Opinion
B162574.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. PETER JAQUEZ, Defendant and Appellant.
Law Offices of Chris R. Redburn, Chris R. Redburn and Joy A. Maulitz, under appointments by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Peter Jaquez appeals from a judgment after jury trial in which he was convicted of attempted robbery (Pen. Code, §§ 211, 664). He admitted three prior
serious felony conviction allegations within the meaning of Penal Code section 1170.12. He was sentenced to 25 years to life in prison, plus 15 years. Defendant contends: (1) the trial court erred in denying his motion to represent himself; (2) the trial court erred in denying his motion to strike two of his prior serious felony convictions; and (3) his sentence violates the prohibitions against cruel and unusual punishment. We modify to correct an error in the judgment and otherwise affirm.
FACTS
Defendant attempted to rob a homeless man. At 2:15 in the morning, Carlos Polanco Franco was sitting on the sidewalk. Defendant, who was intoxicated, rode by on his bicycle, spotted Franco, turned his bicycle around, and returned. He parked his bike and approached Franco on foot. Telling Franco, "This is as far as you11 go," he demanded Francos money. Defendant pulled back his foot to kick Franco and also raised his hands to his chest level as if about to attack him. Franco was afraid defendant would hurt him. The entire encounter was seen by a patrolling deputy sheriff, who arrested defendant before Franco turned over his money.
DISCUSSION
Motion for Self-Representation
On August 28, 2002, defendant made a Marsden motion to replace his appointed trial counsel. The motion was heard and denied on the following day. Counsel agreed to a short continuance, and the case was set for trial on September 6, 2002, as 8 of 10. On Friday, September 6, 2002, defendant was not present in court, both counsel announced ready, and the case was transferred to a trial department. Thereafter, the case was trailed to Monday, September 9, 2002, as 10 of 10.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.
On September 9, 2002, the trial court indicated, "We have not ordered the jury down, but were just about ready to. [P] Anything before we order a jury panel?" Defendant requested to address the court, and the following colloquy occurred:
"[Defendant]: Okay. I would like to represent myself.
"[The Court]: Are you ready to go?
"[Defendant]: No. I need about a month.
"[The Court]:
Dont you think its a little untimely?
"[Defendant]: No.
"[The Court]: Why not?
"[Defendant]: Because my life is at stake here.
"[The Court]: Well, I certainly understand. Its been at stake since they charged you with this offense.
"[Defendant]: Yes. I know that.
"[The Court]: Okay. This matter has — anything else you want to add, sir?
"[Defendant]: No, that I — no.
"[The Court]: Okay. I find your Faretta motion to be untimely. The matter was in Department 100 on Friday. Matter was announced ready for trial. [P] There was no indication at that time, which I believe was day eight of ten, that the defendant had any request or desire to represent himself. [P] The matter was sent here for jury trial. We are last day. We have notified the jury room and we have a jury panel that is ready for us. [P] And the court finds that it is an untimely request that really has only one purpose and that is to purposely delay the proceedings. [P] So the motion to represent yourself pro per is respectfully denied."
A defendant has a constitutional, unconditional right to represent himself if a timely unequivocal request for self-representation is made. (Faretta v. California (1975) 422 U.S. 806, 834-836, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) A timely request is one made a reasonable time prior to the commencement of trial. (People v. Windham (1977) 19 Cal.3d 121, 124, 127-128, 137 Cal. Rptr. 8, 560 P.2d 1187.) "The `reasonable time requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice." (People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal. Rptr. 184, 771 P.2d 1270.) A trial court may therefore deny a request for self-representation made on the eve of trial, on the basis that granting it would require granting a continuance. (People v. Nicholson (1994) 24 Cal.App.4th 584, 592; People v. Hill (1983) 148 Cal. App. 3d 744, 757, 196 Cal. Rptr. 382.) "[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, which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation." (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Defendant relies on Ninth Circuit authority holding a request for self-representation is timely if made prior to the time the jury is impaneled. That is not the test in California and can no longer support habeas corpus relief in federal court. (People v. Rudd (1998) 63 Cal.App.4th 620, 626-628.)
People v. Dent (2003) 30 Cal.4th 213, relied on by defendant, is distinguishable. In Dent, the trial court had already indicated its intent to grant a continuance by the time defendant moved for self-representation, rendering the self-representation motion timely. (Id. at p. 221.)
When a defendant makes an untimely request for self-representation, the trial court has discretion to decide whether or not to grant the request. (People v. Cummings (1993) 4 Cal.4th 1233, 1320-1321, 850 P.2d 1.) In exercising its discretion, the trial court should take into consideration the following factors: (1) the quality of defense counsels representation; (2) the defendants prior requests to substitute counsel; (3) the reasons for the request; (4) the length and stage of the proceedings; and (5) the disruption or delay which would be caused by granting the motion. (People v. Windham, supra, 19 Cal.3d at pp. 128-129.) The trial courts exercise of discretion will not be overturned except upon a showing of abuse. (People v. Clark (1992) 3 Cal.4th 41, 101, 833 P.2d 561.)
Defendants request for self-representation, made on the last day for trial, was clearly untimely and therefore directed to the discretion of the trial court. None of the relevant factors weighed in favor of granting the request. Defendants motion for self-representation was accompanied by a request for continuance, yet he offered no explanation for the lateness of his request. Defendant offers no explanation for his failure to move for self-representation when his Marsden motion was denied, and does not suggest he was prohibited from preparing a written motion for self-representation, or asking his attorney to advise the court of his desire at the next court date. Defendants attorney was prepared to proceed. There was no indication counsels representation had been of inadequate quality. His Marsden motion made a week earlier had been denied. Defendants request for self-representation appeared to be based on his desire to delay the imminent commencement of trial. Granting the motion would have required at least a 30-day continuance. The trial court did not abuse its discretion.
Failure to Strike Priors
Defendant contends that the trial court abused its discretion in refusing to strike two of his prior serious felony convictions.
"In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628, the Supreme Court held that trial courts have the authority to strike a prior conviction in furtherance of justice under Penal Code section 1385. The court stated that in determining whether to strike a defendants prior convictions under Penal Code section 1385, the trial court must take into consideration the defendants background, the nature of his current offense, and other `"individualized considerations." (Id. at p. 531.)
"In People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429, the Supreme Court further set forth principles which should guide a trial court in the exercise of its discretion under Penal Code section 1385 and on the standards under which an appellate court is to review that exercise of discretion. The court stated that in Romero, it had implied that `preponderant weight must be accorded to factors intrinsic to the [Three Strikes] scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. (People v. Williams, supra, at p. 161.) In deciding whether to strike a prior conviction, and in reviewing a trial courts ruling, `. . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Ibid.)" (People v. Barrera (1999) 70 Cal.App.4th 541, 553-554.)
Prior to sentencing, defendants counsel submitted a sentencing memorandum in which he requested the court to exercise its discretion to strike two of defendants prior serious felony convictions on the basis that defendant fell outside the spirit of the Three Strikes Law. The argument was based on the theory that defendant, then 41 years old, could be adequately punished by a "second strike" sentence and still have the opportunity for a law abiding life after release from prison. The sentencing memorandum noted defendants alcoholism, employment, and family as positive factors. The memorandum also noted defendants current offense did not involve the use of a weapon or result in any physical harm to the victim and was likely an impulsive act motivated by defendants intoxication.
At defendants sentencing hearing, defendants counsel reasserted the grounds argued in the written memorandum. Defendants counsel further argued that in defendants prior serious felony convictions, no weapons had been used and no great bodily injury had been inflicted.
The prosecutor responded that both counsel had reviewed the superior court files on defendants prior serious felony convictions. In 1991, defendant was convicted of robbery. He had "punched a store clerk and stole some sneakers." In 1996, defendant was convicted of attempted robbery for "the attempted robbery of a transient man who was attempting to use a pay phone." Finally, in 1998, defendant was convicted of robbery for "the robbery of a transient woman who was sleeping on the sidewalk when the defendant and a companion attacked her." The prosecutor argued that there was escalating violence in defendants prior serious felony convictions and "included the use of extreme violence on helpless, homeless people."
Additionally, the trial court reviewed defendants entire criminal record, with the exception of defendants misdemeanor drug convictions. In 1980, at age 19, defendant was convicted of battery (Pen. Code, § 242) and sentenced to summary probation. One month later, he received his first felony conviction, for hit and run with death or injury (Veh. Code, § 20001). He was sentenced to probation, with 30 days in jail. In 1983, defendant was convicted of battery on a peace officer (Pen. Code, § 243, subd. (b)). He was sentenced to summary probation, with ten days in jail. In 1984, defendant was convicted of trespass (Pen. Code, § 602). He was sentenced to summary probation, with 18 days in jail. In 1989, he was convicted of spousal abuse (Pen. Code, § 273.5). He was sentenced to summary probation, with 45 days in jail. In 1989, defendant was convicted of assault with a deadly weapon (Pen. Code, § 245), his second felony conviction. He was sentenced to three years probation, with one year in jail. In 1990, his probation was revoked and he was sentenced to jail for 180 days. In 1990, he was convicted of battery on a peace officer. He was sentenced to probation, with 90 days in jail. In 1991, defendant was convicted of the first prior serious felony, robbery, for which he was sentenced to prison for two years. In 1996, he was convicted of the second prior serious felony, attempted robbery, for which he was sentenced to prison for 32 months. Finally, in 1999, defendant was convicted of the third prior serious felony, robbery, for which he was sentenced to prison for four years. Defendant was on parole and had been out of prison approximately two months at the time of the current offense.
Defendant had four misdemeanor convictions for being under the influence of a controlled substance. (Health & Saf. Code, § 11550.)
The trial court reviewed defendants probation report. The trial court noted that the current offense contained a threat of violence and would have involved violence had the deputy not approached when he did. Considering defendants entire record, the trial court denied defendants motion to strike two prior serious felony convictions.
The trial court had previously reviewed defendants "prison packet" as well as the court file on at least one of defendants prior serious felony convictions.
The trial court then found true several factors in aggravation, itemized in California Rules of Court, rule 4.421, and found no mitigating factors true. The trial court specifically noted, "defendant has had opportunities but has failed to discontinue this behavior that involves violence, theft, and drugs." The trial court found the circumstances in aggravation outweighed the circumstances in mitigation. The trial court then sentenced defendant to a term of 25 years to life, as mandated by statute, enhanced by 5 years for each of the three prior serious felonies under Penal Code section 667, subdivision (a)(1).
As the trial court was not required to decide an issue such as imposition of the upper, middle, or low-term, or consecutive or concurrent sentences, the record does not indicate a reason the trial court balanced aggravating and mitigating circumstances.
On appeal, defendant contends the trial court erred in failing to strike two of his prior serious felony convictions. This contention encompasses three arguments. Defendant argues: the trial court failed to consider all the relevant factors in determining whether to strike the prior serious felony convictions; the trial court improperly sentenced defendant for his prior offenses for which he had already been punished; and the trial court abused its discretion.
Defendant first argues the trial court failed to take into consideration all of the relevant factors in ruling on his motion to strike two prior serious felony convictions. Specifically, defendant relies on the alleged mitigating factors of his age, alcoholism, education, family background, and the nonviolence of the current offense. "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Defendant contends such a record exists, relying on the trial courts statement that it found no mitigating circumstances to be true. We disagree. It is apparent that the trial courts statement, made after the denial of defendants motion to strike, was not referring to the factors relevant to defendants motion to strike, but was instead referring to the mitigating factors found in California Rules of Court, rule 4.423. It is further apparent that the trial court considered the factors assertedly overlooked, in that they were itemized in the probation report, discussed in defendants sentencing memorandum, or argued by defendants counsel at the hearing.
Defendant next argues the trial court violated principles of double jeopardy and the prohibition against ex post facto laws by, in effect, sentencing defendant for his prior convictions rather than the current offense. "`In the context of habitual criminal statutes, "increased penalties for subsequent offenses are attributable to the defendants status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense."" (People v. Sipe (1995) 36 Cal.App.4th 468, 479.) There is no constitutional violation.
Finally, defendant contends the trial court abused its discretion in failing to strike two prior serious felony convictions.
"`"The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, 928 P.2d 1171.)
"The record establishes that the trial court here fully considered appellants background, the nature of his current offense, and the individualized considerations of his long-standing [alcohol and] drug addiction and the pattern and nature of his criminal history, and that it properly concluded that appellant was not, even in part, outside the spirit of the Three Strikes scheme. . . .
"On this record, where the trial court considered the relevant criteria, including appellants lengthy criminal history and the timing and nature of his offenses, none of which reflects well upon his prospects, we find no abuse of discretion in the trial courts refusal to strike [two] of appellants prior felony convictions. (People v. Cline (1998) 60 Cal.App.4th 1327, 1336-1337.)" (People v. Barrera, supra, 70 Cal.App.4th at pp. 554-555.)
Cruel and Unusual Punishment
Defendant contends his sentence constitutes cruel and unusual punishment under the California and United States Constitutions. (Cal. Const., art. I, § 17; U.S. Const., 8th Amend.)
A defendant must overcome a considerable burden in a challenge under the cruel and unusual punishment provision of the California Constitution. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) "A punishment may violate the California Constitution although not `cruel or unusual in its method, if `it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921.) The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. [Citation.] Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. [Citation.] Third, they compared the punishment to the penalty for the same offense in different jurisdictions." (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.)
However, a determination can properly be made based on the first Lynch factor alone. (People v. Weddle, supra, 1 Cal.App.4th at p. 1197.) The focus on the offense considers the crime both in the abstract and in view of the totality of the circumstances surrounding its commission, including such factors as motive, the manner in which the crime was committed, the extent of defendants involvement, and the consequences of the acts. (Ibid.) The focus on the offender considers factors such as defendants age, prior criminality, personal characteristics, and state of mind. (Id. at p. 1198.)
Defendants claim under the federal Constitution can also be analyzed under a single factor. "`The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime." (Ewing v. California (2003) 155 L. Ed. 2d 108, U.S. , 123 S. Ct. 1179, 1186-1187.) If the defendants sentence "is not `the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality," intra— and inter-jurisdictional proportionality need not be considered. (Id. at pp. 1187, 1189.) In considering the threshold inquiry of "the gravity of the offense compared to the harshness of the penalty," the offense considered is not simply the current offense standing alone, but the current offense "after previously having been convicted" of the prior offenses. (Id. at p. 1189.)
In this case, defendant has failed to show that his sentence is grossly disproportionate to the crime committed. The trial judge in this case carried out the express intent of the Legislature, punishing defendant not merely for his current felonies but also for his recidivism. (People v. Cooper (1996) 43 Cal.App.4th 815, 823-825.) Defendants prior record encompasses nine misdemeanor and five felony convictions. Of defendants 14 convictions, 9 involved violence-robbery, battery, assault-or the infliction of injury. He committed the current attempted robbery two months after his release from prison for a similar robbery. "One in [defendants] position has been both graphically informed of the consequences of lawlessness and given an opportunity to reform, all to no avail. [A recidivism statute] thus is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the States judgment as to whether to grant him parole." (Rummel v. Estelle (1980) 445 U.S. 263, 278, 63 L. Ed. 2d 382, 100 S. Ct. 1133.)
In short, defendant has not been sentenced to life in prison because he committed attempted robbery. Rather, he was so sentenced because he is a serious career criminal who has demonstrated repeatedly that he has no intention of abiding by the laws of this State. Defendants sentence is not so disproportionate to his crime that it shocks the conscience and offends fundamental notions of human dignity. (See Ewing v. California, supra, 123 S. Ct. 1179 [three strikes sentence of 25 years to life is not unconstitutional when defendants current offense is grand theft].) Accordingly, this sentence does not violate the prohibition against cruel and unusual punishment.
As defendants sentence did not violate the prohibition against cruel and unusual punishment, his counsel did not render ineffective assistance by failing to object on this basis.
Modification of Judgment
The information alleged defendant had suffered three prior prison terms within the meaning of Penal Code section 667.5, subd. (a). That provision applies only if the defendants current offense is a violent felony as defined in Penal Code section 667.5, subdivision (c). Attempted robbery is not a violent felony; therefore the Penal Code section 667.5, subdivision (a) enhancement allegations should have been found not true. The trial court recognized this, but stayed the sentence on the enhancements, rather than striking them. We modify the judgment to strike the Penal Code section 667.5, subdivision (a) enhancements.
DISPOSITION
The judgment is modified to strike, rather than stay, the three enhancements under Penal Code section 667.5, subdivision (a). The clerk of the superior court is directed to correct the abstract of judgment and forward the corrected abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
We concur: ARMSTRONG, J., and MOSK, J.