Opinion
B220997
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. TREMELL ACE JACKSON, Defendant and Appellant.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA070820)
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Tremell Ace Jackson appeals from the judgment entered after a jury trial. The jury found defendant guilty of possession for sale of cocaine base (Health & Saf. Code, § 11351.5; counts 1 and 5), possession of marijuana for sale (id., § 11359; counts 2 and 3), and possession of a controlled substance (id., § 11350, subd. (a); count 7). The court found true the allegations attached to counts 5 and 7 that defendant was released from custody at the time of the commission of those offenses (Pen. Code, § 12022.1). It also found true the allegations defendant served two prior prison terms (id., § 667.5). It found the allegation defendant had one prior strike (id., §§ 667, subds. (b)-(i), § 1170.12) not to be true. The court sentenced defendant to 13 years and four months in state prison.
Defendant was acquitted on count 4, possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and the jury convicted defendant in count 6, possession of marijuana for sale (id., § 11359) of the lesser included offense of possession of less than 28.5 grams of marijuana.
On appeal, defendant contends (1) the trial court abused its discretion by denying his motion for mistrial, and (2) committed reversible error when it denied his Faretta motions. We affirm.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].
FACTUAL AND PROCEDURAL BACKGROUND
A. The Denial of Defendant's Request for Self-Representation
On January 23, 2009, defendant informed the court that he "want[ed] to change [his] counsel." The court considered it a Marsden motion and heard it on January 30, 2009. The motion was denied.
People v. Marsden (1970) 2 Cal.3d 118.
On June 3, 2009, defendant's counsel announced that he was ready for trial and the matter was trailed until that afternoon. At that time, there was a second Marsden motion, which was also denied.
On September 2, 2009, during voir dire, defendant again expressed dissatisfaction with his counsel and told the court that they did not see "eye to eye." The court said it would not interrupt trial to conduct another Marsden motion with prospective jurors waiting in the hallway. The same day, 12 jurors and one alternate were sworn to try the case.
The following morning, the court heard and denied defendant's third Marsden motion. The same day, the prosecutor made her opening statement and started presenting evidence.
On September 8, 2009, defense counsel informed the court that defendant wanted to represent himself.
"[Defense Counsel]: He wants to be heard about going pro per.
"The Court: Okay. [Defendant], with regards to this matter, it's my understanding from your lawyer that you're unhappy with his services, and that you want to represent yourself; is that correct?
"The Defendant: Yes, sir.
"The Court: You ready to proceed in pro per?
"The Defendant: Yes, sir.
"The Court: So you don't need a continuance?
"The Defendant: Waiting to see, I — need information regarding — I need to research [. . . .]
"[Prosecutor]: Should I step out, your honor?
"The Court: No.
"The Defendant: I am ready to proceed. I need information [. . . .]
"The Court: How long will it take you to prepare your case?
"The Defendant: At the least — at least a couple weeks.
"The Court: Okay. Your request to proceed in pro per is dilatory. It's untimely. I find that it's for purposes of delay, and it's consistent with the repeated Marsden motions that we've been having through the course of this trial. [¶] The request to go pro per is respectfully denied."
The next day, defendant again requested to proceed in pro per as follows:
"[Defense Counsel]: Two items. [¶] Number one, [defendant] says he's ready to go pro per. And he would be ready to start — I told him as soon as 11:00 would probably be the time the jury would come in. And that he would need to be ready then. [¶] He said he would be ready then.
"The Court: Okay. And what's changed between yesterday and today where he needed a few weeks, and now he's ready?
"The Defendant: Obviously, the only way I — seem like I would be — ready.
"The Court: I'm sorry?
"The Defendant: I said — seem like that would be the only way that — you would grant it. I mean, you asked me that — first question you asked me yesterday was I ready. I told you I need a little time. That's when you said I was delaying. So I feel this way, I ain't delaying.
"The Court: Okay. I'm still making the same findings that I made yesterday; that the request is dilatory, that it's meant for purposes of delay. It's certainly within the sound discretion of the court to grant or deny an untimely request to go pro per.
"The request to go pro per after multiple Marsden motions during the course of the trial is certainly within my sound discretion. And I'm disinclined to grant the defendant's request to go pro per at this point.
"I do think it's for the purposes of delay. I do think it's for the purposes of obstruction. [¶] So the request is denied." B. Prosecution Evidence
1. Counts 1 and 2
On February 18, 2008, at approximately 8:30 a.m., Los Angeles County Sheriff's Deputies Christopher Lio and Steven Lespron arrived at an apartment complex in the area of 1335 West 102nd Street in Los Angeles. Deputy Lio saw defendant holding a "blunt" and walking toward a 1997 Buick Le Sabre. Deputy Lespron could smell marijuana coming from the cigarette. Deputy Lio knew the vehicle belonged to defendant, having seen him driving the car previously. Defendant was detained pending a marijuana investigation.
When Deputy Lio approached defendant's vehicle, he saw a clear Ziploc bag lying on the driver's seat. He noticed that the bag contained a green leafy substance resembling marijuana. Deputy Lio found 11 bags inside the trunk, 10 of which contained a green leafy substance resembling marijuana and one containing two large chunks of an off-white rock-like substance resembling crack cocaine. No narcotic paraphernalia was taken from the trunk. Defendant was not under the influence of marijuana or rock cocaine.
Defendant was arrested and transported to a police station for booking. When defendant took off his shoe, a clear, plastic bag containing an off-white substance resembling rock cocaine fell out of his shoe. Defendant also had a cellular phone and $2,161 in cash.
2. Count 3
On April 16, 2008, at approximately 3:10 p.m., Los Angeles County Sheriff's Deputy Eric Hancock and Deputy Galvez went to 1335 West 102nd Street in Los Angeles. When they arrived, they saw defendant and a woman inside a parked vehicle. Both seats were reclined all the way back. Deputy Hancock approached the vehicle to check on the welfare of the individuals and noticed the odor of unburnt marijuana inside the vehicle.
Defendant and the woman were detained, and Deputy Galvez searched the vehicle. He seized 11 Ziploc bags containing a green leafy substance resembling marijuana. Deputy Galvez also found $2,402 on defendant. Neither deputy found any narcotics consumption paraphernalia on defendant.
The facts in count 4 are not discussed since defendant was found not guilty.
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On May 31, 2008, at approximately 5:16 p.m., Los Angeles County Sheriff's Deputy Lorena Tovar and her partner, Deputy Carpenter, were at an apartment complex in the area of 1335 102nd Street in Los Angeles. Deputy Tovar saw defendant standing in front of the gate of the apartment complex. As the two deputies approached him, defendant reached into his right pants pocket and then tossed an off-white rock-like substance over his left shoulder. Deputy Tovar recognized the substance as rock cocaine. While searching defendant, the deputies found four bags containing a leafy green substance in defendant's pants pocket, along with $1,122. There was no narcotic consumption paraphernalia on defendant, and defendant was not under the influence of marijuana or cocaine.
4. Count 7
On June 27, 2008, at approximately 5:00 p.m., Deputies Hancock and Carpenter arrived at 1335 West 102nd Street in Los Angeles. Deputy Hancock saw defendant sitting in the driver's seat of a vehicle with an expired registration. As the deputies approached the vehicle, Deputy Hancock smelled the strong odor of burnt marijuana coming from inside the vehicle. Deputy Carpenter searched defendant's vehicle and found a burnt cigarette containing a green leafy substance resembling marijuana and two Ziploc bags containing a similar substance. Defendant had $298.66 in his pocket. No narcotics consumption paraphernalia was recovered, and Deputy Hancock did not recall defendant displaying any signs of being under the influence.
Detective Bernadette Gambino of the Los Angeles County Sheriff's Department testified as the prosecution's narcotics expert. She was given several hypotheticals based on the evidence in counts 1 through 6. She opined that the drugs were possessed for sale. She based her opinion on several factors including her training and experience, the manner in which the drugs were packaged, the large amount of money seized, and the lack of narcotics paraphernalia.
There was a stipulation that the green leafy substances and the off-white rock-like substances seized from defendant contained marijuana and cocaine. C. Defense Evidence
Jacqueline Cunningham, defendant's mother, testified that defendant lived with her in 2008. Individuals did not come to her residence at 1305 West 104th Street in Los Angeles to purchase marijuana, cocaine or any other drugs. She did not see any drugs or large sums of money in her house.
Kenneth Cunningham, defendant's uncle, testified that defendant worked for him as a plumber's assistant. The last time that defendant worked for him was about a year prior to the date of his testimony.
Paul Cohen (Cohen) testified as a defense narcotics expert. Cohen was given a hypothetical in which he was asked to assume that sheriff's deputies made numerous contacts with a suspect over a period of months and years and never saw him selling drugs. Cohen testified that there was insufficient information in the hypothetical for him to opine whether the person possessed the drugs for sale. Cohen also testified it would not be unusual for a drug dealer to possess upwards of $2,500 on his person, and unburned marijuana would not be smelled as one approached it.
Roman Rodriguez, Quentrayus Jackson, Trace Jones, and David Naranjo all testified as to negative encounters with Deputy Galvez, and to a lesser extent, Deputy Carpenter. E. Prosecution's Rebuttal
Deputy Galvez denied that he lied about defendant's case or would lie in any other case. He would never falsify a police report or plant evidence.
DISCUSSION
A. Mistrial Motion
Defendant contends that the court erred when it denied his motion for a mistrial after a police officer testified he knew defendant by his gang name. We disagree.
A defendant's motion for a mistrial should be granted "if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854; accord, People v. Hines (1997) 15 Cal.4th 997, 1038.) We review the trial court's ruling on the motion "under the deferential abuse of discretion standard." (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Valdez (2004) 32 Cal.4th 73, 128.)
It is presumed the jury has heeded any admonitions given to it, curing the error addressed by the admonitions. (People v. Burgener (2003) 29 Cal.4th 833, 874.) "It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions.'" (People v. Allen (1978) 77 Cal.App.3d 924, 935; accord, People v. Cox, supra, 30 Cal.4th at p. 953.) Only when defendant's "'chances of receiving a fair trial have been irreparably damaged'" should a mistrial be granted. (People v Valdez, supra, 32 Cal.4th at p 128.)
Defendant's trial counsel made a motion in limine to exclude any references by prosecution witnesses to prior narcotic arrests or convictions. The prosecutor responded by informing the court that she had advised all of her law enforcement witnesses not to mention "prior arrests, parole, probation, or gangs in any shape or form, 'unless [she informed them] otherwise.'"
During defense counsel's cross-examination of Deputy Hancock, the following colloquy occurred:
"Q: By [defense counsel]: Before April 16th, would you have known [defendant] by name?
"A: I know him by his gang name."
Defense counsel did not object at the time.
On redirect examination of Deputy Hancock, the prosecutor asked him about the circumstances surrounding his contact with defendant on April 16, 2008. As Deputy Hancock started to respond, the court had counsel approach for a sidebar conference. The following discussion occurred:
"The Court: Do you have an offer of proof as to where the witness is going?
"[Prosecutor]: Not specifically. I'm realizing now that it may be gang-related. And I have admonished him. But I did notice the remark that he made in response to counsel's question about knowing the defendant by name.
"So — perhaps I would need to find out from him what the circumstances were. I'm just trying to find out, since counsel — to determine in my view that there were no ulterior motives by this witness.
"But because the defense has brought this up, I feel I need to ask the witness to clarify it. But I don't want to go into anything inappropriate."
The court expressed concern that open-ended questions might bring in other information regarding defendant's prior criminal history or gang association. The court, outside the presence of the jury, asked Deputy Hancock about the circumstances of his prior contacts with defendant. After discussion, the court informed the prosecutor she could ask the deputy about whether he completed field identification cards in response to radio calls about loitering.
Later in the trial, defendant made a motion for a mistrial for the gang reference made by Deputy Hancock and the motion was denied. Defense counsel requested that the court admonish the jury to disregard Deputy Hancock's gang reference and the jury was admonished as follows: "Ladies and gentlemen, earlier during [Deputy Hancock's testimony], there was a question that was asked of the witness as to whether or not the witness knew the defendant's name prior to that particular contact. And the answer was something similar to 'only by gang name,' or words to that effect. [¶] I am striking that portion of the answer. Namely, the word 'gang.' You can insert the word . . . 'Nickname,' if you wish to. [¶] But I would admonish you that this is not a gang case. There are not allegations involving gang activity. And you're not to infer anything from that answer."
We discern no abuse of discretion in the trial court's denial of defendant's mistrial motion. As noted above, the trial court admonished the jury at the request of defendant. This minimized the danger of any prejudice. (See, e.g., People v. Cooper (1991) 53 Cal.3d 771, 838.) It is presumed that juries follow instructions to disregard inadmissible evidence. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Unexpected, brief references have been found to have no impact on the right to a fair trial. (People v. Ledesma (2006) 39 Cal.4th 641, 681-684 [a witness commented that the defendant had been on death row]; People v. Avila (2006) 38 Cal.4th 491, 573-574 [a witness referred to the defendant "recently having been in prison"].
There was ample evidence against defendant. The case was one of credibility and whether the jury would believe the testimony from six law enforcement officers or believe defendant's defense that he was the victim of harassment and law enforcement officers who lied during their testimony. Under the circumstances, it is not reasonably probable defendant would have obtained a more favorable result absent the objectionable testimony by Deputy Hancock. (See, e.g., People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) B. Right to Self-Representation
Defendant contends the trial court violated his Sixth Amendment right to self-representation by denying his Faretta motion as untimely, without evaluating the factors required under People v. Windham (1977) 19 Cal.3d 121, 128.
A right to self-representation is implied in the Sixth Amendment to the United States Constitution. (Faretta v. California, supra, 422 U.S. at p. 819.) The right to counsel guarantees a defendant the assistance of counsel if the defendant wants it. It does not require a defendant to use an attorney. "[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." (People v. Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted.) This right is absolute and unconditional if the motion is timely made and if the defendant is competent to waive counsel. (People v. Valdez, supra, 32 Cal.4th at pp. 97-98.)
A defendant's right to self-representation, however, is absolute only if he or she invokes that constitutional right a reasonable time prior to the start of trial. (People v. Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted ["in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial"]; accord, People v. Lynch (2010) 50 Cal.4th 693, 722.) It is well-established that when a defendant asserts the right to self-representation on the eve of trial or the day of trial, the court has discretion to deny the request. (See, e.g., People v. Valdez, supra, 32 Cal.4th at p. 102 [Faretta motion made moments before jury selection was set to begin was untimely and properly denied by the trial court]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [Faretta motion made on date set for trial was untimely].)
As our California Supreme Court reasoned in Windham, "a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court . . . ." (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Here, defendant's Faretta motions were untimely. As a result, the trial court had discretion in deciding whether or not to grant the motion. However, given the importance of the right to self-representation, the trial court may not simply deny an untimely motion for self-representation. Rather, "trial courts confronted with nonconstitutionally based motions for self-representation [must] inquire sua sponte into the reasons behind the request" (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6) and exercise their sound discretion after considering several factors, including "the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Id. at p. 128; see People v. Wilkins (1990) 225 Cal.App.3d 299, 303 [grant or denial of request made on the eve of trial "is within the sound discretion of the trial court after it has inquired sua sponte into the specific factors underlying the request"]; see generally People v. Burton (1989) 48 Cal.3d 843, 852 [trial court's discretion to deny an untimely motion exists "to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice"].)
Most recently, the California Supreme Court concluded in determining the timeliness of a defendant's pretrial Faretta motion that the trial court "may consider the totality of the circumstances . . . ." (People v. Lynch, supra, 50 Cal.4th at p. 726.) "Thus, a trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (Ibid.)
However, there is no requirement "that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation which is based on nonconstitutional grounds." (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6.) The court's exercise of discretion in denying the untimely motion is properly affirmed if substantial evidence in the record otherwise supports the inference the court had those factors in mind when it ruled. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) This is true even if the trial court failed not only to state the reasons for its decision to deny the motion but also to make the sua sponte inquiry generally required.
In People v. Dent (2003) 30 Cal.4th 213, a request for self-representation was denied without a sua sponte inquiry solely because it was a death penalty case, an improper reason. The Supreme Court stated, "Even though the trial court denied the request for an improper reason, if the record as a whole establishes defendant's request was nonetheless properly denied on other grounds, we would uphold the trial court's ruling." (Id. at p. 218.) Ultimately, the Supreme Court concluded the record in Dent did not otherwise support denial of the motion. Nevertheless, Dent sanctions appellate review of the entire record to determine whether the trial court abused its discretion in denying a motion for self-representation, even when the trial court based its denial of self-representation on an improper ground and without a sua sponte inquiry.
In this case, the trial court did not explicitly consider the Windham factors, but the record supports an implicit finding on those factors. First, there were three previous Marsden hearings and the court certainly had an opportunity to consider counsel's representation during those hearings. During the first Faretta hearing, defendant indicated that he was not happy with trial counsel. The court, at least implicitly, if not explicitly, considered the various reasons for defendant's request to remove his trial counsel, including any alleged deficiency of representation, and determined that defendant's reason for making the motion was to delay the trial.
Although the court did not explicitly consider the late stage of the proceedings, the record supports a finding that the court implicitly considered it. During the first Faretta motion, defendant stated he would need "at least a couple weeks" to prepare for trial. While it is true that the next day, during the second Faretta hearing, defendant stated he did not need any time to prepare, the court inquired as to the reason for the change and defendant stated, "I said — seem like that would be the only way that — you would grant it." The court certainly could have taken that statement to mean that he was not actually ready for trial and would have difficulty proceeding without a continuance. The court specifically found that the request was "dilatory" and "meant for purpose of delay."
Defendant's reliance on People v. Nicholson (1994) 24 Cal.App.4th 584 is not persuasive. Defendant contends that during the second Faretta hearing, he was not making a request for continuance and the trial court abused its discretion by denying the Faretta motion.
In Nicholson, the motions for self-representation were made nine calendar days before jury selection was due to begin. (People v. Nicholson, supra, 24 Cal.App.4th at p. 587.) While Nicholson does state that where self-representation is requested for a legitimate reason, and there is no request for a continuance or reason to believe there would be any delay or disruption, it is an abuse of discretion for the court to deny a Faretta motion. (Id. at p. 593.) In the instant case, there was reason to believe there would be a delay or disruption, including various tactics by defendant to delay the trial, including numerous Marsden motions. When the court asked defendant whether his request to represent himself was a result of his unhappiness with his defense counsel, defendant replied, "Yes, sir." If the disagreement with trial counsel was over trial tactics, that would not be a sufficient reason to grant an untimely Faretta motion. (People v. Scott, supra, 91 Cal.App.4th at p. 1206.)
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
ZELON, J.