Opinion
NOT TO BE PUBLISHED
San Benito County Super.Ct.No. CR07-00287
Duffy, J.
Defendant Abel Alcaraz was convicted after a jury trial of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); he was acquitted on the alternative count of receiving stolen property (Pen. Code, § 496). He was sentenced to two years in prison.
Further statutory references are to the Penal Code unless otherwise stated.
Defendant argues on appeal that he made a pretrial motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). He argues that he made this motion in connection with an additional motion to discharge his court-appointed attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and that the court committed reversible error by denying the Faretta motion that he claims to have made when he sought to discharge his counsel pursuant to Marsden. He argues further that the trial court erroneously admitted certain evidence that defendant had moved to have stricken—i.e., the statement he allegedly made to an officer after his arrest—because the police officer witness had no independent recollection of the statements and therefore the evidence lacked foundation. For the reasons below, we conclude that there was no Faretta error and that the court did not abuse its discretion by denying the motion to strike. Accordingly, we affirm the judgment of the trial court.
We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.) The facts are taken from the testimony of witnesses called by the prosecution. The defense called no witnesses.
At approximately 3:30 a.m. on March 1, 2007, Sergeant Mike Rodriguez of the San Benito County Sheriff’s Department was patrolling at the intersection of Searle Road and Highway 156 in San Juan Bautista. He observed a vehicle in the Park and Ride lot at that location and thought that it was unusual because it had its lights on and the engine was running. The vehicle was a maroon 2006 Chevrolet Trailblazer, license number 5UVS931 (Trailblazer). Through a radio check, Sergeant Rodriguez determined that the Trailblazer had been reported stolen. After calling for a field unit, the sergeant arrested the driver, defendant. At the time, defendant’s wife and two children were also in the vehicle. Defendant told Sergeant Rodriguez at the time of the arrest that he had rented the Trailblazer.
Deputy Sheriff Ralph Morden was involved in the arrest of defendant at the Park and Ride lot. He transported defendant to the jail. After the deputy read defendant his rights, he told the deputy that he had rented two vehicles from Hertz Rental Cars (Hertz) under two agreements, one vehicle for one week and the second for 30 days. Defendant also stated that the computer system had been down at the time he rented from Hertz; he had paid $30 in cash; the total contract was for 43 days; and the contract was located in the console of the Trailblazer. Deputy Morden testified that defendant was unable to explain the discrepancy in his statement between the total of 37 days that he had said was the length of time he had rented the two vehicles and the 43 days that he indicated to be the contract term. Deputy Morden did not locate a rental contract in the Trailblazer’s console and never found “the receipt.”
Russell Johnston, a transporter who worked for Hertz at the San Jose Airport, conducted a regular weekly inventory of vehicles in the local area on or about February 23, 2007. At that time, he determined that the Trailblazer—which was last rented on January 16, 2007, by Everett Wallace or Wallace Everett, and returned the next day—was missing. Johnston reported to the airport police that the missing vehicle was stolen. He also testified that defendant was on a Hertz “do-not-rent-to” list because of an incident in 2006. Defendant had rented a vehicle on July 1, 2006, and had failed to return it two days later as required under his agreement. On August 9, 2006, Hertz reported the vehicle involved in that prior incident as stolen; it was recovered on September 17, 2006.
Solomon Shiferaw, the senior station manager for Hertz at the San Jose Airport, testified that Hertz does not rent automobiles to customers who are on the “do-not-rent-to” list. The computer for Hertz is shut down once a day at approximately 1:00 a.m. During the period that the computer is down, Hertz agents prepare manual rental contracts for any customers renting cars. After the computer system returns on-line, the procedure is for the agents to verify the accuracy of the information taken in any manual rental contracts, including determining whether any of the renters are on the “do-not-rent-to” list. Shiferaw testified that based on his search of the company’s records, there was no rental agreement involving defendant for the Trailblazer that was reported stolen.
PROCEDURAL BACKGROUND
A two-count information against defendant was filed March 19, 2007. Defendant was charged with unlawful taking or driving of a vehicle without the consent of its owner, a felony (Veh. Code, § 10851, subd. (a); count 1); and receiving stolen property, a felony (§ 496, subd. (a); count 2). (At the outset of the trial, the prosecutor acknowledged that count 2 was alleged in the alternative.) The information contained special allegations pursuant to section 667.5, subdivision (b), that defendant had suffered prior felony convictions occurring in July 1999.
Prior to trial, defendant expressed dissatisfaction with his appointed counsel that resulted in the court conducting an in camera Marsden motion. The court denied that motion.
On May 22, 2007, after a two-day trial and slightly less than two hours of deliberations, the jury returned a verdict finding defendant guilty of unlawful taking or driving of a vehicle (count 1), and not guilty under the alternative count of receiving stolen property. The court sentenced defendant on July 11, 2007, to the midterm of two years, with 199 days’ credit for time served. (The prosecution did not pursue the allegation under section 667.5, subdivision (b) that defendant had suffered prior felony convictions.) Defendant filed a timely notice of appeal.
DISCUSSION
I. Issues on Appeal
Defendant raises the following issues on appeal:
1. The court committed reversible error by denying a Faretta motion for self-representation that defendant claims that he made.
2. The court abused its discretion by admitting evidence of certain statements allegedly made by defendant to a police officer because there was no foundation for the admission of that evidence.
We address these two contentions below.
II. Claim of Error Based upon Denial of Alleged Faretta Motion
A. Background
At a pretrial conference on May 9, 2007, defendant made a comment that ultimately resulted in the court conducting an in camera Marsden hearing outside the presence of the prosecutor. In order to understand and address fully defendant’s claim of Faretta error here, we will quote in detail various statements made in those proceedings.
1. Pretrial conference
Immediately after the prosecutor and defense counsel, Gregory LaForge, confirmed that a jury trial with a three-day time estimate was scheduled to commence on May 21, 2007, defendant stated: “In San Jose I was told if I didn’t feel I was properly represented, I could go for a Morrissey [sic] and self-represent. [¶] I have proof on my credit card receipt that I rented the vehicle; it wasn’t stolen. I’m wondering if it’s possible to OR. I have a case in San Jose that I was already told that as soon as I get to San Jose, it’s a no-body hold. I’ll be released from San Jose. I spoke to someone from San Jose, and they contacted a person named Lupe here, and they’re telling me there’s a receipt for my rental vehicle. I have a wife and two children. I’ve been in San Jose for 41 years, and I can easily resolve this by being ORed or something, just waiving time. I can come back.” (Italics added.)
Following this initial statement, the following exchange occurred between the court, defendant, the prosecutor, and defense counsel: “THE COURT: We have this confirmed for trial. [¶] THE DEFENDANT: Okay. [¶] So what can I do about the Morrissey? I’m saying that I don’t feel that I’ve been properly represented. [¶] THE COURT: If you want to make a motion— [¶] THE DEFENDANT: Yes, sir. [¶] THE COURT: —for—it’s not a Morrissey— [¶] MR. LaFORGE: Not Morrissey. It’s called a Marsden. [¶] THE COURT: Marsden. [¶] THE DEFENDANT: I mean, I’d like a different lawyer, somebody with an investigator who is going to investigate what I’m asking. I have a rental receipt. The reason I rented the vehicle— [¶] THE COURT: I won’t go into the facts of the case. If you want to make a motion pursuant to Marsden, do that right now. [¶] THE DEFENDANT: Unless there’s another lawyer that can represent me and handle picking up the information from where I said it was. And I’m being called a liar. [¶] THE COURT: You haven’t given the information to your lawyer? [¶] THE DEFENDANT: I did, sir. [¶] THE COURT: Okay. [¶] Did you want to comment on any of that? [¶] MR. LaFORGE: We can do the Marsden right now. That’s fine. [¶] [THE PROSECUTOR]: I think that’s the appropriate step, [Y]our Honor. [¶] THE COURT: Sure. We can do it now. Okay.” (Italics added.)
2. In-chambers Marsden proceedings
The court then conducted a hearing in chambers in which the prosecutor was not present. The relevant statements made by the court, defense counsel, defendant, and an investigator hired by defense counsel follow.
“THE COURT: . . . [¶] . . . And what we’re having is a Marsden hearing. And a Marsden hearing—you’ve never been to one before, have you? [¶] THE DEFENDANT: No, sir. [¶] THE COURT: It’s just whether or not you’re getting adequate representation by your lawyer. It doesn’t mean that you have to like what the lawyer is doing— [¶] THE DEFENDANT: I understand that. [¶] THE COURT: —or how the lawyer is doing it but rather—why don’t you just tell me briefly what your complaint is about the lawyer’s handling of the case. [¶] THE DEFENDANT: Okay. I haven’t spoken to my lawyer, with the exception of the time I was in court. . . . But I’ve lived in San Jose for 40-plus years, and in those times that I have been in trouble, the attorney has always come to visit me in the jail, and I’ve explained everything that’s happened. I have had no visit from my attorney. I’ve had very limited use—I’m hearing impaired, and I haven’t had access to call people that I know because I use a TDY [sic]. . . . I’ve attempted to speak to my attorney. I don’t have [his] phone number. I haven’t seen a police report. I asked for full disclosure. I haven’t seen anything. I don’t know what’s going on with my case. I explained to them I rented a vehicle. [¶] THE COURT: Explained to who[m]? [¶] THE DEFENDANT: To my lawyer. [¶] THE COURT: So you’ve talked to your lawyer. [¶] THE DEFENDANT: Here. [¶] THE COURT: I don’t care where. Have you talked to the lawyer’s investigator? [¶] THE DEFENDANT: Insufficiently. [¶] THE COURT: Have you talked to the lawyer’s investigator? [¶] THE DEFENDANT: Yes, I have— [¶] THE COURT: Okay. [¶] THE DEFENDANT: —in the one or two successful phone calls I’ve had. I know that if I go pro per, if I can represent myself, or if I can get a lawyer that’s going to verify that, I can go—someone can go online and check that my credit card company has already charged for my rental. I’m being told that I’m not a Gold Club member, yet at my storage location or in the vehicle there should be proof of the Gold Club card and a receipt. At my mother’s house there’s information also. And it’s just that I have no way to convey that. I haven’t spoken to my attorney enough, and I’m going to trial, and my attorney is involving—the investigator is involving a situation where my vehicle is being repaired, and the repair has nothing to do with me driving a rental car. . . .” (Italics added.)
After discussions not germane to the issue on appeal, the following further exchange occurred in the Marsden hearing: “[¶] THE COURT: Okay. Let’s hear from counsel. [¶] MR. LaFORGE: Pound 31 works. I tell my clients to call me. They can call me anytime. . . . [¶] . . . [¶] MR. LaFORGE: [Defendant can] get through to me. I’ve met with him. We’ve been to preliminary hearing on this case. [¶] I never called him a liar. . . . [¶] THE DEFENDANT: That was the investigator. [¶] MR. LaFORGE: We were just presented with a copy of a police report today, a supplement, from the D.A.’s office. My investigator was going over that with him on today’s date regarding his alleged status as a Gold Club member and what people from the rental agency are going to testify to, and then my investigator, Mr. Stafford, will follow up with a few of the other concerns. [¶] . . . [¶] THE DEFENDANT: In order for my communication to be good between me and him, I need to have access to the phone the way I talk, to the TDY [sic]. . . . [¶] . . . [¶] THE COURT: Okay. [¶] Mr. Stafford, is there anything you wanted to add? [¶] INVESTIGATOR STAFFORD: I met with the client a number of times here in court. Today was the first time that we heard anything about the receipt. What he told me was the receipt was not with him but with his mother. He told me how I could get into his credit card information to possibly come up with a receipt. . . . We were in there probably a half hour talking about this.”
The court then inquired as to whether LaForge felt that he had sufficient time before trial to complete the investigation. LaForge said that he thought that he needed more time but that he would have to do his best because defendant would not waive time. The following exchange then took place: “THE COURT: Okay. [¶] Is there anything else that you think I ought to know about your situation? [¶] THE DEFENDANT: Well, I mean, the computer is easily accessed. A telephone call will verify that the vehicle was rented. [¶] All I’m saying is if someone, my lawyer, can speak to the department and have them allow me access—‘equal access’ is what the Armstrong Act says. I should be allowed equal access to the phone. [¶] I’m sorry. I thought I told you I was hearing impaired. I’ve gone through so much here. [¶] The investigator said he might be working some kind of deal. But I rented the car. If I’m guilty, why would I make a deal? What I heard was I’m full of shit. I seen [sic] his lips. I don’t feel I’m represented correctly. I speak to the person for a few minutes, and I don’t have a police report. I’d like to know what’s going on with my case. [¶] THE COURT: Okay. I’ll deny your request to represent yourself. [¶] THE DEFENDANT: Okay. [¶] THE COURT: You’re getting adequate representation.”
The only reference to an “Armstrong Act” of which this court is aware is an Illinois statute “which requires local boards to take the prevention of segregation into account in creating or changing attendance centers. [Citation.]” (Board of Educ. of City of Peoria v. Sanders (Ill. 1987) 115 Ill.2d 536, 508 N.E.2d 208.)
Defendant was then asked by the court whether he would waive time to permit his counsel to complete his investigation. Defendant stated that he would not waive time because it was his belief that it would “take[] all of five minutes” for LaForge to complete the investigation by accessing the computer. After that issue was discussed, the following exchange between defendant and the court occurred: “THE DEFENDANT: If I represent myself—[Y]our Honor, let me ask this: If I represent myself and I’m allowed access to the information or access to a computer, access to a telephone, I can have someone verify the information. I don’t know who. But I should be allowed an investigator, and that investigator should be able to pick up a phone, call up my credit card company, and have a receipt printed even on the computer. [¶] THE COURT: Okay. [¶] So I’m denying your Marsden. [¶] THE DEFENDANT: Okay. What about the—[¶] THE COURT: So the matter is set for trial on May 21st. [¶] THE DEFENDANT: Okay. How about informing the department that—you know, if they would please allow me access, equal access, to the telephone that other inmates are allowed. Because—[¶] . . . [¶] THE COURT: You’re entitled to the same access that anybody else in your condition is at the jail, certainly.” (Italics added.) The in-chambers proceedings then concluded after further discussion about defendant having telephone access, LaForge’s unsuccessful attempt to obtain his client’s release on his own recognizance, and defendant’s inquiry about any “deal” being offered by the district attorney’s office.
3. Post-Marsden proceeding
After the in-chambers Marsden proceedings, there was a brief discussion in open court. The relevant aspects of that discussion follow: “MR. LaFORGE: We’re confirming, [Y]our Honor. [¶] I think—I explained it to [defendant] right now. The motion that he wanted to make wasn’t a Marsden. What he wanted was a motion so he could have equal access to the telephone. [¶] THE DEFENDANT: And report to him. [¶] MR. LaFORGE: So I know the Marsden was denied. [¶] THE COURT: Yes. [¶] MR. LaFORGE: But to clarify further, once I talked to him, he just wanted to have access to the phone, and the Court stated that [it] would grant him full access. [¶] THE COURT: Absolutely. [¶] THE DEFENDANT: And also full disclosure, whatever information the attorney has. [¶] THE COURT: Well, access on the phone. The attorney has to work with you on those things, and he will do that. [¶] THE DEFENDANT: Thank you. [¶] THE COURT: Thank you. [¶] THE DEFENDANT: And I apologize. I misunderstood. I that’s [sic] what I was trying to do. [¶] THE COURT: No problem. [¶] THE DEFENDANT: Thank you. [¶] THE COURT: Okay. [Proceedings concluded.]” (Italics added.)
B. Contentions of the Parties
Defendant contends that he “repeatedly raised the issue of self-representation . . . .” He asserts that the court apparently confused the issues involved in a Marsden motion to discharge appointed counsel with a Faretta motion for self-representation, because immediately after saying “I’ll deny your request to represent yourself,” the court stated, “You’re getting adequate representation.” Defendant argues that his Faretta request was unequivocal; it was improperly denied; and such denial constituted structural error that compels reversal.
The Attorney General responds that the court did not abuse its discretion by denying defendant’s Marsden motion to substitute counsel. He responds further that defendant did not make an unequivocal request for self-representation under Faretta; alternatively, even if the record supports the conclusion that defendant made an unequivocal Faretta motion, he later withdrew it.
This argument need not be addressed by this court. Defendant acknowledges that this issue raised by the Attorney General is irrelevant because defendant does not contend that the court erred in the denial of the Marsden motion.
C. Discussion of Claim of Error
1. Applicable law
In the leading case of People v. Marshall (1997) 15 Cal.4th 1 (Marshall), our Supreme Court addressed in detail the underlying rationale, application, and limitations of the constitutional right to self representation as recognized in Faretta, supra, 422 U.S. 806. The Marshall court explained that a criminal defendant has “two constitutional rights with respect to representation that are mutually exclusive[, namely,] . . . the right to be represented by counsel at all critical stages of a criminal prosecution [citations, and] . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. [Citation.]” (Marshall, supra, at p. 20.) The latter right to self-representation, unlike the right to counsel, “is not self-executing. In Faretta, supra, 422 U.S. 806, the court held that a knowing, voluntary, and unequivocal assertion of the right of self-representation, made weeks before trial by a competent, literate defendant, should have been recognized (id. at pp. 835-836); subsequent decisions of lower courts have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation. [Citations.] As one court observed: ‘[T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se.’ [Citation.]” (Id. at pp. 20-21.)
The Marshall court stressed the importance of the requirement that a defendant’s assertion of the right to self-representation be unequivocal. It noted that “[s]everal lower courts have declared that a [Faretta] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation. [Citations.]” (Marshall, supra, 15 Cal.4th at p. 21.) “Many courts have explained that a rule requiring the defendant’s request for self-representation to be unequivocal is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation. Without a requirement that a request for self-representation be unequivocal, such a request could, whether granted or denied, provide a ground for reversal on appeal. This problem has irked many courts, and some of their opinions have given examples of such abuse. [Citations.]” (Id. at p. 22.)
The Marshall court therefore held: “We share the concern that some assertions of the right of self-representation may be a vehicle for manipulation and abuse. It is not only the stability of judgments that is at stake, however, when we require a defendant to make an unequivocal request for self-representation. The defendant’s constitutional right to the effective assistance of counsel also is at stake—a right that secures the protection of many other constitutional rights as well. [Citations.] The high court has instructed that courts must draw every inference against supposing that the defendant wishes to waive the right to counsel. [Citation.] It follows . . . that in order to protect the fundamental constitutional right to counsel, one of the trial court’s tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. [Citations.] The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (Marshall, supra, 15 Cal.4th at pp. 22-23.)
Our high court has reiterated its emphasis that a defendant’s invocation of his or her right to self-representation must be unequivocal. (See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 683; People v. Dent (2003) 30 Cal.4th 213, 218; People v. Barnett (1998) 17 Cal.4th 1044, 1087 (Barnett).) Numerous courts have rejected appellate challenges based upon claimed Faretta error. Several examples are appropriate to mention in addressing defendant’s claim of error in this instance. In People v. Wright (1990) 52 Cal.3d 367, 408, the defendant expressed his dissatisfaction with counsel, telling the court, “ ‘And I feel like this—like me and he can’t get along. If I got to go down, let me go down by myself because I really don’t need no overworked PD trying to help me fight my case when he not [sic] going to do nothing for me.’ ” The court rejected defendant’s Faretta error claim, finding that there was no unequivocal assertion of the right to self-representation. (Wright, supra, at pp. 409-410.)
Likewise, in Barnett, supra, 17 Cal.4th at page 1087, the defendant made a single statement—after the magistrate indicated that he would not immediately entertain the defendant’s Marsden motion—that “he ‘would make a motion to proceed pro se, then.’ ” The Supreme Court held that the defendant had not made an unequivocal request to represent himself. (Ibid.; see also People v. Marlow (2004) 34 Cal.4th 131, 147 [statement asking whether “ ‘it [is] possible that I just go pro per in my own defense and have someone appointed as co-counsel’ ” held a request for information, not an unequivocal Faretta request].)
In reviewing a claim of Faretta error, an appellate court conducts an examination of the entire record to ascertain whether there was an unequivocal assertion by the defendant of the right to self-representation. (Marshall, supra, 15 Cal.4th at p. 25.) “A reviewing court, in determining whether a motion for self-representation is unequivocal, is not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation. [Citation.]” (Barnett, supra, 17 Cal.4th at p. 1087.)
2. Whether there was Faretta error
A review of the entire record discloses that defendant here did not make an unequivocal assertion of his right to self-representation. At the outset of the pretrial conference, defendant commented that “[i]n San Jose I was told if I didn’t feel I was properly represented, I could go for a Morrissey [presumably Marsden motion] and self-represent.” That statement potentially reflected two distinct desires, i.e., defendant’s desire to replace his court-appointed attorney with another attorney due to claimed inadequate representation, and a desire to represent himself. Defendant’s later comments at the pretrial conference (before the in camera proceedings) were: “So what can I do about the [Marsden]? I’m saying that I don’t feel that I’ve been properly represented. [¶] . . . [¶] [ ] I mean, I’d like a different lawyer, somebody with an investigator who is going to investigate what I’m asking . . . . [¶] . . . [¶] [ ] Unless there’s another lawyer that can represent me . . . .” Those subsequent comments indicate that the Marsden matter—namely, the allegedly deficient performance by his attorney—not pro per status, was the issue defendant wanted to address.
At the outset of the in camera Marsden hearing, the court specifically advised defendant that the purpose of the hearing was to address “whether or not [defendant was] getting adequate representation by [his] lawyer.” After defendant indicated that he understood the court’s explanation, the court told defendant, “[W]hy don’t you just tell me briefly what your complaint is about the lawyer’s handling of the case.” Thus, it was clear that the focus of the hearing was to address defendant’s claim of inadequate legal representation—a Marsden motion.
As reflected by the recitation of the proceedings, ante, defendant raised a host of topics in the in camera proceeding, only some of which concerned his perception that he was not being adequately represented. The focus of the hearing however, was not on whether defendant would represent himself. Rather, it was on his claim of inadequate representation, as the court noted at the outset of the proceeding.
During the course of the in camera proceeding, defendant twice alluded to pro per status. After explaining complaints that he had about his attorney, defendant stated “I know that if I go pro per, if I can represent myself, or if I can get a lawyer that’s going to verify that, I can go—someone can go online and check that my credit card company has already been charged for my rental.” (Italics added.) Toward the end of the proceeding, after the court indicated it was denying his Marsden motion, defendant stated: “If I represent myself—[Y]our Honor, let me ask this: If I represent myself and I’m allowed access to the information or access to a computer, access to a telephone, I can have someone verify the information.” (Italics added.) In the context of the entire proceedings, we do not view either of these statements to have been an unequivocal invocation of defendant’s right to self-representation. Rather, it is apparent that defendant intended to convey his belief that information that would demonstrate that he had rented the vehicle was easily obtainable, and that therefore his attorney’s performance was deficient because neither the attorney nor his investigator had gathered the information. These statements to the effect that defendant could accomplish certain things if he were allowed to represent himself were not, either individually or collectively, unequivocal assertions of his Faretta rights. (See People v. Hines (1997) 15 Cal.4th 997, 1027-1028 [the defendant’s statement that if his Marsden motion were denied, he “ ‘would like to proceed in pro per if possible’ ” held not unequivocal Faretta request]; People v. Skaggs (1996) 44 Cal.App.4th 1, 4-7 [the defendant’s statement, after making Marsden motion, that “[he’d] like to go pro per if [he] could” was not sufficiently unequivocal to constitute Faretta motion].)
Moreover, our conclusion from a review of the entire record that defendant did not make an unequivocal request for self-representation is supported further by the in-court proceedings that followed the Marsden hearing. At that time, defendant’s attorney confirmed that defendant’s real complaint concerned a lack of equal access to the telephone: “The motion that he wanted to make wasn’t a Marsden. What he wanted was a motion so he could have equal access to the telephone. [¶] THE DEFENDANT: And report to him.” (Italics added.) Defendant thereafter apologized to the court and agreed that obtaining equal access by telephone so that he could contact his attorney was “what [he] was trying to do.” (Italics added.) At that time, defendant did not in any way communicate a desire to represent himself.
Defendant, however, urges that Faretta error is established by the court’s statement during the in camera Marsden proceeding that “I’ll deny your request to represent yourself. [¶] . . . [¶] [ ] You’re getting adequate representation.” We disagree. While the quoted language is ambiguous, in that it juxtaposes two distinct matters (i.e., denial of self-representation and denial of a Marsden motion), the court shortly afterward in the hearing made it clear that it was denying defendant’s Marsden motion. Therefore, regardless of whether the court “misspoke”—as the Attorney General posits—when it indicated it was denying the request for defendant to represent himself, the court’s ambiguous statement did not transform defendant’s Marsden motion into combined Marsden and Faretta motions. And even were it clear that the court did regard defendant’s request as being combined Marsden and Faretta motions, we are “not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation. [Citation.]” (Barnett, supra, 17 Cal.4th at p. 1087.)
Therefore, based upon our review of the entire record (Marshall, supra, 15 Cal.4th at p. 25), and “draw[ing] every reasonable inference against waiver of the right to counsel” (id. at p. 23), we conclude that defendant did not unequivocally invoke the right to self-representation. Accordingly, we reject defendant’s claim of Faretta error.
III. Admission of Defendant’s Statements
A. Parties’ Contentions
Defendant contends that the court erred in allowing Deputy Morden’s testimony concerning defendant’s statement to him on the morning of his arrest that he had entered into two contracts with Hertz involving the rental of two different vehicles. On cross-examination, Deputy Morden testified—according to defendant’s interpretation of the record—that he had no independent recollection of defendant’s statement and that his prior testimony was based upon his reading of his police report. Defendant argues that, because Deputy Morden’s testimony on this subject was not based upon his personal knowledge, it lacked foundation under Evidence Code section 702, subdivision (a) and should have been stricken by the court. And (defendant argues) because the record does not establish the necessary foundation for the admission of the report on the basis that it represented Deputy Morden’s past recollection recorded under Evidence Code section 1237, the report itself was inadmissible. Accordingly, defendant contends that the court abused its discretion when it denied defense counsel’s motion to strike Deputy Morden’s testimony. Finally, defendant asserts that the error was prejudicial because it is reasonably probable that he would have obtained a more favorable result had the evidence been excluded.
The Attorney General responds that defendant forfeited his appellate argument by failing to object below that there was an insufficient foundation to admit Deputy Morden’s testimony as past recollection recorded. Even if not forfeited, the argument lacks merit because the evidence of defendant’s statement was not admitted as past recollection recorded; rather (the Attorney General asserts), the report was not admitted and the testimony was based upon the witness’s (without objection by the defense) refreshing his recollection by using the report. Lastly, the Attorney General argues that even if there were error, it was harmless because other evidence establishing defendant’s guilt was substantial and it was therefore not reasonably probable that defendant would have been acquitted in the absence of evidence concerning his statement to Deputy Morden.
We conclude that defendant forfeited any challenge to the admission of the evidence for the reasons stated below.
B. Forfeiture of Claim of Error
The relevant sequence of questions and answers on direct examination that immediately preceded the deputy’s detailed description of defendant’s statement was as follows: “Q. Once you got to the jail, did you have an opportunity to speak with the Defendant? [¶] A. Yes, I did. [¶] Q. Prior to doing so, did you read him his rights? [¶] A. I did. [¶] Q. What did he tell you, do you recall? [¶] A. May I refer to my report? [¶] Q. You may. [¶] A. He told me he rented two vehicles from a Hertz Rental, . . . ” The initial testimony by Deputy Morden concerning defendant’s custodial statements was admitted without objection or request by defense counsel for clarification as to the legal basis on which Deputy Morden would be permitted to refer to his report.
Defense counsel on cross-examination inquired as to whether defendant may have told Deputy Morden that he had rented only one vehicle under two agreements. The exchange between defense counsel and the witness leading up to the motion to strike and the motion to strike itself were as follows: “Q. But you’re absolutely certain that he told you it was two cars, one agreement—without looking at your report? [¶] A. Yes, because I looked at my report when I was answering his question. [¶] Q. Oh, so you didn’t have an independent recollection; it was just what you were reading off your report? [¶] A. Yes. [¶] Q. Okay. [¶ Defense Counsel:] Your Honor, I move to strike those answers wherein he testified he did not have an independent recollection when he was reading off the report.” The court denied the motion to strike.
Defense counsel appears to have misspoken in so phrasing this question: Deputy Morden testified consistently that defendant told him that he had rented two vehicles from Hertz under two agreements.
An evidentiary motion to strike, like an evidentiary objection, “must point to the specific ground of the objection, and the particular portion of the evidence deemed objectionable. [Citations.]” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 383, p. 475.) A judgment will not be reversed on the basis of the erroneous admission of evidence unless the error was prejudicial and the record demonstrates that “an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion . . . .” (Evid. Code, § 353, subd. (a).) Here, the motion to strike neither stated the precise grounds on which it was made, nor specifically identified the testimony it urged stricken.
As evident from the above quoted language, defense counsel did not state that the basis for moving to strike the testimony of Deputy Morden was lack of personal knowledge under Evidence Code section 702—the basis for the claim of error on appeal. Likewise, defense counsel did not indicate in the motion to strike that the prosecution had failed to lay a proper foundation for the deputy’s reference to his report under the doctrine of past recollection recorded (Evid. Code, § 1237). Defendant’s failure to make a specific objection at trial to Deputy Morden’s testimony on the grounds now urged on appeal renders his appellate claim forfeited. (People v. Green (1980) 27 Cal.3d 1, 22 & fn. 8 [appellate court will not consider appellate claim where there was failure to make timely and specific evidentiary objection, even if an objection on a different basis was made at trial], overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233-237; and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)
The motion to strike was also defective because defense counsel did not identify the specific testimony he desired to be stricken. Apparently, on appeal, defendant urges that all of Deputy Morden’s testimony as to defendant’s custodial statement concerning his alleged vehicle rental arrangements with Hertz was inadmissible. But defendant’s motion to strike did not so specify. Indeed, read literally, the motion sought an order striking only the witness’s prior answer on cross-examination in which he testified that he did not have an independent recollection of unspecified matters read from his report. Such a literal reading, were that matter ordered stricken, would leave intact in the record all of Deputy Morden’s testimony about defendant’s custodial statements—a result that is opposite of the one defendant urges on appeal.
Furthermore, defendant did not object during direct examination to Deputy Morden’s apparent reference to his report. Thus, even assuming any impropriety in the witness’s referring to the report, the absence of any objection precluded the prosecution from curing any potential defect. (See People v. Belmontes (1988) 45 Cal.3d 744, 766 [timely and specific objection to evidence required because “contrary rule would deprive the People of the opportunity to make their record on the matter and cure the defect at trial”].) For example, it is likely that the deputy’s use of his report during his testimony would have been appropriate under Evidence Code section 771, subdivision (a) to refresh his recollection—as the Attorney General urges on appeal. Although defendant argues that the witness had no recollection at all of defendant’s statement and based his testimony solely on his reading of the report, the record does not support such a categorical position.
“[I]f a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.” (Evid. Code, § 771, subd. (a).)
Since the trial occurred less than three months after defendant’s arrest, it is indeed possible that Deputy Morden had some memory of the custodial statements and therefore could have testified that the report refreshed his recollection as required under Evidence Code section 771, subdivision (a).
And even if Deputy Morden had no recollection of defendant’s statements, it is likely that the prosecution—had objection been properly made—could have laid a sufficient foundation to permit the witness’s referring to his report on the basis that it was made at the time of the event or was fresh in his mind, and accurately reflected what transpired, as required by Evidence Code section 1237, subdivision (a). The report was prepared by Deputy Morden based upon notes that he took contemporaneously with his custodial interview of defendant. (See Anderson v. Souza (1952) 38 Cal.2d 825, 832-833 [memorandum prepared by witness from contemporaneous notes taken by him at various time properly read by witness at trial as past recollection recorded].) Although the witness did not directly state that the report accurately reflected what defendant told him, that conclusion can be readily inferred from his testimony. And had there been a timely objection to the deputy’s use of his report, it is likely that a proper foundation could have been established that would have allowed testimony from the report based upon past recollection recorded.
“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness’ statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement.” (Evid. Code, § 1237, subd. (a).)
Under these circumstances, therefore, we conclude that defendant’s challenge to the admission of Deputy Morden’s testimony must be deemed forfeited.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.