Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD197985, Larrie R. Brainard, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Armando Gomez appeals from his convictions on one count of burglary and one count of petty theft with a prior conviction, arising out of an incident in which he took a cellular telephone and a cellular telephone battery charger from a Target store without paying for the items.
On appeal, Gomez contends that the trial court failed to adequately admonish him about the risks and consequences of representing himself when the court granted his request to waive his right to counsel at the conclusion of the evidentiary portion of the trial. Gomez also asserts that the trial court had a duty to instruct the jury, sua sponte, that the corpus delicti of a crime must be proven independent of a defendant's extrajudicial statements, admission, or confession. According to Gomez, the court should have so instructed the jury because the prosecutor presented evidence of Gomez's statement, "'What are you talking about? I don't have anything,'" made to a loss prevention officer at the store when the officer confronted Gomez about the theft.
We conclude that although Gomez voluntarily waived the assistance of counsel, the trial court failed to adequately admonish Gomez about the risks of self-representation, as required under Faretta v. California (1975) 422 U.S. 806 (Faretta). Nevertheless, in view of the timing of Gomez's request, as well as Gomez's unwavering desire to take over for his attorney, we conclude that the error did not prejudice Gomez. We further conclude that the trial court did not err in declining to instruct the jury on the corpus delicti rule, because Gomez's statement was not an admission or confession of a crime, and that even if there was error in this regard, it was harmless.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On March 31, 2006, Jesse Sandoval, a loss prevention officer for the Target Corporation, was on duty at a Target store in the Mission Valley area of San Diego. At approximately 3:30 p.m., Sandoval noticed Gomez crouching down near a cellular telephone display, looking up and down the aisle. Sandoval then witnessed Gomez take a cellular telephone package off of the display and pull the telephone and charger out of the package. Gomez put the items in his jacket pocket and began walking toward an exit.
Rather than leaving the store, Gomez asked a Target employee where the restroom was located. Sandoval, who had been following Gomez, radioed other employees to tell them to close the restrooms. When Gomez was unable to enter the restroom, he walked to another display and placed the cellular telephone and charger behind a stuffed animal. Gomez then left the store.
Sandoval looked behind the stuffed animal and saw the cellular telephone and charger. Sandoval left the items there and continued to observe the area. After approximately a minute had passed, Gomez re-entered the store and asked an employee where he could find an open restroom. After a few minutes, Gomez returned to the display and retrieved the cellular telephone and charger from behind the stuffed animal. Gomez put the items in his pocket and left the store.
Sandoval confronted Gomez outside the store and identified himself. Gomez pulled the telephone and charger out of his pocket, threw them on the ground, and attempted to walk away from Sandoval. Sandoval and two other loss prevention employees detained Gomez. At some point during the confrontation, Gomez said, "'What are you talking about? I don't have anything.'"
Two open cellular telephone packages were found near the cellular telephone display. One package had been torn open and was missing a charger. The other package had been cut open and was missing a cellular telephone.
San Diego Police Officer James Suibielski responded to a call from the Target store at approximately 5:00 p.m. that day. Gomez was wearing shorts, a t-shirt, and a heavy leather jacket, which appeared odd to Suibielski. Suibielski searched Gomez and found that Gomez had $4 in his possession, and had no credit cards or other means of payment on him. Gomez also had a small folding knife in a pocket of his shorts, a Target pharmacy bag with a receipt dated March 31, 2006, an asthma inhaler, and his personal cellular telephone.
Gomez presented no evidence.
B. Procedural background
An amended information charged Gomez with burglary (§ 459) (count 1) and petty theft with a prior (§§ 484, 488, 666) (count 2). The information also alleged that Gomez had suffered two prior prison term convictions (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
The trial court granted Gomez's motion to bifurcate the prior conviction allegations. Gomez admitted one prior conviction as an element of the petty theft with a prior charge.
On October 25, 2006, a jury found Gomez guilty on both counts. Gomez admitted the prior conviction allegations.
On April 5, 2007, the trial court sentenced Gomez to four years (middle term, doubled) on count 1. The court sentenced Gomez to a term of four years (middle term, doubled) on count 2, but stayed this sentence pursuant to section 654. Gomez filed a notice of appeal on the day he was sentenced.
While his appeal was pending, Gomez filed a petition for habeas corpus. We summarily deny the petition by way of a separate order filed contemporaneously with this opinion.
III.
DISCUSSION
A. The trial court failed to adequately warn Gomez of the risks of self-representation, but the error does not require reversal
1. Additional background
After both sides rested, the trial court met with the attorneys outside the presence of the jury to discuss jury instructions. Defense counsel informed the court that Gomez wished to represent himself for purposes of presenting the closing argument:
"The Court: Mr. Gomez is present together with both counsel. There are no jurors present. We need to talk about jury instructions, but I've been informally told there's another matter we need to take up; is that correct?
"Mr. Pactor: Yes. Mr. Gomez wants to represent himself.
Defense counsel is identified as "Mr. Pactor" in the reporter's transcript of the proceedings.
"The Court: All right. Mr. Gomez is that your request?
"The Defendant: Yes. For closing. I don't know anything about jury instruction, but I'd like to close.
"The Court: Let's take one step at a time. You're not asking for another lawyer. You're asking to be allowed to argue?
"The Defendant: Yes. Per Lopez, sir?" (Italics added.)
The trial court proceeded to determine whether Gomez intended to present any defense evidence. Gomez then asked the court whether he could refer to himself in the third person during argument. The trial court informed Gomez that the court "ha[d]n't granted [Gomez] any rights" at that point, and that the court was merely trying to verify whether the parties were through presenting evidence. After determining that both sides were indeed prepared to rest, the court continued, "Your sole request is to be allowed to argue the case instead of counsel." Gomez replied, "Yes, sir." Gomez told the court that he wanted to argue based on the state of the evidence, commenting, "And I believe just as Lopez said, every defendant has a right during any stage of the proceeding to do such [sic]. Ninth Circuit Court. Lopez." (Italics added.) The trial court clarified with Gomez that his request was not to relieve his counsel, but "simply that [he] be allowed to argue." Gomez replied, "Yes, sir. Or if I can't have it that way and I have to relieve him, that's what I will have to do."
The court asked Gomez's attorney for his thoughts on the issue. Defense counsel stated, "I think he should represent himself. I mean, you know, I don't want to have to come back and have to do a sentencing on a bifurcated trial on all this stuff where my client decided he could argue the case better than I could, with all due respect to him and to the court." The court then asked the prosecutor for his view. The prosecutor responded:
"Your Honor, this appears to be an attempt to circumvent the evidentiary rules. If he wants to tell the jury something, he should take the stand, take an oath, and tell it to them. I think that trying to close for himself is a way to circumvent that and circumvent cross-examination. I don't think Lopez stands for the idea that a person can go pro per in the middle of a trial ─ and let's be clear for the record here. This is not a lengthy trial. We began taking evidence this morning at, you know, 9:30 or so, and it's now 2:10. Mr. Gomez has had a history with Mr. Pactor. He's been his lawyer for what, 2 months? Mr. Gomez could have gone pro per at any point in time, and the timing of this is suspect. I'm opposed to Mr. Gomez, one, being allowed to simply argue the closing and, two, being allowed pro per status at this point in time." (Italics added.)
Gomez then addressed the court, and informed the court that he had represented himself at a sentencing hearing in 2000, during which he obtained a CRC commitment rather than the eight-year prison term that he was facing. He also told the court that he had discussed with defense counsel all of the things that had to be done for trial, and said that he believed that his counsel had not done any of the things he wanted done, suggesting that he was fully informed about his case and that he was unhappy with his counsel's performance. Gomez assured the court that he would not attempt to present new evidence during closing argument. He stated, "I will completely abide by the court's rules and regulations pertaining to entering new evidence. My intent is to argue the evidence that exists. I believe I can do that. I have no degree in the promulgation of judicial lexicon, but I believe I can make a decent attempt in arguing."
Gomez stated, "It's a matter of record, Your Honor, that a week ago I appeared in front of [Judge] Frazier with a Marsden motion [People v. Marsden (1970) 2 Cal.3d 118 (Marsden)], before that Marsden motion, my attorney came in and talked to me, and we agreed all these things would be done before the trial and for the trial. What I've seen that has not been done, and the court if they look in the records too, I also represented myself at the sentencing back in 2000. And looking at a eight-year term, I did get CRC at sentencing. So I will not try to introduce it. . . ." (Italics added.)
At the conclusion of Gomez's comments, the trial court said, "All right. If you want to argue, you can argue it; however, he's relieved [referring to defense counsel]." Gomez, responded, "Yes, sir." The court then said:
"But I am going to require that you be available, Mr. Pactor, because if we go to a second stage – it's clear Mr. Gomez is confident [sic]. He can read and write. He can speak. You know, he's capable. So he's capable of representing himself, so I can't say no. He does not ask for a continuance. He's not asking for anything else. I think I have to say yes; however, I think I have to warn you, Mr. Gomez, that if you in any way say to the jury, I, referring to myself, which is you, think anything, thought anything, did anything, I'm going to cut you off."
After further discussion with Gomez about what Gomez would and would not be permitted to say, the court concluded:
"I think I have to allow him if he's willing to go forward right now and today to represent himself. That's what the case law requires. Mr. Pactor, you are relieved. I'm going to bring the instructions here. We're going to talk about those, and I'm going to instruct the jury. I'll allow counsel and Mr. Gomez to argue. Are you sure you want to do that, Mr. Gomez?"
Gomez once again indicated his desire to represent himself during closing argument. The court then discussed the jury instructions with the prosecutor and Gomez. The parties presented closing arguments, and the trial court instructed the jury. The jury began deliberating at just before 3:40 p.m. on the afternoon of October 24, 2006, and concluded for the day at 4:30 p.m. The jury began deliberating again at 9:08 a.m. the following morning. At 9:40 a.m. the jury informed the court that it had reached verdicts in the case.
2. Analysis
a. The alleged error
Gomez contends that he "was not properly advised of the risks and consequences of representing himself." Gomez complains that "[t]he trial court did not admonish [him] with any of the admonitions that must be given in order to find the valid waiver of counsel, but instead advised him only that his self-representation status may be terminated if [he] tried to refer, in his closing argument, to facts that had not been presented to the jury as evidence."
"'A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.]" (People v. Stanley (2006) 39 Cal.4th 913, 931-932 (Stanley).) "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. [Citations.]" (Faretta v. California, supra, 422 U.S. at p. 835.)
In Faretta, the United States Supreme Court concluded that the relevant test for ensuring that a defendant's rights are protected when that defendant chooses self-representation is not whether the defendant has the skill and experience to act as his own attorney, but rather, whether the defendant has waived the constitutional right to counsel with an understanding of the possible risks and consequences:
"Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation.]" (Ibid.)
"No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation." (People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz).) Rather, "the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case." (Ibid.)
In People v. Lopez (1977) 71 Cal.App.3d 568, 571 (Lopez), the court suggested a set of advisements for trial courts to use in admonishing defendants who request to represent themselves. These advisements are "designed to ensure a clear record of a defendant's knowing and voluntary waiver of counsel." (Koontz, supra, 27 Cal.4th at p. 1070.) "First, the court recommended the defendant be cautioned (a) that self-representation is 'almost always unwise,' and the defendant may conduct a defense ' "ultimately to his own detriment"' [citation]; (b) that the defendant will receive no special indulgence by the court and is required to follow all the technical rules of substantive law, criminal procedure and evidence in making motions and objections, presenting evidence and argument, and conducting voir dire; (c) that the prosecution will be represented by a trained professional who will give the defendant no quarter on account of his lack of skill and experience; and (d) that the defendant will receive no more library privileges than those available to any other self-represented defendant, or any additional time to prepare. Second, the Lopez court recommended that trial judges inquire into the defendant's education and familiarity with legal procedures, suggesting a psychiatric examination in questionable cases." (Koontz, supra, 27 Cal.4th at pp. 1070–1071.) The Lopez court also suggested that the trial court inquire whether the defendant understands his right to court-appointed counsel, and that the court "explor[e]" the "nature of the proceedings," including the potential defenses and potential punishments, with the defendant. (Lopez, supra, 71 Cal.App.3d at p. 573.) Finally, the Lopez court noted that the defendant should be made aware that misbehavior or disruption could result in termination of his self-representation and that "in spite of his best (or worst) efforts, he cannot afterwards claim inadequacy of representation." (Id. at p. 574.)
The record does not demonstrate that the trial court adequately informed Gomez of the risks and consequences of self-representation. Although the portion of the proceedings for which Gomez sought self-representation came at the very end of trial and was thus limited, the trial court should nevertheless have more fully admonished Gomez about the potential hazards of arguing the case to the jury and addressing jury instructions, as well as possible jury questions, without the benefit of an attorney's legal knowledge and experience. Although it is clear that Gomez voluntarily waived his right to be represented by counsel with full knowledge that he had the right to continue to be represented by counsel, the record does not establish that the trial court fully warned him of the risks of his choice. It appears that the trial court's advisements were inadequate to meet the requirements of Faretta.
b. Assessing prejudice
1. The appropriate standard for assessing prejudice
Gomez argues that the trial court's failure to adequately advise him of the dangers and disadvantages of self representation requires automatic reversal. He acknowledges an existing split of authority with regard to the applicable standard of review for an error involving the court's failure to adequately advise a defendant regarding the risks of self-representation, but urges this court to apply the per se reversal standard. He contends that the "denial of the right to counsel is an error that 'necessarily renders a trial fundamentally unfair.'"
See People v. Sullivan (2007) 151 Cal.App.4th 524, 552, fn. 10 ["when the record demonstrates that the trial judge neglected to advise the defendant of the dangers and disadvantages of self-representation as required by Faretta when the waiver is taken, but the waiver of the right to counsel was voluntary, the courts have split on the standard of reversible error: some have determined that the error is structural and reversible per se; others have declared the error must be found prejudicial under the Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), test unless the error is harmless beyond a reasonable doubt"].)
We disagree with Gomez's analysis in this regard. The particular circumstances of the waiver involved here—i.e., the fact that Gomez was represented by counsel throughout the pretrial proceedings and throughout the evidentiary phase of the trial, and that he waived his right to counsel only at the very end of trial so that he could give the closing argument—demonstrate no fundamental unfairness in Gomez's trial that requires per se reversal. In addition, the fact that Gomez clearly voluntarily waived his right to counsel, near the end of his trial, and made no secret of his belief that he could do a better job than his defense attorney in closing argument, further diminishes his claim that his entire trial was rendered fundamentally unfair. Even in the face of the prosecutor's objection to Gomez being permitted to represent himself for purposes of closing argument, Gomez continued to assert his right to represent himself.
Gomez was clearly aware of his right to the assistance of counsel. He had been pursuing his defense with the assistance of court-appointed counsel for the duration of the proceedings, until just prior to the time the court instructed the jury and the parties presented closing arguments. Knowing that he had the right to the continued assistance of counsel, Gomez voluntarily waived this right. There is no question that the court adequately advised Gomez of his right to counsel. This case thus does not involve a complete denial of the assistance of counsel. Rather, the error was the lack of a sufficient advisement regarding the disadvantages Gomez could face if he were to proceed without counsel. Because this case involves a voluntary waiver of counsel by the defendant, combined with the court's inadequate warning about the potential risks and disadvantages of waiving the assistance of counsel, we conclude that some standard of prejudice short of automatic reversal is warranted.
Courts in a number of California cases have applied a harmless error analysis to Faretta-based claims where the error was not that the court failed to obtain an express waiver of the right to counsel, but that the court failed to adequately caution the defendant about the hazards of self-representation before accepting a waiver. (See, e.g., People v. Wilder (1995) 35 Cal.App.4th 489, 495 ["[I]t bears considerable emphasis that the present case only involves the issue of whether the waiver of counsel was made intelligently because of the sole failure to advise of the dangers of self-representation ─ there is no issue of voluntariness."]; People v. McArthur (1992) 11 Cal.App.4th 619, 629-630 ["[W]e apply the harmless error test and conclude the failure of the trial court in this case to admonish defendant at his arraignment about the dangers of self-representation, if error, was harmless beyond a reasonable doubt."] (McArthur); People v. Cervantes (1978) 87 Cal.App.3d 281, 294 ["[W]e hold the trial court's error of inadequately warning defendant of the pitfalls and hazards involved in self-representation is 'harmless beyond a reasonable doubt.' [Citation.]"] (Cervantes), disapproved on another ground in People v. Barnum (2003) 29 Cal.4th 1210, 1226.)
The Cervantes court noted an important distinction between two types of Faretta issues:
"We perceive a signal difference between a case where an indigent was not advised at the time of trial on the merits that he could have an attorney appointed by the court at public expense and did not waive his right to counsel as in In re Smiley (1967) 66 Cal.2d 606, which requires a reversal per se and one where defendant, as in the instant case, was fully aware of his right to counsel, requested to represent himself pursuant to Faretta and in fact was granted self-representation but which was predicated on an insufficient record with respect to a warning of the pitfalls involved in self-representation as mentioned in Faretta." (Cervantes, supra, 87 Cal.App.3d at p. 292.)
According to the Cervantes court, "The Faretta decision which bestows an 'implied' constitutional right for a defendant to make a fool of himself should not be extended to make a fool out of the efficient and economical administration of the entire criminal justice system by requiring reversal per se because a trial judge did not, in the eyes of a reviewing court, properly warn a defendant of the foolishness of his request to make a fool out of himself." (Cervantes, supra, 87 Cal.App.3d at p. 293.) "Thus, only the most fundamental violations of the right to counsel are reversible per se; 'there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. [Citation.]'" (McArthur, supra, 11 Cal.App.4th at p. 629.)
We conclude that the "harmless beyond a reasonable doubt" standard, as set forth in Chapman, supra, 386 U.S. 18, applies to Gomez's claim of error.
2. Reversal is not required
Gomez asserts that even under the Chapman standard, reversal is required because the record does not establish beyond a reasonable doubt that he would have continued to act as his own attorney if the court had provided a proper advisement. We disagree. In fact, the record leaves no doubt that Gomez would have insisted on giving the closing argument and waiving his right to the assistance of counsel, regardless of what the court might have said to him regarding the pitfalls of doing so. We further conclude that even if Gomez had not waived his right to counsel, the outcome would not have been different.
Courts have applied different tests to assess the prejudice resulting from an inadequate admonition concerning the risks of self-representation. Some courts have asked whether the defendant would have chosen to continue to represent himself if he had been adequately admonished; others have asked whether the outcome of the trial would have been different if the defendant had been adequately admonished. (See, e.g., People v. Sullivan, supra, 151 Cal.App.4th at p. 524 [applying Chapman standard of harmless error review to court's failure to readvise defendant and obtain new waiver of counsel at arraignment in superior court, and considering both whether the defendant would have chosen to continue representing himself, and whether the outcome of the trial would have been different]; People v. Noriega (1997) 59 Cal.App.4th 311, 321-322 [applying Chapman standard of harmless error review to situation in which court's advisements at trial came too late and were not a substitute for "proper and adequate warnings prior to granting appellant's motion for self-representation;" court found reversible error, considering only "whether appellant would have decided in favor of professional representation had he been fully informed of the dangers and risks of his decision to proceed in propria persona"]; People v. Wilder, supra, 35 Cal.App.4th at p. 502 [involving voluntary waiver but inadequate advisements by the court; considering whether the error contributed to the verdict, but noting that even if the court had advised the defendant properly, the defendant would still have proceeded to represent himself, and "nothing would have changed had the defendant been advised of the dangers of self-representation"]; McArthur, supra, 11 Cal.App.4th at pp. 629-630 [applying Chapman standard to failure to give adequate Faretta admonition at arraignment; finding error harmless beyond a reasonable doubt without any analysis]; Cervantes, supra, 87 Cal.ApP.3d at p. 294 [applying Chapman standard and concluding that defendant adequately represented himself at trial and therefore, any error resulting from an inadequate warning of the hazards of self-representation was harmless]; see also People v. Crayton (2002) 28 Cal.4th 346, 366 [applying Watson test to statutory error in failing to advise of right to counsel at arraignment in superior court after defendant knowingly waived counsel in municipal court; considering whether failure to re-advise "affected defendant's decision to represent himself throughout the course of the proceedings"].)
The record convinces us beyond a reasonable doubt that Gomez would have continued to seek to represent himself even if the trial court had attempted to convince him of the hazards and disadvantages of waiving his right to counsel. Gomez was intent on giving the closing argument, even after he was told that if he insisted on doing so, the court would relieve his counsel and Gomez would be unrepresented. Gomez repeatedly reaffirmed his commitment to represent himself, after having observed the trial proceedings and being represented for a significant portion of them. Gomez was present while the attorneys presented opening statements, and presumably observed both attorneys present and object to evidence. Gomez was, therefore, aware of the fact that he would be going up against an experienced prosecutor, thus diminishing the impact of the trial court's failure to advise him that "the prosecution will be represented by a trained professional who will give the defendant no quarter on account of his lack of skill and experience." (Koontz, supra, 27 Cal.4th at p. 1071.)
Further, Gomez told the court that he did not require any additional time to prepare. One can thus infer that any warning by the trial court that Gomez would not be given special law library privileges or additional time to prepare was unnecessary, and would not have altered Gomez's position on the matter. Gomez was made aware that he would not be given any leeway in making his closing argument simply because he was representing himself. When the prosecutor objected to Gomez's request to represent himself, the court, in response, very clearly admonished Gomez that Gomez would be expected to abide by all evidentiary and procedural rules, despite his pro per status. Gomez agreed that he was prepared to move forward immediately, despite this warning.
With regard to the Lopez court's suggestion that a trial court "inquire whether the defendant understands his right to court-appointed counsel, and that the court 'explor[e]' the 'nature of the proceedings,' including the potential defenses and potential punishments, with the defendant" (Lopez, supra, 71 Cal.App.3d at p. 573), the circumstances in this case render this admonishment less important as well, since Gomez was already aware of the "'nature of the proceedings,'" having had the opportunity to view the proceedings all the way through the close of the presentation of evidence. Further, since Gomez had already asserted his right to court-appointed counsel and had been represented by appointed counsel until the time he requested to represent himself, there was no concern that he might not have been aware of this right.
In addition, because Gomez was represented by counsel during pretrial motions, voir dire, opening arguments, and the presentation of evidence, the warning about the necessity of following the procedural and substantive rules for purposes of these portions of the proceedings was inapplicable. (See Koontz, supra, 27 Cal.4th at p. 1071 [defendant should be warned that he "will receive no special indulgence by the court and is required to follow all the technical rules of substantive law, criminal procedure and evidence in making motions and objections, presenting evidence and argument, and conducting voir dire"].) Thus, even if the court had provided Gomez with the entirety of this admonishment, one can infer that this would not have given Gomez pause as to whether or not to waive the assistance of counsel. Further, to the extent that the Lopez court recommended that trial courts "inquire into the defendant's education and familiarity with legal procedures" (ibid), the trial court was aware of Gomez's ability to read and write, and Gomez informed the court of his prior successes in representing himself in legal proceedings. There is no reason to believe that Gomez would have changed his mind about whether to waive counsel if the court had inquired further into Gomez's educational background and/or his experience with legal procedures.
It appears that the only relevant portions of the Lopez admonishments that the trial court failed to relate to Gomez were (a) the fact that the court could terminate Gomez's self-representation if he misbehaved or was disruptive, and (b) the warning that "self-representation is almost always unwise, and the defendant may conduct a defense 'ultimately to his own detriment.'" The court informed Gomez that he would not be permitted to introduce new evidence during closing argument. One may therefore assume that Gomez understood that if he were to contravene the court's rulings, the court could refuse to allow him to continue to represent himself. Further, in view of Gomez's express belief that he could do a better job than his attorney, and the fact that he had previously successfully represented himself in a sentencing proceeding, there is no reasonable probability that Gomez would have changed his mind about representing himself if the court had advised him that it is generally unwise for a defendant to represent himself.
The record also establishes beyond a reasonable doubt that even if Gomez had continued to be represented by counsel for the closing arguments, the outcome of the trial would not have been different. Gomez had the benefit of counsel through the most important part of the guilt phase of the trial—the presentation of evidence. It was only after the two sides had rested that Gomez asked to be permitted to give the closing argument. The evidence of Gomez's guilt was overwhelming. The jurors watched videotape of Gomez's strange behaviors in the store, including his attempts to hide items behind other products on a display shelf, and they saw him leave the store and then return to retrieve the items a short time later. The jury also heard testimony from a witness who watched Gomez remove the items from their packaging and, after several attempts to better conceal the items, eventually walk out of the store with the items in his possession, without having paid for them. An officer testified that Gomez had no means to pay for the cellular telephone and charger that were found on him. In view of the strength of the evidence, the jury would have convicted Gomez of the charged offenses, regardless of who presented the closing argument.
In addition, Gomez did a more than an adequate job in presenting a closing argument. The judge commended Gomez's presentation, saying that Gomez, "actually did an excellent job on [his] argument." Gomez claims that he "did not perform as well as counsel might have," suggesting that he "would not have chosen to represent himself if the trial court had properly admonished him," and also implicitly suggesting that if his attorney had made the closing argument instead, this might have brought about a result different than the one reached. We disagree with both propositions. First, the record clearly demonstrates that regardless of how Gomez actually performed after the court relieved his counsel, at the time Gomez waived counsel, Gomez was confident that he could do a better job in giving the closing argument than his attorney. Gomez's statements indicate that he was unhappy with his attorney's performance (as demonstrated by Gomez's mention of a Marsden motion), and that he did not believe his attorney had done everything Gomez wanted done. Regardless of what the trial court might have said to Gomez to explain the risks attendant to waiving the further assistance of counsel, the record makes it clear that Gomez was intent on going forward on his own. Second, as we have already discussed, even if Gomez's attorney had presented the closing argument, it is not reasonably likely that Gomez would not have been convicted.
Gomez does not provide portions of the record relating to his Marsden motion.
Gomez also claims that he suffered prejudicial harm from the fact that he did not have an attorney to assist him in considering the jury instructions. He points out that the court failed to give CALCRIM No. 359, which sets out the corpus delicti rule, and argues that an attorney "might have requested" this instruction. Even if an attorney "might have requested" this instruction, it would have been of no consequence. As we conclude in part III.B., post, the court did not prejudicially err in not instructing the jury with CALCRIM No. 359. Gomez thus could not have been prejudiced in this regard.
Finally, Gomez argues that as a result of his self-representation, he inadvertently waived his right to jury trial on his strike priors. Gomez contends that if he had been represented by an attorney, he would not have done so. The record belies this argument. For example, Gomez argues that he "agreed to waive jury trial (and ultimately trial) on the issue of whether his prior conviction for driving under the influence with an injury is, or is not, a strike." (Internal footnote omitted.) However, Gomez's citation to the record establishes that Gomez waived trial on the issue of whether he suffered the prior convictions, not whether the prior convictions were, in fact, strike convictions. Whether a prior conviction qualifies as a strike is a question for the court. (People v. Kelii (1999) 21 Cal.4th 452, 456), and the trial court left this issue open for Gomez to argue at a later point:
"The Court: . . . Mr. Gomez has mentioned that he would like some time to prepare on various issues regarding the prior offense, but they are the issues as to whether the driving under the influence with injury is or is not a strike, and perhaps whether he served separate prison terms. And he does not necessarily have an issue on whether or not he, in fact, has suffered these convictions. As a result, he is willing to waive jury on those issues. So we can release these jurors. [¶] Is that correct, Mr. Gomez?
"[Gomez]: Yes, Your Honor.
"The Court: You do have a right to have this same jury determine whether you suffered these convictions, but not the issues we already discussed. [¶] Do you understand that?
"[Gomez]: Yes, I do.
"The Court: Do you waive that right at this time?
"[Gomez]: Yes, sir. . . ."
Later, the court said to Gomez, " . . . I'm going to give you the right to raise any issues at sentencing [regarding the issue of the strike] if you feel there are any." After further discussion, the court again repeated the fact that Gomez would get to argue the strike issue: "I will give you a chance to be heard further later on whether it's a strike." Finally, after Gomez waived trial on the issue of whether he suffered the prior convictions, the court again reiterated that "the only issues left would be whether or not the 1993 driving under the influence with injury and the 1997 burglary were in fact separate prison terms, and whether or not the driving under the influence with injury is in fact a strike."
The court eventually considered these issues on the merits and concluded that Gomez had suffered two separate prior prison terms and that he had suffered a strike conviction. However, the court again left the door open for Gomez to argue those matters at sentencing. Gomez was represented by counsel at sentencing, and his attorney raised all of the issues that Gomez claims could have been raised if he had been represented by an attorney. The trial court simply disagreed with the arguments Gomez's attorney made. Gomez's handling of the prior convictions did not prejudice him, since he admitted only that he had suffered the convictions, not that the convictions did or did not lead to additional sentencing consequences. Further, Gomez had the benefit of an attorney to argue that the trial court improperly classified the prior convictions for purposes of sentencing.
In sum, the trial court's failure to adequately advise Gomez of the dangers of self-representation did not contribute to the verdict. Even if the court had recited the dangers and disadvantages of self-representation, the result of the trial would not have been different, since it is not reasonably likely that Gomez would not have chosen to represent himself.
B. The trial court did not commit reversible error in declining to instruct the jury regarding the corpus delicti rule
Gomez contends that the trial court erred in failing to instruct the jury, sua sponte, with CALCRIM 359, which advises that a defendant cannot be convicted of a crime based on the defendant's statements alone. The trial court considered giving CALCRIM 359, but ultimately declined to do so. We conclude that this was not error. Further, assuming for the sake of argument that the court should have given the corpus delicti rule instruction, any error was clearly harmless.
CALCRIM 359 provides: "The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt."
1. The trial court did not have a duty to instruct on the corpus delicti rule, sua sponte
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself─i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, 1171 ["[T]he rule in California has been that one cannot be convicted when there is no proof a crime occurred other than his or her own earlier utterances indicating a predisposition or purpose to commit it"] (Alvarez).) Thus, when a defendant's "extrajudicial statements form part of the prosecution's evidence, the cases have . . . required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1170.)
The corpus delicti instruction is given to ensure that a defendant is not convicted of a crime to which he has confessed but that never actually occurred. (People v. Carpenter (1997) 15 Cal.4th 312, 394 superseded by statute on another ground as noted in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) According to Gomez, the statement that triggered the court's duty to instruct the jury with CALCRIM No. 359 was his statement to Sandoval: "'What are you talking about? I don't have anything.'" However, this statement could not form the basis of a conviction of the charged crimes, since the statement is not a confession or admission of guilt. Gomez's statement, "'What are you talking about? I don't have anything'" does not, in and of itself, establish any element of the crimes charged. (See Alvarez, supra, 27 Cal.4th at p. 1178 ["the rule requires corroboration of the defendant's extrajudicial utterances insofar as they indicate a crime was committed"].) Because Gomez made no admission of guilt or criminal intent in the statement at issue, the corpus delicti rule does not apply. The trial court thus properly refused to instruct with CALCRIM No. 359.
2. Even if we presume error, it was harmless
"Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citation.]" (Alvarez, supra, 27 Cal.4th at p. 1181.)
"[T]he modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statement may be considered to strengthen the case on all issues. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1181.) "If, as a matter of law, this 'slight or prima facie' showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless." (Ibid.)
There was abundant independent evidence that Gomez committed the offenses of which he was convicted. Sandoval testified to watching Gomez open a cellular telephone package and put a charger in his pocket. Sandoval continued to watch Gomez as he attempted to go into a store bathroom, but was prevented from doing so because store security had locked the restroom doors. Sandoval reported that Gomez then hid items behind other products on a display shelf and briefly left the store, only to return to retrieve what he had hidden on the display shelf, and then walk out of the store with the items in his possession, without having paid for anything. When Sandoval confronted Gomez, Gomez threw a cellular telephone and a telephone charger on the ground. This evidence constitutes more than a slight or prima facie showing of injury, loss, or harm from Gomez's criminal agency. Consequently, any presumed error arising from the trial court's refusal to instruct the jury regarding the corpus delicti rule was harmless.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR McCONNELL, P. J., IRION, J.
If an appellate court can determine beyond a reasonable doubt that the defendant would have rejected the assistance of counsel even if given proper advisements, then there is no possibility that the outcome would have been different. However, where an appellate court cannot determine beyond a reasonable doubt that the defendant would have continued to represent himself despite being adequately warned about the dangers of self-representation, the question remains whether the outcome of the trial would have been different if the defendant had been represented by counsel.
In this case, under either test, we conclude that the trial court's failure to provide an adequate admonition about the risks of self-representation was harmless beyond a reasonable doubt. The record clearly establishes both that Gomez would still have waived the assistance of counsel even if the court had adequately warned him of the risks of self-representation, and that the outcome of the trial would not have been different if Gomez had not waived the assistance of counsel.