Opinion
B161280.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. LEE ARTHUR MOORE, Defendant and Appellant.
Jeffrey A. Needelman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Lee Arthur Moore appeals from a judgment of conviction entered after a jury found him guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of an illegal substance in a jail facility (Pen. Code, § 4573.6) and found true the allegations of three prior felony convictions (id., § 1203, subd. (e)(4)), one of which was of a serious or violent felony (id., §§ 667, subds. (b)-(i), 1170.12). Following his conviction, defendant was sentenced to state prison for a term of 11 years.
On appeal, defendant contends the evidence is insufficient to support his conviction for possession of an illegal substance in a jail facility. He further contends that the sentence on his conviction for possession of an illegal substance in a jail facility should have been stayed pursuant to Penal Code section 654. He also raises a number of challenges to the conduct of the trial. We modify the judgment to stay the sentence on defendants conviction for possession of an illegal substance in a jail facility. We affirm the judgment as so modified.
FACTS
On the evening of January 14, 2002, Long Beach police officers arrested defendant in his room at La Siesta Motel. The officers recovered two cellular telephones, a scale, some marijuana and three codeine pills in the room.
At the Long Beach city jail, Officers Hector Gutierrez and Roger Riggers conducted a required strip search. Officer Riggers observed some clear plastic bags between defendants buttocks. He asked defendant to bend over and spread his buttocks. Defendant refused to comply, stating, "I dont have anything." Officer Riggers attempted to place defendant against a wall so the bags could be removed. Defendant broke free, grabbed the bags and ran toward the toilet. Officer Riggers struggled with defendant in an attempt to keep him from reaching the toilet. Defendant managed to reach the toilet. He dropped the bags in and flushed. Officer Gutierrez was able to grab one of the bags before it went down the drain. The bag contained "off-white rock-like objects," which were found to contain 5.54 grams of cocaine base.
They also searched defendants clothing and recovered $2,778 in currency.
According to Long Beach Police Officer Timothy OHara, it is common for narcotics sellers to hide drugs between their buttocks. The cocaine base recovered from defendant had a street value of $500. It was Officer OHaras opinion that defendant possessed the cocaine base for the purpose of sale.
In 1986, defendant was convicted of first degree burglary and receiving stolen property. He was convicted of forgery in 1989.
CONTENTIONS
Defendant contends there is insufficient evidence of the requisite intent to support his conviction for possession of an illegal substance in a jail facility. We disagree. The evidence is sufficient.
Defendant further contends the trial court should have stayed his conviction for possession of an illegal substance in a jail facility under Penal Code section 654. We agree that it must be stayed.
Defendant asserts the trial court abused its discretion and violated his constitutional rights to the effective assistance of counsel and due process of law by refusing to grant a continuance of the trial. There was no abuse of discretion in denying defendants request for a continuance.
In addition, defendant asserts the trial court committed prejudicial error by denying him his statutory right to five days in which to prepare his defense. He was not denied his statutory right.
Defendant avers the trial court abused its discretion and violated his constitutional rights to the effective assistance of counsel, due process of law and equal protection of the law by refusing his request for the appointment of an investigator with public funds. There was no abuse of discretion.
Defendant also avers the trial court should have granted his motion for new trial and honored his right to litigate his motion to suppress evidence under Penal Code section 1538.5. There was no abuse of discretion in denying the new trial motion, and the trial court was not authorized to hear defendants suppression motion post-trial.
Defendant contends the trial court prejudiced him by denying the Peoples motion to bifurcate trial of his prior convictions. There was no prejudice.
Finally, defendant asserts cumulative error warrants reversal. We disagree.
DISCUSSION
Sufficiency of the Evidence of Intent to Possess an Illegal Substance in a Jail Facility
When the sufficiency of the evidence is challenged, the question on appeal is whether the conviction is supported by substantial evidence, i.e., evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) "In making this determination, we `"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Penal Code section 4573.6 provides criminal penalties for "[a]ny person who knowingly has in his or her possession in any . . . city jail . . . any controlled substances . . . ." Conviction of this offense requires knowledge and general criminal intent, i.e., the intent to possess the controlled substance in jail. (CALJIC No. 3.30; People v. Laster (1997) 52 Cal.App.4th 1450, 1468; People v. Gutierrez (1997) 52 Cal.App.4th 380, 385-388.)
According to defendant, the evidence shows that he was taken to jail involuntarily after he had placed the bags of cocaine base between his buttocks. It therefore does not support a finding he intentionally possessed the controlled substance in jail.
As the People point out, however, although defendant did not go to the jail intentionally, once he arrived there, he intentionally kept the bags of cocaine base in his possession. He attempted to keep them hidden during the strip search. He made no attempt to turn them in or dispose of them until they were discovered and the police attempted to remove them from him by force. This evidence supports a finding that defendant intentionally possessed the controlled substance in the jail. His conviction thus is supported by substantial evidence. (People v. Hill, supra, 17 Cal.4th at pp. 848-849.)
The People acknowledge that the sentence on defendants conviction for possession of an illegal substance in a jail facility should have been stayed pursuant to Penal Code section 654, in that this conviction was based on the same conduct as his conviction for possession of cocaine base for sale. (People v. Akins (1997) 56 Cal.App.4th 331, 338.) The sentence therefore will be stayed.
Continuance
On March 1, 2002, defendant was arraigned. At that time, he was represented by Walter Urban, privately-retained counsel. Trial was set for April 29 as day 59 of 60. Attorney Urban filed a suppression motion (Pen. Code, § 1538.5) on March 22. He appeared with defendant at pretrial and discovery conferences on March 22 and April 22.
On April 29, the date set for trial, Attorney Urban appeared on defendants behalf and dealt with several matters, including defendants questions regarding his right to a speedy trial, a plea bargain offered by the People and reminding the court of the suppression motion. Defendant rejected the plea bargain, then the court took a break. It told defendant and Attorney Urban that when they returned, the court would hear the suppression motion.
When they returned, defendant asked the court if he could "get rid" of Attorney Urban. The court told him that he could. Defendant then fired him. The court asked if he had another attorney or wanted a public defender. Defendant said he wanted a public defender, so a deputy public defender was brought in to represent him. The court continued the case to May 8 so the public defender could prepare to represent defendant.
On May 8, the public defender informed the court that defendant did not want the public defender to represent him. The public defender had told defendant that if he wanted someone else, he would have to address the court. The court responded that it was not going to appoint anyone else, in that there was no legal cause to do so. Defendant then asked if he had the right to "go pro per." The public defender told him he did. He responded, "Your Honor, I would like to go pro per at this moment." The court gave defendant advisements against representing himself. While defendant was filling out a petition to proceed in propria persona, he explained to the court that before hiring Attorney Urban, he had fired the public defender who was representing him. He believed that if he fired one public defender, he should not have to have another one; he wanted a "state appointed" lawyer. The court attempted to explain that the public defender was a state-appointed lawyer. Eventually, defendant signed the petition, in that he did not want to be represented by the public defender. Defendant also filed a peremptory challenge to the judge under Code of Civil Procedure section 170.6, and the case was transferred to another judge.
On the following day, May 9, which was Thursday, defendant asked the court to set a date to file motions and request discovery. The court asked if he had requested a continuance for that purpose. Defendant explained that he had just been granted pro. per. status, and he had expected to have time to go to the law library to prepare. The court asked if he had been advised that he would not get a continuance automatically after being granted pro. per. status. Defendant said he was not so advised. He added, "Well, I figured Id at least have a day or two to prepare the case at least." The court asked him if he would be "ready on time." Defendant replied, "Monday would be fine." The court set the trial for Monday, May 13.
The petition to proceed in propria persona notified defendant that the People also had the right to a speedy trial, and even if defendant wanted to waive time for trial, the court might not continue the case.
On Monday, May 13, the court trailed the case to May 16. On May 16, the court trailed it to the following day. On May 17, defendant informed the court that he was not prepared for trial. The court asked him, "I thought you just wanted a couple days trailing from last week?" Defendant responded, "No, sir. I aint never stepped foot in court." The court asked him if he remembered being in court the previous Thursday. He said he did not.
Defendant told the court he had a motion and he needed adequate time to prepare. The court said, "Youre going to have to tell me why." Defendant responded, "The motions right there." The court asked him, "Youre not going to tell me?" Defendant answered, "I just told you I need time to prepare, sir." The court asked him, "For what do you need to prepare?" Defendant replied, "A grounds for a defense, to find a defense, to better represent myself." When the court asked, "To find a defense?" defendant responded, "Oh, my God. Lord have mercy. Would you file the motion, sir?" Unable to get a more specific statement from defendant as to the reason for his request for a continuance, the court denied the request. It trailed the case to Monday, May 20.
The motion stated that defendant needed a continuance because he had not received a complete discovery package, he needed the services of an investigator, he had been unable to prepare adequately with only a weeks time in the law library, and he relieved his previous counsel due to miscommunication between them. He claimed to have used due diligence and all reasonable efforts in preparing for trial but stated that he needed more time due to the complexity of the case, the volume of documents to be reviewed and the number of witnesses to be interviewed.
On Monday, May 20, the court asked defendant whether he was ready to proceed with his suppression motion. He said he was not: he had not had adequate time to prepare his case, he had not conducted discovery and he did not have an investigator. The court asked for the names of witnesses he needed to contact. He responded: "I have to get in touch with the person that they came there for, Kendall Johnson, his parole officer Ms. Yamuchi, a guy name Jeffrey. Well, quite a few witnesses, sir." The court then stated: "This matters been pending for well over the 60 days, and Im going to deem that this is ready to go to trial." The court further noted for the record defendants objection to proceeding.
Shortly thereafter, defendant reiterated that he was not prepared to go to trial. He stated: "I asked for a continuance on the matter for at least 60 days so I can prepare myself for the trial, so I can get in touch with an investigator, the witnesses, pictures, aint nothing in my paperwork shows where she gave me discovery. . . ." The court reminded defendant that it had the right to deny his request for continuance and then proceeded with the trial.
Defendant prepared a second motion for continuance stating that he needed a 60-day continuance to receive discovery from the prosecution and prepare for trial.
The decision whether to grant or deny a request for a continuance lies within the sound discretion of the trial court. (People v. Michaels (2002) 28 Cal.4th 486, 525.) The court abuses its discretion when it acts in an arbitrary or capricious manner, or its actions exceed the bounds of reason under the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.) The court may not exercise its discretion in a manner that deprives the defendant of a reasonable opportunity to prepare his defense. (People v. Wilkins (1990) 225 Cal.App.3d 299, 304.)
A defendant seeking a continuance must make a showing of good cause for the continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) He must show that he has acted diligently in preparing for trial. (Ibid.) He also must show that the preparations he has requested a continuance to complete "would be useful in producing specific relevant mitigating [or exculpatory] evidence within a reasonable time." (Id. at pp. 1037-1038.)
Where a defendant has been granted pro. per. status shortly before trial, the court must grant a reasonable continuance, if necessary, to allow the defendant time to prepare for trial. (People v. Clark (1992) 3 Cal.4th 41, 110; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689.) If the court determines that the request for a continuance is merely a delaying tactic, however, the court may deny the request and require the defendant to proceed. (Douglas, supra, at p. 1689.)
Here, after defendant was granted pro. per. status, he requested "a day or two to prepare the case at least." He agreed that "Monday would be fine." He ultimately was given a week, until the following Friday. At that time, he claimed not to recall going to court earlier and saying he could start trial the previous Monday. In addition, while requesting a further continuance, he could not or would not specify the reason for the continuance, i.e., what he needed time to do or what exculpatory evidence he hoped to produce.
Defendant failed to show the need for a continuance beyond that which he originally requested. (People v. Jenkins, supra, 22 Cal.4th at pp. 1037-1038.) He failed to show he had been diligent in his attempts thus far to prepare for trial. (Id. at p. 1037.) In addition, the trial court reasonably could have perceived defendants request for a continuance as a delaying tactic, given his claimed failure to recall appearing in court a week earlier or to explain his need for a continuance. (Id. at p. 1038.) Moreover, defendant previously was represented by private counsel who had prepared for trial and given defendant his case file. Under the circumstances, the trial court did not abuse its discretion in denying defendants request for a continuance. (Ibid.)
Statutory Right to Five Days in Which to Prepare his Defense
Penal Code section 1049 provides: "After his plea, the defendant is entitled to at least five days to prepare for trial." This provision has been interpreted to mean that once a defendant is granted pro. per. status, he is entitled to at least five days in which to prepare for trial. (See People v. Maddox (1967) 67 Cal.2d 647, 653-654; People v. Wilkins, supra, 225 Cal.App.3d at pp. 308-309.)
Defendant was granted pro. per status on Wednesday, May 8. He appeared in court on the morning of Thursday, May 9. He had Friday, May 10 and the weekend, three days, to prepare for trial. He did not appear in court on Monday morning, May 13, when the case was trailed to Thursday, May 16. The clerks transcript indicates he was present in lock-up. Assuming he was unable to work on his defense on Monday, that gave him Tuesday and Wednesday, another two days, to prepare his case. On Thursday morning, defendant was again present in lock-up, and the case was trailed to the following day. On the morning of Friday, May 17, defendant was present in court and the case was trailed to Monday, May 20, giving defendant another two days to prepare. Thus, defendant was given seven days to prepare over a 12-day period.
Defendant argues that he "effectively received only 2 days to prepare for trial," relying on People v. Cruz (1978) 83 Cal.App.3d 308. In Cruz, "[d]uring the period the case trailed, defendant, acting as his own attorney, was required to remain in court so as to be ready if the case was called." (At p. 322.) The appellate court concluded he "was not given a reasonable opportunity to prepare his defense." (Id . at p. 326.) Here, however, defendant was not required to wait in the courtroom to be called while his case was trailed. It was trailed to specific dates, on which he was to appear. That his case was being trailed therefore did not preclude him from preparing for trial.
It is true that four of defendants seven days "were over a weekend, a time when people are ordinarily not available or are more difficult to contact than during the week." (People v. Mendez (1968) 260 Cal.App.2d 302, 306.) The other three days were during the week, however, and 12 days elapsed from when defendant was granted pro. per. status until trial.
It also is true that defendants confinement in jail contributed to his difficulty in preparing for trial. (People v. Mendez, supra, 260 Cal.App.2d at p. 306.) Defendant was in jail at the times he fired his retained counsel, rejected the public defender and chose to represent himself. When he petitioned to proceed in pro. per., he acknowledged "that because of my custodial status, it will be difficult for me to contact witnesses and investigate my case. I understand that I will have limited access to a telephone, which will make preparations for trial more difficult, and that I will be provided no more access to the law library than any other pro per inmate." Since defendant knew his confinement would hinder his ability to prepare for trial but chose to represent himself anyhow, the fact of his confinement did not entitle him to more preparation time. In sum, defendant was not denied his statutory five days in which to prepare for trial.
Appointment of an Investigator
Defendants request for an investigator was inextricably linked with his request for a continuance. It was made on May 20, the date trial was set to commence and the date defendant made his second request for a continuance. Appointment of an investigator would have required that the continuance be granted in order to allow the investigator time in which to conduct the investigation. Inasmuch as the trial court did not abuse its discretion in denying defendants request for a continuance, it also did not abuse its discretion in denying his request for an investigator. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 323.)
New Trial
As discussed above, the trial court was prepared to hear defendants suppression motion on May 20, 2002, the date set for trial. It asked defendant if he wanted to proceed on that motion. Defendant replied, "No, sir." He went on to object that he was not ready to proceed with the trial and requested a continuance. The trial court refused to grant defendants request. The court then proceeded with the trial. Defendant chose to stand mute and not participate. The court never heard the suppression motion. Midway through the trial, defendant complained that the court never heard his suppression motion.
At some point during the trial, defendant requested the assistance of counsel, but the court was unwilling to stop the trial and grant the request at that time. Defendant renewed his request at his sentencing hearing. The court appointed the public defenders office to represent him.
The public defender filed a motion for a new trial. In the motion, he noted that the witnesses defendant sought to locate were "all related to defendants 1538.5 Motion and not to the case in chief. Kendel Johnson is the man the parole search was for. Mr. Johnsons parole officer, Ms. Yaruch and a guy named Jeffrey are all alleged witnesses to how defendant was arrested." Included with the motion was a declaration by defendant that he did not waive a hearing on his suppression motion. The ground for the new trial motion was that "[t]he courts failure to allow defendant sufficient time and resources to properly defendant [sic] himself resulted in a denial of a fair trial."
At the hearing on the new trial motion, the public defender emphasized that the suppression motion was the most important part of the defense case. He added that defendant fired Attorney Urban over disagreement as to how to handle the motion. Defendant needed more time and resources to address this motion, and although defendant was inarticulate in expressing this need, the trial court should have granted him a continuance for this purpose. The public defender requested a new trial as to the suppression motion rather than as to the entire trial.
The trial court responded that "this case has absolutely nothing to do with the inability to articulate ones desires. It doesnt have anything to do with ones inability to make known what his wants or needs are. What it has to do with is someone making a whole series of mistakes. Mr. Moore didnt get along with Mr. Urban in my—thats my belief. . . .
"Mr. Moore in this courtroom made such mistakes as not participating at all in the jury trial. . . . It was a poor decision to go pro per. It was a very poor decision to say Im ready, and I want to go, and Ill be ready on Monday. . . . I think it was a big mistake. But these were all decisions that Mr. Moore made." The trial court added that "if a defendant chooses to go to hell in a hand basket, thats his choice then." Even though the defendant may make poor choices, the court honors those choices. "And thats what I feel happened in this case, a whole bunch of poor choices by Mr. Moore. The motion for a new trial is denied."
A motion for new trial is addressed to the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1004; People v. Delgado (1993) 5 Cal.4th 312, 328.) There is a strong presumption that the trial court properly exercised its discretion, so abuse must appear clear and unmistakable. (People v. Davis (1995) 10 Cal.4th 463, 524.)
Penal Code section 1181 sets forth the only grounds upon which a new trial may be granted. Defendant does not point to any of the statutory grounds as applicable in this case. Defendant provides no authority for the proposition that absent a statutory ground for granting a new trial, the trial court abused its discretion in denying one.
Rather than argue an abuse of discretion in denying the new trial motion, defendant argues that the trial court erred in denying his pre- and post-trial suppression motions. Defendant clearly waived his right to a pre-trial hearing on his suppression motion. The trial court asked him if he wanted to proceed with the motion, and he said he did not. That he was protesting the trial courts refusal to grant him a continuance by refusing to proceed with the suppression motion does not make his waiver any less valid.
Defendant did not actually move for a post-trial hearing on his suppression motion; he moved for a new trial. Assuming arguendo a suppression motion may be heard after the completion of the trial (see Cornelius v. Superior Court (1972) 25 Cal.App.3d 581, 585), Penal Code section 1538.5, subdivision (h), provides: "If, prior to the trial . . . , opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of the trial." Defendant had but waived his opportunity to have his suppression motion heard prior to trial, and he was aware of the grounds for the motion at that time. Hence, a second opportunity to have the motion heard was not authorized. (Ibid.; Cornelius, supra, at p. 585.)
Bifurcation of the Trial of Defendants Prior Convictions
As previously discussed, on May 20, 2002, the trial court denied defendants second request for a continuance and commenced the trial over defendants objections. Defendant at that point chose to remain mute. After taking a recess, the trial court asked defendant if he wished to make a motion to bifurcate trial of his prior convictions. Defendant reiterated that he was not prepared to proceed with the trial.
The prosecutor then moved to bifurcate trial of the prior convictions "to protect the record." The trial court stated that if defendant did not want to participate in the trial, it did not know why there was a need to bifurcate trial of the priors. It asked the prosecutor for authority for bifurcating trial of the priors absent a motion by defendant. She responded that she would need to do research on the matter, but she saw no reason why they could not bifurcate trial of the priors if defendant did not object. The trial court said that if she was able to provide it with authority later on, it would consider bifurcating the trial.
A trial court has the discretion to bifurcate trial of prior convictions on motion of the defendant or the prosecutor. (People v. Cline (1998) 60 Cal.App.4th 1327, 1333-1334.) It is not required to grant a motion for bifurcation, however, unless the defendant will be prejudiced unduly by a unitary trial. (Id. at p. 1333.)
Defendant acknowledges that, as a general rule, his failure to move for bifurcation, join in the prosecutors motion or object to the trial courts denial of the motion waives any claim of error on appeal. (People v. Simon (2001) 25 Cal.4th 1082, 1103.) He suggests that the waiver rule does not apply in this case, in that the People are at least "equally at fault in allowing the error," i.e., they failed to provide the trial court with authority showing it had discretion to grant their motion. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.)
The prosecutor was not "at fault" in allowing error. She did not mislead the trial court in any way or fail in her responsibility. She attempted to help defendant when he refused to help himself. She was not required to go further and do independent research on defendants behalf. Under the circumstances, the waiver rule applies.
Cumulative Error
Defendant contends that cumulative error in this case deprived him of his right to a fair trial, requiring reversal of the judgment. (People v. Hill (1998) 17 Cal.4th 800, 847; People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) We disagree that there was cumulative error or that what error there was requires reversal of the judgment. What existed, as the trial court observed, was a series of poor choices on defendants part. Reversal is not available to correct that.
The judgment is modified to stay the sentence on defendants conviction for possession of an illegal substance in a jail facility. In all other respects, it is affirmed. The clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections.
We concur: VOGEL (MIRIAM A.), J. and MALLANO, J.