Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
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(Los Angeles County Super. Ct. No. NA049834)
APPEAL from a judgment of the Superior Court of Los Angeles County. James Pierce, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Ruben F. Martinez of first degree murder and found that he had intentionally used a handgun in committing the murder. The jury also found that appellant had committed three prior felonies. Appellant was sentenced to 52 years to life in prison. He appeals from the judgment; we affirm.
In August 2001, appellant was living with his aunt, Valerie Romo, in an apartment in San Pedro. Several people, including appellant, had keys to the apartment. In the early morning hours of August 4, 2001, appellant got into an argument with his girlfriend in this apartment; this led to Romo telling appellant to leave and not to come back. Nonetheless, appellant came back twice the next day, only to be told again by an angry Romo to leave.
Appellant was not arrested until January 2008 in Mexico and was extradited to the United States.
At approximately 4:30 p.m. on August 5, 2001, appellant showed up at the apartment of the murder victim, Cesar Galan, in Wilmington. Appellant, who appeared to be confused and upset, spoke with Galan, who was acting a little strange. Galan and appellant left together at approximately 4:45 p.m. Amanda Perez, Galan's roommate, paged Galan, who called back at 5:15 p.m., sounding serious, and telling Perez not to let anyone in the apartment. This was the last time anyone heard from Galan.
Two witnesses testified about the shooting, which took place at 6:30 p.m. on August 5, 2001, in Romo's apartment.
Catherine Hollis lived in the same complex as Romo's apartment, which was upstairs and to the left of Hollis's lodging. Hollis heard four or six sharp sounds, which she thought were firecrackers; she was not startled because kids in the neighborhood often shot off firecrackers. A minute or two after the sharp sounds, a door closed and a Hispanic man quickly came down the stairs.
Timothy Garcia was washing his car across the street from Romo's apartment when, at 6:30 p.m., he heard what he thought were four or five M-80 or magnum rounds being fired. About one minute after the shots, Garcia became aware of some movement across the street; he turned and saw appellant walking down the stairs from Romo's apartment. Appellant looked at Garcia and then turned and walked away into an alley. Garcia identified appellant in a photographic lineup in 2001.
Galan's body was found in the bathroom of Romo's apartment. He had been shot five times. Near his body were .25-caliber ammunition and an unloaded .25-caliber semiautomatic pistol. Also found at the murder scene were expended shell casings from a nine millimeter Luger handgun, which was the murder weapon. The Luger, loaded, was found in a trash can in the alley where Garcia had last seen appellant.
In 2009, a fingerprint on the Luger was identified as appellant's; the same fingerprint was not identified as appellant's in 2001.
Appellant did not testify and presented no evidence.
1. Appellant Did Not Make Unequivocal Faretta Requests
Appellant contends that the trial court should have granted his two requests to represent himself and that this was prejudicial error under Faretta v. California (1975) 422 U.S. 806 (Faretta).
We conclude that in neither instance did appellant make an unequivocal request to be allowed to represent himself.
The first alleged request was made a week before the trial commenced, when the case was called for a status conference. After problems of timing had been addressed, appellant spoke up, stating that he had seven motions to present. Since appellant was represented by counsel, a predictable exchange ensued between appellant and the trial court, which ended with a Marsden hearing. After that concluded with no change in defense counsel's status and the prosecutor returned to the courtroom, the discussion came back to scheduling. Once that was settled, the trial court told appellant: "And Mr. Martinez, this matter's going to be going to trial within three days of Wednesday. Make sure your civilian clothes are here. We're going to be starting this very, very quickly. [¶] DEFENDANT MARTINEZ: But how can I -- [¶] THE COURT: See you back next week. [¶] DEFENDANT MARTINEZ: How can I invoke my right to represent myself? [¶] THE COURT: See you next week." That ended the hearing of March 12, 2009.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
When the case was called again a week later, a jury panel was outside, waiting to be called in for voir dire. The trial court had a number of the usual things to say and then admonished appellant, who had apparently acted inappropriately on a prior occasion, that he was to behave himself. The trial court asked appellant whether he understood what the court was telling him, and appellant stated that yes, he did. Appellant had nothing further to say, and the panel was brought in to the courtroom.
Appellant's contention that he made a Faretta request is predicated on the question he asked at the end of the March 12, 2009 hearing. There is absolutely nothing other than this single question on which this contention is based.
"Many courts have explained that a rule requiring the defendant's request for self-representation to be unequivocal is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation. Without a requirement that a request for self-representation be unequivocal, such a request could, whether granted or denied, provide a ground for reversal on appeal. This problem has irked many courts, and some of their opinions have given examples of such abuse." (People v. Marshall (1997) 15 Cal.4th 1, 22.)
At the outset, we point out that appellant has not discussed the standard of review for the claimed Faretta error. Respondent suggests it is de novo, and that seems to be in keeping with the Supreme Court's discussion in People v. Marshall, supra, 15 Cal.4th 1. "Most courts, including our own, however, 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." (Id. at p. 24.) We assume for the sake of argument that the standard is de novo but as we develop the point under either a de novo or substantial evidence standard our conclusion would be the same.
As to the merits of the Faretta contention, we begin with the elementary observation that a question is not a request. This is not only logical, it also the law. The Supreme Court has held that a request for information is not a Faretta motion. (People v. Marlow (2004) 34 Cal.4th 131, 147.) The question in Marlow (" 'Is it possible that I just go pro per in my own defense and have someone appointed as co-counsel?' ") is much like the question appellant asked. (Ibid.) Be that as it may, it is patent that an inquiry about legal representation is not a declarative statement that the speaker wants to represent himself.
It is significant that, after asking the question, appellant did absolutely nothing to indicate that he wanted to represent himself. Since he came to the March 12, 2009 hearing with seven motions in hand, he was not shy about speaking up, nor was he unschooled about motions and requests. Yet, he did not file or produce a Faretta motion in the week that followed March 12. And when the court addressed him directly a week after the March 12 hearing, appellant made no mention of a Faretta request. The only conclusion one can draw is that appellant may have considered making such a request, but, after thinking about it, he decided against it.
The rule is that the request for self-representation must be unequivocal. (People v. Marshall, supra, 15 Cal.4th at pp. 22-23.) There is every reason in this case to follow this rule. To hold that the question appellant asked was tantamount to a request would be to burden the trial court with a duty to aggressively pursue any hint that the defendant is thinking about making a Faretta request. We decline to fashion any such rule. The burden is on the defendant, not the trial court, to express his desire to represent himself clearly and unequivocally. (Marshall, at pp. 22-23.)
We do not agree with appellant that when the court responded to appellant's question with "See you next week," the court denied the Faretta request. The court did not deny the request because there was no unequivocal request. Nor do we agree that the "request" was "straightforward and unequivocal." While appellant's question was clear enough, a question about representation is not a request for self-representation.
Some courts have spoken disapprovingly of the "'Faretta game.'" (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) Here, it appears that a single question asked a week before trial lurked like a mine in this record, only to be detonated on appeal as reversible error. While the question may not have been planted, it is being exploited as if that had been the case. The trial court, busy with attending to the details of scheduling the trial, ignored an off-the-cuff question from the defendant who had no business, in any event, to directly pose questions to the trial court. The fact that the court waived the question aside is now being used in an attempt to create reversible error. If this is a game, we are not playing.
We conclude that appellant did not make an unequivocal Faretta request on March 12, 2009.
The second alleged Faretta request was made at the outset of the sentencing hearing on April 17, 2009, when defense counsel stated that appellant wanted to proceed in pro. per. as far as certain disputed facts were concerned. The trial court responded that he would hear appellant "separately" but that the court was going to hear from defense counsel as well: "I [the court] am going to keep you [defense counsel] on the case through sentencing. But I am going to hear fully from Mr. Martinez anything he wants to put on the record."
Thereafter, appellant submitted to the court a four-page statement, which the court ordered to be filed, and appellant also addressed the court. It is a little difficult to make out what appellant wanted to say, but the sum of it appears to be that the fingerprint evidence was flawed; this seems to refer to the fingerprint test done in 2009.
On appeal, appellant contends at some length that, even though he made his Faretta request during the sentencing hearing, his request was timely. This puts the cart before the horse. Appellant did not request to represent himself during the sentencing hearing. He wanted to be given the opportunity to address the court on what he claimed was flawed fingerprint evidence. And that is exactly what he did, with the trial court's permission.
We return to the rule that the request for self-representation must be unequivocal. (People v. Marshall, supra, 15 Cal.4th at pp. 22-23.) A request for self-representation means that the defendant wants to be his own lawyer, meaning that his counsel will be relieved and the defendant will take over all aspects of the case. But this is not what appellant asked for on April 17, 2009. He wanted to present some papers and address the court about fingerprint evidence; there was no clear indication that he wanted defense counsel relieved and that appellant wanted to handle the entire hearing himself.
As with the preceding Faretta claim, appellant tries to present events in court in an unrealistic light. Anyone familiar with criminal trials understands what happened on April 17, 2009. The defendant, appellant in this case, had a pet theory that he could save himself by "proving" that certain damaging evidence should have been excluded. The trial court, knowing that appellant was about to be sentenced to decades of imprisonment, gave appellant all the leeway that appellant wanted. Indeed, this is really the dispositive answer to appellant's contention: appellant's requests to be allowed to file papers and to address the court were granted in full.
Not only was there no unequivocal Faretta request on April 17, 2009, there was no Faretta request at all.
2. It Was Not Error to Admit a Witness's Prior Inconsistent Statement
Witness Michael Erosa, a friend of appellant's, was called by the prosecution but had nothing of value to say since he professed not to remember anything. His bad memory may be explained at least in part by the fact that he did not want to testify.
Erosa, however, had given a statement to Detective Wesley Potter of the Los Angeles Police Department that did incriminate appellant. The trial court admitted this statement as a prior inconsistent statement and made suitable redactions as to appellant's prison record, parole status and drug use.
We review the admissibility of evidence claimed to be hearsay under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Where the ruling involves factual determinations - such as here as to whether Erosa's claimed memory loss was truthful - we also use the deferential standard of review. (Ibid.)
Appellant makes the somewhat puzzling argument that admission of the written statement to the police violates Crawford v. Washington (2004) 541 U.S. 36 (Crawford) in that appellant was unable to cross-examine Erosa. Recognizing that the problem with this is that Erosa did testify, appellant states that "there can be no realistic conclusion that
Erosa was 'produced' at trial for cross-examination. He was there physically, but that was all." The point appears to be that since he did not remember anything, he could not be effectively cross-examined.
Crawford has cut a wide swath, but it has not made the prosecution the guarantor of a hostile witness's memory. If the law were as appellant imagines it, a witness such as Erosa could feign lack of memory on the witness stand, secure in the knowledge that his prior inconsistent statement would not see the light of day, at least in court. " 'Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event.' [Citation] When, however, 'a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied.' [Citation.]" (People v. Coffman (2004) 34 Cal.4th 1, 78.) This fully justified the admission of Erosa's statement to Detective Potter.
Since the admission of the prior inconsistent statement was not error, we do not address the claim that the alleged error was exacerbated by CALCRIM No. 226.
The judgment is affirmed.
RUBIN, J. WE CONCUR:
BIEGLOW, P. J.