994, Ruiz told Marquez he wanted to be with someone else and they argued. She paged him later that night and he went to
see her and saw that she had a black eye.
He thought one of her brothers had given her the black eye and said he
was going to go see her brother. She
then admitted that she had caused the black eye herself. Ruiz said that her family always thought he
had given her the black eye and have disliked him because of that.
Ruiz
denied ever threatening Marquez’s family members, pretending to point a gun at
her mother, crashing into her mother’s car, or spitting in her sister Maria’s
face.
Regarding
Mariscal, Ruiz admitted he went to court because of accusations she made
against him. He said they had had an
argument because he told her that her baby was not his. She slapped him and he pushed her. He denied holding a knife to her face. Ruiz said that a jury convicted him of
misdemeanor battery for pushing Mariscal.
He was not convicted of using a knife on her, hitting her, stealing
anything from her, or false imprisonment.
Ruiz
said he never threatened Hipolito. When
Hipolito accused Ruiz of stealing from him Hipolito took out a rifle. Hipolito also took out a rifle when he caught
Ruiz and Mariscal having sex.
Ruiz
acknowledged that he was convicted of possession of a firearm by a felon in
1991, of giving false identification to a police officer in 1997, of receiving
stolen property in 1998, and of attempted
carjacking and dissuading a witness in 2005.
discussion
to Ruiz’s Contentions of Marsden Error
and Denial of Request for Self-representation
Two days
after the jury trial commenced, Ruiz asked to speak to the court. Defense counsel told the court, “[A]s I have
indicated to the court, Mr. Ruiz is progressively becoming more suspicious of
everything I do. Perhaps the court
. . . would like to know what I advised him.†Ruiz interrupted his counsel, saying, “I want
to speak, and I want it on the record.â€
The court reminded Ruiz that everything he said on the record could be
used against him. Ruiz said, “I’ve asked
my attorney to ask the witnesses certain questions, and he’s not doing it. I’m asking him certain questions that are not
being asked.†The prosecutor asked if he
should be excused and the court agreed.
Ruiz told
the court he wanted to subpoena a witness “who might be a witness that does not
want to come, so a hostile witness, I guess. It’s . . . not hard to find this
witness and has to do a lot with my case.
He still hasn’t done it. I asked
him months ago. And I asked my daughter
certain questions that are not being asked.
I understand — this shouldn’t be rushed.
This is my life on the line and shouldn’t be rushed while he’s asking
questions of my daughter.†The court
replied, “[T]here is nothing rushed about this.
I have to say that after speaking with you, at least half of the
questions that [defense counsel] asked were objectionable and the People didn’t
object. On at least one occasion, the
answer did not go well. You have the
benefit, Mr. Ruiz . . . I don’t know how much experience you
have had with attorneys and so forth.
But you are extraordinarily fortunate.
You have the benefit of one of the best public defenders in the
county. He is an attorney and he knows
what’s going to happen when he does or when you ask him to do things. I guarantee you that he’s not going to do it
because there’s too great a chance that it is going to go badly. I’m not sure that you appreciate the force of
his advocacy on your behalf. On
occasion, it has been fairly close to the line of what is not proper. I’m not entirely sure where this desire to
insert your own thoughts or your questions into that comes from.†The court then asked Ruiz if he was a lawyer
and he said he was not.
The court
continued: “You have a lawyer. You are incredibly fortunate to have that
lawyer because he’s far beyond competent, and he’s trying to advocate on your
behalf. Like I say, at least one of the
questions he asked after speaking with you got an answer that was not helpful
to you, at least in my view. I’m not the
trier of fact here. So I would suggest
that you do as you’ve been doing and participate in the case. I’m sure you have insights that he doesn’t
have. But when he decides not to ask
something that you want asked or decides not to aggressively subpoena someone
that you might want to subpoena, I want you to actually listen to what he must
be telling you about why he is or isn’t doing something.†The court further stated, “Your relationship
with your attorney is what it is. But
all I can tell you is that your attorney, throughout this case, has been a
ferocious advocate on your behalf. And
you are being well-represented.â€
Ruiz then
asked the court, “What about if I want to go pro per right now and defend
myself?†The court asked, “Are you
making that motion?†Ruiz replied, “Can
I verbally say it?†The court again
asked, “Are you making a motion to represent yourself?†He responded, “My attorney is not asking the
right questions. I asked him a couple
questions to ask the witness —†The
court interjected, “ Are you not hearing anything I’m saying?†Ruiz said he was hearing the court. The court continued, “He did ask some of the
questions that I heard you ask him to say.
And at least one of them was not appropriate. So are you making a motion to represent
yourself?†Ruiz said, “I asked him and
he didn’t ask the questions I asked him to ask the witness.†The court asked again, “Mr. Ruiz, are you
making a motion to represent yourself?â€
He replied, “Yes, I am.†The
court responded, “That motion is untimely, and it’s denied.†Ruiz asked, “How can I get the witness I want
on my behalf? How can I get the
subpoena? I want him to find the
subpoena —†The court replied, “Sir,
again, you are now asking me to make a judgment about a hostile witness that
your attorney, one of the best in the county, has decided is not in your
interests to bring to court. That makes
no sense, sir.†The court then called a
recess.
Later that
day, as defense counsel was questioning Marquez and the court indicated it was
time to recess for the day, Ruiz said he wanted to ask a question. The court said, “No, sir. Please.â€
Ruiz continued, “My attorney is not doing this —†The court said, “Mr. Ruiz, stop, please,†and
then told the jury they were going to stop for the day.
Shortly
thereafter as counsel discussed the need for an interpreter on the next court
day, Ruiz asked the court if he could speak.
The court said he could not.
After Ruiz left the courtroom, the court asked defense counsel if he had
any insight as to what Ruiz wanted.
Defense counsel responded that he wanted to go pro per; counsel said he
imagined that Ruiz was “unhappy with the case and the state of the case which
most surprised him. At leas[t]. . . . To me, it is not a surprise. I don’t know why he believes that. Perhaps he thought that his phone calls that
[the prosecutor] alluded to and she’d go to Twentynine Palms. I believe he’s going to try to do some things
in front of the jury like he did today.â€
The court responded that it would give Ruiz an opportunity to “air it
out,†but not that day. The court said,
“A Faretta[
need to try to avoid a mistrial.â€
When court
reconvened, defense counsel made a motion
for a mistrial saying that Ruiz’s “outburst†might prejudice the jury. The court denied the motion, stating that it
did not think there was any prejudice.
“Mr. Ruiz said he simply wanted to ask a question, which isn’t
permissible when a defendant is represented by counsel. If you want, I can instruct the jury at the
appropriate time as to that. But there
is no basis for a mistrial, and the motion is denied.â€
Error
Ruiz
contends that the trial court prejudicially erred by failing to comply with the
requirements set forth in Marsden by
adequately questioning Ruiz about his dissatisfaction with his counsel and by
failing to hear from defense counsel about his reasons for making the decisions
with which Ruiz was dissatisfied. Ruiz
contends the error resulted in a violation of his
effective assistance of counsel. We
agree.
“The
governing legal principles [derived from Marsden,
supra,] are well settled. ‘Under the Sixth Amendment right to
assistance of counsel, “‘“[a] defendant is entitled to [substitute another appointed
attorney] 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.â€â€™â€
[Citation.] Furthermore,
“‘“[w]hen a defendant seeks to discharge 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 attorney’s inadequate
performance.â€â€™â€â€™ [Citations.]†(People
v. Valdez (2004) 32 Cal.4th 73, 95, italics added; see also
604.) If the defendant states facts
sufficient to raise a question about his counsel’s effectiveness, the court
must question counsel as necessary to ascertain their veracity. (People
v. Mendez (2008) 161 Cal.App.4th 1362, disapproved on other grounds in
90, fn. 3 (Sanchez).)
In the
recent Sanchez case, the California
Supreme Court reviewed the Marsden
hearing rule and an array of its decisions interpreting the rule. The Sanchez
court reaffirmed that if a defendant requests substitute counsel the trial
court must conduct a Marsden hearing
during which the court gives the defendant an opportunity to state
dissatisfaction with current counsel. (
Here, the
trial court permitted Ruiz to state in only brief, general terms his complaint
that defense counsel had not subpoenaed a potentially hostile witness to
testify. The identity of that witness
and the anticipated substance of the witness’s testimony remain a mystery. Because the trial court did not inquire further, it could not have
known the substance of the testimony of the witness Ruiz claimed would support
his defense. The court also did not
invite or permit Ruiz to state on the record what questions he wanted his
counsel to ask. The court said it had
heard some of the questions
Ruiz told his attorney to ask and noted that some of those questions were improper or not helpful, but the court
did not state on the record what the questions were and we cannot ascertain
from the record what those questions were.
It is therefore impossible to determine whether Ruiz’s defense suffered
as a consequence of counsel’s decision not to subpoena the witness, and it is
also impossible to judge whether Ruiz’s relationship with his counsel had been
seriously impaired. Ruiz clearly voiced
dissatisfaction with his attorney’s choices but no further inquiry was made as
to the state of the attorney-client relationship.
We
generally review a trial court’s decision denying a Marsden motion to relieve appointed counsel under the abuse of
discretion standard. (
599; People v. Cole (2004) 33 Cal.4th
1158, 1190.) The defendant must show
that the failure to replace counsel would substantially impair the defendant’s
right to assistance of counsel. (
v. Smith, supra, 30 Cal.4th at p.
604.) A denial of a motion under
record shows that the error was harmless beyond a reasonable doubt. (People
v. Chavez (1980) 26 Cal.3d 334, 348-349.)
However, as
the high court stated in Sanchez: “[W]e held in Marsden that it was prejudicial error to deny the defendant the
opportunity to explain the basis for his claim because a trial court that
‘denies a motion for substitution of attorneys solely on the basis of [its]
courtroom observations, despite a defendant’s offer to relate specific
instances of misconduct, abuses the exercise of [its] discretion to determine
the competency of the attorney’ (Marsden,
supra, 2 Cal.3d at p. 124), and, in
that case, we could not ‘conclude beyond a reasonable doubt that this denial of
the effective assistance of counsel did not contribute to the defendant’s
conviction.’ (Id. at p. 126.)†(
Similarly here, because the trial court did not adequately inquire into
the substance of Ruiz’s dissatisfaction with counsel, we cannot conclude beyond
a reasonable doubt that counsel’s performance did not contribute to Ruiz’s
conviction.
In
the Court of Appeal’s disposition which “reversed the judgment of the trial
court and remanded the matter to that court with the following directions: ‘(1) the court shall hold a hearing on
[defendant]’s Marsden motion
concerning his representation by the public defender’s office; (2) if the court
finds that [defendant] has shown that a failure to replace his appointed
attorney would substantially impair his right to assistance of counsel, the
court shall appoint new counsel to represent him and shall entertain such
applications as newly appointed counsel may make; and (3) if newly appointed
counsel makes no motions, any motions made are denied, or [defendant]’s
shall reinstate the judgment.’ We
believe this is the proper disposition.â€
(Sanchez, supra, 53 Cal.4th at pp. 92-93.) We therefore reverse the judgment of the
trial court and remand the matter to the trial court with the directions
detailed here.
Self-representation
Ruiz
further contends that the trial court made an inadequate inquiry into Ruiz’s
request to represent himself and subsequently abused its discretion by denying
his request.
title="">[5] We disagree.
“[T]he
United States Supreme Court has held that a defendant in a state criminal trial
has a federal constitutional right to represent himself without counsel if he
voluntarily and intelligently elects to do so.
(Faretta v. California,
proceed to trial represented by counsel and the trial has commenced, it is
thereafter within the sound discretion of the trial court to determine whether
such a defendant may dismiss counsel and proceed pro se.†(
124 (Windham).)
In
accordance with Faretta, a defendant
has an unconditional constitutional right to self-representation only if the
motion is unequivocal, voluntarily and intelligently made, and asserted in a
timely manner prior to the commencement of trial. (Windham,
supra, 19 Cal.3d at pp.
127-128.) “However, once a defendant has
chosen to proceed to trial represented by counsel, demands by such defendant
that he be permitted to discharge his attorney and assume the defense himself
shall be addressed to the sound discretion of the court. When such a midtrial request for
self-representation is presented the trial court shall inquire
underlying the request thereby ensuring a meaningful record in the event that
appellate review is later required.
Among other factors to be considered by the court in assessing such
requests made after the commencement of trial are the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings,
and the disruption or delay which might reasonably be expected to follow the
granting of such a motion. Having established
a record based on such relevant considerations, the court should then exercise
its discretion and rule on the defendant’s request.†(Id.
at pp. 128-129, fn. omitted.)
Here the
trial court, upon hearing Ruiz’s unequivocal request to represent himself,
immediately denied the motion as untimely without further inquiry. However, the request and summary denial came
toward the end of the discussion between Ruiz, his counsel, and the court
regarding Ruiz’s dissatisfaction with defense counsel. The considerations relevant to Ruiz’s request
to represent himself are therefore apparent from the record.
As to the
remaining factors, Ruiz had not previously sought to represent himself. The reason for the request, made two days
after trial had commenced, was apparent:
Ruiz disagreed with counsel’s decisions not to ask certain questions and
his assertion that the testimony of an unidentified witness was vital to his
defense. Although on appeal Ruiz
contends he would have been ready to proceed immediately, it is obvious that he
would have requested a delay in the proceedings to permit him to subpoena that
witness. Immediately upon the court
denying his request to represent himself he continued to ask how he could get
the witness to appear and testify.
Granting Ruiz’s request to represent himself would have likely delayed
the trial to permit Ruiz to attempt to subpoena the witness and to recall
witnesses whose testimony had already concluded. We conclude the trial court did not abuse its
discretion in denying the request for self-representation.
Ruiz
further contends that the trial court prejudicially erred and violated his
right to due process by admitting evidence of prior
defense counsel’s objection pursuant to Evidence Code section 352. We disagree.
Although
evidence that a defendant has committed a prior crime other than the charged
offense is generally inadmissible to prove his or her conduct on a specified
occasion (Evid. Code, § 1101), a defendant’s prior acts of domestic violence
are made admissible by Evidence Code section 1109 to prove propensity to commit
a charged domestic violence offense if the evidence is not inadmissible under section
352. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) In addition, Evidence Code section 1101,
subdivision (b) also permits the admission of evidence that a person committed
a crime or other act “when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident . . . ) other than his or her disposition to commit
such an act.â€
“Under
Evidence Code section 352, the court has discretion to exclude relevant
evidence ‘“if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.â€â€™ (
Cal.App.4th 634, 647.) ‘“The ‘prejudice’
referred to in Evidence Code section 352 applies to evidence which uniquely
tends to evoke an emotional bias against defendant as an individual and which
has very little effect on the issues. In
applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’â€â€™ (People
v. Bolin (1998) 18 Cal.4th 297, 320.)
Relevant factors in determining prejudice include whether the prior acts
of domestic violence were more inflammatory than the charged conduct, the
possibility the jury might confuse the prior acts with the charged acts, how
recent were the prior acts, and whether the defendant had already been
convicted and punished for the prior offense(s). (See People
v. Poplar (1999) 70 Cal.App.4th 1129, 1139; People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)†(People
v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
The trial
court was vested with broad discretion in determining whether the evidence was
properly admissible under Evidence Code section 352, and we will not interfere
with the court’s exercise of its discretion absent a showing that the ruling
was arbitrary, capricious, or patently absurd.
(People v. Callahan (1999) 74
Cal.App.4th 356, 367.)
There are
marked similarities between the prior incident involving Mariscal and the
charged offense, making evidence of the prior acts highly relevant. In both situations, Ruiz expressed jealousy
and anger because he suspected the victims were having telephone conversations
with other men. He reacted by insisting
the women call the telephone numbers he suspected belonged to the other men,
and by physically controlling the victims and threatening them with
knives. The evidence of the prior crime,
which was so similar to the current crime as to amount to a “pattern,†helped
explain that Marquez’s reluctance to testify against Ruiz was not because the
current incident did not happen, but because she was afraid of Ruiz. In addition, the prior incident was fairly
recent, occurring in 2006.
That the
incident with Mariscal lasted longer and that her injuries were more serious is
more a factor of his cornering Mariscal in her home, while he confronted
Marquez outside his apartment, knowing Lydia and Danielle were waiting in the
car downstairs. We find that
introduction of the evidence was not unduly prejudicial, as the prior incident
was not overly inflammatory or likely to lead to confusion on the part of the
jury. As the trial court concluded, the
evidence was more probative than prejudicial.
Finally,
although Ruiz was only convicted of a misdemeanor battery in the prior
incident, he was in fact convicted. In
any event, the jury here was able to assess the credibility of the witnesses
themselves. The prosecutor’s reference
during closing argument to Ruiz “beat[ing] the rap,†though of questionable
propriety, did not prejudice Ruiz. The
prosecutor made the statement in the context of explaining why Marquez and her
family did not report each violent or threatening act by Ruiz to the police. The prosecutor noted the Marquez family had
gone to the police several times but “[i]t doesn’t work because he beats the
system,†including by “get[ting] people to recant and beat[ing] the rap.†The statement was made to explain the Marquez
family’s response to Ruiz’s conduct, including the fact Marquez had recanted,
and was not phrased in a manner that invited the jury to punish Ruiz for what
he had done to Mariscal because he had gotten off too lightly. The jury was properly instructed as to the
limited purpose for which it could consider the evidence regarding the past
incident, and we presume the jurors followed their instructions.
Furthermore,
the evidence of Ruiz’s guilt in the present case was strong. Marquez testified that Ruiz pointed a knife
at her stomach and inflicted scratches, cuts, and bruises on her neck, under
her arms, and behind her ear. Danielle
and Lydia heard their mother yell for help and Danielle saw Ruiz’s hands on her
mother’s shoulders as her mother cried and asked Ruiz not to hurt her. Marquez looked upset as they drove back to
her house and reported Ruiz’s violence to family members as soon as she was out
of his presence. The police were called
immediately.
The
admission of relevant evidence does not offend a defendant’s federal
constitutional right to due process unless the evidence is so prejudicial as to
render the defendant’s trial fundamentally unfair. (People
v. Falsetta (1999) 21 Cal.4th 903, 913.)
The Mariscal evidence was not unduly prejudicial and by no means
rendered the trial fundamentally unfair.
Furthermore, we disagree with Ruiz’s contention that had the jury not
heard the testimony of Mariscal and her father, as well as the prosecutor’s
statement that Ruiz keeps beating the rap, the result of the trial would likely
have been different, whether judged by the standard set forth in
18, or the one set forth in People v.
Watson (1956) 46 Cal.2d 818, 836.
V. Instructional Error
Finally,
Ruiz contends that the trial court instructed the jury in a manner that gave
the impression that the court had found, as a matter of law, that Ruiz had a
motive to commit the charged offenses.
Although the court orally misstated an instruction, the error did not
mislead the jury. In context, the court
was not telling the jury that Ruiz had a motive. Any perceived error was mitigated by the fact
that the court corrected the error later and provided the jury with the correct
written instructions.
Background
The court
instructed the jury pursuant to CALCRIM No. 370 as follows: “The People are not required to prove that
the defendant had a motive to commit any of the crimes — crimes charged. In reaching your verdict, you may, however,
consider whether the defendant had a motive.
Having a motive may be a factor tending to show that the defendant is
guilty. Not having a motive may be a
factor tending to show the defendant is not guilty.â€
The court
further stated to the jury: “If you
conclude that a defendant discouraged someone from testifying, you may consider
that conduct only against that defendant — strike that last sentence. The
defendant had a motive to commit the offenses charged in this case — let me
just say that differently.
charges in this case. In evaluating
this evidence, consider the similarity or lack of similarity between the
uncharged offenses and acts and the charged offenses. Do not consider this evidence for any other
purpose except for the limited purpose as stated in this instruction. Do not conclude from this evidence that the
defendant has a bad character or is disposed to commit crimes. If you conclude that the defendant committed
the uncharged offenses or acts, that conclusion is only one factor to consider
along with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of the charges
or the crimes charged in this case. The
People must still prove each charge beyond a reasonable doubt.†(Italics added.)
Realizing
its error, the court stated to the attorneys out of the jury’s presence that
initially it did not have the first page of CALCRIM No. 375 and that it would
have to reread that instruction.
The
following day the court resumed reading the instructions to the jury. The court reread CALCRIM No. 375 in full,
including the following: “If you decide
that the defendant committed the uncharged offenses or acts, you may but are
not required to consider that evidence for the limited purpose of deciding
whether or not the defendant acted with the intent to commit the crimes alleged
in this case; whether or not the
defendant had a motive to commit the offenses in this case. In evaluating the evidence in this case,
consider the similarity or lack of similarity between the uncharged offenses
and acts and the charged offenses. Do
not consider this evidence for any other purpose except for the limited purpose
as stated in this instruction. Do not
conclude from this evidence that the defendant has a bad character or is
disposed to commit crimes. If you
conclude that the defendant committed the uncharged offenses or acts, that
conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that
the defendant is guilty of the crimes charged in this case. The People must still prove each charge
beyond a reasonable doubt.†(Italics
added.)
Ruiz
contends on appeal that this error relieved the prosecution of the burden of
proving each element of the charged offense beyond a reasonable doubt and
violated his due process rights under the United States and California
Constitutions. He contends reversal is
required because it cannot be shown the error was harmless beyond a reasonable
doubt and that the guilty verdict was surely unattributable to the error. We conclude that the trial court committed no
reversible error.
It
was perhaps apparent to the jury that the court had misspoken because of the
stumbling manner in which the court stated the faulty instruction, saying, “strike that last sentenceâ€
and “let me just say that differently†before and after the misstated
sentence. In any event, the proper
instruction was given to the jury in written form. “The risk of a discrepancy between the orally delivered and
the written instructions exists in every trial, and verdicts are not undermined
by the mere fact the trial court misspoke.
‘We of course presume “that jurors understand and follow the court’s
instructions.†[Citation.] This presumption includes the written
instructions. [Citation.] To the extent a discrepancy exists between
the written and oral versions of jury instructions, the written instructions
provided to the jury will control.’ (
[758,] 803.) Because the jury was given
the correctly worded instructions in written form and instructed with [now
CALCRIM No. 200], and because on appeal we give precedence to the written instructions,
we find no reversible error. (See also
1132-1133; People v. Box (2000) 23
Cal.4th 1153, 1212.)†(
200-201, fns. omitted.)
disposition
The
judgment is conditionally reversed and the matter remanded with the following
directions: (1) the trial court shall
hold a hearing on Ruiz’s Marsden
motion concerning his representation by defense counsel; (2) if the court finds
Ruiz has shown that a failure to replace his appointed attorney would
substantially impair his right to assistance of counsel, the court shall
appoint new counsel to represent him for all purposes and shall entertain such
applications as newly-appointed counsel may make; and (3) if newly-appointed
counsel makes no motions, or any motions made are denied, or Ruiz’s
shall reinstate the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
WILLHITE,
J.
name="_ftn1" title="">[1] All
further undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2]
