Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA067595, James R. Brandlin, Judge.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Deborah J. Chuang and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Robert Ray Armijo of five counts of second-degree robbery and the personal use of a firearm in the commission of three of those counts. Defendant’s convictions arose from five separate bank robberies in January and February of 2007. The trial court sentenced him to 150 years to life in prison. He appeals from the judgment of conviction and we affirm.
STATEMENT OF FACTS
On the afternoon of January 8, 2007, a man entered California Bank in Gardena. The bank teller, Maria Valencia, called the man to her station and as he approached, he produced a note that stated, “Do not shout or press alarm, this is a robbery.” The man warned Valencia to hurry or else he would kill her. Valencia complied with his demands, and the man left the bank, having taken approximately $6,280.
In early March, Valencia saw a picture of defendant in a newspaper and recognized him as the man who had robbed her. Also, at trial, Valencia identified with certainty defendant as the same man.
Next, on January 16, 2007, a man entered an Indymac Bank in Artesia. He sat at the new accounts desk and inquired about opening an account. As the teller, Rachel Staines, began explaining the bank’s products and rates to him, the man passed a note across the table to her, which read, “Do not set off the alarms. This is a bank robbery. Give me all of your cash in denominations of 5, 10, 20, 100’s. And I have a gun, and I will shoot you.” Staines gave the man $700 from her drawer. The man demanded that she go to the vault and get more. She complied with his demand, returned, and gave the money to the man, who left the bank with just under $6,000.
Immediately prior to this, Herman Stampley, a security guard just arriving to work, had taken note of a man, who was arguing on a cell phone outside the bank. Following the robbery, Staines ran into the break room to inform Stampley of what had just happened. Stampley then attempted to chase the man Staines had identified, but was unsuccessful in apprehending him.
At trial, Staines identified defendant as the man who had robbed her, and stated that she was certain of her identification. Similarly, Stampley identified defendant, both in a photographic lineup on March 22, 2007, and again at trial.
The next episode took place around 10:30 a.m. on February 8, 2007, at Indymac Bank in Covina. A man came into the bank where teller Nathan La Rue and trainee Alex Reveles were working. After exchanging pleasantries, the man slid a note across the table to La Rue, which read, “Do not push the alarm.” The man then revealed to La Rue that he was carrying a gun, and La Rue began to empty the cash drawer onto the counter. La Rue described with detail the type of gun that the man carried. Reveles did not see a gun. The total take was approximately $4,200.
Both La Rue and Reveles identified defendant out of a police six-pack lineup, although neither could state with complete certainty that he was the individual who had robbed them. At trial, however, both men affirmatively identified defendant as the culprit and both accurately described the tattoo on the left side of defendant’s neck.
Nine days later, on February 17, 2007, a man entered a Citibank in Torrance, and approached teller Arlene Miranda. He handed her a note, stating, “Do not push button,” and told her that he had something inside his shirt and to give him all of her money. Miranda complied and gave the man $200 that was in her drawer. He then took the money and left. In addition to Miranda, there were several other witnesses inside the bank. Customer Norma Vasquez, and employees Liset Gonzalez and Lisa Marie Estrada, in addition to Miranda, all identified defendant as the man who had robbed the Citibank.
That same day, a man entered Union Bank in Torrance and walked up to teller Jessica Alvarez. He demanded that she give him all of her money, or else he would shoot everyone in the bank. Alvarez opened her drawer and gave the man approximately $3,000. As he tried to leave the bank, the man experienced some difficulty with the security doors, and demanded help getting out. Alvarez’ coemployee, Hugo Cortes, assisted him out of the building.
In court, Alvarez identified defendant as the man who had robbed her. She also identified him from a surveillance photograph and video, as well as in a photographic lineup two weeks after the robbery. Cortes also identified, with certainty, defendant as the man who had robbed the bank that day. Moreover, he identified defendant in a photographic lineup two weeks after the robbery.
Following this last robbery, on February 17, Michael Bussey was standing outside of a furniture store in Torrance. He saw a man run by clutching something to his chest, and watched him jump over a wall into a residential area. The next day, Bussey identified defendant in a photographic lineup. He also identified defendant in court as the man he saw run and jump over the wall.
When police officers searched the area where Bussey had last seen defendant running, they recovered a pair of sunglasses and a cell phone. The police traced one of the phone numbers in the cell phone’s contact list to a residence in Long Beach. They began surveillance at this address, which led to defendant’s and codefendant Gary Cruz’ arrests on March 2, 2007. After initially denying his involvement with the robberies, defendant was shown surveillance photographs from the Citibank and Union Bank robberies, and was asked who the man in the photos was. Defendant responded, “I guess that’s me.”
PROCEDURAL HISTORY
Defendant was arraigned on a felony complaint on March 27, 2007, and Neil F. Radick of the Alternate Public Defender’s Office was appointed to represent him. At a proceeding on June 12, 2007, defendant requested to represent himself. The court advised defendant of the pitfalls of self-representation, and notified him that the case would get to preliminary hearing very soon. Defendant maintained that he wished to represent himself and the court granted the request. All parties agreed that the preliminary hearing would be held on July 17, 2007, and the court set that date as the last day for the hearing. The deputy district attorney indicated to the court that the witnesses to be called for the preliminary hearing would be from five different law enforcement agencies.
Defendant filed a discovery motion, which the court reviewed on June 25. That same day, the prosecution turned over a packet of discovery that had been requested. Some of the items requested by defendant’s motion were already in the packet, and some were determined to be premature for a preliminary hearing. Still other items had already been given to Radick, and were available for pickup by defendant’s investigator.
On June 29, defendant returned to court to file more motions. Neither he nor the prosecution had been able to get in contact with Radick to obtain the discovery. At the court’s request, Ernestine Odom from the Alternate Public Defender’s Office appeared. The court instructed her that any tapes or other discovery provided by the prosecution to Mr. Radick were to be turned over to defendant’s investigator.
On July 9, defendant appeared again to file motions with the court. Defendant moved for sanctions for non-compliance with discovery, and stated that he had still not received the discovery from Radick. The prosecutor turned over two CDs of surveillance photographs, and stated that he had spoken with Radick, and it was his understanding that Radick had the requested items available for pickup by defendant’s investigator. The court then contacted Radick via speakerphone, who told the court that defendant’s investigator had picked up the requested discovery the prior week. Defendant then informed the court that he was “nowhere near ready” for the preliminary hearing due to the restrictions placed upon him by his limited pro. per. funds and the jail refusing to recognize the legal status of his runner. He requested that he be allowed back to court on July 13 to file a motion for continuance, however the court stated its preference that he either send the motion by mail to the clerk, or have his runner file it. Defendant never moved to continue the preliminary hearing. The court denied the motion for sanctions, stating that the prosecution had thus far complied with its duties.
The preliminary hearing was held on July 17, 2007. The court first addressed defendant’s motion to dismiss and request for counsel, which had been delivered to the court five days earlier. The motion to dismiss was based on defendant’s belief that he had not obtained enough discovery up to that point, and cited Penal Code sections 866, subdivision (a) and 1054.1. The court stated that the statutes cited by defendant were relevant to discovery before trial, not before a preliminary hearing, and denied defendant’s request for dismissal.
As for defendant’s request for counsel, the court noted that granting the request would probably require an “extensive continuance,” and asked the parties if they objected to continuing the case in order to accommodate defendant’s request. The prosecution objected, arguing that the request was being done for the purpose of obstruction or delay. It cited the work that had been done by its office in preparation for the preliminary hearing, and the fact that investigative officers from five different agencies were gathered there to testify that day.
Codefendant’s attorney also objected on the grounds that her client had been in custody for over three months and was ready and entitled to a speedy preliminary hearing. The court then asked defendant if there was anything further he wished to add, and he replied, “No, Your Honor. I just request counsel. If not, then we’ll proceed with the hearing.”
The court weighed the interests of all the parties and decided to go ahead with the preliminary hearing, with defendant representing himself. It noted that defendant initially had been appointed an attorney, then had made numerous court appearances representing himself, and at no time requested to have an attorney reappointed. The court reasoned that since the request was now being made on the day of the preliminary hearing, it was being done for purposes of delaying the proceedings. It noted, however, that the defendant was only bound by self-representation for the preliminary hearing, and after that he would be appointed counsel if he was held to answer.
During the preliminary hearing, defendant chose to cross-examine only two of the six witnesses called, stating that he could not cross-examine the others because he had not received enough discovery. He also objected during a discussion of his codefendant’s involvement, stating, “Mr. Cruz wasn’t involved in none of these crimes that I am alleged and charged with. He was never involved.”
At defendant’s next appearance, on July 31, 2007, he withdrew his pro. per. status and was again represented by the Alternate Public Defender’s Office. On August 30, Ernestine Odom was assigned to represent defendant at trial. Then, on September 11, defendant filed a Marsden motion, to discharge his counsel, which was denied. Ms. Odom subsequently filed a motion to dismiss the case, pursuant to section 995 of the Penal Code, on October 2, based on the fact that defendant’s request for counsel was denied at the preliminary hearing. That motion was denied.
Ms. Odom represented defendant at trial. During trial, the prosecution introduced defendant’s statement from the preliminary hearing that “Mr. Cruz wasn’t involved in none of these crimes that I am alleged and charged with. He was never involved.” The jury returned a guilty verdict on five counts of robbery. Defendant appeals from the judgment of conviction.
DISCUSSION
On appeal, defendant contends that the preliminary hearing court erred by denying his motion to withdraw his Faretta waiver. According to defendant, that error requires reversal of his convictions because it resulted in his statement at the preliminary hearing, later used at trial, that “Mr. Cruz wasn’t involved in none of these crimes that I am alleged and charged with. He was never involved.” We disagree and affirm the judgment of the Superior Court.
A. Standard of Review
When a criminal defendant who has waived his right to counsel and elected to represent himself under Faretta v. California (1975) 422 U.S. 806 seeks to revoke that waiver and have counsel reappointed, the trial court must exercise its discretion under the totality of the circumstances, considering factors including the defendant’s reasons for seeking to revoke the waiver, and the delay or disruption revocation is likely to cause the court, the jury, and other parties. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.) Since the decision to grant or deny his request is based on the trial court’s discretion, this court will apply an abuse of discretion standard to resolve the issue.
In People v. Elliott (1977) 70 Cal.App.3d 984, the court set out a list of factors that the trial court should consider sua sponte when a pro. per. defendant asks to have counsel reinstated midtrial. The factors are meant to be guideposts in the lower court’s analysis, so as to provide a meaningful record for appellate review in the event that such review is later required. (Id. at p. 993.) Relevant factors include, among others, the following: (1) defendant’s prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation; (2) the reasons set forth for the request; (3) the length and stage of the trial proceedings; (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion; and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney. (Id. at pp. 993-994.)
In this case, defendant maintains that the preliminary hearing court acted outside the scope of its discretion by denying his motion to reinstate counsel, without making an adequate record of its consideration of the Elliott factors. However, this does not constitute grounds for reversal. “‘While the consideration of these criteria [listed in Elliott] is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation.’” (People v. Gallego, supra, 52 Cal.3d at p. 164.)
Here, the preliminary hearing court properly considered the totality of the facts and circumstances, and explained its reasons for denying defendant’s request for counsel. The court noted that codefendant Gary Cruz had been held in custody for over three months and wanted the hearing to proceed as quickly as possible. Also, the People’s witnesses, called from five different law enforcement agencies, were all present and ready to testify on the day of the hearing. The court determined that it would have been difficult and inconvenient to coordinate all of the witnesses’ schedules for a second hearing. The court considered the delay that might be expected to ensue if a continuance was granted to allow an incoming attorney to prepare, and decided that this would be unfair to both codefendant and the People’s witnesses. Both parties had a right to a speedy preliminary hearing, and those interests were weighed against the interests of defendant, which the court, within its discretion, determined were insufficient.
Defendant also asserts that the court mischaracterized his history of asserting the right to counsel as “ever changing,” speculated on the probable need for an “extensive continuance,” and left wholly unsupported the finding that defendant’s request was for the purposes of delaying the case. While the court may have overstated that defendant’s prior history was “ever changing,” we note that within a four-month period, defendant was represented by counsel, then by himself, and then, on the eve of the preliminary hearing, again attempted to have counsel appointed. That defendant did not move for a continuance to resolve problems with representation prior to the preliminary hearing supports the court’s perception that the request was made for purposes of delay.
The court considered the reasons given for the request, namely defendant’s frustration with obtaining certain discovery. Defendant asserts that there were legitimate reasons for his request for counsel, including ongoing problems with discovery, and a lack of respect for his Faretta rights by the jail staff that hampered his efforts to prepare an affirmative defense. He argues that the court should have given stronger consideration to his complaint that he was being denied discovery requests, although he fails to establish that he was entitled to the discovery at issue at the preliminary hearing stage, or that obtaining the requested discovery would have altered the outcome of the preliminary hearing.
Finally, the court considered the stage of the proceedings at which the request was taking place, i.e., the day of the preliminary hearing. Defendant argues that the court mischaracterized that his request for counsel was filed “essentially” on the day of the hearing. That defendant attempted to file his motion five days before the preliminary hearing, rather than on the day of, is inconsequential. It was not heard until the day of the preliminary hearing. As the court stated, five days notice was insufficient time to substitute counsel and be prepared for the hearing. Weighing all of these considerations, the court properly determined that the request was being made for purposes of delay.
In People v. Lawrence (2009) 46 Cal.4th 186, 196, the California Supreme Court stated: “[t]he standard is whether the court’s decision was an abuse of its discretion under the totality of the circumstances [citation], not whether the court correctly listed factors or whether any one factor should have been weighed more heavily in the balance.” In the case at bar, the court considered the totality of the circumstances and set forth a more than sufficient analysis to support its denial of defendant’s motion.
B. Harmless Error
Even if we concluded there was an abuse of discretion at the preliminary hearing in denying defendant’s request for counsel, defendant has failed to demonstrate prejudice. Taking into consideration the overwhelming evidence presented against defendant at trial, this potential error would be harmless beyond a reasonable doubt. (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [“irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination”; People v. Boulware (1993) 20 Cal.App.4th 1753 [applying Chapman harmless error standard to denial of request to rescind Faretta waiver].)
Defendant maintains that his comment, “Mr. Cruz wasn’t involved in none of these crimes that I am alleged and charged with. He was never involved” would not have been made had he been represented by counsel at the preliminary hearing, and that the admission of this comment at trial led to the jury’s finding of guilt. He argues that this comment, which could be characterized as an inferred admission, “carried heavy weight before the jury and unfairly biased the jury’s determination on the issue of identification and... culpability for all five robberies.” However, this inferred admission was not the dispositive piece of evidence in this case. Assuming that defendant had been granted counsel for the preliminary hearing, and that counsel would have prevented the so-called admission from taking place, the jury was nonetheless provided with a mountain of direct and circumstantial evidence from which it would have undoubtedly reached the same result.
Every eyewitness called by the prosecution identified defendant as the man who had committed the several robberies. Moreover, defendant identified himself in surveillance photos from the Citibank and Union Bank robberies. Also, the robberies occurred over a short period of time (January 8, 2007 to February 17, 2007) and bore significant similarities. Given this evidence, the receipt of defendant’s implied admission into evidence was harmless beyond a reasonable doubt. Therefore, the preliminary hearing court’s denial of defendant’s request to withdraw his Faretta waiver, even if it was erroneous, does not require reversal of the judgment. (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.