Filed 4/28/17 P. v. Etuk CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
AKANINYENE WILLIAM
ETUK,
Defendant and Appellant.
B269520
(Los Angeles County
Super. Ct. No. LA080975)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael V. Jesic, Judge. Affirmed.
Eric Cioffi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, and Zee Rodriguez, Deputy Attorney General,
for Plaintiff and Respondent.
* * * * * * * *
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Defendant Akaninyene William Etuk appeals from the
judgment entered following a trial in which the jury found him
guilty of assault with a deadly weapon (baseball bat; Pen. Code,
§ 245, subd. (a)(1)). He was sentenced to prison to the two-year
low term.
Defendant contends the judgment must be reversed,
because the trial court revoked his in propria persona status in
violation of his constitutional right to self-representation and,
alternatively, because the court denied his Pitchess motion
(Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)).
We affirm the judgment. Revocation of defendant’s in
propria persona status was not an abuse of discretion.
Substantial evidence supports the trial court’s finding that
defendant’s repeated refusal to adhere to the court’s orders
threatened to compromise the court’s ability to conduct a fair
trial. Denial of defendant’s Pitchess motion also was not an
abuse of discretion. Substantial evidence supports the trial
court’s finding that defendant failed to carry his initial burden to
show good cause for an in camera inspection of the requested
documents.
BACKGROUND
Anthony Calhoun was the victim in two violent encounters
with defendant at the North Hollywood Park, which was
frequented by transients. This case arose from the second
incident only. The first occurred on October 25, 2014, about
8:40 p.m. Mr. Calhoun and April Gutierrez, his girlfriend,
noticed defendant threatening others in the park. He then
threatened to kill them and grabbed his metal golf club. Holding
the club above his head, he swung it downward and struck
unarmed Mr. Calhoun’s back, causing the club’s head to break
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off. As Mr. Calhoun lay on the ground, defendant resumed
hitting him with the club.
Shortly, in response to an assault with a deadly weapon
call, Los Angeles Police Department (LAPD) Officer Theodore
Jacobson arrived at the scene. He saw defendant, who matched
the assaulter’s description, sitting on a picnic bench. A walking
stick and a headless, metal golf club lay next to him.
Mr. Calhoun had contusions in the shape of a golf club head to
his lower and mid-back and to his left shoulder.
The second incident, which is the subject of this appeal
occurred, about six months later, on May 12, 2015, about
11:15 a.m., at the same park. While approaching Mr. Calhoun,
Ms. Gutierrez, and others present, defendant stated he wanted to
finish “the job” and that he intended to kill them all. Someone
flagged down Officers Joshua Fillinger and Brent Lamoureux,
who were on vehicle patrol, and reported the impending assault.
At the scene, defendant held a wooden baseball bat above his
head and swung it, as if he “was going to hit a baseball,” four or
five times at Mr. Calhoun. With each swing, defendant
approached closer to Mr. Calhoun, who was about a foot or two
away. Mr. Calhoun, who was unarmed, tried to protect himself
and backed away to avoid the bat. The two officers ordered
defendant to drop the bat repeatedly before he complied. They
then arrested him.
At trial, defendant admitted he struck Mr. Calhoun with
the golf club but explained he did so only after Mr. Calhoun had
swung a black metal pole/pipe at him, which grazed his shoulder
and struck his neck. He denied he had threatened anyone and
asserted he cooperated with the police. As for the subject
incident, defendant testified that while walking through the
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park, he saw Mr. Calhoun draw his index finger across his neck,
which he interpreted to mean Mr. Calhoun intended to kill him.
After retrieving a bat from his sleeping spot, defendant raised it
over his head and told Mr. Calhoun, who was approaching with a
“silver object” in his hand, not to “come any closer”; “I will hit
you”; and “you need to stop threatening me.” Confronted with the
bat, Mr. Calhoun retreated. Defendant told police “I did not do
anything” and “he has a knife.” He did not see the officers search
anyone.
On rebuttal, Officer Fillinger testified defendant never
yelled out Mr. Calhoun had a knife or anything about a knife. No
knife was recovered. The officers would have looked for one had a
knife been mentioned.
DISCUSSION
1. In Propria Persona Status Revocation Not Abuse of
Discretion
Defendant contends the trial court abused its discretion by
revoking his in propria persona status, because his
misunderstanding regarding the inadmissibility of police reports
“did not constitute an act that was so ‘flagrant and inconsistent
with the integrity and fairness of the trial that immediate
termination [was] appropriate.’ (People v. Carson (2005) 35
Cal.4th 1, 10 (Carson).)” Further, “the record shows the court
used the issue of the inadmissibility of the police report as a
pretext to revoke [his] pro per status.” The court also “failed to
consider many of the critical factors essential in any
determination to usurp an individual’s right of selfrepresentation.”
We find no abuse of discretion.
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a. Pertinent proceedings
On July 16, 2015, the trial court granted defendant’s
motion to represent himself (Faretta v. California (1975) 422 U.S.
806 (Faretta)).
On August 28, 2015, the court and defendant engaged in
the following colloquy regarding the inadmissibility of police
reports. When defendant stated he had “a police report that
supports [his] point[,]” the court responded: “No. The police
reports are hearsay. What I’m saying is that in trial if the officer
testifies and he testifies inconsistent[ly], differently than what’s
on [the report], then you can say, ‘well, didn’t you write
something different in this report?’ But you can’t just introduce
police reports.” Defendant stated he “was going to introduce it
into evidence.” The court explained it “[d]oesn’t work” that way,
because “[w]e don’t introduce police reports into evidence.
They’re hearsay. If the officer testifies to something different
there’s a process how you can –I can’t tell you what that process
is. You’re going to have to figure it out. But you’re not going to
be able to introduce police reports. The jury is not going to get
police reports.” Defendant replied, “Well, I don’t know. I need to
actually do follow-up research so I will object to that.” For
clarification, the court reiterated: “I’m telling you now, police
reports are hearsay. There’s a procedure where you can impeach
witnesses, police officers, if their statement on the stand is
different than what’s in the police report. But the jury is not
going to get the actual report. They’ll hear the testimony, but
they’re not going to get the reports.”
Subsequently, at the same hearing, the trial court
explained to defendant that his in propria persona status, which
was his choice, did not entitle him to special dispensation from
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the need to follow the court’s rules, particularly those concerning
evidence and theories of defense that he wanted to present to the
jury. The court reminded him that it “already told” him that
“doing this as pro per is a horrible mistake” and admonished him
that “it’s not going to be a free for all where you just put in every
bit of evidence that you want to bring in because you think it’s
relevant. It doesn’t work that way. Or because you believe it’s
admissible. There [are] rules of court.”
On October 20, 2015, the court reminded defendant that
the court had “ke[pt] telling you on every single one of these
motions the exact same thing. There’s a procedure that needs to
be followed for these motions. And just because you’re pro per
doesn’t mean that we’re going to bend the procedures. And I told
you that. And you continually do stuff that goes against the way
that you’re supposed to do them causing [the court] to have to
deny your motions.”
Defendant later told the court that he “was going to
actually, you know, bring it to authenticate the police report.”
When asked why he needed to authenticate the police report,
since “[i]t’s not evidence in this case[,]” defendant replied “it has
to be,” because “[i]t’s part of the pleading.” The court reiterated,
“[P]olice reports are hearsay. They are not evidence in this case.”
The court added, “If there’s something in the police report that
you want to impeach someone with, like if they said something to
the police officers in the report and now they’re saying something
different, you can ask them. ‘Didn’t you tell the police officers
this?’ But the police report itself is . . . [¶] . . . [¶] . . . [h]earsay.
It doesn’t come in.”
Rather than acquiesce in the court’s ruling, defendant
announced, “[L]et’s just bring the jury so that the jury can
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actually help me decide because we can actually have this
discussion again in front of them.” The court explained, “We
don’t have discussions in front of the jury. I make my rulings,
you abide by my rulings.” Defendant responded, “Your Honor, we
all abide by the rulings of the Constitution.” He added, “I don’t
care if you are sitting there as a judge, I am sorry. I don’t want to
offend you. I respect you. You need to respect me.”
Seeking clarification, the trial court asked defendant, “[L]et
me just understand, are you going to follow my orders in this case
or not?” Defendant replied, “Your Honor, I am.” The court asked
if he meant “Yes or No?” Defendant responded, “I’m following
you already. I am already following you. I’m saying is that I
have seen cases that the police report has been authenticated and
actually has been accepted as evidence. And that’s what I want.
That’s what I want. I want the same fairness that everybody
has.”
After reminding him it already had told him “the police
reports do not come into evidence,” the court asked, “Are you
going to follow my orders or not? You’re not going to bring up the
police reports in front of the jury. We’re not going to have these
discussions in front of the jury. Do you understand that?”
Defendant responded, “I am the attorney of fact. I’m defending
myself.” The court next asked, “So I’m taking this as a no, you’re
not going to follow my orders; is that correct?” He replied, “I am
going to follow the law.” To further clarify his position, the court
asked, “And your law, if it contravenes my orders, you’re going to
follow the law, is that correct?” He responded, “I’m going to
follow the law and abide[] by the law.”
The court interpreted defendant’s statements to mean he
was “going to introduce those police reports” against the court’s
8
order and announced: “It’s clear to [me] that [defendant] has no
intention of following the court’s orders in this case. He has
already stated that he’s going to follow the law and not my
orders. By his actions pro per status is revoked. Take him back.
We’re going to get him counsel.” Defendant responded,
“Objection.” After noting the objection, the court stated “it is
absolutely clear to me that since the beginning of this you have
no intention of following my orders; that you’re going to do things
the way you want to do it. That you want the jury to come in.
You want to be able to argue whatever you want to argue and not
listen to a thing I’m saying.”
b. Applicable legal principles
“The right of self-representation is not a license to abuse
the dignity of the courtroom. Neither is it a license not to comply
with relevant rules of procedural and substantive law.” (Faretta,
supra, 422 U.S. at p. 834, fn. 46.)
“Whenever ‘deliberate dilatory or obstructive behavior’
threatens to subvert ‘the core concept of a trial’ [citation] or to
compromise the court’s ability to conduct a fair trial [citation],
the defendant’s Faretta rights are subject to forfeiture. Each case
must be evaluated in its own context, on its own facts, in light of
the considerations discussed below.
“When determining whether termination is necessary and
appropriate, the trial court should consider several factors in
addition to the nature of the misconduct and its impact on the
trial proceedings. One consideration is the availability and
suitability of alternative sanctions. [Citation.] Misconduct that
is more removed from the trial proceedings, more subject to
rectification or correction, or otherwise less likely to affect the
fairness of the trial may not justify complete withdrawal of the
9
defendant’s right of self-representation. [Citations.] The court
should also consider whether the defendant has been warned that
particular misconduct will result in termination of in propria
persona status. [Citation.] Not every obstructive act will be so
flagrant and inconsistent with the integrity and fairness of the
trial that immediate termination is appropriate. By the same
token, however, the defendant’s acts need not result in a
disruption of the trial—for example, by successfully dissuading a
witness from testifying. The likely, not the actual, effect of the
misconduct should be the primary consideration.
“Additionally, the trial court may assess whether the
defendant has ‘intentionally sought to disrupt and delay his trial.’
[Citation.] In many instances, such a purpose will suffice to order
termination; but we do not hold that an intent to disrupt is a
necessary condition. . . . Ultimately, the relevance inheres in the
effect of the misconduct on the trial proceedings, not the
defendant’s purpose.” (Carson, supra, 35 Cal.4th at pp. 10-11,
citations omitted.)
The trial court’s decision to terminate a defendant’s right of
self-representation for serious and obstructionist misconduct is
reviewed for abuse of discretion. We “accord due deference to the
trial court’s assessment of . . . the nature and context of his
misconduct and its impact on the integrity of the trial in
determining whether termination of Faretta rights is necessary to
maintain the fairness of the proceedings.” (Carson, supra, 35
Cal.4th at p. 12.) “When a defendant exploits or manipulates his
in propria persona status to engage in such acts [of serious and
obstructionist misconduct], wherever they may occur, the trial
court does not abuse its discretion in determining he has forfeited
the right of continued self-representation.” (Id. at p. 9.)
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c. Revocation of in propia persona status not
abuse of discretion
Substantial evidence supports the trial court’s finding that
defendant intended to “go his own way” in the face of any order or
ruling of the trial court to the contrary, and thereby, such
“obstructive behavior” threatened “to subvert the ‘core concept of
a trial’ ” and “to compromise the court’s ability to conduct a fair
trial.” (Carson, supra, 35 Cal.4th at p. 10.) The court’s
revocation of defendant’s in propria persona status therefore was
not an abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th
353, 408 [no abuse where evidence substantial].)
The record reflects the trial court patiently and repeatedly
admonished defendant to comply with the court’s orders and
follow the law, e.g., rules of court and evidentiary rulings, which
admonitions defendant consistently ignored or disregarded. That
defendant intended to flaunt his disobedience is evident in his
invitation to have the jury second-guess the court’s rulings and to
place before the jury matters that could not be admitted as
evidence. No potential feasible alternatives to revoking his in
propria persona status were available for the trial court to
consider. Defendant’s continually obstreperous misconduct not
only would eviscerate the trial court’s ability to conduct a fair
trial but transform the trial itself into a farce. Further, the
court’s admonitions that defendant’s in propria persona status
would not exempt him from following the law and the court’s
orders made clear that if he defied the court, his in propria
persona status might end.
2. Denial of Pitchess Motion Not Abuse of Discretion
Defendant contends the trial court abused its discretion in
denying his Pitchess motion for discovery of the personnel files of
11
Officers Jacobson, Fillinger, and Lamoureux. Again, we find no
abuse of discretion.
a. Pertinent proceedings
In his Pitchess motion, defendant sought disclosure of
certain information from the personnel records of Officers
Jacobson, Fillinger, Lamoureux, and other law enforcement
officers. Specifically, he wanted the records of all complaints of
officer misconduct consisting of “coercive conduct, intimidation,
verbal abuse, aggressive behavior, or violence, excessive force,
aggravated violence, racial bias, gender and ethnic bias, sexual
orientation bias, violation of constitutional right[s], destruction of
evidence, [and] jury tampering, but not limited to the
aforementioned.” He also sought disclosure of all complaints
pertaining to “false arrest, planting evidence, fabrication of police
reports, fabrication of probable cause, false testimony, perjury,
using excessive force, intimidating, coercion, taking and receiving
bribe[s], and false or misleading [information] in reports
including but not limited to false overtime or medical leave.”
Further, he requested the “names, addresses, date of birth, and
telephone number of all persons who filed complaints, who may
be witnesses/or were interviewed by investigators[.]”
In his “Statement and Fact[s] of the Case,” defendant
asserted with regard to the golf club incident, the police did not
“conduct [a] proper investigation which was to include o[b]taining
a DNA sampl[e] from those weapon[s] to determine [a] match
since [there] existed blood[.]” As to the baseball bat incident, he
asserted the police “again fail[ed] to check . . . for the [knife],” and
“fail[ed] to obtain information from a nonprejudice[d] witness.”
He urged these two incidents established the “clear fact that the
police department is out to violate [defendant’s] constitution[al]
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right[s] which include but [are] not limited to [freedom from]
illegal seizure, violation of Due Process . . . etc.” He further urged
that “the police department is encouraging the sacrifice of
[defendant,]” because in “two other incidents” unnamed police
officers arrested him, took him to the hospital, and “aided the
hospital to fabricate records and inject him with foreign
substances[.]” Additionally, defendant asserted Officer Fillinger
had perjured himself during the preliminary hearing, which
“ended up manipulating the outcome of that hearing,” and he also
“performed a coercive conduct by not producing exculpatory
evidence on the sworn affidavit of the probable cause
determination evading the totality of the circumstance.”
In its opposition, the LAPD custodian of records argued the
motion was defective in failing to meet the requirements under
Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick) that
there be factual specificity to support an officer misconduct claim
and a showing of how the discovery sought would support the
proposed defense.
At the hearing, defendant argued the arrest was “pretty
much prejudicial,” because there was “no investigative
background” and that his “consistent contact” with LAPD showed
“there’s something going on between [him] and LAPD [in] that
[defendant was] always actually the victim.” Steven Cohen,
counsel for LAPD, challenged the defense claim that an
incomplete investigation resulted in an inaccurate report by the
officers. He pointed out the officers’ report was based on their
own observations at the scene as well as victim and witness
statements. Further, there were no factual allegations of officer
misconduct. In denying the motion, the court reasoned:
Defendant’s “complaint is that the officers were incompetent in
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their investigation; that they didn’t take DNA; that they didn’t
search the victim[,]” which matters are “not a basis for a
Pitchess,” and thus, no good cause for an in camera hearing
existed.
b. Applicable legal principles
Pursuant to Pitchess, a defendant is entitled to information
that will “facilitate the ascertainment of the facts and a fair
trial.” (Pitchess, supra, 11 Cal.3d at p. 536.) “[T]he California
Legislature ‘codified the privileges and procedures surrounding
what had come to be known as “Pitchess motions” . . . through the
enactment of Penal Code sections 832.7 and 832.8 and Evidence
Code sections 1043 through 1045.’ [Citation.]” (City of Los
Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) Our Supreme
Court has “described the statutory scheme as follows: ‘The Penal
Code provisions define “personnel records” (Pen. Code, § 832.8)
and provide that such records are “confidential” and subject to
discovery only pursuant to the procedures set forth in the
Evidence Code. (Pen. Code, § 832.7.)’ ” (Ibid., quoting from City
of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82.)
Warrick explained how to assess the evidence in support of
a Pitchess motion to determine whether the defendant has
established good cause for in-chambers review of an officer’s
personnel records. “[T]he trial court looks to whether the
defendant has established the materiality of the requested
information to the pending litigation. The court does that
through the following inquiry: Has the defense shown a logical
connection between the charges and the proposed defense? Is the
defense request for Pitchess discovery factually specific and
tailored to support its claim of officer misconduct? Will the
requested Pitchess discovery support the proposed defense, or is it
14
likely to lead to information that would support the proposed
defense? Under what theory would the requested information be
admissible at trial?” (Warrick, supra, 35 Cal.4th at pp. 1026-
1027.)
c. Initial burden not met
“A trial court’s ruling on a motion for access to law
enforcement personnel records is subject to review for abuse of
discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The Pitchess motion in this case did not propose a defense
to the charge of assault with a deadly weapon nor articulate how
the requested discovery would support that proposed defense.
Neither did the motion describe a factual scenario indicating
there was any officer misconduct, or explaining defendant’s own
actions in a manner that would have established some type of
defense. The declaration here did not describe an alternate
version of events in contrast to the police reports. The trial court
therefore did not abuse its discretion in finding the information
in the personnel records of Officers Jacobson, Fillinger and
Lamoureux was immaterial and in denying the Pitchess motion
without an in camera hearing.
DISPOSITION
The judgment is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.