Opinion
A100547.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. BRIAN PETER HAGAN, Defendant and Appellant.
Brian Peter Hagan appeals a judgment sentencing him to a term of two years and four months in state prison following convictions of three felony offenses, with two enhancements for being armed with a firearm. We affirm.
PROCEDURAL BACKGROUND
The appellate record in this case begins with a hearing on October 4, 2001, on appellants motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. The trial court questioned appellant at length and then granted the motion. Following a preliminary hearing, the District Attorney of Lake County filed an information on January 14, 2002, charging appellant with three felonies: cultivation of marijuana (Health & Saf. Code, § 11358), possession of marijuana for sale (Health & Saf. Code, § 11359) and unlawful possession of a firearm silencer (Pen. Code, § 12520). The information further alleged that, in the commission of the two marijuana offenses, appellant used a firearm within the meaning of Penal Code section 12022, subdivision (a)(1).
Appellant represented himself throughout pretrial proceedings and waived his right to jury trial. At a court trial on May 14, 2002, the prosecution presented testimony of a sheriffs deputy, who described a search of appellants residence, and a criminalist, who identified a silencer found on the property. Throughout the trial, appellant attempted to raise uninformed points of law and public policy that had no relevance to the proceeding or to the examination of witnesses. Though he took the stand on his own behalf, he appeared to become confused about the courts rulings, and when asked what he wanted to do, he replied, "Nothing. Ill get down. . . . This is a scene that I wanted to avoid."
The trial court found appellant guilty of all three felony counts and found the special allegations of firearm use to be true with respect to the first two counts. At a sentencing hearing on August 22, 2002, the trial court denied probation and sentenced appellant to a term of 16 months for the first count of cultivating marijuana, with an additional one-year sentence for the arming enhancement. The court proceeded to impose sentences on the next two counts to "run concurrently for an aggregate term of two years and four months." The abstract of judgment mistakenly recorded the term as three years and four months. Appellant filed a timely notice of appeal.
FACTUAL BACKGROUND
Appellant is a 65-year-old man who lived in a residential neighborhood in the town of Clearlake Oaks in Lake County. He hung green tarps around a garden area on the north side of his property to prevent passers-by from seeing inside. An aerial surveillance, however, revealed the presence of marijuana plants in this area and led to the issuance of a search warrant. Deputy Sheriff Jim Samples carried out the search on August 21, 2001.
Samples testified that the search revealed about 50 plants, ranging in height from two to five or six feet, growing in the garden north of the house, 6 plants placed on a work bench, and another 45 plants growing in the master bedroom of the house. Inside the house, the search disclosed a quantity of plastic sandwich bags, two metal scales, the three bags filled with marijuana, and a loaded .44 magnum handgun. Among marijuana plants in the garden area, there was a cot with a sleeping bag. A rifle with a scope lay on top of the cot and a few inches away from the rifle under a pillow lay a metal cylinder that fit on the end of the rifle barrel. The end of the rifle barrel was worn from being repeatedly fitted with the cylinder. When asked about the rifle, appellant said it was "to protect his property."
A criminalist employed by the California Department of Justice, Richard Waller, testified that the rifle was functional, and the cylinder was a silencer designed to reduce the decibel level of the rifle retort.
DISCUSSION
A. The Faretta Motion
In Faretta v. California, supra, 422 U.S. 806, 819, the United States Supreme Court held that the defendants right to present a defense, guaranteed by the Sixth Amendment, implies the right to represent himself. However, the Court cautioned, "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." (Faretta v. California, supra, at p. 835.) The defendant "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. )
As noted in People v. Marshall (1997) 15 Cal.4th 1, 20-21, federal decisions following Faretta "have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation. . . . As one court observed: `[T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se. [Citation.]" On appeal, California courts "review the entire record—including proceedings after the purported invocation of the right of self-representation—and determine de novo whether the defendants invocation was knowing and voluntary." (Id. at p. 24.) " `Courts must indulge every reasonable inference against waiver of the right to counsel. . . . [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1069 .)
Shortly after the Faretta decision was rendered, People v. Lopez (1977) 71 Cal.App.3d 568 set forth a series of "suggested advisements and inquiries designed to ensure a clear record of a defendants knowing and voluntary waiver of counsel." (People v. Koontz, supra, 27 Cal.4th 1041, 1070.) In Koontz, our high court approved the Lopez guidelines and summarized them as follows: "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 defendants education and familiarity with legal procedures, suggesting a psychiatric examination in questionable cases. The Lopez court further suggested probing the defendants understanding of the alternative to self-representation, i.e., the right to counsel, including court-appointed counsel at no cost to the defendant, and exploring the nature of the proceedings, potential defenses and potential punishments. The Lopez court advised warning the defendant that, in the event of misbehavior or disruption, his or her self-representation may be terminated. Finally, the court noted, the defendant should be made aware that in spite of his or her best (or worst) efforts, the defendant cannot afterwards claim inadequacy of representation." (Id. at pp. 1070-1071.)
In the hearing on October 4, 2001, the court conducted a thorough examination of appellant that fully complied with, and in fact exceeded, the Lopez guidelines and secured a fully adequate record of waiver. Indeed, appellant does not find fault with the courts finding of waiver in this hearing but rather attacks the cursory review of the issue at a hearing on January 14, 2002, and calls our attention to appellants utter incapacity to defend himself at trial.
Before taking appellants plea of not guilty on January 14, 2002, the court determined that there had been a finding of waiver of right to counsel at a prior Faretta hearing and asked appellant if he wished to continue to represent himself. Appellant replied affirmatively. The court then asked appellant if it needed to repeat advisements given at the prior hearing. Appellant replied that he didnt "believe so." We find this inquiry to be entirely proper. The decisional law under Faretta does not impose on the court a duty to conduct repeated hearings on the issue of waiver, but the court still acted respectfully and properly inquiring whether appellant stood firm in his earlier decision and in providing him an opportunity for reconsideration.
Appellants incompetence to represent himself at trial did not call into question the validity or continued effectiveness of the waiver of the right to counsel that he made at the hearing on October 4, 2001. A defendants right to waive assistance of counsel is not based on the presumed competence of the defendant to represent himself (Godinez v. Moran (1993) 509 U.S. 389, 399), but rather is "grounded in part in a respect for individual autonomy." (Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 160.) We do not need to consider the courts discretion to revoke a waiver when a defendant displays "deliberate, serious misconduct" (People v. Marshall, supra, 15 Cal.4th 1, 20) because nothing in the record implicates appellant in misconduct or suggests that appellants conduct threatened "the dignity of the courtroom . . . ." (Ibid.)
B. Abuse of Discretion in Sentencing
Appellant next contends that the trial court abused its discretion by imposing a prison term. As he acknowledges, "[t]he sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed." (People v. Welch (1993) 5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 683.) Under Penal Code section 1203, subdivision (e)(11), probation must be denied to any person who possesses a silencer under section 12520, "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation." California Rules of Court, rule 4.413(c), sets forth criteria for determining the existence of an unusual case, and rule 4.414 provides criteria relevant to the decision to grant or deny probation in these circumstances.
The probation officers report found that this was an unusual case under the criteria of rule 4.413 but still recommended denial of probation on the ground that appellant would be a poor candidate for probation. At the sentencing hearing, the trial court implicitly also treated the sentencing decision as pertaining to an unusual case under rule 4.413 by saying that it "must find some special circumstances in order to grant [appellant] probation." In denying probation, the court stressed the criteria of rule 4.414(b)(3), i.e., "[w]illingness to comply with the terms of probation." The court stated that appellants "attitude and [his] fixation upon [his] interpretation of the law" and failure to cooperate with the probation department in its background investigation led the court to conclud that appellant "would not comply with probation." The court also noted two other factors weighing against probation under the criteria of rule 4.414(a)(1) and (2): the circumstances that he possessed a large quantity of marijuana for sale and was armed with a weapon when arrested.
We note, first, that appellant cannot base a claim of error on the trial courts statement of reasons for denying probation. "The general rule [requiring a statement of reasons for a sentencing choice] . . . does not apply where the statute directs that a certain sentence be imposed absent circumstances justifying an alternate disposition. In such cases, the court has no choice but to follow the legislative mandate. [¶] . . . [¶] Where the Legislature establishes a sentencing norm and requires the court explicitly to justify a departure therefrom, and the court sentences in conformity with the legislative standard, all that is required on the appellate record is a showing that the court was aware of its discretion to select an alternate disposition." (People v. Langevin (1984) 155 Cal.App.3d 520, 523-524; People v. Bradley (1993) 15 Cal.App.4th 1144, 1156; People v. Keeton (1992) 10 Cal.App.4th 1125, 1130-1131; People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)
Furthermore, the reasons given by the trial court were sufficient to support the denial of probation. On appeal we inquire only whether the trial court exercised its discretion "in an arbitrary or capricious manner." (People v. Edwards (1976) 18 Cal.3d 796, 807; People v. Warner, supra, 20 Cal.3d 678, 683.) While appellant vigorously argues that the facts were susceptible to a different interpretation, the record still provides a reasonable basis for the trial courts findings with respect to the criteria of rule 4.414. In light of appellants conduct at trial and attitude of non-cooperation with the probation department, the trial court reasonably inferred appellant was unwilling to comply with the terms of probation. (Cal. Rules of Court, rule 4.414(b)(3).) In addition, the discovery of approximately 100 plants and two guns, including a loaded handgun and a rifle equipped with a silencer, gave the court a reasonable basis for finding that the crime was serious "as compared to other instances of the same crime" and that appellant "was armed with . . . a weapon." (Cal. Rules of Court, rule 4.414(a)(1) & (2).)
C. Clerical Error in Abstract of Judgment
Lastly, we note that the abstract of judgment should be revised to reflect the actual judgment of the court at the sentencing hearing. It should show that the sentences on counts 2 and 3, including the enhancement to count 2 under Penal Code section 12022, subdivision (a)(1), run concurrently with the sentence on count 1 and that the aggregate term is two years and four months.
The case is remanded to the trial court for correction of the abstract of judgment and in all other respects is affirmed.
We concur: Stein, Acting P. J. and Margulies, J.