Opinion
C040210.
7-14-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT VERNON McRORIE, Defendant and Appellant.
A jury convicted defendant Robert Vernon McRorie of being a convicted felon in possession of a firearm, to wit, a .32-caliber snub-nosed revolver (Pen. Code, § 12021, subd. (a)(1); undesignated section references are to this code) and receiving stolen property, to wit, a chainsaw (§ 496, subd. (a)). The jury acquitted defendant of two counts of possession of a deadly weapon, to wit, a billy club and a shortened baseball bat ( § 12020, subd. (a)(1)). After the jury was unable to reach a verdict on another count charging possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), the court declared a mistrial on that count which was later dismissed on the prosecutions motion. In bifurcated proceedings, the court found to be true four prior prison term allegations ( § 667.5, subd. (b)).
Sentenced to state prison for an aggregate term of seven years eight months (upper term of three years for receiving, a consecutive one-third the two-year midterm or eight months for possession of a firearm, and four one-year enhancements for prior prison terms), defendant appeals, contending (1) the trial court erroneously denied his suppression motion, (2) he was denied his right to counsel at sentencing and (3) the trial court abused its discretion in imposing the upper term for receiving stolen property. We affirm.
FACTS
The facts are taken from the transcript of the hearing on the suppression motion. Facts relevant to defendants other contentions will be recounted in our discussion of the same.
On August 1, 2001, M.S. obtained an ex parte protective order pursuant to the Domestic Violence Protection Act (Fam. Code, §§ 6220 et seq.) requiring defendant immediately to move out of the house located at a specified address in Orland. The order required M.S. to deliver the order to several law enforcement agencies.
On August 2, 2001, M.S. went to the Tehama County Sheriffs Office with the order. Tehama County Sheriffs Administrative Sergeant Milton Bruner spoke with M.S. and examined the court order as well as M.S.s declaration. M.S. explained to Sergeant Bruner that the house belonged to her parents. She had grown up and lived there most of her life. She and defendant lived there together as domestic partners for about 10 months. On July 20, 2001, defendant committed an act of domestic violence against her. Fearing for her life, she left and stayed temporarily with her parents in Chico. She claimed that defendant had brought numerous stolen items to the house. Many items which belonged to her and her parents were also in the house. She wanted the officers to search the entire premises and remove the stolen items. She wished to return to her home as soon as the move-out order was effected.
Sergeant Bruner testified at the suppression hearing; M.S. did not. The court took judicial notice of the court order requiring defendant to move out of the premises.
In the morning on August 3, 2001, Sergeant Bruner called M.S. to inform her that he was on his way to serve the move-out order and that he would call her when it was safe for her to return. He confirmed that she wanted the entire property searched.
At 9:00 a.m. on August 3, 2001, Sergeant Bruner and Detective David Baker arrived at M.S.s home. Sergeant Bruner advised defendant of the order and almost immediately handcuffed him. Defendant objected to the officers searching the garage. Defendant was angry that the officers were there and did not want them damaging or tearing up anything. The officers began searching the premises. Between 11:00 a.m. and noon, M.S. arrived and went around the property with the officers, pointing out items that she felt were stolen and wanted removed, as well as items belonging to her. At 1:40 p.m., she signed a written consent to search which made no mention of any previous oral consent.
Sergeant Bruner admitted that his report did not mention M.S.s oral consent to search the premises. He explained that he "handed off" the oral consent to Detective Baker, the lead investigator, to include in his report. Sergeant Bruner claimed that his report was meant to document the discovery of drug paraphernalia on a third party who was present.
Defendant testified. He claimed he had been living at the premises for 18 months and paying rent to M.S. He admitted that he had a romantic relationship with M.S. which began when he was in county jail and she was an employee there. When he was discharged from jail, he moved in with her. Defendant claimed that he received rent receipts from her. He claimed the officers did not advise him of the move-out order until after he was in handcuffs.
Detective Baker admitted that his report dated August 3, 2001, did not refer to M.S.s oral consent to search the premises. He knew that M.S. was not living at the house on August 3. Detective Baker claimed that Sergeant Bruner explained prior to going to the premises that they had consent to search from M.S. upon effecting the move-out order.
Defendant contended in his suppression motion that officers searched his home without a warrant. The People responded that M.S.s consent, which officers reasonably and in good faith believed she had authority to give, justified the search notwithstanding defendants objection.
The trial court denied the suppression motion, finding the officers had consent to search or were reasonable in their belief that they did. The court rejected defendants claim that there was a landlord-tenant relationship between defendant and M.S. Even though M.S. was away from the premises on a temporary basis because of the conduct of defendant, the court concluded that M.S. was the owner, rightful occupant and, based on the protective order, in sole possession and control of the premises and thus defendant had no reasonable expectation of privacy.
Defendant claims that he expressly objected to the search. Defendant so testified but the trial court made no such finding. As defendant notes, however, during Detective Bakers testimony at the suppression hearing, defense counsel asked whether defendant ever objected to the officers search of the premises. The court interrupted and stated that it was not relevant in that it was the prosecutions burden to show consent, not the lack of consent. Defense counsel argued that the evidence was relevant to whether defendant was withdrawing the consent given by M.S. The court replied, "There is no evidence that he ever gave consent. Lack of consent, for our purpose, is the same as an objection. [P] Counsel, you can combine that with the fact I think Sergeant Bruner was fairly clear that [defendant] was not giving consent and didnt want them there." Defense counsel then had nothing further. Sergeant Bruner had testified that defendant objected to the search, and that he was angry.
DISCUSSION
I
Defendant contends the trial court erroneously found consent justified the search, arguing that although the general rule allows for a cotenant to give effective consent to a search, an exception applies where the consenting cotenant is absent and the nonconsenting cotenant is present and objects. He argues that the protective order did not prevent him from making an effective objection to the search. He also contends that the search was unreasonably intrusive since it began with his arrest. Finally, he argues that the doctrine of inevitable discovery does not apply because he was arrested in the garage and absent consent or exigent circumstances, an officer must possess a warrant to enter the house. We conclude the trial court properly ruled.
"In reviewing the trial courts ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 327.)
"Pursuant to California Constitution, article I, section 28, subdivision (d), we review challenges to the admissibility of evidence obtained by police searches and seizures under federal constitutional standards. [Citations.] [P] . . . A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the specifically established and well-delineated exceptions. [Citations.] It is well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. [Citations.]" (People v. Woods (1999) 21 Cal.4th 668, 674, 981 P.2d 1019.)
Defendant relies primarily upon Tompkins v. Superior Court (1963) 59 Cal.2d 65, 27 Cal. Rptr. 889, 378 P.2d 113 (Thompkins) in support of his argument that a cotenant who is present and objects vitiates the consent of an absent cotenant.
In Tompkins, a police officer arrested Edward Nieman in or about his car. The officers found 17 bags of marijuana in his car. Nieman had two telephone numbers listed in his name, one of which was on Shotwell Street which was also listed in the name of Robert Tompkins. Nieman denied that there was any contraband in the Shotwell Street apartment and gave the officer the keys to confirm his answer. The officer attempted entry using the wrong key. Tompkins opened the door which was chained. After the officer identified himself, Tompkins made a motion to the left and slammed the door shut. The officer kicked the door open and found Tompkins standing in the room and another person coming from the bedroom on the left. On a chair, the officer saw a jar containing marijuana seeds. After arresting Tompkins, the officer found more marijuana about which Tompkins denied knowing anything. At the police station, a marijuana cigarette was found in Tompkinss pocket. (59 Cal.2d at pp. 66-67.) Tompkins held, "One joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case, no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter. Moreover, Nieman did not consent to Inspector Martins breaking into the apartment over [Tompkinss] objection. He merely gave Inspector Martin the key to the apartment to confirm the statement that no contraband was present. Under these circumstances, Inspector Martin could not reasonably conclude that Nieman did or lawfully could authorize such an arbitrary exercise of Niemans right to possession as occurred in this case." (Id. at p. 69.)
Since Tompkins, the United States Supreme Court decided United States v. Matlock (1974) 415 U.S. 164 [39 L. Ed. 2d 242, 94 S. Ct. 988] (Matlock). In Matlock, William Matlock was arrested for bank robbery in the front yard of the home he shared with several others. The arresting officers were permitted entry into the home by one of the cotenants, explained that they were looking for money and a gun and asked for consent to search the house. The cotenant voluntarily consented and, in a bedroom the cotenant shared with Matlock, officers found almost $ 5,000 in cash. (Id. at p. 166.) Matlock held that "when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (Id. at p. 171.) In a footnote, Matlock explained common authority was not based upon property law but rather on "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (Id. at p. 171, fn. 7.)
People v. Haskett (1982) 30 Cal.3d 841, 180 Cal. Rptr. 640, 640 P.2d 776 involved facts similar to those in Matlock. Randy Haskett was arrested for the rape, robbery and attempted murder of his half-sister and the murder of her two sons. Haskett was arrested on the front porch of his house which he shared with his spouse. The arresting officers advised Hasketts spouse, who came to the door, that they were from the sheriffs office and investigating a crime. They asked for and she consented to the officers entry into the home. Haskett, who was present, said nothing. Inside, officers asked for and received the spouses consent to search the house. Initially, the search proved fruitless and one officer went outside and handcuffed Haskett and put him in the patrol car, at which time Haskett refused the officers request for consent to search. The officer returned to the house and a further search revealed incriminating evidence. (Id. at pp. 847-848, 855-856.) Haskett contended that his objection to the entry or search vitiated his spouses consent. Haskett disagreed, citing Matlock. (Id. at p. 856.) Haskett also stated, citing Tompkins, supra, 59 Cal.2d 65, People v. Shelton (1964) 60 Cal.2d 740, 36 Cal. Rptr. 433, 388 P.2d 665 (Shelton) and Duke v. Superior Court (1969) 1 Cal.3d 314, 82 Cal. Rptr. 348, 461 P.2d 628: "We have recognized that the assumption of the risk inherent in co-occupancy has its limits. An entry or search, even though authorized by a co-occupant, may be so intrusive that it belies the conclusion that the parties assumed or even contemplated the risk of its occurrence by deciding to jointly inhabit the subject residence. For instance, an absent cotenant cannot authorize the police to burst into occupied premises unannounced if there is no emergency justifying such a frightening intrusion. [Citations.]" (Id. at p. 857.)
Citing Tompkins, supra, 59 Cal.2d 65, defendant claims an exception to Matlock applies where a nonconsenting cotenant is present and objects. Citing People v. Veiga (1989) 214 Cal. App. 3d 817, 262 Cal. Rptr. 919 (Veiga) and United States v. Koehler (5th Cir. 1986) 790 F.2d 1256 (Koehler), the Attorney General claims "Tompkins and Haskett (in part) create exceptions to Matlock which are not supported by federal authority . . . and they should no longer be available as authority to invalidate a search based on an absent co-tenants consent" and requests that this court so find.
In Koehler, Jose Koehler beat his spouse Blanca Koehler and threatened her with a gun. She called the police. He left with the gun. Police arrived and talked to Blanca during which Jose returned. Blanca told officers Jose had some heroin and obtained it from the house. Jose was arrested. Blanca wanted the car keys in Joses pocket and the officer retrieved them without objection. Blanca opened the car and an officer saw a gun case containing a shotgun. Jose was charged with being a convicted felon in possession of a firearm. The court denied Joses suppression motion, finding that Blanca had consented to the officer seizing the gun from the car. (790 F.2d at pp. 1257-1258.) Citing Matlock, Koehler found that "Blanca had common authority over the car so that her voluntary consent rendered the search constitutional." (Id. at pp. 1259-1260.) Koehler noted that Jose did not object to either the officer taking the keys and giving them to Blanca nor did he object when she opened the car. (Id. at p. 1260.)
In Veiga, Cynthia Graham lived with her grandmother and they both paid the rent for the house they shared. Grahams brother Michael Keeling had been living at the house for about 10 months. Keelings guest, James Veiga, had been staying at the house for two days with Grahams permission. One evening, Graham returned home to find that Keeling was holding a party at the house. In the living room, Graham saw beer. In Keelings bedroom, Graham saw a mirror with white dust, a razor and straw and Veiga invited her to use a line of cocaine. She declined, drove to another relatives house and called the police. An officer drove by the house and could see that there were people in the living room. The officer again spoke to Graham who explained that the party involved drinking and drug use and she wanted him to do what was necessary to stop the party. The officer entered the house after complying with knock-notice and saw in plain view items of contraband. (214 Cal. App. 3d at pp. 819-820.)
Veiga held that the officers entry into the house was validated by Grahams consent notwithstanding the lack of express consent from Veiga and Keeling. (214 Cal. App. 3d at pp. 819, 821, 826-830.) Veiga rejected Keeling and Veigas argument that only a present cotenant may authorize police entry into premises jointly occupied, disagreeing that such a rule was established in Tompkins, supra, 59 Cal.2d 65, Shelton, supra, 60 Cal.2d 740 or Duke, supra, 1 Cal.3d 314. (Veiga, supra, 214 Cal. App. 3d at pp. 822-823, 826.) Veiga concluded that Grahams absence was an insufficient reason to invalidate the officers entry. "Both Matlock[, supra, 415 U.S. 164] and Haskett[, supra, 30 Cal.3d 841] rest upon the concept that ones co-possession of property carries with it the right to permit access, a notion which would seem to make irrelevant the precise locale of the consenting resident at the moment the police actually gain entrance. A co-occupant inside a home may allow entry whether or not the defendant is also inside [citations], or may enter with the police [citation]. We discern no justification for a rule that would require an occupant with rights in the premises either to remain in the presence of objectionable and potentially dangerous illegal activity [citation] in order to be in a position to open the door when the police arrive or, after having once fled the premises, to join forces with the police and literally lead the way into the residence in order to exercise the right of occupancy. If one has common authority over . . . the premises [citation], it is not surrendered when he or she steps into the street. [Citation.] Grahams rights to her home should not be "completely at the mercy of" Keeling and Veiga. [Citation.]" (Veiga, supra, 214 Cal. App. 3d at p. 827.)
Veiga also rejected Keeling and Veigas argument that Grahams consent was invalid because the officer failed to obtain Keeling and Veigas express consent, concluding that although some cases supported that view (Tompkins, supra, 59 Cal.2d at p. 69; Shelton, supra, 60 Cal.2d at p. 745), current law (Matlock, supra, 415 U.S. at p. 171, fn. 7; Haskett, supra, 30 Cal.3d at p. 857) was otherwise. (Veiga, supra, 214 Cal. App. 3d at p. 828.) "The consensual mutual occupancy of property constitutes a voluntary relinquishment of the co-occupants rights of privacy to the extent of the joint occupancy, subject to certain limitations. [Citation.] That view follows from the indisputable notion that the Fourth Amendment, at minimum, protects individual privacy against . . . governmental intrusion. [Citations.] Thus, a police entry is countenanced when it is based upon a co-occupants consent because by undertaking joint occupancy the defendant either has no actual (subjective) expectation of privacy, or, if he or she has such expectation, society is [not] prepared to recognize [it] as "reasonable." [Citation.] Those two aspects form the dual test applicable to the assessment of whether a search is unreasonable and therefore violative of the Fourth Amendment. [Citations.]" (Ibid. )
Veiga was not required to decide whether an express objection to the officers entry by the defendant cotenant present on the premises vitiated the cotenants consent, but in dictum stated, "Although Matlock and Haskett may be read as supporting the position that such an objection will be unavailing, those cases do not unambiguously so state and the earlier authorities are not favorable. [Citations.] . . . It would seem Matlock and Haskett made irrelevant a defendants express objection to entry, his or her privacy having been surrendered by virtue of the election to share quarters with another." (Veiga, supra, 214 Cal. App. 3d at p. 829, fns. omitted.)
In People v. Wilkins (1993) 14 Cal.App.4th 761 (Wilkins ), this court approved, in general, the discussion in Veiga. In Wilkins, officers responded to a domestic dispute call and found the victim crying and upset with a red face and nose sitting on the porch outside the residence. She walked across the yard to talk to the officers. She told them defendant, her husband, was inside the house. She explained that defendant had hit her a few times and asked the officers to enter the residence and arrest defendant. The officers and victim walked to the front door. The victim remained outside while the officers forcibly entered and arrested defendant. She entered during the officers attempt to arrest defendant. Defendants motion to suppress all evidence obtained as a result of the warrantless entry was denied. (Id. at pp. 767-769, 775.) On appeal, Wilkins concluded that the officers were not constitutionally constrained to delay and obtain an arrest warrant: "Given the time of night [shortly after midnight], the securing of a warrant would necessarily have occasioned some delay and during this period the victim would have been vulnerable to further risk of physical harm. The risk of imminent violence resulting in further physical harm to the victim was an exigent circumstance requiring immediate action. [Citations.]" (Id. at p. 772.) With respect to consent as justification for the entry and search, Wilkins concluded that the victim was present for purposes of giving consent since she was on the porch and could have entered with the officers, distinguishing the facts from those in Tompkins v. Superior Court, supra, 59 Cal.2d 65, where the consenting cotenant was away from the premises, and citing Veigas conclusion that there is no justification for a rule requiring a consenting co-occupant to be present in order to assert the right of occupancy. (Wilkins, supra, 14 Cal.App.4th at p. 775.)
We conclude M.S.s absence at the time of the officers entry and search did not vitiate her consent. (Veiga, supra, 214 Cal. App. 3d at p. 827.) We also conclude that defendants presence and lack of consent or even express objection did not invalidate the entry and search. (Matlock, supra, 415 U.S. at p. 171, fn. 7; Haskett, supra, 30 Cal.3d at pp. 856-857; Veiga, supra, 214 Cal. App. 3d at pp. 828-829.) The officers went to the premises to enforce a protective order which required defendant to move out immediately and only conducted a search at the request of and consent of M.S., the daughter of the owners, who then had sole possession and control of the premises. The protective order the officers served on defendant did not justify the officers search of the premises but justified their presence on the premises, as did M.S.s consent to serve the order (Fam. Code, §§ 6321, 6383; Gov. Code, § 26608), distinguishing the facts here from those in Tompkins, where the officers entry was intrusive. We disagree with defendants argument that "the search was unreasonably intrusive, because it commenced with the unlawful arrest of [defendant]." The intrusiveness in Tompkins was the entry, not the search, when the officer broke the door down after the cotenant, who was present, slammed the door in the officers face. Here, the officer informed defendant of the move-out order prior to handcuffing defendant. The entry here was not intrusive. Nor was the search. The order required defendant to immediately move out, which meant, once served, defendant lost the right to access and control of the premises and with that loss, the right to deny entry to the officers. The order granted the protected party exclusive control. He was required immediately to gather necessary belongings and vacate the premises, at least temporarily until the underlying dispute was litigated. Once defendant lost the right to access and control of the premises for the time period until the hearing at which to litigate the underlying issue, consent of the remaining cotenant, M.S., validated the officers search of the premises.
We need not discuss inevitable discovery, having concluded that M.S.s consent validated the search. The trial court properly denied defendants suppression motion.
II
Defendant contends the court failed to ensure he understood the disadvantages of self-representation, thus denying his right to counsel at the sentencing hearing. He thus claims the record does not support a knowing and intelligent waiver. Citing People v. Bradford (1997) 15 Cal.4th 1229, 939 P.2d 259, the Attorney General asserts the issue is noncognizable as "a form of invited error." Assuming the error is cognizable, the Attorney General claims the trial court did not abuse its discretion in finding a knowing and intelligent waiver. We conclude there was a sufficient basis to find a knowing and intelligent waiver.
At sentencing on January 11, 2002, defendant was present with retained counsel. The court asked whether there was any legal cause why sentencing should not go forward and defense counsel stated there was none. Defendant interrupted and said there was, firing his retained counsel and stating he wanted to go "pro per." The court had the bailiff provide defendant a waiver form to read and sign during recess. Defendant did not sign or initial the Faretta waiver form. He apparently checked the boxes next to the statements that it was "not a wise choice" to represent himself and he did not request an interpreter. Left unchecked or initialed were the following statements:
Faretta v. California (1975) 422 U.S. 806 [45 L. Ed. 2d 562, 95 S. Ct. 2525].
"2. The penalties for the offense(s) if found guilty and additional consequences that could result.
"3. That the Court will not give me any special consideration because I am representing myself.
"4. That I will be opposed by a trained prosecutor.
"5. That I must comply with all the rules of criminal procedure and evidence.
"6. That incompetency of counsel as an issue on appeal is waived.
"7. That any disruptive behavior on my part may result in the Court terminating my pro per status.
"8. That if I cannot afford an attorney I have a right to have one appointed at no cost to me. [P] . . . [P]
"GIVING UP (WAIVER OF) RIGHT TO ATTORNEY: I hereby give up (waive) my right to an attorney and I choose to represent myself during all proceedings. If I elect to retain an attorney at a later date I will advise the Court as soon as possible."
After lunch when the hearing reconvened, the court stated that the bailiff informed the court that defendant had refused to sign. The following discourse ensued:
"THE COURT: . . . Is that accurate? You wont sign?
"THE DEFENDANT: I wasnt advised of the circumstances on there.
"THE COURT: Did you read it, sir?
"THE DEFENDANT: Yes, I did.
"THE COURT: Did you understand what you read?
"THE DEFENDANT: I understand, but I didnt agree with it.
"THE COURT: Okay. You dont have to agree with it so long as you understood it. Some of it is somewhat inapplicable because we are past the trial stage. But most of it applies, if not to the same extent it would if we were prior to trial. [P] Do you have any questions about anything that you read?
"THE DEFENDANT: I have a question about it all. I dont believe
"THE COURT: Lets — Let me make sure about the form now. Do you have any questions about what you read?
"THE DEFENDANT: I dont believe that I would give up my rights for the counsel part. And I would have to look at it again.
"THE COURT: Well, sir, this morning you indicated you wanted to represent yourself. Is that what you want to do?
"THE DEFENDANT: Thats right.
"THE COURT: This is the only thing this has to do with it. If you have questions about it, I will certainly try to answer them.
"THE DEFENDANT: I filed a writ of habeas corpus on the 3rd. One of the allegations in that habeas corpus were you were obstructing justice and perverting justice and aiding and abetting Detective Baker in stealing property out of the evidence room and presenting evidence at my trial that was false. And I dont believe under those conditions that you can any longer sit in judgment of anything that has to do with me.
"THE COURT: I understand your position, sir. Do you want to represent yourself?
"THE DEFENDANT: Yes, I do.
"THE COURT: Okay. Mr. Irving, is there any reason you should not be relieved?
"MR. IRVING: There is not, Your Honor."
The trial court signed a printed finding on the waiver form stating that "the defendant, knowingly, intelligently and understandingly gives up his [] right to counsel and may represent himself [] in all proceedings in this case." The court crossed out printed language to the effect that the court "has made inquiry into the defendants educational background, training, and knowledge, and [the finding is] based on that inquiry and the advisement to the defendant of all of the above initialed statements."
The court proceeded to sentencing after allowing defendant to comment upon whatever issues he thought pertinent, none of which had to do with sentencing.
A defendant has a federal constitutional right to conduct his own defense provided he knowingly and intelligently waives the right to counsel and will abide by the rules of procedure and courtroom protocol. (Faretta v. California, supra, 422 U.S. at pp. 835-836; People v. Bradford, supra, 15 Cal.4th at p. 1363.) "To find a valid waiver, the court must determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. [Citation.]" (Id. at p. 1364.) There is no requirement that defendant have a technical legal knowledge. (Ibid.)
"The right to self-representation, although constitutionally based, must be initiated by a timely and unequivocal assertion by the defendant. [Citations.] [Citation.]" (People v. Clark (1992) 3 Cal.4th 41, 98, 833 P.2d 561, italics in original.) "Once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court." (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal. Rptr. 8, 560 P.2d 1187; People v. Clark, supra, 3 Cal.4th at p. 109.) "When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial courts discretion. [Citations.]" (People v. Bradford, supra, 15 Cal.4th at p. 1365.)
Windham set forth factors the court is required to consider when defendant makes a midtrial request, such as, "the quality of counsels representation of the defendant, the defendants 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." (People v. Windham, supra, 19 Cal.3d at p. 128.) However, the Windham factors primarily facilitate efficient administration of justice, not protection of defendants rights. [Citation.]" (People v. Clark, supra, 3 Cal.4th at p. 109.)
"The rule against invited error generally precludes a defendant from obtaining reversal of a judgment by asserting error in the granting of the defendants own motion." (People v. Bloom (1989) 48 Cal.3d 1194, 1220, 259 Cal. Rptr. 669, 774 P.2d 698.)
In Clark, the court granted defendants request for self-representation during the penalty phase in a capital case. At that point, the court had discretion to deny the midtrial motion for self-representation. The defendant contended on appeal that the trial court erred in granting the motion, in that the trial court erroneously believed that it lacked discretion to deny it as untimely. The high court concluded, "Because the court granted defendants motion for self-representation at his own insistence, he may not now complain of any error in the courts failure to weigh the Windham factors. [Citations.]" (People v. Clark, supra, 3 Cal.4th at p. 109.)
Defendant argues the invited error rule does not apply here because he is not claiming the motion was untimely or failed to meet the Windham factors. Instead, defendant argues that the court conducted an inadequate inquiry in order to make the determination that defendants waiver of his right to counsel was knowingly and intelligently made. We agree with defendant that the invited error rule does not apply here (People v. Bloom, supra, 48 Cal.3d at pp. 1220, 1224), but reject his claim on the merits. The trial court had a sufficient basis to conclude defendants waiver was knowing and intelligent.
Defendant claims the exchange between the court and defendant reflects he did not understand because when asked if he had any questions about the waiver form, he said he did not agree with it, did not believe he had to give up his right to counsel (although when asked, he reiterated his desire to represent himself) and wanted to review the form again (which the court permitted). Defendant further claims the record does not reflect he understood the penalties for the offenses and other consequences or that the court had sentencing choices to make. He claims the court simply failed to inquire about defendants educational background, training and knowledge. He notes the court had already deemed his habeas corpus petition, which he prepared himself, "unintelligible." Defendant also claims the court discounted the disadvantages of self-representation at sentencing in noting part of the waiver form was inapplicable.
In People v. Bloom, supra, 48 Cal.3d 1194, the court stated: "A defendant seeking self-representation should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." [Citation.] The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citations.]" (Id . at pp. 1224-1225.)
Defendant has the burden of demonstrating his waiver of his right to counsel was not knowingly, voluntarily, and intelligently made. (People v. Noriega (1997) 59 Cal.App.4th 311, 319; People v. Truman (1992) 6 Cal.App.4th 1816, 1824.)
The probation report reflects the 43-year-old defendant completed 10th grade and obtained a GED in 1975. Hes been involved in the criminal justice system since the age of 19.
Defendants petition for a writ of habeas corpus consisted of more than 60 pages and contained 19 grounds for relief, alleging supporting facts and citing authority. Defendant alleged as grounds for relief: falsifying evidence, the restraining order, and reports; perjury by witnesses; denial of due process and equal protection and violation of his Fourth Amendment right in that his property had been illegally searched, seized and stolen; trial court acted in excess of jurisdiction; collusion between his attorney and law enforcement; the prosecutor suborned perjury from law enforcement officers and presented false evidence at trial; theft of evidence; false arrest; erroneous denial of bail and excessive bail; denial of speedy trial rights; and altered transcripts. The trial court summarily denied the petition as "unintelligible and for failure to state grounds for relief," citing In re Swain (1949) 34 Cal.2d 300, 209 P.2d 793, presumably for the rule that general conclusionary averments in a petition for a writ of habeas corpus are insufficient. (Id. at pp. 301-302.)
During trial, in discussing his prior prison terms, defendant stated more than five years passed since his incarceration between certain convictions and one term was served for two prior convictions. The information alleged five prior prison terms but the court found four to be true.
We conclude the courts knowledge about defendant based on the probation report reflecting defendants educational background and experience in the system, combined with the courts observations of defendant throughout pretrial, trial, and posttrial proceedings, as well as the courts limited inquiry, demonstrates defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. Defendants technical, legal knowledge was irrelevant to the courts assessment of his waiver of the right to represent himself. Moreover, defendant stated he understood the advisements in the waiver form, just did not agree, but confirmed he wanted to represent himself. We find no error.
III
Finally, defendant contends the trial court abused its discretion in imposing the upper term for receiving stolen property in that the court erroneously relied on a fact of conviction to aggravate the sentence and to impose an enhancement. Defendant raises this claim for the first time on appeal. The claim is waived. (People v. Scott (1994) 9 Cal.4th 331, 352-353, 885 P.2d 1040.) Defendant claims no meaningful opportunity to object (id. at p. 356) in that the court never announced its intended sentence and the probation report did not recommend any particular sentence.
Scotts use of the phrase "meaningful opportunity to object" does not require a tentative ruling in advance but only a meaningful opportunity to address the court on the matter of sentence and to object to any sentence imposed. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.)
The probation report recommended state prison, noting as factors in aggravation that defendant was armed with a firearm at the time of the offense, his prior convictions were numerous and increasingly serious, he served prior prison terms and his performance on parole was unsatisfactory. The probation officer listed no factors in mitigation. In denying probation, the court cited defendants numerous prior convictions, his unsatisfactory performance on parole and the lack of remorse. Although the court made no special findings enumerating the elements of perjury (People v. Howard (1993) 17 Cal.App.4th 999, 1004 [statement willfully false and made knowingly under oath about a material issue]), the court stated its belief defendant committed perjury at the hearing on the suppression motion as well as at trial. In imposing the upper term for the receiving stolen property offense, the court cited defendants numerous convictions, "six prior felonies, two parole violations wherein he was returned to State Prison." Stating the offense involved a separate intent and objective, the court imposed a consecutive one-third the midterm for possession of a firearm. The court also imposed four one-year enhancements for the four prior prison terms. After the court imposed sentence, defendant stated, "My question on appeal, notification is signed right here. I also want the evidence held. I dont want it destroyed. [P] . . . [P] I will be back. I hope your career is worth it." Defendant had an opportunity to object but instead threatened the court.
In any event, any error is harmless because there is no reasonable probability of a different result on remand. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Even without the felonies which served as the basis for the prior prison terms, the court could still consider the two parole violations. A single factor in aggravation is sufficient to support the upper term. (People v. Castellano (1983) 140 Cal. App. 3d 608, 615, 189 Cal. Rptr. 692.) The probation officer noted no factors in mitigation.
DISPOSITION
The judgment is affirmed.
We concur DAVIS, Acting P.J. and HULL, J.