P. v. Dumas

Filed 8/25/06 P. v. Dumas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Marguerite L. Wagner, Judge. Affirmed.

A jury convicted defendant Mark Dumas of one count of selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and one count of possessing cocaine base for sale (Health & Saf. Code, § 11351.5). In a bifurcated proceeding, Dumas admitted the allegations that he had suffered four "prior prison terms" (Pen. Code, § 667.5, subd. (b))^[1] and had previously been convicted of a prior "strike" (§ 667, subds. (b)-(i)). The court denied Dumas probation under section 1203, subdivision (e)(4), dismissed the prior strike allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced Dumas to a total term of eight years.^[2]

Dumas asserts (1) the trial court abused its discretion when it declined his request for advisory counsel to assist him to act as his own counsel under Faretta v. California (1975) 422 U.S. 806; (2) the trial court prejudicially misstated the evidence in response to a jury inquiry; and (3) the trial court's sentence was an abuse of discretion.

I

FACTS

A. Prosecution Case

On October 29, 2004, Oceanside police set up an undercover drug sting operation. They taped a wire to Mr. Elder, a confidential informant, and gave him two pre-recorded $20 bills to use to buy cocaine. Officers, including Detective Sullivan, then watched Elder from their undercover positions.

Elder encountered Dumas later that night near a Weinerschnitzel restaurant. Elder asked if he could buy some "rock" from Dumas. They went to an alley, where Dumas asked how much Elder wanted. Elder asked for a "forty," and Dumas gave him two bindles in exchange for the two pre-recorded $20 bills. They then returned to the street and parted company. Undercover officers watched the entire encounter and tape-recorded the conversation. Elder then returned to the officers and turned over the bindles, which contained .45 grams of cocaine base, the street value of which is about $40.

Police watched Dumas, then wearing dark pants, a dark letterman's jacket, a sports cap and a bandana underneath the cap, walk back to his apartment. Dumas remained inside for about 20 minutes and when he later emerged he was not wearing the jacket and cap but was wearing the same pants and bandana. Police detained and searched Dumas and found he was carrying approximately $100 in cash, including the two pre-recorded $20 bills. Despite the clothing change, Detective Sullivan was confident Dumas was the person Sullivan had seen selling drugs to Elder, and Elder identified Dumas as the seller at a curbside identification that evening.

B. Defense Case

Richard Cleveland, who had been convicted of a drug related crime and was awaiting transportation to serve the remainder of his sentence, testified on Dumas's behalf. Cleveland, who was housed with Dumas at the Vista jail, claimed he was the person who sold cocaine to Elder near the Weinerschnitzel.^[3] Cleveland claimed he cheated Elder by taking Elder's $40 but only giving him $20 worth of cocaine, but then offered Elder some "extra" drugs as they were parting company; Elder declined the offer.

After the sale, Cleveland stopped at Dumas's apartment to "get high" with Dumas. Cleveland spilled a drink on the jacket he was wearing and borrowed a sweater from Dumas and departed. Cleveland left the damp jacket at Dumas's apartment. Cleveland later saw Dumas near the Weinerschnitzel trying to buy some corndogs but, because Dumas had no money, Cleveland gave Dumas about $100, including the two $20 bills Cleveland had obtained from Elder. Police then arrived, detained and searched Dumas, and arrested him.

ANALYSIS

A. The Advisory Counsel Issue

Dumas contends the trial court committed reversible error by denying his January 11, 2005 request for advisory counsel.

Background

At the time of Dumas's request he was exercising his Faretta right to act in propria persona and, without articulating what particularized complexities required advisory counsel, peremptorily argued advisory counsel was necessary "to effectively prepare his own defense." The court denied the request, stating "I can't do that. I mean[,] either you represent yourself or you have a lawyer who represents your interests." However, the court suggested it would provide Dumas the opportunity to reconsider whether he wished to have a lawyer to represent him. At the subsequent hearing, Dumas acknowledged he was not capable of effectively defending himself and was seeking private representation and that, if he was unable to hire a private attorney, he would be requesting reappointment of a publicly-funded attorney. At a later hearing, Dumas requested (and the court appointed) an attorney to represent him at trial.

Analysis

Dumas argues the trial court's refusal to consider appointing advisory counsel was an abuse of discretion, which was "serious error" requiring reversal because it forced him to abandon his Faretta rights. Dumas's claim is premised on the assumption that, in a noncapital case, a defendant who elects self-representation may seek the appointment of advisory counsel and the failure of the court to provide such assistance may constitute reversible error. We conclude this court's decision in People v. Garcia (2000) 78 Cal.App.4th 1422 (Garcia) correctly ruled that a defendant who has validly elected self-representation may not obtain reversal if the court does not provide him or her with advisory counsel.

In Garcia, the defendant was charged with noncapital murder and attempted murder. He validly waived his right to representation by counsel and was convicted after a jury trial. He then argued on appeal that his presentation of a defense was incompetent and the conviction must be reversed because the court did not appoint advisory counsel. Garcia rejected this argument, holding that in noncapital cases "a defendant who has competently elected [self-representation] should not be heard to complain that he [or she] was denied the assistance of advisory or stand-by counsel." (Garcia, supra, 78 Cal.App.4th at p. 1431.) Garcia explained that both the United States and California Supreme Courts had affirmed the power of trial courts to appoint standby counsel (even over the objection of the accused) to promote orderly, prompt and just disposition of the case. This power, concluded Garcia, inheres in the trial court's power to control the proceedings. However, the court's power to appoint stand-by counsel, rooted in the court's power and obligation to control the proceedings, is not equivalent to a right possessed by defendants who choose to represent themselves to demand advisory or standby counsel. (Id. at p. 1430.)

The United States Supreme Court made it clear that a trial judge is not required to permit hybrid representation and a defendant who exercises the right to self-representation cannot later complain that the quality of the defense amounted to a denial of the effective assistance of counsel. (Garcia, supra, 78 Cal.App.4th at p. 1430.) Garcia recognized this rule would be eviscerated if a defendant who exercised the right of self-representation is allowed to later challenge a verdict on ground that he or she was not provided with advisory counsel. "To permit such a challenge is to allow a defendant to complain that because of the poor quality of his [or her] self-representation, [the defendant] was improperly denied effective assistance of counsel in the form of a hybrid representation." (Id. at pp. 1430-1431.)

Garcia also concluded People v. Bigelow (1984) 37 Cal.3d 731, relied on by Dumas here, did not compel a contrary result. Bigelow held the trial court's denial of a request for advisory counsel made during the capital murder trial of a self-representing Canadian defendant with a ninth grade education was reversible error. The trial court had erroneously concluded California law did not permit appointment of advisory counsel. The high court disagreed and further concluded that denial of Bigelow's request for legal assistance was an abuse of discretion and per se reversible. (Id. at pp. 742-746.) Garcia analyzed Bigelow and explained that the holding was largely based on the unique nature of the punishment faced by a capital defendant.^[4] The high court had pointed out that capital cases raise legal and factual issues beyond those involved in an ordinary trial, particularly because Bigelow's trial arose under the 1978 death penalty, which had not yet been judicially interpreted. Garcia concluded Bigelow was limited to capital cases and, absent specific direction from our Supreme Court, its holding should not be extended to noncapital criminal matters. (Garcia, supra, 78 Cal.App.4th at p. 1429.)

We agree with the Garcia majority's reasoning and result. (Cf. Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1393-1397 [criticizing potential appointment of "advisory" counsel to Faretta defendants].) Because Dumas was properly provided the choice either to represent himself alone or to have appointed counsel, and competently elected the latter, he cannot state a cognizable claim of error arising from the court's refusal to appoint advisory counsel to guide him in representing himself.

B. The Jury Question Issue

Dumas asserts the trial court's erroneous answer to a jury question was prejudicial and requires reversal of the convictions.

During deliberations, the jury sent a note asking "[h]ow much did Dumas have in his pocket when he was detained?" The court discussed the matter with both counsel, and neither recalled any testimony on the amount of money Dumas possessed when he was arrested. Accordingly, the court's response to the inquiry, agreed to by both counsel, stated there was "no evidence before you regarding the total amount of money in [Dumas's] pockets." However, Detective Sullivan had testified approximately $100 was found on Dumas at the time of his arrest. Dumas asserts he was prejudiced by the erroneous answer because it undermined Cleveland's credibility by in effect directing the jury to disregard Sullivan's testimony corroborating Cleveland's testimony that he had given approximately $100 to Dumas.

We are convinced the erroneous answer was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. First, the day after the court gave the jury the erroneous answer, the jury asked for a read-back of the specific portion of Sullivan's testimony addressing the amount of money Dumas had when he was arrested. The jury instructions, which we presume the jury understood and followed (People v. Delgado (1993) 5 Cal.4th 312, 331), informed the jury that any instruction, ruling or comment by the court was not a direction on what the jury was to find on the facts. Additionally, the jury was instructed that, if there was a discrepancy in the recollections as to what the testimony had been, the jury could obtain a read-back of the testimony and that read-back "must prevail." Under these circumstances, the jury had the full benefit of the corroborative value of Sullivan's testimony concerning the amount of money Dumas possessed at the time of his arrest.^[5]

Second, it is not reasonably probable, considering the evidence supporting Dumas's guilt and discrediting Cleveland's story, that Dumas would have obtained a more favorable result had the court recalled the testimony. Elder and Sullivan both identified Dumas as the seller, and the physical disparities between Dumas and Cleveland suggested misidentification was an improbable scenario. Dumas had the marked bills in his possession, and Cleveland's explanation for this fact--that he had given Dumas nearly $100 to enable Dumas to buy a couple of corn dogs--borders on the incredible. Moreover, Cleveland's version of the events (that he only gave Elder $20 worth of cocaine) was inconsistent with the amount of cocaine Elder turned over to police, and Cleveland's testimony that Elder spurned Cleveland's offer of some extra cocaine was uncorroborated by the taped conversation between Elder and the seller played for the jury.

C. The Sentencing Issue

Dumas asserts the trial court abused its discretion by declining to dismiss his prison prior allegations (§ 667.5, subd. (b)) to qualify him for proceedings (under Welf. & Inst. Code, § 3051) to commit him to a California Rehabilitation Center (CRC) program.^[6]

Standards

A trial court is vested with discretion by Welfare and Institutions Code section 3051 to determine whether evaluation for commitment to CRC is appropriate. (People v. McGinnis (2001) 87 Cal.App.4th 592, 593.) When a defendant is not disqualified from a CRC commitment, the court's discretion under Welfare and Institutions Code section 3051 involves a two-step process: first, the court must determine if the defendant is addicted or in danger of becoming addicted to narcotics; and, if so, the court must decide either to suspend execution of sentence and order initiation of CRC commitment proceedings, or to find the defendant unsuitable for such commitment. (People v. Granado (1994) 22 Cal.App.4th 194, 200.) Because the determination that a defendant's pattern of criminality makes him an unfit candidate for a CRC referral is inherently "a qualitative judgment on the available information" (People v. Cruz (1990) 217 Cal.App.3d 413, 420-421), we may not disturb that determination absent a manifest abuse of discretion. (Ibid.)

Evaluation

The trial court, although acknowledging Dumas's drug addiction, declined his requests for probation or, in the alternative, to dismiss his prison prior allegations to make him eligible for CRC. Dumas asserts the trial court's latter ruling was an abuse of discretion because it did not expressly state it had considered the policies and goals underlying Welfare and Institutions Code section 3051, or that Dumas was unsuitable for a CRC referral, before denying the motion to strike.

The courts have concluded that we must indulge every reasonable presumption to uphold a judgment, and we will decline to presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion to strike prior offense allegations for purposes of sentencing decisions. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521-1523; People v. Davis (1996) 50 Cal.App.4th 168, 170-173; People v. Alvarez (1996) 49 Cal.App.4th 679, 693-696.) There is no affirmative showing the trial court was unaware of its discretion to dismiss the prison prior allegations, or any showing it was unaware of (or did not consider) the policies and goals of the dispositional scheme under Welfare and Institutions Code section 3051 when making its sentencing decision. On this showing, Dumas has not affirmatively demonstrated the trial court's refusal to dismiss was based on a misunderstanding of its discretion.

We conclude the record shows the court considered and rejected Dumas's request for sentencing leniency, including his request for a CRC referral, based on appropriate criteria. The trial court, in rejecting Dumas's request for probation to enable him to seek drug treatment through third party programs, expressly relied on Dumas's lengthy criminal record as showing a pattern of criminality and concluded that Dumas was "[not] going to change if we leave him out, and that's why I'm denying him probation." The same finding of a pattern of criminality would render Dumas unsuitable for a CRC referral. In making a finding of a pattern of criminality, "the court may consider, in addition to a defendant's prior convictions, such matters as his prior performance on probation or parole, and the nature and seriousness of the current offense." (People v. Cruz, supra, 217 Cal.App.3d at p. 420.) Here, Dumas suffered convictions for burglary in 1984 and 1990, and four separate narcotics convictions in 1992, 1994, 2002 and 2004. He had been on probation for only a month in connection with the 2004 offense when he was arrested for the instant narcotics offense. His performance on probation, considering the instant charges, was deficient. Moreover, Dumas did not just possess narcotics for his personal use; he was a seller as well. The trial court had ample basis to conclude his pattern of criminality made him an unfit candidate for sentencing leniency, including a CRC referral.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The court imposed a four-year midterm on count one, plus four consecutive one-year terms for the prison priors. The court also imposed a four-year midterm on count two but stayed that term under section 654.

^[3] The prosecution, anticipating this claim, elicited testimony from Detective Sullivan that Cleveland is a 5'10" light skinned Hispanic or Samoan, and Dumas is 6'4" and has much darker skin. Sullivan did not see Cleveland in the area of the drug buy or arrest. When the prosecutor also showed Elder a photograph of Cleveland, Elder stated he did not know or recognize the person in the photograph.

^[4] Dumas asserts that Garcia's reading of Supreme Court precedent as covering only the appointment of advisory counsel to capital cases is inconsistent with the dicta in People v. Mattson (1959) 51 Cal.2d 777, 797 (disapproved on other grounds by People v. Crandell (1988) 46 Cal.3d 833, 861-862), in which the court in a noncapital case stated a trial court may "even appoint an attorney . . . to render advisory services to an indigent defendant who wishes [self-representation]." However, the Mattson dicta describing the discretion to appoint counsel suggests the discretion was grounded in the court's inherent power to control the proceedings, not as a supplement to some right possessed by the defendant. Indeed, Mattson cautioned that a "competent defendant who obdurately insists upon controlling and conducting his [or her] own defense [is not] entitled as a matter of right to the services of counsel to act under defendant's control" who will serve "as a mere subservient helper under the direction of the accused." (Mattson, at p. 793, italics added.)

^[5] Dumas suggests the court's erroneous answer to the question amounted to an implied nunc pro tunc striking of Sullivan's testimony on the amounts in Dumas's possession, and the jury understood this to be the import of the court's answer. However, Dumas does not explain or reconcile why the jury, if it in fact understood the court's answer as striking Sullivan's testimony on the money and was following the instruction that stricken evidence cannot be "consider[ed] for any purpose," would have defied the latter instruction by asking for a read-back of testimony it knew had been stricken.

^[6] Under that section, a court shall initiate proceedings to commit a convicted defendant to CRC for drug treatment in lieu of prison "unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment" to CRC. (Welf. & Inst. Code, § 3051.) However, a defendant is statutorily ineligible for CRC if his aggregate term exceeds six years. (Welf. & Inst. Code, § 3052, subd. (a)(2).)