Opinion
E064111
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DUANE TATE, JR., Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Dan Rogers and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1403237) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Dan Rogers and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Duane Tate, Jr., waived his right to counsel and chose to represent himself prior to the preliminary hearing. Defendant changed his mind after the jury was impaneled. The trial court refused his request to appoint counsel. Defendant was convicted of one count of resisting a police officer with force or violence and the trial court found true the allegations he had suffered two prior serious or violent felony convictions. Defendant now claims on appeal (1) the trial court abused its discretion and deprived him of his Sixth and Fourteenth Amendment rights to counsel by denying his request, after initially waiving his right to counsel, to have counsel appointed to represent him; and (2) the trial court erred by refusing to dismiss his prior strike convictions pursuant to Penal Code section 1385. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an amended felony complaint filed on February 3, 2015, with resisting a peace officer proximately causing great bodily injury (Pen. Code, § 148.10); assault by means of force likely to produce great bodily injury (§ 245, subd. (c)); resisting arrest with force or violence (§ 69); and felony receiving stolen property, a tile saw (§ 496, subd. (a)). He was additionally charged with having suffered two prior serious and violent felony convictions (§§ 667, subd. (a), (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)) and having served one prior prison term (§ 667.5, subd. (b)). On that same day, he waived his right to counsel pursuant to Faretta by written and oral waiver and chose to represent himself at trial.
All further statutory references are to the Penal Code unless otherwise indicated.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
After the preliminary hearing, the trial court discharged the assault by means of force likely to cause great bodily injury charge and held defendant to answer to a misdemeanor charge of receiving stolen property. On March 24, 2015, the information was filed charging him in count 1 with a violation of section 148.10; in count 2 with a violation of section 69; and in count 3 with a misdemeanor violation of section 496, subdivision (a). The prior offense allegations remained the same as in the amended complaint.
Prior to trial, the People dismissed the section 667, subdivision (a) allegations. The trial court granted defendant's motion to bifurcate trial on the prior convictions. Just prior to the jury being impaneled, the People dismissed count 1. The People filed the first amended information excluding count 1 and section 667, subdivision (a) allegations. Count 1 became the section 69 violation and count 2 became the section 496, subdivision (a) charge.
After presentation of the evidence, the trial court dismissed the section 496, subdivision (a) charge pursuant to section 1118.1. The section 667.5, subdivision (b) prior was struck by the People. The jury found defendant guilty of count 1, a violation of section 69, the only remaining charge.
Defendant waived his right to a jury trial on the prior convictions. The trial court found the two prior serious or violent felony convictions true. The trial court appointed counsel for defendant for sentencing. Defense counsel filed a motion to dismiss defendant's strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The motion was denied. Defendant was sentenced to two years eight months in state prison.
B. FACTUAL HISTORY
We need only provide a brief recitation of the facts, which are only marginally relevant to the issues on appeal. At approximately 10:34 p.m. on October 9, 2014, Murrieta Police Officer Jacques Aaron Harwick responded to defendant's residence in Murrieta based on a call from Daniel Rodriguez. Officer Harwick was in full uniform. Rodriguez was a contractor and defendant had performed work for him; Rodriguez acknowledged he owed defendant $200 for the work. Rodriguez contacted the police because defendant had taken a tile saw from the work site without permission.
Officer Harwick spoke with defendant outside defendant's residence. Defendant insisted Rodriguez owed him $300, not $200, and he was not giving back the saw.
Officer Harwick told defendant several times he had to give back the saw but defendant refused and became angry. Officer Ryan Hollenwerger arrived as backup. Officer Harwick advised defendant he had to give the saw back or he could be arrested and charged with theft.
Officer Harwick advised defendant he was placing him under arrest. Defendant turned to run and Officer Harwick reached out to grab him.
Defendant turned around and put Officer Harwick in a bear hug. They both fell onto a concrete planter or bench. They then fell to the ground and defendant landed on top of Officer Harwick. Officer Hollenwerger tried to grab defendant off of Officer Harwick and both officers tried to get defendant's hands behind his back. They commanded that defendant stop resisting. Defendant was finally subdued and handcuffed. The saw was recovered in the garage and returned to Rodriguez.
Officer Harwick took defendant to the hospital to be medically cleared. Defendant's shirt was ripped and he had an abrasion on his left shoulder. Defendant had redness and abrasions on his neck. Officer Harwick assumed they were from when he tried to hold defendant's neck to get him to stop resisting. While at the hospital for defendant, Officer Harwick became nauseous, lightheaded and was having trouble with his memory. He was examined and told he had a mild concussion.
Defendant called Dr. Arthur Kaminski in his defense. He treated Officer Harwick at the emergency room. Officer Harwick had no visible abrasions and was not complaining of pain. A brain scan showed no abnormalities in his brain. His symptoms were consistent with a mild concussion.
DISCUSSION
A. DEFENDANT'S REQUEST, MADE AFTER THE JURY WAS SELECTED, TO WITHDRAW WAIVER OF COUNSEL
Defendant, who waived his right to counsel prior to the preliminary hearing, contends the trial court abused its discretion and deprived him of his Sixth and Fourteenth Amendment rights to counsel by refusing his request to appoint him counsel after the jury was impaneled.
1. ADDITIONAL FACTS
Defendant waived his right to counsel when the amended felony complaint was filed. Defendant acknowledged in court that he had signed the written Faretta advisement form. The trial court advised defendant against representing himself. Defendant responded, "With all due respect, I already defended myself in [a] three strikes case and I had not guilty verdicts." The trial court permitted defendant to represent himself. Defendant was appointed an investigator.
Prior to the preliminary hearing, defendant filed numerous motions: he filed a motion to dismiss the charge under section 148.10 in the amended complaint because there was no serious bodily injury on the officer; he filed a Pitchess motion seeking the personnel records of the officers involved; and a motion to release the medical records of Officer Harwick.
Pitchess v. Superior Court (1974) 11 Cal.3d 531. --------
The City of Murrieta opposed the Pitchess motion. The trial court granted defendant's motion and reviewed the records in camera. It found nothing to disclose.
Defendant conducted the preliminary hearing, which included cross-examining Officer Harwick and calling Officer Hollenwerger as a witness. As stated ante, at the conclusion of the preliminary hearing, the trial court discharged defendant on the assault by means of force likely to cause great bodily injury charge, and reduced the receiving stolen property charge to a misdemeanor because the value of the property was under $950.
At the arraignment on the information, defendant moved to dismiss the case on various grounds. The trial court advised defendant that having counsel would help him with the proper procedure for raising these issues. Defendant did not want counsel. During another pretrial proceeding, defendant requested criminal records for Rodriguez, as he would be one of the People's witnesses. The prosecutor stated he was unsure whether Rodriguez would be called. Defendant responded, "Well, he is the victim. He has to come and say, 'I did actually steal it.' You can't use hearsay evidence from the officer saying that 'he stole it from me.' There has to be—I have the right to cross-examine any victim in the case. I mean he has to call him as a witness."
Defendant filed a motion to dismiss the information pursuant to section 995 arguing insufficient evidence and unlawful arrest. Defendant also filed a motion to suppress evidence, specifically the saw, based on a failure to obtain a search warrant. The officers took the saw after he was arrested. Defendant filed a motion to dismiss the case in the interests of justice. The People opposed these motions.
On April 24, 2015, the trial court considered the section 995 motion. The trial court denied the motion finding sufficient evidence to hold him on the charges. It also held that defendant was entitled to whatever exculpatory evidence was available on Rodriguez.
On May 8, 2015, defendant's motion to suppress evidence was heard. Defendant cross-examined Officer Harwick and provided extensive argument. The suppression motion was denied.
A pretrial hearing was conducted on May 20, 2015, and the parties discussed all of the rules for trial. The prosecutor explained that he had announced ready for trial but was concerned because he had just received the medical records for the officers and they had just been given to defendant. The prosecutor's investigator was attempting to subpoena one of the doctors involved, Arthur Kaminski. The trial court agreed to extend the time to pick a jury.
Defendant expressed that he also wanted his own medical records admitted and he was attended to by the same doctor as Officer Harwick. The trial court again admonished defendant that he was going to be held to the same standard as a lawyer and that the trial court could not make objections for him. The trial court also advised defendant that he could not just submit all of the medical records to the jury.
The matter was set for jury trial on May 22, 2015. Prior to the jury entering the courtroom, the prosecutor noted for the record he had spoken with Dr. Kaminski and he was "somewhat vague" as to whether Officer Harwick's symptoms were consistent with a concussion. Consequently, the People did not intend to call Dr. Kaminski. Defendant wanted to call him as a witness but had not subpoenaed him.
Jury voir dire commenced on May 22, 2015. After the jury was impaneled, defendant brought a motion to dismiss the jury panel, which was denied. He also brought a motion regarding prosecution discovery. Defendant wanted to know if he needed to subpoena Rodriguez. The prosecutor advised the trial court he was not calling Rodriguez because he could not be located. The trial court also denied defendant's request for a continuance to get his case together. The trial court again admonished defendant that he was held to the same standard as a lawyer and had to have his case prepared. He should have subpoenaed Rodriguez himself. Defendant complained that he did not have an investigator (the first investigator had quit) and the trial court reminded him that he had announced ready for trial; he could have asked for a continuance in order to get another investigator. The trial court agreed to appoint an investigator but would not postpone the trial.
The trial court then addressed the fact that defendant wanted a continuance. Defendant wanted to subpoena Rodriguez and the doctor to impeach Officer Harwick's credibility. The trial court asked him what he had done to prepare for the case. Defendant claimed he could not previously subpoena them because he had no investigator and was incarcerated. The trial court then stated, "And you were advised because you're representing yourself you were going to have a disadvantage in that regard; isn't that correct? Defendant responded, "yes." The trial court stated, "And that disadvantage has come to pass, has it not?" Defendant asked that counsel be appointed to his case because he could not adequately defend himself. The People did not object to defendant being appointed counsel if counsel was ready that day to proceed to trial.
The trial court first noted that defendant was responsible for subpoenaing his own witnesses. The trial court denied the continuance as defendant had ample opportunity to subpoena witnesses. Further, the trial court did not see how Dr. Kaminski's testimony would assist the defense.
The trial court denied defendant's request to appoint counsel. The trial court noted defendant had been successful up to that point getting charges dismissed. The request for counsel was "simply a delay tactic." The trial court noted that defendant had just recently been released on bail and may not be in a rush to go to trial. "But at this late hour with the jury literally waiting ten minutes in the wing for our summon to bring them in court, it's not a timely request. He was advised as to the pitfalls of self-representation, and he cannot show buyer's remorse at this late stage in the proceedings."
Defendant was appointed an investigator who could issue subpoenas for him. Defendant successfully served subpoenas on Dr. Kaminski and he appeared in court.
2. ANALYSIS
A criminal defendant has the right under the Sixth and Fourteenth Amendments to waive the right to counsel and to represent himself. (Faretta, supra, 422 U.S. at p. 819.)
"When a criminal defendant who has waived his right to counsel and elected to represent himself under Faretta . . . seeks, during trial, to revoke that waiver and have counsel appointed, the trial court must exercise its discretion under the totality of the circumstances, considering factors including the defendant's reasons for seeking to revoke the waiver, and the delay or disruption revocation is likely to cause the court, the jury, and other parties." (People v. Lawrence (2009) 46 Cal.4th 186, 188 (Lawrence).)
In exercising that discretion, the trial court may consider the following factors: "'(1) defendant's prior history in the substitution of counsel and 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.'" (People v. Gallego (1990) 52 Cal.3d 115, 164.) However, as stated in Lawrence, "[U]ltimately the trial court's discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors." (Lawrence, supra, 46 Cal.4th at p. 192.) Moreover, "The standard is whether the court's decision was an abuse of its discretion under the totality of the circumstances [citation], not whether the court correctly listed factors or whether any one factor should have been weighed more heavily in the balance." (Id. at p. 196.)
In Lawrence, "the revocation request by defendant, who was being tried jointly with a codefendant, was not heard until after the jury had been selected and sworn and the prosecution's first witness had begun to testify." (Lawrence, supra, 46 Cal.4th at p. 188.) The court held, "considering all the circumstances, especially defendant's failure to articulate a compelling reason for revoking his Faretta waiver and the likely delay and disruption that continuing a joint trial after the jury was empanelled would cause, the trial court did not abuse its discretion in denying the revocation request." (Id. at p. 188.) The Lawrence court further explained its reasoning, "That defendant was told of—and affirmed his understanding of—the risks and disadvantages of self-representation before he waived counsel reflected on his reasons for later seeking to revoke the waiver. The colloquy tended to show not that he had suddenly learned he would be at a disadvantage in the trial, but that . . . he had simply reweighed the pros and cons of self-representation and changed his mind as to the best course." (Id. at p. 195.) Moreover, "As far as the record shows, defendant was not trying to manipulate the system or create an issue for appeal in making his request to revoke in propria persona status. Nevertheless, he had no compelling reason to do so, and granting his request would likely have caused serious disruption to the administration of justice, considerations strongly supporting denial." (Id. at pp. 195-196.)
Here, based on the totality of the circumstances, the trial court did not abuse its discretion by refusing to appoint counsel for defendant after the jury had been impaneled. Initially, defendant had been representing himself since before the preliminary hearing. He admitted he was aware of his right to counsel and signed a written plea form advising him of the disadvantages of self-representation. He informed the court he had already successfully defended himself in a prior three strikes case. Defendant was the only person familiar with his case. The trial court repeatedly advised defendant he would be better off with counsel who could explain the proper procedures to defendant. Defendant refused counsel. The trial court also advised defendant several days prior to trial that he could not just admit the medical records. On the day defendant requested to be appointed counsel, his motion for continuance to subpoena Dr. Kaminski and Rodriguez was denied. It was then that he asked for counsel claiming he could not adequately defend himself. Defendant was well aware of the pitfalls of defending himself. He made a conscious decision to represent himself and clearly thought he was more than capable of handling the case, just as he had done in the prior case.
Additionally, the trial court reasonably found that such request was merely to delay the trial. It noted that defendant had recently been released on bail so he no longer had an incentive to complete the trial. Moreover, defendant had exhibited considerable knowledge of both trial tactics and trial procedure and was merely unhappy with the denial of the continuance. Finally, Defendant never explained a compelling reason to revoke the Farretta waiver. He just insisted he could not defend himself. As in Lawrence, the trial court properly determined defendant's request would disrupt the proceedings and justified a denial.
Defendant relies upon People v Elliott (1977) 70 Cal.App.3d 984 (Elliott) to support his claim. In Elliott, after the jury had been selected, but prior to opening statements, the prosecutor sought to introduce evidence of an uncharged offense to prove the defendant's identity as the perpetrator of the charged offenses. (Id. p. 994.) Insisting this was new evidence, the defendant sought to revoke his Faretta waiver. "Defendant stated to the trial judge that his reasons for desiring the deputy public defender back in the case was because of the other witnesses that the prosecutor intended calling regarding the alleged uncharged crime. Except for that, the defendant said he was prepared to proceed with the trial." (Id. at p. 995.) The appellate court determined the trial court's denial of defendant's request for appointment of counsel was error. "[T]he trial court failed to consider . . . the likelihood of defendant being effective in defending against the charges in light of the new factor which the prosecutor had mentioned—of offering evidence that defendant had committed an offense other than the two for which he was being tried." (Id. at p. 996.)
Initially, in Elliott, decided prior to Lawrence, the court determined that the factors set forth ante were mandatory for the trial court in exercising meaningful discretion. (Elliott, supra, 70 Cal.App.3d at pp. 993-994.) Lawrence makes clear the trial court is only required to consider the totality of the circumstances. (Lawrence, supra, 46 Cal.4th at p. 196.) Although counsel on appeal argues that there was change of circumstances due to the People's failure to call Dr. Kaminski and Rodriguez, appellant at the time did not mention any change of circumstances as the reason for seeking counsel.
Further, the fact that the People decided not to call Dr. Kaminski at trial was not new evidence. Defendant was well aware that he wanted to raise an excessive force defense. He was also aware long before the trial date that the People may not produce Rodriguez and argued against his testimony as it would constitute hearsay. He failed to subpoena these witnesses. It was clear that when defendant realized this omission, he sought counsel. His request was disingenuous as he had insisted on representing himself in this case despite repeated warnings that he could use the assistance of an attorney.
Based on the totality of the circumstances, the trial court did not abuse its discretion by refusing to grant defendant's request for a change from self-representation to that of counsel-representation.
B. DENIAL OF MOTION TO STRIKE PRIOR CONVICTIONS
Defendant contends the trial court erred by denying his Romero motion to strike his two prior strike convictions.
1. ADDITIONAL FACTS
Defendant's counsel filed a motion to dismiss his prior strike convictions pursuant to Romero. Counsel argued the trial court should dismiss the prior strike convictions because the current offense did not involve weapons or a violent attack on the officers. Further, the prior crimes of burglary and attempted robbery were committed when he was 18 and 22 years old, and while he was under the influence of alcohol. Defendant was also under the influence of alcohol during the commission of the current offense. Defendant suffered from substance abuse since he was a teenager. He had used methamphetamine when he was young but was able to overcome his addiction when he was incarcerated. When he was released from custody in 2010, he began abusing alcohol. He had been sober for a time, but began drinking heavily when he took custody of his son.
Defendant was 36 years old. He received his GED while in juvenile hall and took some other classes in prison. He had been employed. Defendant took excellent care of his young son. Defendant's priors were remote, being 18 and 14 years old. Defendant attached his own letter explaining his alcoholism and his desire to seek treatment. He also provided letters from family and friends that he was a hard worker and "kind hearted person."
The People opposed the motion. The People contended defendant was not outside the scheme's spirit. He had not been crime-free since his conviction of one of the priors in 2001, and his previous incarcerations had not deterred his criminal activities. Defendant had ample opportunities to change his life but had chosen not to get help.
At the sentencing hearing, the trial court indicated it had read the probation report, the Romero motion filed by defendant's counsel and the People's response to the Romero motion. Defendant's counsel argued that the priors were old and defendant was young when he committed the offenses. Defendant's counsel also argued the facts of the present crime were not really violent, defendant was a contributing member of society, he had friends who were willing to help him with employment, he had family support, he suffered from substance abuse and alcoholism, and he cared for a three-year old child.
The trial court first noted that it was familiar with the Romero case and that it had discretion to strike the prior convictions. The trial court had been thinking about the possibility of striking the priors when it was assigned to the case. The trial court first described the current offense as "stupid" and that it did not have to happen. The trial court noted that there was violence involved. The officer could have been seriously hurt.
The prior attempted robbery in 2001 was an act of violence. The trial court acknowledged defendant suffered from substance abuse. However, defendant had been given opportunities for treatment in the past and it had been unsuccessful. The trial court noted that defendant appeared to be very intelligent but needed to learn self-control.
The trial court reviewed defendant's criminal history, which began when he was a young adult in 1996. Defendant was finally released from parole in 2010 after years of reoffending. He was constantly not following the rules. Once released from parole, he was incarcerated although not convicted of the charge. Further, defendant was facing a maximum of six years not a life sentence.
The trial court concluded, "With that said, weighing all of these factors, it is the court's firm finding and belief that the defendant does not fall outside of the three strikes scheme. And, in fact, his past history combined with the current offense calls out for an enhancement punishment as articulated in the current three strikes scheme. So I will deny the defense motion to strike either of the priors under Romero."
2. ANALYSIS
In Romero, the California Supreme Court held that a trial court has discretion to dismiss three strikes prior felony conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is "'whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
"[A] court's decision not to strike a prior pursuant to section 1385 should be reviewed for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Id. at p. 378.)
Here, the trial court carefully considered defendant's "felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Carmony, supra, 33 Cal.4th at p. 377.) Initially, the trial court noted that although the present crime was not violent, Officer Harwick could have hit his head and been seriously injured. He described the crime as "stupid." The trial court also noted that the attempted robbery committed by defendant in 2001 was an act of violence.
The trial court also reviewed defendant's criminal history, noting that he was finally released from parole in 2010 for the offense committed in 2001, after years of reoffending. Once released from parole, he was incarcerated, although ultimately not convicted of the charge.
According to the probation report, defendant was convicted on the first prior strike offense on September 9, 1997. He was paroled in 1999. In March 2000, he was admitted back into prison. He was finally released on parole in December 2000. Soon thereafter, on October 18, 2001, he was convicted of the second prior strike offense of attempted robbery and received an eight-year sentence. He was paroled in March 2006, but readmitted to prison in December 2006. He was paroled in January 2007, but admitted back into to prison in July 2007. He was paroled in June 2008. He was finally discharged from parole in 2010. In 2010 and 2012, he was convicted of vehicle code violations and was on probation. He was placed on probation on July 2, 2012, for three years.
It was clear defendant was unable to live a law-abiding life. Whenever he was released from custody, he was unable to follow his probation or parole. The trial court properly determined that he had no self-control.
Finally, the trial court considered defendant's substance abuse problems and properly determined that he had been given opportunities for treatment in the past and it had been unsuccessful.
The trial court's decision not to dismiss any of defendant's prior strike convictions was not "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.