Opinion
No. F049646.
July 27, 2007. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of Facts and part I. of Discussion.
Appeal from the Superior Court of Tulare County, No. 111811C, Melinda Myrle Reed, Judge.
Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant Richard Miller.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant David Reed.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
After a mistrial was declared on the second day of trial as a result of a police officer's testimony, a retrial was held in which the jury convicted codefendants Richard Miller (Miller) and David Reed (Reed) on November 26, 2003, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true allegations that Miller and Reed personally caused great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding held during jury deliberations, Miller and Reed admitted prior prison term allegations (§ 667.5, subd. (b)). On March 5 and March 10, 2004, Reed and Miller respectively filed motions for a new trial, which the trial court denied on April 5, 2004. On January 12, 2006, the trial court sentenced Reed to 15 years in prison and Miller to 14 years in prison.
All subsequent statutory references are to the Penal Code.
A portion of these sentences was for an attempted murder charge to which appellants pled guilty on December 15, 2005.
Miller and Reed filed separate appeals. Reed's sole contention on appeal is that the trial court erred when it denied his motion for a new trial. Miller's sole contention on appeal is that the trial court erred when it denied his motion to represent himself during sentencing. With respect to Reed's appeal, we find no merit to his contention and therefore affirm the judgment in his case. With respect to Miller's appeal, we agree that the trial court erred when it denied his motion for self-representation and therefore will reverse the judgment of sentence and remand for a new sentencing hearing.
FACTS
See footnote, ante, page 1015.
On the afternoon of June 10, 2003, Donald Cleek and Elmer Marshall visited Marjorie Price's house in Tulare. Cleek arrived first and Marshall arrived approximately 30 minutes later driving a two-door white compact car. While Cleek and Marshall were in the living room, they began arguing after Cleek accused Marshall of burglarizing Cleek's house and stealing his computer. The argument lasted a few minutes. Cleek then went out to the front of the house, while Marshall went into the garage with Price. A short time later, Marshall looked out through the garage door and saw Cleek talking to Miller and Reed as they were walking up to Price's house. Marshall recognized Reed, who he had seen once before and knew by his nickname "Lonesome[,]" but Marshall had never seen Miller before. Marshall walked out to the front yard and approached the group. Marshall argued with Miller and Reed, who wanted to retrieve Cleek's property. Bridgette Cordeiro was present during this argument. Price heard the argument and came out of the garage to the front yard. She saw two men going through Marshall's car, but never saw their faces, and saw Marshall trying to get them out of his car. She asked Marshall and the others to leave. Marshall and Reed left Price's house in Marshall's car, while Miller and Cordeiro left in a small black car. Marshall intended to go with Reed to Gene Serpa's house, a friend who lived a few blocks away from Price's house, so Marshall could prove to Reed he had been with Serpa at the time Cleek's house allegedly was burglarized. Marshall could not remember whether Miller and Cordeiro followed him, and he did not remember anything more until he woke up in the hospital a few days later, other than vaguely recalling being pulled out of his car. Robert Williamson, Price's next door neighbor, was working in his front yard that day when he saw a white compact car pull into Price's driveway. Three or four minutes later, he saw a black car pull up, from which two guys and a girl jumped out. Williamson saw them arguing with the guy who had been in the white car while they were standing on the walkway which led to Price's house. Williamson saw Price run out of the house and yell at the group to leave. Williamson described the two men who arrived in the black car as Caucasians with shaved heads who were about the same height, approximately five foot nine inches, and who both weighed around 160 pounds with muscular builds. One of them was wearing a white tank top t-shirt, while he thought the other's chest was bare. Williamson further described the men as fair skinned and agreed that they did not look Hispanic. Williamson identified Miller and Reed as being present during the argument, although he was not 100 percent certain because their shaved heads made identification difficult. After Price told the group to leave, Williamson saw "one guy g[e]t in with the guy in the white car, and one guy got back into the black car with the female." Williamson thought they left in opposite directions, but testified he "could be wrong." That same day, Elizabeth Gehrkens, who was 17 years old at trial, was driving south on a street in Tulare with her friend, Heather Coomes, who was riding in the front passenger seat, when she saw to her left, two men in front of a house beating another man with their hands. Gehrkens also saw a woman who was fairly close to the group, and two cars, one white and the other a "lighter blue." According to Gehrkens, once she saw the fight, she stopped the car in the middle of the road. The two men chased the victim across the street in front of Gehrkens's car. This was the first time Coomes noticed them, and she testified Gehrkens was forced to brake hard to avoid hitting the men. One of the men threw a dark metal pipe-like object that struck the victim in the back, on or near his head. The victim took a step and fell to the ground, on the lawn of a house. One of the men kicked the victim several times. Then one of the men picked up the black metal object and both men ran back across the road, in front of Gehrkens's car, and got into the two cars. The woman, who had been standing next to one of the cars, also got into a car with one of the men and both cars left, going north. Coomes dialed 911 on Gehrkens's cell phone. When an operator answered, she handed the phone to Gehrkens, who spoke to the operator as they went to help the victim. During the call, Gehrkens described the assailants as having completely shaved heads, and when the operator asked if the men were "white, black [or] Hispanic[,]" Gehrkens asked Coomes to describe what the men looked like to the operator, but Coomes refused to talk on the phone. Gehrkens then told the operator "All I know is that they had their heads completely shaved. I think they were — they were darker but they weren't black, they weren't white, I don't — I'm not sure." At trial, Gehrkens described the assailants as having completely shaved heads and their skin as being tanned, "like they had been out in the sun." By "tanned[,]" Gehrkens meant the skin was "a darker tone." She did not describe them as being "white because by indication of white I would say that her skin is white, white. [¶] . . . I mean because I worked — I mean I worked as a life guard all summer. I was out in the sunshine. I am white but I looked very tan. [¶] . . . I mean darker than some of my Hispanic friends so -" Gehrkens also testified she believed the assailants were wearing dark colored pants and white sleeveless shirts that were like a tank top and undershirt. Gehrkens didn't look at their faces very well because her attention was focused on the victim rather than the assailants. Coomes also testified she did not get a good look at the assailants, who she could only describe as men who wore white tank-top like shirts, had shaved heads, and had a tan. Gehrkens described the woman as having a medium to large build with "fairly short cut" dark colored hair. When shown photographic lineups, neither Coomes nor Gehrkens was able to identify anyone. Tulare Police Officer John Rocha responded to the 911 call, which came in a few minutes before 6:00 p.m., and arrived at the scene to find Marshall on the sidewalk bleeding from a head injury. Officer Rocha called for an ambulance, which transported Marshall to the hospital. Officer Rocha interviewed Coomes and Gehrkens at the scene approximately 10 to 15 minutes after the incident. According to Officer Rocha, Gehrkens told him there were two males and a female. She described the first male as "being possibly Hispanic male, approximately 18, 19 years old, about five seven, medium build with a shaved head." Officer Rocha believed Gehrkens used either "Hispanic" or "Mexican" to describe the men. Officer Rocha said Coomes described the first subject "as Hispanic male in his 20's, about five ten, 200 pounds, shaved head, clean shaven, medium complexion," and the other as a "Hispanic male with a shaved head." At trial, Coomes denied telling Officer Rocha that the assailants were Hispanic males; she said she told him "they had a tan." Coomes explained that she is 16 and was "freaking out" when she spoke with Officer Rocha, and testified the men were not Hispanic, they had a tan. Coomes admitted she testified in a previous hearing that the men were "dark complected." Officer Rocha interviewed Marshall at the hospital. Marshall was confused and disoriented. Although he was able to give Officer Rocha his name and address, he was not able to say what caused his injuries. As a result of the attack, Marshall's head was split open, requiring stitches. One tooth was knocked out and several of his teeth were pushed in and later had to be removed. He also had two black eyes and his knuckles were red. In a photographic lineup on June 16, 2003, Marshall identified Reed, saying he was 80 percent sure Reed was involved in the attack. Marshall also identified Miller, stating he was 90 percent certain Miller was involved in the attack. Marshall positively identified Bridgette Cordeiro. Detective McPhetridge made contact with Reed on June 17, 2003. Detective McPhetridge testified that on that date, Reed had "more of a tan" or "his skin was darker" than it was at trial, and his head was shaved. Detective McPhetridge knew that Reed had been with Cordeiro earlier in the day on June 17. Detective McPhetridge described Cordeiro, who he spoke with that day, as having "very dark, shoulder length straight hair."
At trial, Marshall could not remember what time he went over to Price's house.
At trial, Price denied having seen Miller or Reed that day, or that she told a police officer that she had seen two subjects she knew as "Lonesome" and "Joe Joe." Price testified that "Lonesome" is Reed and "Joe Joe" is Miller. Tulare Police Detective Kurt McPhetridge testified he interviewed Price around June 19. Price told him she saw "Lonesome" and "Joe Joe" arrive at her house on June 10, and she saw Lonesome get into Marshall's small white car with Marshall, and Cordeiro get into a small black car with Joe Joe, and they all drove away from her home. Price testified that around June 10, 2003, Reed had a shaved head and she had always known Reed and Miller to have shaved heads.
The probation report describes Reed as a 24-year-old Caucasian, 6 feet tall, weighing 190 pounds, with brown hair and brown eyes. Miller is described as a 33-year-old Caucasian, five feet, 10 inches tall, weighing 190 pounds, with black, shaved hair and blue eyes.
Coomes also saw the woman and the two cars, which she described as white compact cars.
The tape of the 911 call was played for the jury and a transcript provided, both of which were entered into evidence.
DISCUSSION
I. Reed's Appeal — The Motion for New Trial Reed contends the trial court abused its discretion in denying his motion for a new trial because (1) the verdict was contrary to the evidence and the trial court did not conduct an appropriate review of the evidence, and (2) there was newly discovered evidence warranting a new trial.
See footnote, ante, page 1015.
A. Trial Proceedings Reed moved for a new trial on two grounds: (1) newly discovered evidence; and (2) insufficient evidence to sustain the verdict. In Reed's attorney's declaration, submitted with the moving papers, his attorney explained that after the jury's verdict, he learned for the first time that a witness, Jimmy Gauthie, could testify that Reed was at Serpa's house on the day of the assault, which was five to six blocks from where the assault occurred, and Reed left Serpa's house without Marshall. Gauthie's declaration was filed with the motion. Gauthie testified at the hearing on the motion for a new trial. Gauthie knew Reed through his cousin, who Reed had been dating, and had known Reed for three years. Gauthie had known Miller for five years. Gauthie had known Gene Serpa since Gauthie was a kid, which was for about 11 years, and knew Marjorie Price "[s]omewhat." According to Gauthie, at approximately 3:00 p.m. on June 10, 2003, he visited Serpa at Serpa's house. Sometime between 3:00 and 3:45, Reed and Marshall arrived in Marshall's white hatchback. Serpa, Reed, Marshall and Gauthie all entered the garage and engaged in friendly conversation. Miller and Bridgette, whose last name Gauthie did not know, arrived in a black car and Reed left with them about 15 minutes after he arrived, at approximately 4:00 p.m. Marshall stayed another 15 or 20 minutes before leaving by himself, at about 4:15. Gauthie did not see Reed, Miller or Bridgette after this and had no idea what they did the rest of the day. Gauthie testified he saw Serpa "quite often" during May and June 2003. He saw Miller at the Serpa residence one or two times during that period, and he saw Reed there "occasionally." Gauthie recalled that particular day because it was the same day as Marshall's assault. He heard about the assault on Marshall within a few days, on June 13 or 14, when he was getting ready to leave for Oregon. Gauthie went to Astoria, Oregon, on June 25, where he stayed about three days before returning to California. Gauthie stayed in California for about a week before returning to Oregon, where he remained until he was extradited back to California on October 19, 2003. Gauthie had been incarcerated in California since then, and was convicted of identity theft and burglary charges later in 2003. Gauthie said he and Reed discussed their cases while they were in custody, and he offered to testify on Reed's behalf. Gauthie could not recall whether he spoke with Reed before or after Reed's conviction. According to Gauthie, he first talked with Reed in October 2003, when they were in the "same room for a short amount of time." Gauthie explained they were in different cells, but they were in a program for a week and a half that did not give them much time to converse. Reed testified he did not speak with Gauthie before the first trial. About a month before the second trial, Reed found out Gauthie was in custody. Reed had personal contact with Gauthie after he was moved into Gauthie's unit, but his contact was on a limited basis when the inmates were out of their cells for showers, phone calls and the like. Gauthie and Reed were together in the same cell block for about three weeks, at the most. Reed said he spoke with Gauthie before the second trial, but they did not talk about his case because Reed was reluctant to do so, as he was afraid it might be used against him. According to Reed, he did not tell the attorney who represented him in the first trial, Mr. Storey, about his possible alibi defense because Gauthie "wasn't around" and therefore it did not occur to Reed that Gauthie would be able to testify to anything. Reed never told his second attorney, Phillip Bianco, who represented him during the retrial, that Gauthie was an alibi witness because they never had a chance to talk, as Bianco was only on his case for four days before they went to trial. Reed proceeded quickly to trial because he was afraid if the trial were delayed it would be joined with another case, making winning both cases difficult. Reed was confident he would be found not guilty at the second trial, since no one at the first trial "pointed us out." Reed was sure this affected his decision not to bring Gauthie to his counsel's attention as a potential alibi witness, since "I didn't feel that we were in that big of threat." While Reed remembered Gauthie was there at the time, it seemed "pretty insignificant" and it "didn't even click" that it was important that Gauthie saw him at Serpa's house. After Reed lost at trial, it did not matter that what he said to Gauthie might be used against him. Accordingly, he told Gauthie through the mail about the trial and that he lost it because he couldn't prove he and Miller showed up at Serpa's house. Gauthie then told Reed he remembered that day. That was when Reed realized Gauthie was a potential witness. Reed claimed he didn't know what could be done with that information until he brought it up with his attorney. Miller testified he went to the Serpa house in a black car with Cordeiro as a passenger on June 10, 2003, because he got a call on his cell phone to pick up Reed. Miller never went inside the house. Instead, he called Reed on his cell phone to let Reed know he was there. When they drove off, Reed told Miller that Gauthie and Marshall were there, as was Serpa. Miller did not give that information to his attorney because it did not seem important. Reed's counsel argued the evidence was insufficient to sustain the verdict since Marshall's assailants never were identified and their descriptions did not match the descriptions of Miller and Reed. According to counsel, the jury had to "make a big leap" to decide that Reed was involved in the assault "simply because they were last seen by Ms. Price and the neighbor with the victim Mr. Marshall." Counsel argued this alone was sufficient to warrant granting a new trial, and Gauthie's testimony was significant because it showed Reed was not with Marshall between 4:00 and 4:30, since Marshall left in his own car. Miller's counsel incorporated the comments of Reed's counsel and emphasized Price's neighbor referred to the people who left as being Caucasian, while the 911 call showed the girl stated the assailants were not black and were not white. The prosecutor argued there was sufficient circumstantial evidence, which was as good as direct evidence, to sustain the verdict. The prosecutor pointed out that several witnesses testified there was an altercation at Price's house, the location of the assault was not between Serpa's and Price's homes, and Coomes and Gehrkens did not give an ethnicity to the assailants, but remembered there was a female present and there were two cars. Moreover, one of them testified the assailant's skin was tanned and he was not necessarily Hispanic. The prosecutor emphasized the newly discovered evidence was very suspect because it came from a jail inmate and neither Miller nor Reed thought it relevant enough to even mention to counsel. Moreover, Gauthie's testimony did not provide an alibi to the crime, since Reed, Miller and Marshall had all left Serpa's home by 4:15 p.m. and the assault occurred just before 6:00 p.m. The court denied the new trial motion based on insufficiency of the evidence. The court agreed "with the prosecutor that the testimony of the witnesses present at the Price home, the testimony of Price's neighbor, the testimony of Victim Marshall, and the testimony of the eye witnesses to the assault substantiate the fact that the jury's verdict is appropriately based and rendered on the evidence that was heard by the jury." With respect to the second basis for the motion, the court found the new evidence would not reasonably and probably result in a different verdict. The court specifically found Gauthie's testimony lacked credibility, based on his prior relationships with Miller and Reed and his prior convictions; the evidence was only brought to light after trial even though Gauthie was present in Tulare County before the second trial began; and Gauthie's testimony covered a time period before the assault occurred. The court also found Miller and Reed had not used due diligence in bringing the evidence forward, since it was clear that evidence "as to the existence of all persons together in a fine and friendly for[u]m would be helpful to the defense."
B. Sufficiency of the Evidence Penal Code section 1181, subdivision (6) permits a defendant to move for a new trial on the ground the verdict is "contrary to . . . [the] evidence." The trial court must "see that the jury intelligently and justly perform[ed] its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict." ( People v. Robarge (1953) 41 Cal.2d 628, 634 ( Robarge).) The trial court is not bound by the jury's determinations as to the credibility of witnesses or the weight or effect to be accorded the evidence. If it determines the evidence is not sufficient to sustain the verdict, it must order a new trial. ( Id. at pp. 633-634.) The trial court is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. The trial court "should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." ( Robarge, supra, 41 Cal.2d at p. 633.) "`"The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."`" ( People v. Davis (1995) 10 Cal.4th 463, 524.) We may not arbitrarily reject a verdict that is supported by substantial evidence. ( People v. Dickens (2005) 130 Cal.App.4th 1245, 1251 ( Dickens).) " Robarge . . . make[s] it abundantly clear that a decision to grant a new trial on the basis of insufficient evidence is an abuse of discretion only if it is arbitrary or irrational. . . ." ( Dickens, supra, 130 Cal.App.4th at p. 1252, fn. 3.) Reed first contends the trial court did not independently review the evidence (cf. People v. Guerra (2006) 37 Cal.4th 1067, 1159-1160; Robarge, supra, 41 Cal.2d at p. 633). Reed asserts that we should presume the trial court did not undertake any independent review because, in denying the motion, the trial court stated it agreed with the prosecutor's theory of the case without further analysis. This is not a case for application of the expressio unius maxim where things can be inferred in the opposite direction of what was actually said. The court stated at the outset of the hearing that it read and considered Reed's moving papers, which informed the court of its authority to independently weigh the evidence. Nothing in the trial court's statement shows that the court failed to perform that duty; it merely came to its own conclusion after agreeing with the prosecutor's assessment of the evidence. Accordingly, we presume the court performed its duty. ( People v. Cummings (1956) 141 Cal.App.2d 193, 203, disapproved on another point in People v. Perez (1965) 62 Cal.2d 769, 776, fn. 2.) Moreover, because our function is to determine whether the trial court's ruling is supported by substantial evidence, it is irrelevant that the trial court failed to explain fully its reasons for concluding the evidence was sufficient to support the verdict; instead, we look to the record for that determination. ( Dickens, supra, 130 Cal.App.4th at p. 1254.) "Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard." ( People v. Price (1992) 4 Cal.App.4th 1272, 1276.) Reed next contends there is insufficient evidence to establish his identity as one of Marshall's assailants, and therefore the trial court abused its discretion in denying the new trial motion. We disagree. The evidence shows that Marshall argued with Miller and Reed at Price's house before the group left in two cars, one of which carried Marshall and Reed, and the other Miller and Cordeiro. Williamson described the men he saw arguing with Marshall as fair-skinned Caucasians with shaved heads who were about the same height and weight — five foot, nine inches tall and approximately 160 pounds with muscular builds. Williamson testified one man was wearing a white tank top t-shirt and the other he believed to be bare-chested. Williamson believed Miller and Reed were those men, but he was not 100 percent certain. The probation report shows Miller and Reed are of similar height and weight both weigh 190 pounds, while Reed is six feet tall and Miller five feet, ten inches tall. Later that day, Gehrkens and Coomes saw two men beating Marshall, with a woman standing close by alongside two cars. Gehrkens described the woman as having "fairly short cut" dark hair; Detective McPhetridge described Cordeiro as having "very dark, shoulder length straight hair." Gehrkens and Coomes both described the assailants as having shaved heads, wearing white tank top t-shirts, and having tanned skin. Although Williamson described the men he saw as being fair-skinned, Detective McPhetridge testified that as of June 17, 2003, Reed's skin had "more of a tan" than he had at trial. While Marshall could not recall the assault at trial, he did identify Reed and Miller on June 17, 2003, in photographic lineups as being involved in his beating to a certainty of 80 percent and 90 percent respectively. Based on this evidence, which showed that (1) after arguing with Marshall, Reed left Price's home with Marshall at the same time Miller and Cordeiro left in another car, (2) Gehrkens and Coomes saw two men attacking Marshall in the presence of a woman and saw the two men leave with the woman in two cars, (3) there were similarities between Williamson's description of Miller and Reed at Price's house, and Gehrkens' and Coomes' descriptions of the two assailants, namely that the men had completely shaved heads and at least one wore a white tank top t-shirt, and (4) Marshall identified Miller and Reed in photographic lineups just a week after the attack as being involved in it, the jury reasonably could conclude that the assailants were in fact Miller and Reed. Although as Reed points out Officer Rocha testified Gehrkens described one assailant as 18 or 19 years old and approximately five foot, seven inches tall, while Reed was 24 years old and six feet tall and Miller five foot, ten inches tall, the jury reasonably could infer that Gehrkens did not get a sufficient look at the assailants to estimate their age or height, since she testified her eyesight was mainly on the victim and she was not "paying as much attention" to the assailants. From the testimony of both Gehrkens and Coomes, the jury reasonably could conclude that the girls were certain the assailants were not Hispanic and that in describing the assailants as neither white nor black, they were referring to the assailants' skin tone, which they described at trial as tanned, as opposed to their race. From Detective McPhetridge's testimony that Reed had more of a tan when he encountered Reed a week later, the jury further could conclude that Reed's skin tone fit the girls' description. While Reed compares the facts of this case to various cases in which a reviewing court found there was not substantial evidence to uphold a jury's verdict, "[t]he particular evidence offered to prove the charge must, by necessity, vary from case to case . . . [A]ll that is constitutionally required is that the People prove each and every element of the crime beyond a reasonable doubt and that the jury's verdict be supported by substantial evidence." ( People v. Solis (2001) 90 Cal.App.4th 1002, 1010.) Based on that standard, we reject Reed's contention of insufficient evidence.
Although Reed claims Marshall never identified his attackers, Detective McPhetridge testified that when he showed Marshall photographic lineups, Marshall identified Reed's picture and told him that "he was 80 percent sure that Mr. Reed was one of the subjects involved in his beating." Marshall also identified Miller's picture and told Detective McPhetridge that he was 90 percent sure the person in the photograph "was involved in his beating."
C. Newly Discovered Evidence Reed also contends the trial court abused its discretion when it denied his motion for a new trial because Gauthie's testimony was newly discovered evidence that would have led to a different result had it been presented at trial. Reed contends the trial court's ruling violated his constitutional rights to due process, to present a defense and to a fair trial. "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: `"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."'" ( People v. Delgado (1993) 5 Cal.4th 312, 328; in accord, People v. Earp (1999) 20 Cal.4th 826, 890; People v. Turner (1994) 8 Cal.4th 137, 212, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) In determining whether a different result is reasonably probable, the trial court may consider both the credibility and the materiality of the evidence. ( People v. Delgado, supra, 5 Cal.4th at p. 329.) Reviewing courts "`accord considerable deference to the trial judge "because of `his observation of the witnesses, [and] his superior opportunity to get "the feel of the case."'"'" ( People v. Shoals (1992) 8 Cal.App.4th 475, 488.) The trial court did not abuse its discretion in denying the new trial motion based on newly discovered evidence. The court found the evidence would not reasonably and probably result in a different verdict since Gauthie's testimony lacked credibility and it covered a time period before the assault actually occurred, and Reed and Miller had not used due diligence in bringing the evidence forward. These conclusions are amply supported by the record. Gauthie's testimony, if believed, showed that Miller, Reed and Marshall were present in Serpa's garage on the day of the assault and engaged in friendly conversation until approximately 4:00 p.m., when Miller, Cordeiro and Reed left, with Marshall leaving by himself 15 to 20 minutes later. The testimony did not provide an alibi for the assault on Marshall, as the assault occurred later, just before 6:00 p.m. Reed argues that Gauthie's testimony that the conversation was a friendly one, that they were laughing and joking, and Reed shook hands with everyone before he left, "directly contradict[s] the prosecution's evidence that [Reed] and Marshall were behaving in an antagonistic manner." We disagree. Gauthie's testimony only showed that Marshall, Miller and Reed appeared friendly towards each other while at Serpa's house. It does not contradict the strong testimony that Reed and Miller argued with Marshall earlier at Price's house or the evidence that they later attacked Marshall. In addition, the trial court was justified in concluding Gauthie's testimony lacked credibility. Gauthie had a relationship with Reed, as Gauthie had known Reed for at least three years through Gauthie's cousin, who Reed had dated, and he also knew Miller. Gauthie's felony convictions for burglary and identify theft also reflected on his credibility. Moreover, Gauthie's testimony was brought to light only after the second trial, although Reed clearly knew Gauthie was in Tulare County before the second trial and also knew that Marshall's testimony was that when he left Price's house, he intended to go to Serpa's house. Based on this, the trial court did not abuse its discretion in concluding that the newly discovered evidence had "zero credibility." (See People v. Earp, supra, 20 Cal.4th at p. 890.) Even assuming Gauthie's testimony could have changed the outcome of the trial, the trial court properly denied the new trial motion based upon Reed's own lack of diligence. If the newly discovered evidence would make a different result probable on retrial, defendant's attorney's lack of diligence is not enough to deny a motion for new trial. That is because in many such cases counsel's lack of diligence could constitute constitutionally inadequate representation and a new trial would be required for that reason under both state and federal constitutions. ( People v. Martinez (1984) 36 Cal.3d 816, 825.) This consideration does not come into play, however, where it is the defendant's own lack of diligence that is to blame. ( Id., at p. 825, fn. 8.) Here, since Reed must have known Gauthie was present at Serpa's house at the same time he was and therefore was a possible witness to the events that occurred there, it hardly can be said Gauthie's testimony was "newly discovered" evidence. Despite Reed's knowledge, he did not tell his attorneys about Gauthie until after the second trial. Even accepting Reed's explanation that he did not tell his attorney about Gauthie during the first trial because Gauthie wasn't around, Reed knew Gauthie was available before the second trial, yet he still said nothing to his attorney. As the People point out, to the extent Reed did not tell his attorney about Gauthie because he felt confident of winning without his testimony, this was a tactical decision that Reed took upon himself to make. In addition, the trial court specifically rejected Reed's claim that he did not know the relevance of the evidence, finding him not credible in light of the continual basis upon which Marshall stated that he left Price's house to go to Serpa's house. In sum, we conclude the trial court did not abuse its discretion in denying the motion because Reed did not exercise reasonable diligence in telling his attorney about Gauthie before trial. The trial court has the power to grant a new trial on non-statutory grounds where the denial of a new trial would violate the defendant's constitutional right to a fair trial. ( People v. Davis (1973) 31 Cal.App.3d 106, 110.) The trial court has "very broad discretion" in passing on such a motion and we will not interfere with a decision granting or denying a new trial absent a clear showing of abuse. ( Id. at p. 111.) Since the trial court's findings (1) that Gauthie's testimony could not reasonably and probably result in a different verdict, and (2) Reed did not exercise reasonable diligence in bringing Gauthie to his attorney's attention, are amply supported by the record, the trial court did not abuse its discretion in denying the motion and Reed was not deprived of his federal constitutional right to present evidence.
II. Miller's Appeal — Denial c/Faretta Motion
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] ( Faretta).
Miller's sole contention on appeal is that the trial court committed reversible error when it denied his request to represent himself at sentencing. Miller contends the denial of the motion was constitutional error which necessitates reversal of the judgment.
A. Trial Proceedings
Miller was represented by counsel throughout the trial. Miller also was represented by counsel on his motion for a new trial, which was filed on March 10, 2004, and which the trial court denied following a hearing on April 5, 2004. Sentencing proceedings were scheduled for July 19, 2004.
On July 19, the parties moved to continue sentencing so the court that was handling another case involving Miller could render the ultimate sentence if a guilty verdict was reached in that case. Miller's counsel stated that Miller wished to represent himself at sentencing, and already had represented himself on another matter. The court stated there was no automatic right to represent oneself after trial and Miller should make his desire known at the time of sentencing. The court continued sentencing to September 20, 2004, the day trial was to begin in the other case, and stated the motion for self-representation could be requested and heard at that time. Miller explained that he wanted to "go pro per" because he wanted to do some investigation before sentencing, and if he waited until sentencing to hear the motion, the purpose of representing himself would be defeated. The court offered to entertain a written motion on the request, but Miller asked that the motion be heard orally immediately, and the court agreed to do so.
After a brief recess, the court heard the motion. The court stated that, given the untimeliness of the request, it had to consider the quality of the representation afforded Miller, Miller's prior proclivity to substitute counsel, the reasons for the request, why Miller was making the request at this time, the stage of the proceedings, the disruption or delay that might result if the request were granted, and any other relevant factors. Miller stated he already had been found competent to represent himself in his other pending case, and he would represent himself at sentencing in that case if he was found guilty. At that time, the instant case would be combined with that one and he wanted to do some research to see if anything could help him at sentencing. When asked why his attorney could not do the research, Miller explained his attorney could not uncover the information because Miller didn't know what the information was and he wanted to get on the computer and do the research himself. Miller also stated that his attorney would not be representing him during the sentencing on the other case. The prosecutor submitted after reminding the court that Miller had been convicted in November 2003, and there had been "multiple appearances since that date and motions for new trial have been heard in this matter."
Reviewing the applicable factors, the court found counsel's representation of Miller had been "excellent," and noted Miller had not made any previous Marsden or Faretta motions. The court assumed Miller would not be able to accomplish the computer research he wanted to perform if he were represented by counsel and he would not have the opportunity to conduct that research merely because he was representing himself on the other case. The court noted, however, that the request was "very untimely" since it was made after pretrial hearings and motions, a jury trial, and posttrial motions. Miller told the court that while he was not ready to proceed with sentencing that day, he would be ready by the continued hearing date in September. The court stated it was "hard to evaluate and not really applicable at this point" as to what disruption or delay might result if the request was granted. Balancing all the factors, the court exercised its discretion and denied the request because it was (1) very untimely, (2) the quality of counsel's representation had been good, (3) the reason for the request was merely to research on his own concerning his sentencing, and (4) counsel was experienced and able to present arguments on Miller's behalf at the time of sentencing.
People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156, 465 P.2d 44] ( Marsden).
B. Analysis
The United States Supreme Court held in Faretta that a criminal defendant has a constitutional right to self-representation under the Sixth Amendment to the United States Constitution if he voluntarily and intelligently elects to represent himself. ( Faretta, supra, 422 U.S. at pp. 818-819, 835; People v. Windham (1977) 19 Cal.3d 121, 124 [ 137 Cal.Rptr. 8, 560 P.2d 1187] ( Windham).) The Faretta opinion, however, did not discuss the timing of the request for self-representation. ( People v. Givan (1992) 4 Cal.App.4th 1107, 1112 [ 6 Cal.Rptr.2d 339] ( Givan).) The California Supreme Court addressed this issue in Windham, concluding that "when a defendant has elected to proceed to trial represented by counsel and the trial has commenced, it is thereafter within the sound discretion of the trial court to determine whether such a defendant may dismiss counsel and proceed pro se." (Windham, supra, 19 Cal.3d at p. 124.)
In Windham, the trial court denied the defendant's request to represent himself, which he made for the first time at the commencement of the third and final day of trial testimony. ( Windham, supra, 19 Cal.3d at p. 125.) Noting that the issue of the timeliness of a midtrial motion for self-representation was an issue of first impression in California, the court looked to decisions from other jurisdictions on this issue and held that "in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." ( Id. at pp. 127-128, fn. omitted.) Consequently, when a defendant makes a timely motion for self-representation, the trial court must grant the motion after ascertaining that the defendant voluntarily and intelligently has elected to represent himself "irrespective of how unwise such a choice might appear to be." ( Id. at p. 128.)
In imposing the reasonable time requirement, the court cautioned that it "must not be used as a means of limiting a defendant's constitutional right of self-representation." ( Windham, supra, 19 Cal.3d at p. 128, fn. 5.) The court explained the requirement's purpose is to prevent the defendant from misusing "the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. For example, 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." ( Ibid.) The court further explained that "[w]hen the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted. When, on the other hand, a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by a reasonable standard." ( Ibid.)
The court further held that once a defendant has chosen to proceed to trial represented by counsel, the decision whether to permit the defendant to discharge his attorney and represent himself is left to the trial court's sound discretion. ( Windham, supra, 19 Cal.3d at p. 128.) "When such a midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request. . . . Among other factors to be considered by the court in assessing such requests made after the commencement of trial are the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." ( Ibid.)
Applying its holding to the defendant's case, the court noted the defendant did not make a pretrial request to represent himself and stated that "[t]he absence of such a request amounts to a waiver of the unconditional right to proceed by way of self-representation," thereby leaving the "midtrial motion for self-representation" to be addressed to the trial court's sound discretion. ( Windham, supra, 19 Cal.3d at p. 129.) The court found no abuse of discretion in the trial court's denial of the motion, since the defendant's sole reason for the request was that his admittedly competent counsel had been unable to present a stronger case on the theory of self-defense and the request came at an exceedingly late stage of the trial. ( Id. at pp. 129-130.)
Here, the trial court concluded Miller's request for self-representation was untimely because it was made after the jury found him guilty and his new trial motion was denied. Accordingly, the court applied the factors set forth in Windham and exercised its discretion in denying the motion. Miller contends the request was timely because it was made well before sentencing, and therefore the court was required to grant it. The People, however, argue Miller was not entitled to self-representation as a matter of right because his request was not made prior to the commencement of trial.
The timeliness of a Faretta motion made after a finding of guilt but before sentencing appears to be a question of first impression. In People v. Mayfield (1997) 14 Cal.4th 668, 809-810 [ 60 Cal.Rptr.2d 1, 928 P.2d 485] ( Mayfield), the defendant in a capital trial contended the trial court erred in denying his motion for self-representation which he first made after the jury returned its penalty verdict. The defendant argued the capital sentencing proceeding is a separate phase from the trial, and therefore the trial court erred when it found his motion to be untimely because it was not made before commencement of the guilt phase. ( Ibid.) The Supreme Court noted it had not addressed the timeliness of a motion made after the penalty verdict. ( Id. at p. 810.) The court agreed, however, that even assuming "for the sake of argument that a postverdict self-representation motion may be timely if made a reasonable time before sentencing," the motion was untimely. ( Ibid.) The court noted that "[i]n determining what constitutes a `reasonable time' before sentencing, a trial court must necessarily consider the delay that would be occasioned by granting the motion." ( Ibid.) Because the resulting delay if the defendant's motion were granted would be at least six months and maybe longer, which "would compromise the orderly and expeditious administration of justice," the court concluded the motion was untimely. ( Ibid.)
Although it appears no published case in California has addressed whether a postverdict self-representation motion may be timely if made a reasonable time before sentencing, our Supreme Court has held that, for purposes of assessing the timeliness of a motion for self-representation, a motion made between the guilt and penalty phases in a capital prosecution is untimely, and therefore subject to the trial court's discretion, because the guilt and penalty phases are not separate trials, but parts of a single trial. ( Mayfield, supra, 14 Cal.4th 668, 810; People v. Hardy (1992) 2 Cal.4th 86, 194 [ 5 Cal.Rptr.2d 796, 825 P.2d 781]; People v. Bloom (1989) 48 Cal.3d 1194, 1220 [ 259 Cal.Rptr. 669, 774 P.2d 698]; People v. Hamilton (1988) 45 Cal.3d 351, 369 [ 247 Cal.Rptr. 31, 753 P.2d 1109].) As the court explained in Hamilton, "the penalty phase has no separate formal existence but is merely a stage in a unitary capital trial. . . . [A]nd more important, the connection between the phases of a capital trial is substantial and not merely formal." ( Id. at p. 369.) Relying on the reasoning in Hamilton, appellate courts have concluded that a motion for self-representation made after the jury returns its verdict on a primary offense but prior to commencement of a bifurcated trial on prior convictions is untimely and subject to the trial court's discretion because proceedings on the priors are merely part of the trial. ( People v. Rivers (1993) 20 Cal.App.4th 1040, 1047-1048 [ 25 Cal.Rptr.2d 602] ( Rivers); Givan, supra, 4 Cal.App.4th at pp. 1113-1115.) In each of these decisions, the courts concluded that the motions were actually made during trial, even though they were brought prior to the start of a second phase or stage of the trial. (See Hardy, supra, 2 Cal.4th at pp. 194-195; Hamilton, supra, 45 Cal.3d at p. 369; Rivers, supra, 20 Cal.App.4th at p. 1048; Givan, supra, 4 Cal.App.4th at pp. 1114-1115.)
These cases demonstrate that whether a trial court must grant a request for self-representation as a matter of right or whether it has discretion to grant the motion turns on whether the request is made during trial. We conclude Miller's request for self-representation, made after the jury returned its verdict and his new trial motion had been denied, but well before sentencing, was not made during trial for the simple reason that sentencing occurs posttrial. (See, e.g., Leversen v. Superior Court (1983) 34 Cal.3d 530, 540 [ 194 Cal.Rptr. 448, 668 P.2d 755] [noting posttrial proceedings include sentencing]; People v. Winbush (1988) 205 Cal.App.3d 987, 991 [ 252 Cal.Rptr. 722] [holding defendant can make Marsden motion posttrial, "either for the purpose of sentencing or of making a new trial motion"].) Sentencing is not like a bifurcated trial on prior convictions, which the Rivers court recognized was part of "a proceeding which had been divided into separate components for defendant's benefit." ( Rivers, supra, 20 Cal.App.4th at p. 1048.) Instead, sentencing is a proceeding separate and distinct from the trial.
The concern that led to the conclusion that motions for self-representation made during trial are subject to the trial court's discretion, namely the potential disruption of proceedings already in progress, simply does not apply to sentencing hearings, which are separate proceedings from the trial and occur after the trial has been completed. This is not to say that every request for self-representation at sentencing will be timely. Much as a request to represent oneself at trial must be made a reasonable time before trial commences, the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing. (See Mayfield, supra, 14 Cal.4th at p. 810 [assuming postverdict self-representation motion may be timely if made a reasonable time before sentencing].)
Here, Miller's request for self-representation, although made after the jury rendered its verdict and a new trial motion was made and denied, was not made during trial. Once the jury returned its verdicts, the trial was finished, and once the court denied the new trial motion, all that remained was sentencing. When Miller brought his motion for self-representation, he was not due to be sentenced for two more months. Miller told the court that he would be prepared at the new sentencing date. Miller's request having been made well in advance of the sentencing hearing, it was timely.
Since the request was timely, Miller had an absolute right to represent himself at sentencing and the trial court was required to grant his request for self-representation, which was unequivocal, as long as he was mentally competent and the request was made "knowingly and intelligently, having been apprised of the dangers of self-representation." ( People v, Welch (1999) 20 Cal.4th 701, 729 [ 85 Cal.Rptr.2d 203, 976 P.2d 754].) As the trial court here failed to apply the appropriate standard and instead treated the request as untimely, reversal of Miller's sentence is required. ( Id. at p. 729 [reversal of timely Faretta motion is reversible per se].)
DISPOSITION
The judgment as to Reed is affirmed. Miller's conviction not being at issue, the judgment of conviction as to Miller is affirmed. Miller's judgment of sentence, however, is vacated and the matter remanded to the trial court for resentencing.Vartabedian, Acting P. J., and Wiseman, J., concurred.