Opinion
B230679
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH EARL SMITH, JR., Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Senior Assistant Attorneys General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA116772)
APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed in part, modified in part, and remanded with instructions.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Senior Assistant Attorneys General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In this appeal, we confront once again, another unsophisticated version of the Faretta game. (People v. Marshall (1997) 15 Cal.4th 1, 22; People v. Horton (1995) 11 Cal.4th 1068, 1110-1111; People v. Rudd (1998) 63 Cal.App.4th 620, 633; People v. Wilder (1995) 35 Cal.App.4th 489, 503; People v. Rivers (1993) 20 Cal.App.4th 1040, 1049; People v. White (1992) 9 Cal.App.4th 1062, 1075; People v. Williams (1990) 220 Cal.App.3d 1165, 1170; People v. Lopez (1981) 116 Cal.App.3d 882, 889-890.) Defendant, Joseph Earl Smith, Jr., was convicted by a jury of two felony counts. First, defendant was convicted of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) Second, defendant was convicted of battery with serious bodily injury. (§ 243, subd. (d).) The jury found defendant personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) The jury further found defendant had been convicted of serious or violent felonies on eight prior occasions. Defendant was sentenced to 38 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise noted.
II. DISCUSSION
A. Pre-Trial Self-Representation Request
Defendant argues it was error to grant his pretrial self-representation request. Defendant asserts: "[T]he trial court failed to adequately advise [defendant] that he had no right to standby counsel, that he lacked legal skills, that his opponent would be experienced and did not inquire whether [defendant] understood the charges and consequences." We conduct a de novo review of the whole record. (People v. Dent (2003) 30 Cal.4th 213, 218; People v. Koontz (2002) 27 Cal.4th 1041, 1070.)
The trial court did not err. On December 10, 2010, defendant, a high school graduate, executed a three-page advisement and waiver of his right to counsel. He accurately described the charged conduct and expressly agreed he wanted to proceed without the assistance of counsel. Further, defendant orally acknowledged: he had read, understood and signed the advisement and waiver; he wanted to proceed without counsel; he would be expected to comport himself as an attorney would—without outbursts, profanity or unprofessional conduct of any kind; he could not later claim he received ineffective assistance of counsel; and he would be ready to proceed in 60 days. There is no merit to defendant's pre-trial self-representation waiver claim. (People v. Blair (2005) 36 Cal.4th 686, 708-709; People v. Lawley (2002) 27 Cal.4th 102, 139.)
B. Mid-Trial Request
Defendant further contends it was an abuse of discretion to deny his mid-trial request for appointment of counsel. Our Supreme Court has held a mid-trial request that counsel be appointed is addressed to the sound discretion of the trial court. (People v. Lawrence (2009) 46 Cal.4th 186, 191-192; People v. Windham (1977) 19 Cal.3d 121, 128.) In Lawrence, our Supreme Court explained: "[W]hile a timely, unequivocal Faretta motion invoke[s] the nondiscretionary right to self-representation, a midtrial motion [is] 'addressed to the sound discretion of the [trial] court.' In People v. Elliott (1977) 70 Cal.App.3d 984 (Elliott), the Court of Appeal concluded the same was true of a midtrial request to revoke in propria persona status and have counsel appointed. (Id. at p. 993.) Adapting the nonexclusive list of factors to consider mentioned in Windham, the Elliott court opined that a trial court should consider, along with any other relevant circumstances, '(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.' (Elliott, [supra, 70 Cal.App.3d] at pp. 993-994.) This court cited Elliott's discretion framework favorably in People v. Gallego [(1990)] 52 Cal.3d [115,] 163-164, adding, however, that ultimately the trial court's discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors. Quoting People v. Smith (1980) 109 Cal.App.3d 476, 484, we explained: '"While the consideration of these criteria [listed in Elliott] is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial."' ([People v.] Gallego, [supra, 52 Cal.3d] at p. 164.) We found no abuse of discretion in the trial court's denial of the Faretta revocation request, in light of the defendant's history of counsel change requests, the advanced stage of trial (late in the guilt phase of a capital trial), and the trial court's inability to find an attorney who would take over at that stage without the need to declare a mistrial. ([People v.] Gallego, [supra, 52 Cal.3d] at pp. 164-165; see also People v. Lawley[, supra,] 27 Cal.4th [at pp.] 148-151 [no abuse of discretion in denial of revocation request at the start of the penalty phase: request appeared to be an attempt at delay].)" (People v. Lawrence, supra, 46 Cal.4th at pp. 191-192, fn. omitted.)
Here, rather than merely announce mid-trial that he wanted an attorney, defendant engaged in what the trial court found were a series of deceptive efforts to cause a mistrial. On January 11, 2011, before the jurors were brought into the courtroom, defendant asked to speak to his co-counsel. The trial court advised defendant he did not have co-counsel. Defendant then stated he meant stand-by counsel. The trial court advised defendant he did not have stand-by counsel. The trial court stated, "You announced ready, we picked a jury, we're going forward."
On January 12, 2011, defendant refused to exit the bus that had transported him from the jail to the courthouse. He feigned nonresponsiveness. Defendant was medically cleared by an emergency room physician. The trial court's exhibit 1 consists of an "in-custody medical treatment form" dated January 12, 2011, completed by Coast Plaza Hospital emergency room physician Dr. Nemzaee. The medical treatment form states defendant was "OK to Book." The trial court observed that a deputy sheriff had accompanied defendant to the emergency room. According to the sheriff's deputy, defendant underwent a computerized topography scan, a chest x-ray and a blood test. Also according to the deputy, emergency room personnel indicated that, due to defendant's nonresponsiveness, a urinalysis would be performed by means of a catheter. Defendant then, in the trial court's words, "miraculously, apparently, regained his faculties and then did voluntarily submit to urinalysis." Upon his return from the hospital, defendant refused to leave the courthouse lockup. The trial court and the prosecutor conferred with defendant in the lockup. The trial court found defendant had no physical ailments and was voluntarily absenting himself from the courtroom. The trial court advised defendant that if he refused to leave the lockup, the trial would proceed in his absence. The trial court explained: "That means you don't get to finish your cross-examination; you don't get to be there to do your closing argument or opening statement, which I think you intended on doing; you won't be present at all . . . ." The trial court noted defendant had been "alert, oriented, and conducting a full defense" one day earlier. The trial court concluded, "I believe this is a deliberate intent to inject some sort of error into the proceedings." In response, defendant said he was hearing voices telling him to kill himself with pills. The trial court reiterated that defendant had been medically cleared to proceed with the trial.
On January 13, 2011, because defendant had expressed suicidal ideation, he was evaluated by county jail personnel and placed on a 72-hour hold. The trial court continued the trial to January 18, 2011. On January 18, 2011, defendant once again refused to exit the courthouse lockup. The trial court, the prosecutor and the defense investigator met with defendant in the lockup facility. The trial court advised defendant he had been cleared to continue the trial. Defendant responded: "I don't want to represent myself no more. I fractured my skull, okay. I'm on psych meds. I'm committing suicide, whatnot. I'm not able to represent myself is what I'm saying. I don't have no problem with coming to the courtroom. I just can't represent myself." Defendant insisted he had been told, on December 10, 2010, that if he gave up his pro per status, counsel would be provided. (This never occurred.) The trial court disagreed and explained that defendant had not previously requested counsel. The trial court observed, "This is the first the court's hearing of you requesting an actual attorney to represent you." Following further discussion, the trial court reiterated that defendant had been psychologically, physically and medically cleared to proceed with trial.
Defendant subsequently appeared in the courtroom. He claimed to have lost some unspecified "defense" papers. The trial court inquired about the missing papers. Defendant spoke with the court-appointed investigator. The trial court arranged for any missing documents to be provided to defendant. When the proceedings resumed after lunch, defendant said his eye glasses were missing and he could not read his opening statement. As a result, the trial court continued the case to January 19, 2011. On January 19, 2011, defendant refused to appear in court.
The trial court did not abuse its discretion in refusing defendant's midtrial request for appointment of counsel. The record demonstrates defendant feigned illness, continually attempted to delay the trial and repeatedly refused to appear in the courtroom. The trial resumed only after defendant had been examined and cleared by medical professionals. Defendant never made an unequivocal request for appointment of counsel at the time of sentencing. Instead, he refused to even appear in the courtroom for sentencing.
C. Section 654, Subdivision (a)
The trial court stayed count 2, battery, under section 654 without imposing a sentence. This was error. The trial court should have imposed sentence and then stayed execution of it. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Upon remittitur issuance, the trial court must correct this sentencing error and select a term as to count 2.
D. Presentence Custody Credit
Defendant received credit for 136 days in presentence custody. However, defendant was arrested on September 7, 2010, and sentenced on January 21, 2011. He should have received credit for 137 days in presentence custody. (In re Marquez (2003) 30 Cal.4th 14, 25-26; People v. Smith (1989) 211 Cal.App.3d 523, 527.) Added to the 20 days' conduct credit, defendant's total presentence custody credit is 157 days.
III. DISPOSITION
The judgment is modified to reflect 137 days presentence custody credit plus 20 days conduct credit for a total presentence custody credit of 157 days. Upon remittitur issuance, the trial court is to select a term on count 2 and then stay execution of that sentence. The clerk of the superior court is to prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
KRIEGLER, J.