Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F05120
BLEASE , Acting P. J.
Defendant Larry Stancliff was convicted of two counts of auto burglary and two counts of receiving stolen property as a result of three car burglaries. He argues the court erred by granting his motion to represent himself, instructing the jury that this was not a “Three Strikes” case, and imposing a consecutive sentence in violation of his right to trial by jury. We will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
The first burglary occurred at a store parking lot in Fairfield on June 8, 2004. The victim, Deborah Chapman, locked her car, but when she returned the doors were unlocked and her purse and passport were missing.
The second burglary occurred later that day in the parking lot of the REI store in Folsom. A witness saw Robin Newell and defendant sitting in a Mitsubishi Eclipse parked next to Carrie Grip’s Subaru. A few minutes later, the Mitsubishi had disappeared, along with Grip’s handbag from the Subaru, which was left with a smashed passenger side window.
The third burglary occurred the next day in the parking lot of the Cliff House in Folsom. Two Forest Service employees saw defendant rummaging in the back seat of a Mercedes sports utility vehicle. They saw defendant get into the Mitsubishi with Newell and drive away, and followed them until they were stopped by the police.
One of the rear windows of the Mercedes was smashed and a duffel bag from its interior was lying in the parking lot. Police recovered Grip’s handbag and the cover of Chapman’s passport in defendant’s Mitsubishi.
The defense was that Newell was the culpable party. She testified that Chapman’s passport was in the Mitsubishi because someone had given it to her. Newell admitting smashing the window of the Subaru with a wrench in the REI parking lot and stealing Grip’s handbag. Newell also admitted using a rock to break the window of the Mercedes, but only did so because she was angry at defendant.
Defendant testified he was transporting Newell from the Bay Area to South Lake Tahoe so she could get off drugs, as he had three years previously. When he discovered Newell had drugs with her, defendant became upset and argued with her. In the midst of one argument, he pulled into the REI parking lot and let Newell out while he turned up the music and relaxed in the car. She returned a few minutes later and said, “Let’s go.”
The incident at the Cliff House resulted from another argument and defendant’s attempt to settle down. After he parked, defendant left the car and walked down to the river. When he returned, he heard a car alarm and saw Newell standing next to the Mercedes. He approached Newell and castigated her, flailing his arms in the process, so that it might appear to a person looking through the vehicle’s windows as though he was searching it.
A jury convicted defendant of the auto burglaries of the Subaru in the REI parking lot and the Mercedes at the Cliff House (Pen. Code, § 459 -- subsequent statutory references are to this code), and two counts of receiving stolen property (§ 496, subd. (a)) based on defendant’s possession of Grip’s handbag and part of Chapman’s passport. Defendant thereafter entered guilty pleas to three prior prison term enhancements. (§ 667.5, subd. (b).)
The court sentenced defendant to the midterm of two years in prison for the burglary of the Subaru, and added a consecutive eight-month term for burglary of the Mercedes. The court stayed imposition of sentence on one of the receiving stolen property convictions, and imposed a concurrent midterm sentence on the other. Three years were added for the prior prison term enhancements, for an aggregate prison term of five years eight months.
DISCUSSION
Defendant Was Properly Allowed to Represent Himself
Facts
Prior to trial, defendant twice moved to have his court-appointed counsel, Sacramento County Deputy Public Defender Jeremiah Van Etten, replaced with a different attorney, pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In connection with both motions, defendant included alternative requests to represent himself, pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
The first set of requests was made on December 2, 2004. Upon denial of the Marsden motion, defendant withdrew his Faretta motion.
Defendant filed a second set of motions two months later, on February 3, 2005, which was the day trial was scheduled to begin. Following a hearing, the court denied defendant’s second Marsden motion. Defendant then went forward with the Faretta motion. After informing defendant of the perils of self-representation, and obtaining both oral and written waivers of rights, the court granted the motion.
Fifteen days later, during a hearing to consider various motions, defendant complained that after the Marsden motions were denied, he “was forced into a Faretta motion. I did not want to represent myself.” The court told defendant the matter was not before it, and that he had not been forced to represent himself, but that he could obtain counsel if he filed a motion so requesting.
On March 14, 2005, defendant sent a handwritten letter to the court that explained the logistical difficulties he was encountering while representing himself. Defendant repeated his assertion that the court’s denial of his Marsden request had “forced” him to represent himself, but he did not seek to have counsel appointed, instead writing that “it is my only wish to have what rights I do have left upheld. Can you please check into my allegations. I am at your Mercy Your Honor.”
During a hearing held nine days later, the court queried defendant and determined he still wanted to represent himself.
Analysis
The constitutional right to counsel at all critical stages of a criminal prosecution persists unless the defendant affirmatively waives that right. (People v. Marshall (1997) 15 Cal.4th 1, 20.) “Courts must indulge every reasonable inference against waiver of the right to counsel. [Citation.]” (Ibid.) We “review the entire record – including proceedings after the purported invocation of the right of self-representation – and determine de novo whether the defendant’s invocation was knowing and voluntary. [Citations.]” (Id. at p. 24.)
Our Supreme Court has drawn a distinction between a request that is equivocal and one that is conditional. (People v. Michaels (2002) 28 Cal.4th 486, 523-524.) Where the defendant makes an unequivocal request to represent himself, but states he is doing so only because the court denied his Marsden motion, his request to represent himself remains unequivocal. (Id. at p. 524.) On this point, the high court has stated: “There is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself. Once the court has decided not to remove counsel, the defendant has the choice of going ahead with existing counsel or representing himself. There is nothing improper in putting the defendant to this choice, so long as the court did not err in refusing to remove counsel. [Citations.]” (Ibid.)
Defendant argues that the timing of his Faretta motion evinces equivocation, and if not, his subsequent entreaties make his equivocation “crystal clear.”
While it is true that defendant complained about being forced to represent himself, it is not true that he thereafter communicated a desire to have counsel appointed. His complaints seem intended to elicit sympathy and favorable rulings from the court, not to communicate a desire to have the court appoint counsel. After defendant repeated his claim about being forced to represent himself, the court queried him at a hearing and found that he still wished to represent himself. The court also told defendant that he needed to file a motion if he wanted to have counsel appointed. The absence of a subsequent request for appointment of counsel confirms the Faretta request was unequivocal. Since defendant does not contend the Marsden rulings were in error, and his request to represent himself was unequivocal, the court’s decision allowing defendant to represent himself withstands scrutiny.
Instructional Reference to Three Strikes Law
Facts
While the instructions were being discussed, the prosecutor noted that defendant had testified on direct examination about his long history of criminal activity, and she had subsequently impeached him with two of his prior convictions. The prosecutor stated these facts might lead the jury to surmise that this was a Three Strikes case, which could affect its deliberations. The trial judge stated, “That occurred to me[,]” and asked defendant what he thought about such an instruction. Defendant replied, “That’s fine.”
Near the end of his narrative direct testimony, defendant testified: “And I was patting myself on the back, saying I had beaten parole, for the first time in my life. I have been in trouble since 1978, I have been doing drugs, I have stolen, I have done everything. I have been to prison numerous times and I’m not scared to tell you that.”
Consequently, prior to argument, the court instructed the jury as follows: “Now the defendant acknowledged prior felony convictions. Later, in closing, I will be reminding you that you are not to consider penalty or punishment or speculate about deciding the case. However, to reduce possible speculation, I am advising you that this is not a three strikes case that some jurors – well – persons have different views on those cases.”
We will refer to this instruction as the “Three Strikes instruction.”
The prosecutor did not reference possible sentences during argument, but defendant did, rhetorically asking “Why would I turn down 90 days when there’s eight years --.”
The prosecutor cut off defendant with an objection that was sustained.
Following argument, the court instructed the jury with the standard instruction that the jury was not to consider penalty or punishment in deciding guilt. (CALJIC No. 17.42.)
The jury was instructed with CALJIC No. 17.42 as follows: “In your deliberations, do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict.”
Analysis
Defendant argues the court erred by giving the Three Strikes instruction and he was prejudiced as a result. Defendant asserts that the prosecution created the problem when it impeached him with his prior convictions. He notes there was no objective evidence that the jury was speculating about the Three Strikes law. Finally, he posits that the instruction could have misled the jury into believing that any penalty would be comparatively light, which in turn would tend to cause the jury to return guilty verdicts even though it was not convinced beyond a reasonable doubt of defendant’s guilt.
Initially, we note that defendant forfeited his right to challenge the instruction on appeal by failing to object to it. (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) Pursuant to section 1259, however, we may review the instruction in the absence of objection if the substantial rights of the defendant are affected. This we proceed to do.
“‘“The cases equate ‘substantial rights’ with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]” [Citation.]’ [Citation.]” (People v. Christopher, supra, 137 Cal.App.4th at pp. 426-427, italics omitted.)
“It is well established that when a jury has no sentencing function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.’ [Citation.] The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. [Citations.]” (Shannon v. United States (1994) 512 U.S. 573, 579 [129 L.Ed.2d 459, 466-467], fns. omitted.)
Citing several cases upholding the denial of a defense request to inform the jury that the defendant was being prosecuted as a Third Strike offender (e.g., People v. Nichols (1997) 54 Cal.App.4th 21), defendant argues the rule should be no different for the People.
The argument misapprehends the risks attendant to the Three Strikes instruction. Instructing a jury that the defendant is subject to the Three Strikes law “would in effect be ‘inviting’ the jury to exercise its power of jury nullification.” (People v. Nichols, supra, 54Cal.App.4th at pp. 24-26.) But rather than injecting penalty into the case, instructing the jury that the case is not subject to the Three Strikes law is far more likely to remove penalty from the jury’s consideration, thereby reinforcing CALJIC No. 17.42. (Cf. People v. Molina (2000) 82 Cal.App.4th 1329, 1335 instruction regarding reporting juror misconduct unlikely to play any part during deliberations..)
As for the suggestion that the prosecution created its own dilemma when it impeached defendant with two priors, defendant overlooks that he initially introduced his prior record into the case, during his narrative direct examination of himself, when he juxtaposed his three years of sobriety with his life since 1978, which involved drugs, theft, prison and parole. Under the circumstances, we are persuaded that the trial court did not abuse its discretion by giving the Three Strikes instruction. Without it “‘a jury may permit their consideration of guilt to be deflected by a dread of seeing the accused suffer the statutory punishment.’ [Citations.]” (People v. Nichols, supra, 54 Cal.App.4th at p. 24.)
Furthermore, the record gives no indication that the instruction, along with CALJIC No. 17.42, had any effect on the case other than to convince the jurors not to discuss penalty, which is entirely proper. It is far more likely that if penalty was injected into the case, it resulted from defendant’s suggestion during argument that he faced an eight-year sentence, rather than the Three Strikes instruction.
Finally, the evidence overwhelmingly proved defendant was guilty of all the offenses. Contrary to defendant’s claim, this was not a close case. The requested readback of testimony and length of deliberations demonstrates that defendant cites to prove his argument actually demonstrate the opposite, namely, that the jury took care to decide defendant’s guilt strictly on the evidence, rather than penalty.
In light of the entire charge to the jury and the evidence presented, it is not reasonably probable that omission of the Three Strikes instruction would have resulted in a more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Christopher, supra, 137 Cal.App.4th at p. 427.)
The Consecutive Sentence Is Valid
Defendant contends the imposition of consecutive terms violated his Sixth Amendment right to trial by jury as recognized in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490 [147 L.Ed.2d at p. 455].)
In Blakely, the Supreme Court applied the rule of Apprendi to invalidate a state court sentence imposed on a defendant who pleaded guilty to kidnapping his estranged wife. The high court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, the Supreme Court applied Apprendi and Blakely to California’s determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence[,]" California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
Cunningham did not address whether the decision to run separate terms concurrently or consecutively must be made by the jury. Penal Code section 669 imposes that duty on the trial court. In most cases, this is a matter of the court’s discretion. (People v. Morris (1971) 20 Cal.App.3d 659, 666, disapproved on other grounds in People v. Duran (1976) 16 Cal.3d 282, 292.) "While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing." (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) In other words, consecutive sentencing is within the “prescribed statutory maximum" (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]) that may be imposed for the series of offenses committed by defendant.
Section 669 provides that when a trial court fails to determine whether multiple terms are to run concurrently or consecutively, they shall run concurrently. However, this does not create a presumption or other entitlement to concurrent sentencing. It merely provides for a default in the event the court neglects to perform its duty in this regard.
The trial court is required to state reasons for its sentencing choices, including a decision to impose consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(5.) This requirement serves a number of interests: “it is frequently essential to meaningful review; it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision; and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision-making is careful, reasoned, and equitable. [Citation.]" (People v. Martin (1986) 42 Cal.3d 437, 449-450.) However, the requirement that reasons for a sentence choice be stated does not create a presumption or entitlement to a particular result. (See In re Podesto (1976) 15 Cal.3d 921, 937.)
Therefore, entrusting to the trial court the decision whether to impose concurrent or consecutive sentences is not precluded by Apprendi, Blakely, or Cunningham. Every person who commits multiple offenses knows that, if convicted, he or she runs the risk of receiving consecutive sentences without any further factual findings. While such a person has the right to the exercise of the court's discretion, the person does not have a legal right to concurrent sentencing. As the Supreme Court said in Blakely, “that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned." (Blakely, supra, 542 U.S. at p. 309 [159 L.Ed.2d at p. 417].) Accordingly, defendant’s constitutional rights were not violated when the trial court imposed consecutive sentences.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON , J., ROBIE , J.