Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA062609, Arthur Jean Jr., Judge.
Charles R. Khoury Jr., 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, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
On October 19, 2004, a seven-count information was filed, charging appellant Wilbert Floyd with the robbery of Glenn Delaney on July 4, 2004 (Pen. Code, § 211; count 1), the robbery of Antonio Harris, Anthony Edmonds, and Neal LeFlore on July 5, 2004 (Pen. Code, § 211; counts 2 through 4), and the attempted robbery of Brandon McFadden, James McFadden, and Angela McFadden on August 16, 2004 (Pen. Code, §§ 211, 664; counts 5 through 7). The information also alleged under each of the counts that appellant personally used a firearm in the offense (§ 12022.53, subd. (b)), and that appellant had suffered a prior conviction for a felony (§ 667, subd. (a)(1)); §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appellant pleaded not guilty.
All further statutory citations are to the Penal Code.
On October 20, 2005, a jury found appellant guilty on all counts, and found the gun use allegations to be true. After appellant admitted the prior conviction allegations, the trial court sentenced him to a total term of 31 years in prison.
FACTUAL BACKGROUND
A. Prosecution Evidence
At approximately 2:45 p.m. on July 4, 2004, Glenn Delaney was working as a barber in the My time Barbershop in Long Beach. While he was alone in the shop, appellant, accompanied by another man, entered the shop and asked for a haircut. After Delaney finished cutting appellant’s hair, appellant and his accomplice pointed guns at him, ordered him to lie down, and forced him to give them cash and other valuables. They also searched the shop and took items from it.
On July 5, 2004, Antonio Harris was cutting Neal LeFlore’s hair in the Family Ties Hair Salon. Anthony Edmonds was also working in the salon. Appellant and another man, each carrying a gun, entered the salon and pointed their weapons at Harris and Edmonds. They ordered Harris, Edmonds, and LeFlore to lie down on the floor, and told them to hand over their valuables. Appellant and his accomplice took money from their victims, ransacked the shop for valuables, and left the salon.
On August 16, 2004, Brandon McFadden was working as a barber in the Express Barbershop in Long Beach. His father, James McFadden, and mother, Angela McFadden, were also in the shop. Appellant entered the shop and sat in the waiting area. When Brandon McFadden said to appellant, “You are next,” appellant pointed a gun at Brandon McFadden’s head, announced that he was robbing the store, and ordered everyone to go to the back of the store. James McFadden, who noticed that appellant had shifted his attention away from him, ran through the front door of the store, screaming loudly. Appellant followed him out of the store and fled.
On August 24, 2004, Glenn Delaney, the victim of the first robbery, was about to enter the probation office in the Long Beach courthouse when he saw appellant walking away from the probation office. Delaney followed appellant to a parked car, and told a nearby motorcycle police officer that appellant had robbed him. The officer then detained appellant.
B. Defense Evidence
Danielle Braxton testified that she was appellant’s girlfriend in early July 2004. At approximately 3:20 p.m. on July 4, 2004, she drove appellant -- who had no car -- to his workplace, and dropped him off there at 3:30 p.m.
Long Beach Police Officer William McDonald testified that in August 2004, he saw Delaney, in an agitated state, exchange words with appellant in the parking lot of the Long Beach Courthouse. When Delaney pursued appellant, McDonald followed them, and Delaney told him that appellant had robbed Delaney a month before. McDonald then detained appellant.
C. Rebuttal
Long Beach Detective John Mercado testified that appellant was employed at Game Works in Long Beach on July 4, 2004. According to the records of Game Works, appellant clocked into work on that date at 4:14 p.m. Mercado found that he was able to drive from the My time Barbershop to Game Works in 14 minutes.
DISCUSSION
Appellant contends that (1) the trial court improperly revoked his right to proceed in propria persona, and that (2) there is insufficient evidence to support his conviction for the attempted robbery of James and Angela McFadden.
A. Denial of Self-Representation
Appellant contends that the trial court improperly terminated his self-representation. We disagree.
1. Governing Principles
In Faretta v. California (1975) 422 U.S. 806, 807 (Faretta), the United States Supreme Court held that a defendant in a criminal case “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Italics deleted.) The defendant thus possesses two mutually exclusive constitutional rights under the Sixth Amendment of the United States Constitution regarding representation: the right to be represented by counsel at all critical stages of a criminal prosecution, and the right to represent himself or herself. (People v. Marshall (1997) 15 Cal.4th 1, 20.) Unlike the former, the latter right is not self-executing. (Ibid.) “The right to counsel persists unless the defendant affirmatively waives that right”; moreover, “[c]ourts must indulge every reasonable inference against waiver of the right to counsel.” (Ibid.)
Generally, “[a] trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 729.)
A defendant’s right to self-representation is properly terminated or revoked in a number of circumstances. The defendant may expressly waive self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168, 182 (McKaskle)), or acquiesce in its termination by accepting the appointment of counsel without objection (People v. Rudd (1998) 63 Cal.App.4th 620, 630-631). Moreover, the trial court is authorized to revoke self-representation when the defendant engages in misconduct that “seriously threaten[s] the core integrity of the trial.” (People v. Carson (2005) 35 Cal.4th 1, 8-11, 13, quoting Faretta, supra, 422 U.S. at p. 834, fn. 46.)
2. Underlying Proceedings
Appellant was represented by appointed counsel, deputy alternate public defender Richard A. Caillouette, Jr., at the preliminary hearing on October 5, 2004. On December 15, 2004, upon appellant’s request, Judge Mark C. Lim permitted appellant to proceed in propria persona after advising him regarding self-representation. In granting appellant’s request, Judge Lim continued appellant’s trial -- then set for December 20, 2004 -- to January 18, 2005.
The action was transferred for trial to Judge James Pierce. On January 18, 2005, appellant told Judge Pierce that he was not ready for trial. Judge Pierce determined that appellant was considering retaining an attorney to represent him, cautioned appellant about the hazards of self-representation, and continued the trial to February 28, 2005.
On February 18, 2005, appellant told Judge Pierce that he had been trying to hire an attorney to represent him, and also requested a continuance to facilitate his own presentation of a defense. On the same date, Judge Pierce transferred the action to Judge Arthur Jean, who concluded that appellant had not shown good cause for a continuance. On February 25, 2008, Judge Jean denied a renewed request for a continuance.
On February 28, 2005, the date set for the beginning of trial, appellant told Judge Jean that he was in the process of hiring attorney Ron Lemieux. Appellant said that his counsel was in the courtroom, and that he was arranging his counsel’s retainer fee. Appellant added: “Lemieux has asked for a week so that I can get the money.” Judge Jean responded that he was disinclined to continue the trial “on the hope” that appellant would, in fact, retain counsel. The following exchange occurred:
“The Court: What I am willing to do, Mr. Floyd, . . . is to let you hire Mr. Lemieux. But what I don’t want to do is simply put this out over a week from now and not know what’s going to happen. Maybe you won’t hire Mr. Lemieux. [¶] So I will come to an agreement with you, I think. . . . [W]hat I suggest is that I will reappoint the alternate public defender, put the matter over a week, and Mr. Lemieux can come in and substitute in. If you don’t hire Mr. Lemieux, you [have] the alternate public defender.
“[Appellant]: Yes, Sir.
“The Court: That appears to be okay with you?
“[Appellant]: Yes, Sir.
“The Court: Done. So would you contact -- your pro per status is revoked.” Appellant raised no objection to the revocation of his self-representation.
At appellant’s request, Judge Jean set the hearing regarding Lemieux for March 9, 2005. On that date, appellant informed Judge Jean that he had not hired Lemieux. Judge Jean told appellant, “Mr. Caillouette is your lawyer,” and continued the trial, which was eventually set for May 9, 2005. Appellant made no reference to his right of self-representation at this or any other hearing prior to trial.
On March 28, 2005, Caillouette told Judge Jean that he and appellant had argued during a phone conversation. At appellant’s request, Judge Jean conducted a Marsden hearing, during which appellant contended that Caillouette thought appellant would lose at trial. Judge Jean concluded that appellant had asserted no basis for replacing Caillouette, and declined to appoint new counsel.
In People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden), our Supreme Court held that if a defendant seeks to have new counsel appointed, the trial court must inquire into the bases of the defendant’s dissatisfaction and exercise discretion in deciding whether to grant the defendant’s request.
On May 9, 2005, the matter came on for trial. At the beginning of the morning session, prior to the selection of the jury, appellant made a second Marsden motion regarding Caillouette. During the hearing on the motion, appellant asserted that Caillouette was inadequately prepared for trial. When Judge Jean remarked that Caillouette was a competent attorney, the following exchange occurred:
“The Court: . . . If you don’t like it, get yourself another attorney. You have had all this time. You are the one that chose to give up your pro per status.
“[Appellant]: I didn’t choose
“The Court: No, you certainly did.
“[Appellant]: For you to give me a continuance, you dropped my status.
“The Court: No. You said you wanted a continuance to get a lawyer and I said you could have a continuance. [¶] Mr. Caillouette is going to represent you. If you get a lawyer, that’s fine. If you don’t get a lawyer, Mr. Caillouette is your lawyer and you agreed to that.
“[Appellant]: But you dropped my status though.
“The Court: You bet I did.
“[Appellant]: Until I get another attorney, you appointed him.
“The Court: That’s right. You gave up your right to represent yourself because your trial date was six weeks. Okay.
“Mr. Caillouette: Sir, are you asking to represent yourself again? Is that what you are saying?
“The Court: He is not going to represent himself whether he asks or not.
“Mr. Caillouette: I understand. I just want the record clear. I want to know what you are asking.
“[Appellant]: If I had the choice to before [Judge] Jean dropped my status, I would continue.
“Mr. Caillouette: What are you asking today? Specifically what are you asking? [¶] I understand what’s happening. You are desperate. I understand. But I can’t change the law or the facts.
“[Appellant]: You haven’t even looked at that.
“Mr. Caillouette: Okay.
“The Court: I don’t know what you are asking either. If you are asking to go pro per, the answer is no. It is simply a tactic of delay. We have been through this before. If you are asking for a new lawyer, the answer is no. Mr. Caillouette is a capable and prepared lawyer.”
Following the Marsden hearing, the parties began the selection of the jury. At the beginning of the afternoon session on May 9, 2005, after the jury had been selected, Caillouette announced that his office had a conflict, and withdrew his representation. The following colloquy occurred:
“The Court: Mr. Floyd, you can continue with this jury representing yourself if you wish.
“[Appellant]: No, Sir.
“The Court: Don’t want to?
“[Appellant]: No, Sir.
“The Court: You want a lawyer?
“[Appellant]: Yes.
“The Court: You want me to declare a mistrial and appoint you a lawyer?
“[Appellant]: Yes.”
After Judge Jean declared a mistrial and dismissed the jury, he appointed Leonard Garber to represent appellant. Appellant never sought to represent himself or to discharge Garber, who represented him at trial -- which began over five months later, on October 17, 2005 -- and during the post-trial proceedings.
3. Analysis
Appellant contends that the trial court improperly terminated his self-representation at the hearing on February 28, 2005. This contention fails in light of the record, which discloses that appellant expressly agreed to Caillouette’s appointment, and thereafter never sought to represent himself, even when directly asked whether he wanted to do so.
We find guidance on appellant’s contention from the United States Supreme Court’s decision in McKaskle. There, the trial court permitted the defendant to proceed in propria persona, but also appointed standby counsel. (McKaskle, supra, 465 U.S. at pp. 170-172.) Although the defendant protested the presence of standby counsel at his trial, he sometimes sought their advice and permitted them to act on his behalf. (Id. at pp. 172-174.) In concluding that the defendant had forfeited his contention that their participation had impaired his right to self-representation, insofar as he had invited the participation, the Supreme Court stated: “A defendant can waive his Faretta rights. Participation by counsel with a pro se defendant’s express approval is, of course, constitutionally unobjectionable.” (McKaskle, at p. 182.) The Court added: “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” (Id. at p. 183.)
As McKaskle and subsequent California cases make clear, a defendant may agree to waive his Faretta rights. (See People v. Rudd, supra, 63 Cal.App.4th at pp. 625, 630-631 [defendant acquiesced in termination of self-representation by failing to object to revocation of pro. per. status].) Here, appellant expressly agreed to the termination of his Faretta rights when Judge Jean proposed to continue the trial upon appellant’s acceptance of Caillouette’s representation. We see nothing improper in the proposal. Judge Jean had the discretion to deny a continuance to permit appellant to hire Lemieux on the eve of trial, and appellant offers no argument that a denial would have been erroneous. (See People v. Blake (1980) 105 Cal.App.3d 619, 622-625 [trial court properly denied defendant’s request at inception of trial for continuance to hire private counsel in view of previous continuances for this purpose].) Moreover, appellant clearly expressed his desire to abandon self-representation in favor of representation by counsel. Indeed, when confronted with the prospect of having Caillouette re-appointed to represent him at trial in the event he was unable to retain Lemieux, appellant concurred. We therefore conclude that appellant waived his Faretta rights at the hearing on February 28, 2005.
Under McKaskle, no violation of appellant’s Faretta rights occurred following the agreement unless appellant “expressly and unambiguously renew[ed] his request” to represent himself. (McKaskle, supra, 465 U.S. at p. 183.) Appellant made no such request after Caillouette’s appointment. When he failed to retain Lemieux, he did not reassert his Faretta rights. Although appellant later complained about the agreement at the second Marsden hearing, he never asked to represent himself, even when pressed on the matter at the hearing, and after Caillouette’s withdrawal.
Appellant’s remarks at the second Marsden hearing, which indicate only that he would have chosen to remain a pro. per. litigant if Judge Jean had offered an unconditional continuance on February 28, 2005, cannot reasonably be viewed as a Faretta request. (See People v. Danks (2004) 32 Cal.4th 269, 295-297 [defendant’s remark, “I want to defend myself and go pro. per. If I’m not allowed to go pro. per., I would at least like to be cocounsel . . . .,” viewed in context, was not a sincere Faretta request], italics deleted; People v. Valdez (2004) 32 Cal.4th 73, 91-92, 98-100 [defendant’s remark, “Well, in this matter I am -- my constitutional rights if I want to go pro. per. on this case I could do that,” was not an unequivocal Faretta request].)
Appellant’s reliance on U.S. v. Flewitt (9th Cir. 1989) 874 F.2d 669 is misplaced. There, the defendants, who were representing themselves, made repeated requests for leave to examine documents in a warehouse. (Id. at pp. 671-672.) The trial court terminated the defendants’ self-representation because they were not ready for trial, and had failed to prepare for trial. (Id. at p. 672.) The Ninth Circuit reversed, reasoning that inadequate trial preparation was an improper basis for revoking self-representation, and that the defendants had not engaged in delaying tactics. (Id. at pp. 674-676.) Here, Judge Jean terminated appellant’s self-representation with appellant’s agreement.
Appellant also contends that a waiver or abandonment of his Faretta rights cannot be inferred from his remarks following Caillouette’s withdrawal. He argues that Judge Jean told him at the second Marsden hearing that any request for self-representation would be denied; in addition, he argues that Caillouette’s decisions in preparing for trial had impaired his ability to present an adequate defense to the jury selected prior to Caillouette’s withdrawal. This contention fails for want of an unequivocal request for self-representation after the February 28, 2005 hearing, which is a necessary predicate for the triggering of Faretta rights. (People v. Welch, supra, 20 Cal.4th at p. 729.)
Moreover, the record refutes any suggestion that Judge Jeans’ remarks at the second Marsden hearing or Caillouette’s trial preparation rendered an assertion of Faretta rights pointless or futile. Following Caillouette’s withdrawal, Judge Jean offered appellant the right to represent himself: “Mr. Floyd, you can continue with this jury representing yourself if you wish.” Appellant’s response was unequivocal: “No, Sir.” The court reconfirmed appellant’s desire not to represent himself, asking, “Don’t want to?” to which appellant replied, “No, Sir.” Finally, Judge Jean expressly asked appellant whether he wished the court to declare a mistrial and appoint appellant a lawyer. Appellant responded, “Yes, Sir.” Appellant’s disinclination to represent himself could hardly have been clearer.
Finally, at no time during the five-month interval between the mistrial and his October 2005 trial did appellant seek to reassert his Faretta rights. His failure to use this opportunity establishes that he had no desire to represent himself. (See People v. Stanley (2006) 39 Cal.4th 913, 930-933 [following defendant’s reference to self-representation, his acceptance of representation by court-appointed attorneys without requesting self-representation showed that he had abandoned any desire to invoke Faretta rights]; People v. Weeks (July 31, 2008, B199849) ___ Cal.App.4th ___ [2008 Cal.App. Lexis 1179, *9-*14] [defendant abandoned Faretta request by hiring private counsel and failing to reassert Faretta rights].) There was no error.
B. Attempted Robbery of James and Angela McFadden
Appellant contends that his convictions for the attempted robbery of James McFadden (count 6) and Angela McFadden (count 7) fail for want of substantial evidence. The crux of his contention is that there is no evidence that appellant intended to rob them. For the reasons explained below, this contention fails.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Robbery is the taking of personal property in the possession of another from his person or immediate presence, against his will, accomplished by means of force or fear. (§ 211.) Robbery is both assaultive and larcenous and is a crime against property and persons. [Citation.]” (People v. Bonner (2000) 80 Cal.App.4th 759, 763-764 (Bonner).)
In the case before us, appellant was charged with attempted robbery, rather than robbery. “The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. (§ 21a.) ‘“An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language.” [Citation.]’ [Citation.] The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.] Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]” (Bonner, supra, 80 Cal.App.4th at p. 764.)
Because a defendant can commit attempted robbery without satisfying the elements of robbery, he or she may be properly convicted of the attempted robbery of a person against whom no force or fear was actually applied, and from whom no property was demanded. In Bonner, the defendant planned to rob a hotel manager who took cash and checks to a bank each week, usually accompanied by his assistant. (Bonner, supra, 80 Cal.App.4th at pp. 761-762.) The defendant armed himself and waited in the hotel garage for the manager and his assistant to drive to the bank. (Ibid.) Before they appeared, two other hotel employees discovered the defendant, and he fled. (Ibid.) The defendant was convicted of two counts of attempted robbery, one count based on the attempted robbery of the manager, and the other on the attempted robbery of the assistant. (Id. at p. 763.) On appeal, the defendant contended that he had been improperly convicted of two counts of attempted robbery because he was never in close proximity to either intended victim and he made no demand upon them. (Ibid.) In addition, he argued that the evidence of his intent to rob the manager and the assistant was insufficient to support the two convictions because his intentions or the number of his victims might have changed before he actually encountered his victims. (Id. at p. 765.)
The Bonner court rejected these contentions, reasoning that multiple convictions for attempted robbery are permissible even when an attempted robbery is interrupted before the perpetrator is in the presence of the victims, provided that the number and identities of the intended victims can be determined. (Bonner, supra, 80 Cal.App.4th at pp. 764-765.) It stated: “Appellant was guilty of attempted robbery at the moment his acts in the furtherance of his intent went beyond mere preparation, i.e., when appellant performed acts placing his plan in operation. [¶] It is clear at the moment appellant entered the garage, he intended to rob both the manager and assistant manager. Any later event that interrupted those crimes was irrelevant to appellant’s liability for two counts of attempted robbery. The possibility that only one of the intended victims would go to the bank that day is as irrelevant to determining the proper number of counts as the possibility no one would go [to] the bank that day is irrelevant to determining whether an attempt occurred at all. [¶] The evidence clearly showed appellant’s intent to rob both the manager and assistant manager. Appellant did not merely prepare to rob the two, he engaged in acts that would ordinarily result in the commission of the crime but for an interruption.” (Id. at p. 765.)
Here, James McFadden testified that appellant sat in the waiting area of the barbershop until Brandon McFadden, his son, called to appellant. The shop was then occupied by the McFaddens and at least one customer. Appellant stepped forward, withdrew a gun from beneath his shirt, pointed it at Brandon’s head, and said, “This is a robbery. Give me all your money.” According to James, appellant, who was “trying to get everybody in the shop to comply [with] what he [said],” ordered them to go to the back of the store. Instead of obeying the order, James seized an opportunity to run through the barbershop’s front door and scream for help. After an interval, appellant also ran out of the door and fled.
Brandon McFadden testified that when he asked appellant to sit for a haircut, appellant pointed a gun at his head and said, “Give me your money. All of you guys go to the back.” When James advised him to give appellant his money, Brandon said, “No,” but nonetheless offered some money, which fell to the floor. James ran out of the door as the money dropped. Appellant later left the shop.
Angela McFadden also testified briefly about the incident. According to Angela, appellant pointed a gun at her son Brandon, said something to him, and ordered everyone to move to the back of the room. James then ran out of the shop for help.
This testimony was presented not in isolation, but in the context of appellant’s conduct in two other robberies. In robbing the other barbershops, appellant and his accomplice first seized control of the shop by displaying guns, and then took valuable items from every occupant of the shop. The jury was thus entitled to infer that appellant intended to follow the same plan at Brandon McFadden’s shop, and that he intended to rob James and Angela McFadden before James disrupted his plan. Moreover, appellant’s use of his gun against Brandon McFadden, together with his orders to the other occupants of the shop, supports the reasonable inference that he intended to apply force or fear against each occupant in order to take their money or property. In sum, substantial evidence supports appellant’s convictions for attempted robbery.
Under subdivision (b) of Evidence Code section 1101, evidence of a crime is admissible “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.” When the prosecutor urged the jury in closing argument to examine the crimes in the three barbershops to determine appellant’s modus operandi, appellant raised no objection, and he does not suggest on appeal that such argument was improper.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.