Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA061811, James R. Dabney, Judge.
Catherine White, 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, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Robert Black, Jr., appeals from a judgment entered after a jury found him guilty of first degree burglary (Pen. Code, § 459 ) and he admitted that he suffered two prior serious or violent felony convictions (§§ 667, subds. (a), (b)-(i), 1170.12) and served three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to state prison for a total term of 38 years to life.
All further statutory references are to the Penal Code.
On appeal, defendant claims that the magistrate’s refusal to allow him to take the witness stand in his own defense at the preliminary hearing unless he first waived his right to counsel violated his constitutional rights. We affirm the judgment.
FACTS
Prosecution
In October 2006, Chastity Perez lived in Culver City. On the morning of October 7, Perez walked out of her daughter’s bedroom to find defendant in her living room. Perez screamed. As defendant walked toward the front door, Perez saw her laptop computer, which had been on her couch, underneath defendant’s left arm. Defendant left Perez’s apartment, taking her laptop computer with him. Perez did not invite defendant into her residence or give him permission to take her laptop.
Culver City Police Officer Leon Moore received a radio call concerning the burglary of Perez’s residence. A few minutes after receiving the call, Officer Moore saw defendant, who matched the description of the burglary suspect. Defendant was not in possession of a laptop computer.
Another officer found Perez’s laptop on an air conditioning unit about 75 yards from where defendant had been stopped. Latent fingerprints lifted from the computer belonged to defendant.
Perez was brought to the location and positively identified defendant as the man who stole her laptop. Later the same day, Perez went to the police station and identified the laptop that had been taken.
Defense
According to defendant, he was standing at Perez’s front door when he heard someone say, “Come in.” He was having trouble with his cellular telephone and was trying to locate a telephone. After he entered the apartment, Perez went into another room. Defendant then picked up the laptop to see if it had internet access. When Perez came out of the room, he asked Perez if he could use the laptop and she yelled at him to leave the apartment. Defendant was confused and left with the laptop, after which he placed it on top of an air conditioner. He did not enter the apartment with the intent to commit larceny.
Defendant admitted that when he was interviewed by Detective Garacochea at the police station, he never told the detective the story he told the jury. Portions of the taped interview were played for the jury. Defendant admitted that he told Detective Garacochea that he did not touch the laptop. Defendant also admitted that he had sustained four prior burglary convictions.
DISCUSSION
On October 24, 2006, the date set for defendant’s preliminary hearing, the magistrate held a Marsden hearing, during which defendant asked that his court-appointed public defender, Mr. Sadler, be relieved as his trial counsel. Defendant did not want his preliminary hearing to be “one-sided” and wanted to testify on his own behalf. Attorney Sadler did not want defendant to testify, however.
People v. Marsden (1970) 2 Cal.3d 118.
The court informed defendant that his defense counsel had requested a delay in the preliminary hearing so he could discuss the case with defendant. The court also explained that the preliminary hearing is a probable cause hearing, which was not a “full-blown hearing.” Rather, it was a “bare-bones trial” during which the prosecution would not put on all their witnesses and Mr. Sadler would decide whether to put on a defense. The following colloquy then transpired:
“THE DEFENDANT: I have a right to take the stand.
“THE COURT: So, essentially, what you are saying is you disagree with him on whether you should take the stand?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. [¶] That’s a decision that he needs to make based on his years of experience and knowledge of the system, and the hearing that we’re here involved with.
“So I don’t find that he has not represented you properly in this matter.
“You know, in most of these cases — I shouldn’t say most. People have cases where there is a disagreement on the part of the attorney and the — and the defendant that he’s representing, how the case should go about.
“He has a vast amount of knowledge to make those decisions. Remember I say ‘tactical.’ It’s not necessarily in your best interest to take the stand at this time.
“Do you understand that?
“If you take the stand, the People are going to have an opportunity to cross-examine you, ask you questions.
“My court reporter is going to take this down. It’s going to be in writing so that later on it could potentially be used against you.
“That’s I’m sure something that Mr. Sadler is thinking about very seriously, on whether that’s such a good idea.
“Do you understand what I’m saying?
“THE DEFENDANT: Yes, sir.
“THE COURT: So when I review what’s called a Marsden motion, which is what I’m hearing right now, I have to decide whether Mr. Sadler is properly representing you.
“And I am satisfied from what I’ve heard that he is. You may have a different — different opinion on how the matter should proceed, but I am satisfied that he is representing you properly
“THE DEFENDANT: Yes, sir.
“THE COURT: — during the course of this proceeding.
“THE DEFENDANT: Your Honor, you are telling me that I don’t have the right to get on the stand at this particular moment.
“We have a right to discuss this defense. This — it says me and him prepare for this examination, a defense for this examination. It says ‘shall.’
“The matter says shall issue subpoenas if the Defense requests that. That’s what an examination — I don’t think this examination should be one-sided. That’s all I had said.
“I think that I should be able to say something, to say, ‘No. This is what happened.’
“I don’t think you should get on the stand and say what you feel and lie, because the police report is jacked all around. He hasn’t [sic] been there.
“How can he make that tactical decision at this particular moment? I don’t see how.
“THE COURT: Mr. Black, I am satisfied that he is doing his job in this matter in representing you.
“The things that you are discussing are obviously things that need to be discussed as far as how this matter will proceed.
“But Mr. Sadler as the attorney makes those decisions. So I’m going to — Mr. Sadler, did you want to be heard any further?
“MR. SADLER: The only thing I wanted to say, your Honor, this is actually one of those cases I’ve had since arraignment.
“I spoke to Mr. Black at arraignment. I told him this case needed a continuance. Mr. Black did not want to continue it.
“Within a few days of having this case, I requested informally discovery, including 911 tapes and radio dispatch tapes. I’m sorry. Radio dispatch information, 911 tapes and other information from the prosecution.
“I actually got that a couple of days ago, and — and other information, including fingerprint evidence, that I told Mr. Black that I really think we should look into further before the preliminary hearing.
“Mr. Black didn’t want to continue it, and I can only do so much. If he — if he’s not willing to waive time, there is nothing I can do.
“So I did not file a motion to continue, because he did not want to continue this. And the only information I gave Mr. Black is that I couldn’t let him testify at the preliminary hearing, because it would not be in his best interest.
“And that’s a strategic call, and it would be malpractice not to let him — he has a constitutional right at trial. If he wants to do it, that’s fine. There’s nothing I can do to stop him.
“Right. You can. And he shouldn’t.
“THE COURT: Mr. Black, you do have a constitutional right to testify at trial. That’s your right.
“THE DEFENDANT: My right.
“THE COURT: And that’s something that we don’t necessarily — we don’t have to address here, because that’s not what we’re dealing with here.
“THE DEFENDANT: My right to testify should be
“THE COURT: There’s no question about it. But — and you will get that right. Believe me.
“THE DEFENDANT: I’m talking about at this preliminary hearing. I don’t think this preliminary hearing should be one-sided.
“THE COURT: I heard that. That’s the third time you’ve stated that. I understand that. And it isn’t. It isn’t.
“THE DEFENDANT: If that’s the case
“THE COURT: I’m not asking to sit here as a judge — I’m going to give my best effort to make sure that your rights are upheld.
“In other words, that you don’t, as far as I’m concerned, affect your case negatively at this point. I’m going to try my best to do that. There’s only so much — only so much I can do and only so much that Mr. Sadler can do.
“But in regards to the Marsden motion, I find that Mr. Sadler has properly represented you.
“And so the Marsden motion to excuse Mr. Sadler and get another attorney is denied.
“THE DEFENDANT: I don’t think I asked for another attorney. I said I’d represent myself.”
After further discussion with the court and the completion of a Faretta waiver, including an advisement that this was a Three Strikes case with state prison exposure of 38 years to life, the court granted defendant the right to represent himself. The preliminary hearing was held, and defendant testified on his own behalf. At the conclusion of the hearing, the magistrate bound defendant over.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].
At his arraignment, the trial court offered defendant the assistance of counsel five different times. Defendant, who had represented himself on three prior criminal matters, declined each time.
After the matter was called for trial, but before the jury panel was summoned to the courtroom, the trial court twice asked the defendant if he wanted an attorney, at one point explaining that “[t]here are tremendous disadvantages to going pro. per.” Each time, defendant declined the court’s offer of an attorney. When defendant thereafter stated, “I hate pro. per.,” the court stated, “I’ll get you an attorney right now.” Defendant declined this third offer as well. Trial commenced with defendant representing himself.
On appeal, defendant does not challenge the magistrate’s denial of his Marsden motion. Rather, defendant claims that the magistrate erred in refusing to allow him to take the witness stand at his preliminary hearing unless he first waived his right to counsel. Stated otherwise, defendant maintains that he should not have been forced to choose between his constitutional right to testify and his constitutional right to counsel.
All criminal defendants have a fundamental constitutional right to present affirmative defenses at their preliminary hearings. (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874-876, 880). Although trial counsel does have the right to control trial tactics and may waive a client’s rights to accomplish those ends (People v. Floyd (1970) 1 Cal.3d 694, 704, disapproved on another ground in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36; People v. Hill (1967) 67 Cal.2d 105, 114-115), “[t]he right to testify and the right against self-incrimination are fundamental constitutional rights personal to the defendant. They cannot be waived by counsel without the defendant’s consent.” (People v. Vargas (1987) 195 Cal.App.3d 1385, 1394.)
In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 at page 522, the California Supreme Court observed: “We conclude that defendant has a statutory right to a public preliminary examination and that denial of the right renders the commitment unlawful within the meaning of . . . section 995. We conclude, however, that such illegality can be successfully urged as a ground of reversal on appeal only if it in some way prejudiced defendant at his subsequent trial. [Citation.]”
The court further observed: “We believe the time has come to reconsider and to discard the Elliot rule. Henceforth 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. The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. . . . [¶] Moreover, our resolution is consistent with the United States Supreme Court’s treatment of constitutional error at the preliminary examination. Thus, even in a situation as extreme as the denial of counsel, the [United States] Supreme Court has held that the harmless error rule is applicable. (See Coleman v. Alabama (1970) 399 U.S. 1, 11 [26 L.Ed.2d 387, 397, 90 S.Ct. 1999].)” (People v. Pompa-Ortiz, supra, 27 Cal.3d at pp. 529-530; accord, Arizona v. Fulminante (1991) 499 U.S. 279, 307 [111 S.Ct. 1246, 113 L.Ed.2d 302].)
In People v. Elliot (1960) 54 Cal.2d 498, the California Supreme Court “advance[d] the broad proposition that if the defendant has not been ‘legally committed’ and the trial court nonetheless erroneously denies the motion to set aside the information and permits the action to proceed to judgment, the resulting conviction must be reversed.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 527.)
Assuming for the sake of argument that the magistrate placed defendant in the untenable position of having to give up his right to counsel in order to exercise his right to testify at the preliminary hearing, such that he was denied the right to counsel at that hearing, defendant has utterly failed to demonstrate that he was prejudiced at trial as a result. Defendant correctly points out that during voir dire prospective jurors voiced their concerns about his ability to represent himself and jurors expressed similar concerns during trial. After the preliminary hearing, however, the trial court on numerous occasions offered to appoint counsel to represent defendant during trial. Defendant declined each time. Having elected to forego representation and to represent himself, defendant cannot now be heard to complain about the consequences of that decision. Although a defendant may conduct his defense to his own detriment, it is his choice and must be honored out of “‘that respect for the individual which is the lifeblood of the law.’ [Citation.]” (Faretta v. California, supra, 422 U.S. at p. 834.) The only prejudice demonstrated by defendant resulted not from the denial of counsel at the preliminary hearing, but rather from his election to represent himself at trial.
Indeed, during the trial, one juror noted that defendant did not ask any relevant questions and “has no idea what he is doing.”
In any event, we note that the denial of the right to counsel at the preliminary hearing is subject to the Chapman harmless error standard of review. (Coleman v. Alabama, supra, 399 U.S. at pp. 10-11.) Applying the Chapman standard, there is no prejudice to defendant.
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].
The evidence of defendant’s guilt was overwhelming. Perez found defendant in her home. After she screamed, defendant exited the apartment with her laptop computer. Officer Moore responded to the scene shortly thereafter and found defendant, who matched the description of the burglary suspect. Defendant was approximately 100 yards from Perez’s home.
Another officer recovered the laptop approximately 75 yards from where defendant had been stopped. Perez was brought to the location and positively identified defendant as the person who stole her laptop, and she positively identified the computer as belonging to her. The latent fingerprints taken from the laptop matched defendant’s.
Defendant testified at trial. Understandably, the jury did not find his testimony to be believable, in that his trial testimony was not the same story he told the detective after his arrest. Moreover, he admitted that he had been convicted of burglary in 1975, 1980, 1984, and 1990. He testified that he was given permission to enter Perez’s home. While Perez was in another room, he checked the laptop to see if it had internet access. When Perez came back into the room with defendant, she screamed at him and he left, taking the computer by mistake. He admitted taking the laptop to the apartment complex where it was found on top of the air conditioner.
Inasmuch as the evidence against defendant was overwhelming, the denial of his right to counsel during the preliminary hearing was harmless beyond a reasonable doubt at trial. (Chapman v. California, supra, 386 U.S. at p. 24.)
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.