Opinion
C040567.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. CURTIS MICHAEL JOHN-CHARLES, Defendant and Appellant.
Following a jury trial in which defendant Curtis Michael John-Charles represented himself, a jury convicted him of two counts of home-invasion robbery in concert with others (Pen. Code, §§ 211, 213, subd. (a)(1)(A)) and found that he had personally used a handgun in those robberies (§ 12022.53, subd. (b)). The jury also found defendant guilty of assault with a firearm (§ 245, subd. (a)(2)), receipt of stolen property (§ 496, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)). The same jury also convicted codefendant Richard Emmett Ward of the robberies, assault with a firearm, and possession of stolen property, and found that Ward was armed in the course of committing the robberies.
Further statutory references are to the Penal Code.
Defendant contends that the trial court "committed reversible error when it refused to permit [defendant] to withdraw his Faretta waiver" and appoint counsel to represent him at trial. We agree: The court denied defendants request — which was made on the first day of trial and before jury selection — without considering the extent to which granting his request would actually delay the proceedings or prejudice the other parties. This failure constituted an abuse of discretion.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Moreover, the error was not harmless in connection with the jurys finding of the firearm enhancement: There was no direct evidence that defendant personally used a firearm during the robberies, and the circumstantial evidence that he did so was limited. Accordingly, it is reasonably probable that defendant would have obtained a more favorable outcome had he been assisted by counsel.
On the other hand, we consider, and reject, defendants contention that his prior juvenile adjudication should not have been counted as a "strike" and used to enhance his sentence.
Accordingly, we shall vacate the jurys findings that defendant personally used a firearm in connection with the two robbery counts, strike the enhancements attributable to those findings, and remand for retrial on this issue. But we shall affirm all other aspects of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Robbery victim Michelle Coleman (Michelle) lived with her sister Eva Jacobs (Eva), their young children, and an infant cousin in a duplex on Libra Avenue in Sacramento County.
For clarity and ease of expression, we shall refer to the witnesses by their first names. No disrespect is intended.
On the evening of the robberies, Michelle and Eva went to a nightclub with Evas boyfriend, Emory Jackson (Emory). Michelles brother-in-law, Joe Johnson (Joe), stayed at home with the children.
At the nightclub, Eva saw codefendant Richard Ward, whom she knew, and the two had a friendly exchange.
After the club closed, Eva and her boyfriend Emory drove home to the duplex on surface streets. At a stop sign, a small, dark-colored car drew alongside them. Someone from that car fired a gun toward Evas car, and then sped off, followed closely by a second car, an older model, white Cadillac. Eva and Emory then returned to Evas house, parking her car outside. A bullet hole was later found in the cars rear passenger door.
Around that time, Michelle returned to the duplex, accompanied by Mark Bluster (Mark), with whom she had been drinking at the nightclub. The two sat talking in Marks car, in front of the house.
After she was inside the duplex, Eva heard a car pull up, but saw no car lights. Emory looked out the window and told Eva that it was the "guys" who had shot at them earlier. Eva accordingly ran toward the rear bedroom where Joe and the children were sleeping, and yelled to him to wake up and get out of the house. She then climbed out a back window with her daughter and Emory. They hid in a neighbors shed.
As Michelle sat with Mark outside the duplex, she saw a newer model silver or gray car with no rear license plate light circling "in the court." Michelle "had a bad feeling about the way the car came in the court because there was no back license plate light." Suddenly, Michelle heard a lot of shouting, and she and Mark were physically pulled from their car. Michelles coat was pulled over her head so that she could see nothing. Mark saw a gun or guns pointed at him as he was pulled from the car, but thereafter only felt a gun. Michelle was "pistol whipped" on the back of her head and moved toward the front door of the duplex, where one of her assailants demanded that she open the door. After Michelle failed to comply, someone kicked the door in. Once inside the house, Mark was made to lay face down and was hit in the head; someone took his jewelry, cell phone, and pager.
Michelle did not see her assailants, did not see what type of clothing they were wearing, and did not actually see the car in which the assailants had arrived. Mark noticed that some of the robbers were wearing gloves, but did not see their faces because they all wore masks; and he could not describe their height, except to say that no one was taller than his 6 feet, 5 inches. In sum, he said that he "didnt see nothing because my face was bend [sic] down." Both Michelle and Mark testified that they heard three or four different voices during the attack, and Mark testified at trial that there were four or five assailants.
Inside the duplex, Joe (Michelles brother-in-law and babysitter) had been awakened by Evas yelling and emerged from the rear bedroom. He saw four men in the hallway, all wearing black masks, jackets, long pants, and gloves. He could not see their faces or discern their race.
Joe noticed that two of the men had handguns. One of the robbers stuck Joe in the neck with what Joe thought was a black Beretta or other nine-millimeter handgun, and asked who else was in the house, demanding money, jewelry, and the keys to the car parked out front. He then directed Joe to lay down as others searched the house. While Joe was on the floor, he was hit in the back of the head by one of the robbers, and someone stepped on him.
When the assailants had gone, Michelle saw that the house had been "demolished," the stereo was gone, and $400 was missing from her dresser drawer. Michelle had a raised lump on the back of her head and a bruise on the back of her neck; Mark had a bump on the back of his head; and Joe had a bruise on the back of his head and a rash on his neck where the gun had made contact with him.
From their hiding place in the neighbors shed, Eva and her boyfriend Emory used her cell phone to call the police, reported that there were intruders in the house, and described the shooting earlier that night.
A nearby sheriffs deputy, Kristina Albright, heard a radio report of the robbery and learned that the suspects may have used a newer, silver Cadillac. Shortly thereafter, she saw a newer, silver Cadillac emerge from the Libra Avenue cul-de-sac and followed it.
Other officers responded to the deputys dispatch and also began following the Cadillac. Sergeant Robert Rinelli saw that two people were in the car. The driver was a light-skinned black man; the passenger was a darker-skinned black man wearing a dark knit ski cap and dark clothing. When Deputy Albright activated her car lights, the Cadillac accelerated briefly and then stopped abruptly. The passenger opened the car door and fled through the adjacent yards; Rinelli chased him. At trial, Sergeant Rinelli identified defendant as the fleeing passenger.
Codefendant Ward was the driver of the Cadillac. When the car stopped, he was wearing black shorts, a red and black coat, and a white shirt.
A few minutes later, defendant was found by officers hiding in a trash can behind a nearby house. With him in the trash can were a black jacket, a black sweat shirt, a black stocking cap, and one black glove, which an officer testified were the clothes that defendant had been wearing when he ran from the Cadillac.
A nine-millimeter Beretta pistol with live ammunition was found on the sidewalk five to 10 feet away from the Cadillacs open front-passenger door.
When Michelle saw the car in which Ward and the defendant had been riding, she told police that she was "100 percent positive" that it was the same car that the assailants had been driving. Mark was also taken to view the car; he told police that he noticed the car in the cul-de-sac once, 15 or 20 minutes before the assault.
Inside the Cadillac were various items that Eva identified as belonging to her, including stereo equipment and a duffel bag. Ward had $400 wadded up in his pants pocket, outside his wallet. None of Marks property was found in the car.
Defendant and Ward were charged with the robbery of Michelle and Mark, receipt of stolen property, and assault of Joe Johnson with a firearm. In connection with the robbery charges, it was charged that defendant and Ward acted in concert and entered an inhabited structure (in violation of section 213, subdivision (a)(1)(A)), that Ward was armed with a firearm, and that defendant personally used a firearm in the commission of each robbery. Defendant alone was charged with being a felon in possession of a firearm (§ 12022.53, subd. (b)).
Defendant and Ward were tried together before the same jury.
The key issue in the case was identity, because none of the victims were able to describe or identify their assailants. The prosecutions theory was that defendant was the robber who personally pointed a gun at Michelle and Mark in the course of the robberies, and that Ward was liable only as an aider and abettor. As to the assault on Joe, the prosecution sought to hold both defendant and Ward liable as aiders and abettors under the theory that an assault with a deadly weapon was the natural and probable consequence of their participation in an armed home-invasion robbery.
For their part, the defense sought to impeach the victims testimony by (among other things) highlighting the inconsistencies between their trial testimony and their reports to police on the night of the crimes. They introduced a stipulation that Michelle had reported to police that the robbers arrived when she was standing on her front porch trying to unlock the door, not while sitting in the car; that she never saw any gun, but only felt "something hard being pushed against [her] head"; and that she did not report to police that she was pistol-whipped by her attackers. In addition, they showed that Michelle had several felony convictions. They also elicited testimony that in contrast to his trial testimony, Joe had advised police that he had seen only one robber in the hallway outside the bedroom and mentioned that only one other robber entered the room.
At trial, Joe testified that he told police that "the first guy sounded black, but he could have been a white kid raised in the ghetto, [and] the second guy was lighter than the first." To rebut Joes testimony that even though he could not remember seeing the skin color of any of the robbers, his use of the word "lighter" in his earlier interview with police must have referred to the robbers respective skin color, the officer who interviewed Joe testified for the defense that Joe reported that he could not describe the robbers race and used the word "lighter" to describe the robbers relative weights.
Evas credibility was challenged with her admissions that her original reports to police falsely omitted all mention of her boyfriend Emory: Because Emory had an outstanding warrant for his arrest, she told police that she (not Emory) saw the assailants from the front window and that she (not Emory) was driving when her car was fired upon.
Defendant emphasized that no fingerprints were found on the Beretta pistol recovered by the police. And Sergeant Rinelli testified that he did not see defendant drop or toss any weapon as he emerged from the Cadillac, even though he had a clear view of defendant the entire time and the street lights were bright.
To explain why codefendant Ward had $400 in his pocket when the Cadillac was stopped, his girlfriend testified on his behalf that she had given him $400 in cash on the night of the robberies.
The jury nonetheless found both defendants guilty on all counts and found true all enhancement allegations submitted to them.
DISCUSSION
I. The Trial Courts Denial of Defendants Request to Reappoint Counsel Was an Abuse of Discretion
Defendant contends that "[t]he trial court committed reversible error when it refused to permit [defendant] to withdraw his Faretta waiver" and to reinstate counsel. For reasons that we shall explain, we agree that the trial court abused its discretion in denying the request.
A. Defendants Request for Reappointment of Counsel
In Faretta, supra, 422 U.S. 806 , the United States Supreme Court held that the right to assistance of counsel guaranteed by the Sixth and Fourteenth Amendments includes the right of an accused to represent himself at trial when he voluntarily and intelligently elects to do so.
During pretrial proceedings on November 2, 2001, defendant sought and received permission to represent himself.
At the time that defendants Faretta motion was granted, he was represented by attorney Laurance Walton and had made three unsuccessful Marsden motions for substitution of counsel.
People v. Marsden (1970) 2 Cal.3d 118.
The matter trailed, however. In December 2001, defendant submitted a written application for "Appointed Assistant Counsel" under the rule permitting appointment of a second counsel in capital cases. The request was denied.
On January 3, 2002, the first day of trial, the court conducted a hearing on various applications and motions in limine. Toward the end of the day, defendant announced: "I wish to acquire counsel, because this jury selection, I dont know nothing about. [¶] . . . [¶] . . . Man, this is overwhelming. Youve all been going back and forth, confusing me, I dont know what the heck is going on." The trial court refused his request, noting that because defendant was "waiting until the last minute[,] Im not going to grant the request now. [¶] . . . [¶] . . . Im not going to revisit the whole issue of whether you knowingly and intelligently waived your right to counsel. That presumably was done by another judge in another department. Were not going to revisit that. [¶] Im not going to continue this case so that you can obtain counsel. If you can find counsel to step in, fine, do it. But Im not about to appoint counsel to represent you at this juncture. There isnt any attorney in the county that Im aware of that would take it on at this short notice."
Defendant then asked the court if it would "grant me like someone to help me with these [sic] jury selection," which the court also refused, explaining: "Thats part of what being in pro per means. That you are representing yourself. [¶] And you know, Im sorry if you dont think that you are capable of doing this. But that decision you should have realized when you were making the [Faretta] choice in front of the home court to represent yourself."
On January 8, before jury selection began, defendant submitted a written motion for the appointment of counsel. The court denied the motion, noting that "I thought I had already dealt with this last week."
The following day, in the middle of jury selection, defendant made what he characterized as "a Marsden motion. . . . I want to fire myself." During the in camera hearing that followed, defendant restated that he felt inadequate to the task of representing himself and intended to ask for a continuance. The trial court denied defendants request to be relieved of his pro per status, because "[i]ts not a question of not being able to cooperate with yourself; its not a question of some breakdown in communication with yourself." Moreover, the court explained: "We are in the process of picking a jury for this trial. It would, in my opinion be extremely disruptive, to — and not in the best interests of the administration of justice, certainly, to in effect grant a severance of these trials with you and [codefendant] Ward and thats in effect, what would happen."
B. The Trial Court Abused Its Discretion in Refusing to Reappoint Defense Counsel
Our Supreme Court has held that where a self-represented defendant seeks to relinquish responsibility for his own defense after commencement of the trial and to obtain the appointment of counsel, the trial court must exercise its discretion on the basis of the totality of the circumstances. (People v. Lawley (2002) 27 Cal.4th 102, 149; People v. Gallego (1990) 52 Cal.3d 115, 164.)
In exercising that discretion, the trial court should consider the factors described in People v. Windham (1977) 19 Cal.3d 121, which are also applicable when a defendant seeks to invoke his right to self-representation in the middle of trial: "`Relevant factors should include, among others, the following: (1) defendants prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendants effectiveness in defending against the charges if required to continue to act as his own attorney. . . . [Citations.]" (People v. Gallego , supra, 52 Cal.3d at p. 164, quoting People v. Elliott (1977) 70 Cal.App.3d 984, 993-994 (Elliott); People v. Lawley, supra, 27 Cal.4th at p. 149; People v. Windham, supra, 19 Cal.3d at p. 128.)
But "`[w]hile the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial." (People v. Gallego, supra, 52 Cal.3d at p. 164.)
In the case before us, defendant contends that (1) "a motion for self[-]representation made on the day of trial is not untimely where a continuance of the trial is not sought," (2) the trial court failed to ascertain "whether Mr. Walton [defendants former appointed counsel] was then available and could resume representation" without a continuance, (3) there was no prior history of substitution of counsel, (4) defendant had sound reasons for desiring to withdraw his Faretta waiver, and (5) "it was unlikely that [defendant] would be able to effectively represent himself."
In evaluating defendants contentions, we focus exclusively on his January 3 request — his first unequivocal request to be relieved of self-representation and for the reappointment of counsel.
Defendant does not challenge the propriety of the courts denial of his December 2001 request for the appointment of a "second counsel" under Penal Code section 987, subdivision (d), and we discern no error. By its own terms, that subdivision pertains to capital cases only.
In so doing, we reject the Attorney Generals characterization of defendants January 3 request as a motion only for advisory counsel to help with jury selection.
To the contrary, defendant only asked for advisory counsel to assist with jury selection after the court denied his request for the reappointment of defense counsel. Defendants dialogue with the court was as follows:
"DEFENDANT JOHN-CHARLES: Before we start, may I address the court? I mean, on the record of course.
"THE COURT: Yes.
"DEFENDANT JOHN-CHARLES: I wish to acquire counsel, because this jury selection, I dont know nothing about.
"THE COURT: Unfortunately, Mr. John-Charles, you know youre waiting until the last minute. Im not going to grant the request now.
"DEFENDANT JOHN-CHARLES: For the record, youre denying my right — request for counsel.
"THE COURT: Today is the date set for trial.
"DEFENDANT JOHN-CHARLES: Man, this is overwhelming. Youve all been going back and forth, confusing me, I dont know what the heck is going on.
"THE COURT: Im not going to revisit the whole issue of whether you knowingly and intelligently waived your right to counsel. . . . [& para;] Im not going to continue this case so that you can obtain counsel. If you can find counsel to step in, fine, do it. But Im not about to appoint counsel to represent you at this juncture. There isnt any attorney in the county that Im aware of that would take it on at this short notice."
The parties then turned to other matters, after which defendant asked, "And for the record, youre denying reappointment of counselor — counsel to assist?" The court reiterated that it was "not appointing counsel to represent you at this late date," to which defendant then asked, "Would you be willing to grant me like someone to help me with these [sic] jury selection."
Accordingly, we conclude that the record is relatively clear, based on both defendants requests and the courts responses, that defendant did ask for the reappointment of counsel, and not simply for an advisory counsel on January 3. The courts response to defendants subsequent written motion on January 8 for the appointment of counsel further confirms this.
We now turn to whether the trial courts denial of defendants request for the reappointment of counsel on January 3 was an abuse of discretion. In response to defendants request, the trial court focused exclusively on its timing, stating that defendant had "wait[ed] until the last minute" to request the appointment of counsel and that the court was "not going to grant the request now."
But the trial court should not have denied the request, without considering the resulting prejudice, simply because defendant had waited until the day of trial to make it. Several Courts of Appeal have held that when a defendant seeks to be relieved of his pro per status and asks for the reappointment of counsel at or around the time of jury selection and before any evidence has been introduced, the trial courts refusal to do so is an abuse of discretion. (People v. Hill (1983) 148 Cal.App.3d 744 (Hill) [denial of request for reappointment of counsel before jury selection held to be abuse of discretion]; People v. Cruz (1978) 83 Cal.App.3d 308 (Cruz) [denial of request on date originally set for trial held to be abuse of discretion]; Elliott, supra, 70 Cal.App.3d 984 [denial of request made immediately after jury selection held to be abuse of discretion].)
In each of these cases, the courts held that the requests came at an early stage of the trial and would not have required lengthy continuances or prejudiced the prosecution; accordingly, they found improper the trial courts denial of the motions on the mere basis that continuances would be necessary. (Hill, supra , 148 Cal.App.3d at p. 761;Cruz, supra, 83 Cal.App.3d at pp. 320-321; Elliott, supra, 70 Cal.App.3d at pp. 996-998.) Cruz observed: "In both Elliott and the present case, no showing was made by the prosecution that the requested continuances would cause a disruption in the calendar of the courts, that it would be detrimental to the prosecution of the cases, or that it would be contrary to the interests of justice." (Cruz, supra, 83 Cal.App.3d at p. 321.) Further, "Cruz and Elliott hold unequivocally that a far stronger showing [than reappointed counsels unwillingness to commence trial immediately] is necessary before the court may base its denial of reinstatement on its concern for delay in the proceedings." (Hill, supra, 148 Cal.App.3d at p. 761.)
Hill and Cruz also involved the fact that the defendants initial Faretta waivers had been ineffective because they were tainted by the trial courts improper denial of the defendants Marsden motions. (Hill, supra, 148 Cal.App.3d at p. 760; Cruz, supra, 83 Cal.App.3d at p. 318.) But while there is no contention in the present case that the denial of defendants Marsden motions was improper, the Marsden error in the prior cases was not the determinative factor in those courts analyses. And Elliott, like the present case, did not involve the ineffectiveness of the initial Faretta motion.
Application of these principles to the present case demonstrates that the trial court abused its discretion in denying defendants request for the reappointment of counsel. In rejecting defendants request to be relieved of self-representation, the trial court based its denial solely on the timing of defendants request, which was insufficient to premise a denial given that jury selection had not yet begun. Critically, the trial court failed to inquire or assess whether any delay or prejudice would result from the appointment of counsel. Instead, the court simply announced that it would deny the request of any counsel who could not "step in[to]" the proceedings. But it did not even determine whether defendants prior counsel was available to resume the representation that he had handled just two months earlier.
It is conceivable, of course, that defendants prior counsel could not resume the representation, that new counsel would have required a substantial continuance, and that a severance of defendants trial from that of his codefendant would have been required. But none of this was explored. In short, there is nothing in the record to establish that the reappointment of counsel would have caused a significant delay or disruption of the trial proceedings. (Cf. People v. Lawley, supra, 27 Cal.4th at pp. 150-151 & fn. 20.)
In contrast, when a defendant seeks to relinquish his right to self-representation after the presentation to the jury has begun, the Courts of Appeal have found nothing improper in the trial courts refusal to grant the request. (E.g., People v. Lawley, supra, 27 Cal.4th at p. 151, fn. 20 [no abuse of discretion in denying request made after guilt phase but before penalty phase in capital case, distinguishing Hill,Cruz, and Elliott]; People v. Gallego, supra, 52 Cal.3d at p. 164 [no abuse of discretion in denying request made late in the guilt phase of the trial]; People v. Smith (1980) 112 Cal.App.3d 37, 48-51 [no abuse of discretion in denying request made on the second day of trial, after opening statements and "after a crucial witness (a victim) had already testified"]; People v. Smith (1980) 109 Cal.App.3d 476, 485 [no abuse of discretion in denying request made midtrial: "It is important to note that in both Elliott and Cruz, the requests were made before any evidence was taken, whereas in the instant case the request for reinstatement of the public defender was not made until after the People had completed their case and rested"].)
But here, defendants request was made before jury selection, and thus reappointment of counsel would not have inconvenienced the jury. And there was no showing of prejudice or disruption. "Absent a showing of the degree of delay or of any serious effect on the administration of justice, the denial of [defendants] request for reinstatement of . . . counsel was an abuse of discretion." (Hill, supra, 148 Cal.App.3d at p. 762.)
Further, an examination of all five Windham criteria also support reinstatement of defense counsel in this case: (1) Defendant did not have a prior history of changing from self-representation to appointed counsel; (2) defendants reasons set forth for reappointment — that "this is overwhelming" and "I dont know what the heck is going on" — were a valid recognition that the defendant could not compete with the prosecutor; (3) the request came before jury selection; (4) there was no showing of disruption or delay; and (5) defendant was not likely to be effective in defending himself.
Based on the record before us, we must conclude that the trial court abused its discretion in denying defendants request. A trial courts discretion "`is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] [Citation.] . . . `[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
In light of the trial courts failure to consider any factor (including prejudice and disruption) other than the timing of defendants request — which, in and of itself, did not warrant denial — the exercise of its discretion cannot be said to be "`grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977.) And for the very reason that defendant sought to have counsel reappointed — that he had no specialized legal knowledge and had come to feel inadequate to the task of defending himself — he was in no position to urge the court to consider the appropriate factors. (See People v. Rivers, 20 Cal.App.4th 1040, 1051-1052 ["It is candidly recognized that a defendant who represents himself virtually never improves his situation or achieves a better result than would trained counsel"], citing Faretta, supra, 422 U.S. at p. 834 .) Accordingly, the trial court abused its discretion in denying defendants request.
C. The Error Was Not Harmless as to Findings That Defendant Personally Used a Firearm
Defendant urges that the erroneous denial of his request to withdraw his Faretta waiver and to appoint counsel requires automatic reversal, citing Gideon v. Wainwright (1963) 372 U.S. 335 .)
But while "some constitutional errors require reversal without regard to the evidence in the particular case," like the complete denial of the right to counsel or the adjudication by a biased judge, because such errors necessarily render a trial fundamentally unfair, "there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." (Rose v. Clark (1986) 478 U.S. 570, 577, 579 [92 L.Ed.2d 460, 470-471], disapproved on another ground in Yates v. Evatt (1991) 500 U.S. 391, 402-403, fn. 8 [114 L.Ed.2d 432, 448, fn. 8].) "`The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendants guilt or innocence, [citation], and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. [Citations.]" (Id. at p. 577 .)
In this case, it is not the court which deprived defendant of the assistance of counsel, but defendants own considered decision to exercise his constitutional right under Faretta to represent himself at trial. Accordingly, several California Courts of Appeal have employed a harmless error analysis in determining whether a trial courts denial of a request to withdraw a Faretta waiver and to reappoint counsel was prejudicial. (People v. Ngaue (1991) 229 Cal.App.3d 1115, 1127; People v. Sampson (1987) 191 Cal.App.3d 1409, 1418;Hill, supra, 148 Cal.App.3d at p. 762; Elliott, supra, 70 Cal.App.3d at p. 998.) As explained by the court in Elliott, "[s]ince defendant has exercised his constitutional right of self-representation, an abuse-of-discretion error in not permitting defendant to change his mind does not appear to us to be of constitutional dimension." (Id. at p. 998.)
The Attorney General argues that the Watson standard applies. (People v. Watson (1956) 46 Cal.2d 818, 836.) And the weight of authority suggests that Watson states the correct standard of review, i.e., whether it is reasonably probable that a different result would have occurred absent the error. (People v. Sampson, supra, 191 Cal.App.3d at p. 1418; Elliott, supra, 70 Cal.App.3d at p. 998; Hill, supra, 148 Cal.App.3d at p. 762.)
Nonetheless, we acknowledge that other authority suggests that we should consider whether the error in denying defendants request for the reappointment of counsel was harmless beyond a reasonable doubt pursuant to Chapman v. California (1967) 386 U.S. 18 . (See People v. Carroll (1983) 140 Cal.App.3d 135, 144.)
But here, even using the Chapman standard, the effect of the error on defendants convictions for the robberies, the possession of a firearm by a felon, and the receipt of stolen property was harmless beyond a reasonable doubt, given the evidence against him: Defendant was in a car seen by officers leaving the scene of the robberies moments after Evas 911 call; the car contained property taken from the duplex; one of the victims identified the car as the one driven by the robbers and another identified the car as having been driven past the duplex shortly before the attack with no rear license plate light; defendant ran when police tried to stop the car, and officers saw defendant wearing clothing identical to that which the victims had described as being worn by the assailants; and a handgun was found near the open car door from which defendant fled. Thus, even if the trial court had granted defendants request to reappoint counsel, we conclude beyond a reasonable doubt that based on the evidence, a jury would have found that defendant had participated in the robberies of Michelle and Mark, that he had possessed property stolen from the duplex, and that he had in his possession, custody, or control the handgun before he leapt from the car in an attempt to escape police. This is further borne out by the fact that defendants codefendant, who was represented by counsel, was found guilty of the same offenses.
And because defendants conviction for assaulting Joe was sought on the vicarious liability theory that the assault with a deadly weapon was the natural and probable consequence of defendants participation in an armed home-invasion robbery, the jury would have found defendant guilty on that charge, even absent the error, as it did in the case of his codefendant.
But the same cannot be said of the allegations that defendant "personally use[d] a firearm" during the robberies of Michelle and Mark within the meaning of section 12022.53. There was no direct evidence that defendant personally used a firearm: Neither robbery victim was able to identify any particular robber as the one who pointed a gun at them, who hit them with a gun, or who used the gun while taking their property. Nor did the circumstantial evidence necessarily establish that defendant personally used a firearm. The victims testified that there were three or four robbers, but they did not testify that each of the robbers had a gun. In fact, Joe Johnson testified that only two of the four robbers were armed. And although the presence of a handgun on the sidewalk near the point at which defendant fled the car provides evidence that he had possession, custody, or control of the gun while in the car, it does not necessarily establish that he, rather than another of the robbers, actually used the gun on the victims during the robberies. In light of the foregoing, defendant might well have benefited from the assistance of counsel: An attorney for defendant could have argued persuasively, for example, that the evidence did not show that defendant personally used a firearm within the meaning of the enhancement statute. We cannot say beyond a reasonable doubt that the error was harmless or that it is not reasonably probable that the result would have been different absent the error.
Section 12022.53 states in pertinent part:
"(a) This section applies to the following felonies: [¶] . . . [& para;] (4) Section 211 (robbery). [¶] . . . [¶]
"(b) Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
In light of the trial courts abuse of its discretion in denying defendants request for the reappointment of counsel, the jurys findings that the defendant personally used a firearm in the robberies must be vacated. However, since the prosecution was not responsible for the error, cases arguing, on fairness grounds, against retrial of an enhancement allegation that is reversed because of prosecutorial error are inapposite. (E.g., People v. Najera (1972) 8 Cal.3d 504, 510-512, disapproved on another ground in People v. Wiley (1995) 9 Cal.4th 580, 587-588.) And defendant does not contend that retrial is barred in the event of a reversal based on the failure to reappoint counsel and has therefore waived any contrary contention. (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1613, fn. 2; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Thus, the firearm enhancements are vacated and remanded for retrial if the People so elect.
As a result, we need not consider defendants claims on appeal that the trial court erred in instructing the jury on the firearm enhancements based on the juxtaposition of instructions, which will not arise during a retrial. Nor need we determine whether defendant was entitled to a sua sponte instruction on a lesser included enhancement, particularly in light of the rejection of such a claim in People v. Majors (1998) 18 Cal.4th 385, 410-411. Finally, in light of the evidence cited above, we reject defendants argument that insufficient evidence supported the jury findings that he personally used a firearm in each robbery. Viewing the evidence in the light most favorable to the respondent, and presuming the existence of every fact that the jury could reasonably deduce from the evidence (People v. Johnson (1980) 26 Cal.3d 557, 576), the fact that at least one of the robbers used a gun multiple times and the fact that the gun located by police (and accurately described by one of the victims) was found near the open car door from which defendant fled was sufficient to raise a reasonable inference that he was one of the robbers who had used a gun. To find that such circumstantial evidence is insufficient would reward the well-disguised criminal who acts in concert with other disguised criminals, making it difficult to directly determine who did what.
II. The Trial Court Properly Considered Defendants Prior Juvenile Adjudication As a Strike
In a bifurcated proceeding, the trial court found that defendant suffered a prior adjudication as a juvenile which qualified as a strike. The court accordingly sentenced defendant as a second-strike offender.
On appeal, defendant claims that his "prior juvenile adjudication was not usable to enhance his sentence" because any qualifying prior conviction must have been obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. He observes that that was not the case with respect to a prior juvenile adjudication.
In support of his contention, defendant relies upon the United States Supreme Courts decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and the Ninth Circuits decision in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe). Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490 .) And in Tighe, supra, 266 F.3d 1187, a divided panel of the Ninth Circuit held that prior juvenile adjudications do not fall within Apprendis "prior conviction" exception to its general rule on the right to a jury because the constitutional use of a prior conviction is based on the assumption that the accused was afforded fundamental procedural protections at the time of the prior conviction, including the right to a jury trial. (Tighe, at p. 1193.) Tighe concluded that "the `prior conviction exception to Apprendis general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendis `prior conviction exception." (Tighe , at p. 1194.)
The dissent in Tighe reasoned that prior convictions appropriately may be subjected to a lesser standard of proof because the defendant presumably received all the process that was due at the time of that prior conviction. And because "a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement." (Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).)
Subsequent cases have sided with the Tighe dissent. For instance, United States v. Smalley (8th Cir. 2002) 294 F.3d 1030 (Smalley), concluded that a juvenile adjudication is sufficiently reliable to come within the Apprendi exception for prior convictions without offending due process because such an adjudication affords the constitutional rights to notice, counsel, confrontation, and cross-examination and against self-incrimination, and further must be based on proof beyond a reasonable doubt. (Smalley, at p. 1033.) And the Court of Appeal for the Second Appellate District relied upon similar reasoning to reach the same result. (People v. Bowden (2002) 102 Cal.App.4th 387, 392-394; see also State v. Hitt (Kan. 2002) 42 P.3d 732, 740, cert. den. sub nom. Hitt v. Kansas (2003) 537 U.S. 1104 .)
Furthermore, "Apprendi and Tighe have no direct application here. In both of those cases the fact that increased the defendants sentence above the statutory maximum was not tried or proved by the usual criminal standards in the trial of the current case, but was a factual finding solely by a sentencing judge ostensibly as a sentencing consideration. This is not at all like proof of a strike under Californias Three Strikes law. Under the Three Strikes law a qualifying prior conviction must, in the current case, be pleaded and proved [citation], beyond a reasonable doubt [citations], and the defendant has a statutory right to a jury trial, at least on the issue whether the defendant suffered the prior conviction [citations]. Because the context is so different, Apprendi and Tighe do not apply here. This is apparent from a footnote in Tighe distinguishing statutes under which prior convictions are determined by a jury or tried in the manner of elements of a crime." (People v. Bowden, supra, 102 Cal.App.4th at pp. 392-393.)
Defendant argues nonetheless that he "was not afforded the right to a jury trial on whether he had committed a robbery" — the offense that underlay his juvenile adjudication. But it was not the underlying offense that increased defendants sentence, but the fact that he was adjudicated in a court of committing a prior qualifying crime, which triggered the Three Strikes law. To require that the underlying crime, rather than the prior conviction or adjudication of the crime, be proven in the present trial would alter the elements specified by the Three Strikes law. It would also require prosecutors to put on evidence of the underlying offense years later (to the detriment of the People) or require juvenile adjudications to be tried to juries to preserve the Peoples right to use them years later as prior convictions (to the detriment of the juvenile justice system). By the very language of the Three Strikes law as well as logic, it must be the fact of the prior adjudication, not the underlying offense, that must be determined by the trier of fact.
In accordance with the persuasive authority distinguishing and disagreeing with Tighe, we conclude that a second-strike sentence was properly imposed on the basis of the trial courts finding beyond a reasonable doubt that defendant had suffered a prior juvenile adjudication. "Since a juvenile constitutionally — and reliably (McKeiver v. Pennsylvania [(1971)] 403 U.S. [528,] 547 ) — can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendants sentence following a later adult conviction." (People v. Fowler (1999) 72 Cal.App.4th 581, 586.)
We acknowledge that Fowler was decided before Apprendi or Tighe, but its analysis on this point is nonetheless sound and has been subsequently followed. (People v. Bowden, supra, 102 Cal.App.4th at p. 394.)
Finally and in any event, the remedy for the asserted flaw of using a juvenile adjudication as a prior conviction under the Three Strikes law would be to require the prosecutor to prove the juvenile adjudication to the jury at the trial of the current offense. (Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).) Here, having had notice of the charge of the prior adjudication, defendant waived the right to a jury trial on the truth of the prior conviction allegation, and his waiver was unqualified. Nor does he contest that his statutory right to a jury trial on the prior conviction was insufficient nor challenge the scope of that statutory right. (§ 1025, subd. (c).) Having unqualifiedly waived his right to a jury trial on the truth of the prior adjudication allegation and having not contested the scope of that right, he cannot now complain that the use of that prior juvenile adjudication violated Apprendi.
For the foregoing reasons, defendants claim of error fails.
DISPOSITION
The jurys findings that defendant personally used a firearm in the commission of the robberies alleged in counts one and two, in violation of section 12022.53, subdivision (b), are vacated, the enhancements based on those findings are stricken, and that matter is remanded to the trial court for retrial if the People so elect. The judgment is affirmed in all other respects.
We concur: SIMS, Acting P.J., and DAVIS, J.