P. v. Flores

Filed 8/17/06 P. v. Flores 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Larrie R. Brainard, Judge. Affirmed.

After exercising his right to waive counsel and represent himself, a jury convicted Arturo Flores of various crimes, including attempted robbery, residential burglary, and assault by means of force likely to produce great bodily injury. The offenses arose from Flores's entry into the residence of an elderly neighbor, where he attacked the neighbor while demanding money. Flores contends his constitutional rights were violated because he was not given a continuance to prepare for trial and because advisory counsel was not appointed to assist him. He also argues there is insufficient evidence to support his attempted robbery conviction. We reject his arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Facts regarding the Crime

In the early morning hours of September 8, 2004, 78-year-old Martin Ettel and his wife, at home in bed, heard gunshots. Ettel discovered that the glass door to his patio had been fractured, and saw a man (later identified as Flores) outside swinging a patio chair towards the door. Ettel's wife fled the residence and Ettel called 911. Flores managed to open the patio door and entered the residence. Flores told Ettel to drop the phone. As Flores walked towards Ettel, Ettel backed up, stumbled over a chair, and fell. Flores repeatedly kicked Ettel, while stating, "Give me the money." Flores set a kitchen towel on fire and threw the towel at Ettel's face. He then began hitting Ettel in the face with the phone. Ettel implored Flores to stop, telling him he did not have any money. Flores continued repeating his demands for money as he beat Ettel.

Flores and his brothers, Tomas and Francisco, lived on the same street as Ettel. On the night of the assault, Tomas and Francisco heard Ettel's wife outside screaming for help. Tomas and Francisco went into Ettel's residence and pulled Flores outside. Flores hit Francisco in the mouth, and fled when the police arrived. Flores was apprehended by the police a short time later. A knife was found in his possession.

Ettel was taken by ambulance to the emergency room. Prior to the assault Ettel had undergone bladder surgery, and he wore an ostomy pouch. Flores kicked Ettel in the area of his operation, and the ostomy bag fell off; however, Ettel did not suffer any wounds to this area. As a result of the attack, Ettel was bleeding and bruised. He had bruises on his arm, leg, abdomen, and face. He had abrasions on both arms, his shins, and over his right eye and forehead. His facial injuries required eight stitches.

No gun was found, but there were shell casings and bullet holes in the front door and back patio areas of Ettel's home.

Testifying on his own behalf, Flores stated that he was a heroin addict. On the night of the assault, he stated that he took two Quaaludes to fall asleep, and the next thing he remembered was waking up in custody with a police detective in front of him. He claimed he did not remember committing any of the acts described by the prosecution witnesses. Evidence was admitted showing the presence of alcohol, heroin derivatives, and morphine derivatives in Flores's system. Flores testified he had no intent to commit any crime, and in particular no intent to harm Ettel whom he respected and against whom he felt no anger.

In rebuttal for the prosecution, a police detective who interviewed Flores at the police station a few hours after his arrest testified that during the interview Flores appeared tired, but he spoke normally and looked like he had already "come down off [his] drugs." During the taped interview, Flores asked the detective what he had done, stating he could not remember anything. At trial the officer opined that Flores "knew what was going on," and that he was just pretending that he did not remember. The taped interview, lasting about 10 minutes, was played for the jury.

The jury found Flores guilty of attempted robbery, residential burglary, assault by means of force likely to produce great bodily injury, willful cruelty to an elder adult, and attempt to dissuade a witness from reporting a crime. He was also found guilty of various enhancements, including personal infliction of great bodily injury upon a person 70 years of age or older and commission of a crime against a person 65 years of age or older by a repeat offender.

Facts Regarding Flores's Self-Representation

On February 1, 2005, Flores's trial date was set for February 14, 2005. Thereafter, the matter was trailed to February 23, 2005. On February 23, 2005, the case was assigned to a department for trial, and the court and the parties discussed a possible plea bargain. No agreement was reached. On February 24, 2005, the court ruled on various in limine motions, and the parties discussed issues relating to jury voir dire, exhibits, witnesses, and stipulations.

On the morning of Friday, February 25, 2005, when the parties were ready to commence jury selection, Flores made a motion to represent himself. The court inquired whether Flores was ready to proceed with trial immediately, and Flores responded he needed about six months to prepare his defense. Because the prospective jurors were waiting, the parties were ready to start the trial, and the victims were elderly and had health concerns, the court stated that it would not allow Flores to represent himself unless he was ready to proceed that day.

After a consultation with Flores, defense counsel advised the court that Flores wanted to represent himself and wanted a continuance, and if the court denied his request, he would not talk to defense counsel or cooperate with the trial. Defense counsel explained that this presented problems with effective representation because part of the defense strategy was to have Flores testify. Based on Flores's stated intent not to cooperate, defense counsel requested a Penal Code section 1368 hearing to examine Flores's mental competency. The court rejected this request, stating it had no doubt Flores was completely able to cooperate with counsel and noting the conclusions in a court-appointed mental health specialist's report that Flores was "totally oriented."

When defense counsel reiterated his request for a competency hearing based on the possibility that Flores's mental state had "decompensated" since the time of the mental health examination, the trial court decided to hold a hearing outside of the presence of the district attorney. During the closed hearing, after discussing the matter with defense counsel and Flores, the trial court adhered to its assessment that there was no basis for a competency hearing and that it would not grant Flores's self-representation motion if he needed a continuance to prepare. The court also ruled that there was no basis to relieve defense counsel as Flores's representative, reiterating that it was Flores's choice whether or not to cooperate. The court noted its conclusion that Flores's requests were simply tactics designed to delay the case.

Back in open hearing, Flores again told the court that he wanted to represent himself and have a continuance. The trial court responded: "I've already denied the request. And I've stated why. Now, you can represent yourself. But I'm not going to continue the matter." Defense counsel then told the court that given its ruling, Flores would "proceed to trial today representing himself." (Italics added.) The court advised Flores that it was "a big mistake to represent yourself in a case such as this when you're unprepared to do so. And you have to be able to cross-examine witnesses. You have to be able to call witnesses. You have to be able to ask questions of jurors. You have to know what you're doing. Do you still want to do that? I have to have an answer." Flores responded, "[y]es."

The court then held a chambers conference with counsel outside of Flores's presence. The court noted that Flores had "a right to represent himself, as foolish as that may seem," and queried whether Flores might "come to his senses if he ha[d] a chance to wait until Monday and talk to his family[.]" The court stated that it would have Flores fill out the waiver of counsel form that day, but that it would keep defense counsel "on the line" until Monday morning and try to have Flores agree that jury voir dire would not start until after the weekend (Monday). The court noted that it was not unusual for a defendant to conclude he or she was "never going to be prepared" once the defendant saw the discovery and tried to get organized to go forward with the case.^[1]

Back in open court, Flores signed the waiver of counsel form and the court asked him a series of questions to ensure his competency and understanding of the dangers of self-representation. The court then advised Flores that it would keep defense counsel on the case until Monday, and would trail the case until Monday to give Flores a chance to look over the discovery documents. Flores rejected this, stating to the court, "I want to start now, today." (Italics added.) The court responded that if this is what Flores wanted,

it would relieve defense counsel and start the trial.

Defense counsel was relieved from representation and instructed to return that afternoon to provide the discovery matters to Flores. At 10:58 a.m. that same day (Friday), jury voir dire commenced, with Flores representing himself. At one point Flores told the court he was just "going to sit here and not say nothing," and he refused to respond when the court asked him if he wanted to question the jurors. The court construed his silence as a choice not to conduct voir dire.

When defense counsel returned with the discovery information that afternoon, he spoke with Flores to ensure that he still wanted to represent himself, and Flores answered affirmatively. Flores also stated he wanted to remain at George Bailey Detention Center so he could use the library there, rather than being transferred to the downtown jail. This request was granted. Defense counsel gave Flores paper and file supplies, and gave him some advice about peremptory challenges.

After a recess, jury voir dire resumed, with Flores still refusing to speak to the court about whether he wanted to participate in the jury selection. A jury was selected, and the district attorney and Flores made opening statements to the jury. To allow him to prepare for the trial on Monday, the court granted Flores's request that he be allowed to have a writing utensil at the detention center.

On Monday, February 28, 2005, the prosecution presented its case. Despite the court's repeated queries and encouragement of Flores, for the most part Flores refused to respond when the court asked him if wanted to cross-examine prosecution witnesses during the prosecution's case in chief. The court construed his silence as an election not to cross-examine.^[2]

The next day, Tuesday, March 1, 2005, Flores made a motion for mistrial. He asserted that his constitutional rights were violated because he was not given special investigators, a paralegal to assist him in the library, and phone access; he was not given enough time to prepare his case; and he did not "know what [he was] doing." The court denied his motion. The court noted that Flores had insisted on representing himself even though the court had informed him it would not grant a continuance. The court reminded Flores: "I told you it was a bad idea, you should let your lawyer go forward since I wasn't continuing the matter, you obviously weren't prepared." Further, the court noted Flores had refused the court's offer to continue the case from Friday morning to Monday. The court also cited Flores's refusal to cross-examine witnesses, and concluded it was clear Flores was engaging in tactics designed to stall the proceedings or require a new trial. The court also explained to Flores that he had a right to represent himself as long as he had basic English skills and was sane, regardless of whether he had the ability to represent himself well.

After the denial of his mistrial motion, Flores testified on his own behalf, cross-examined a prosecution rebuttal witness, and made closing arguments to the jury.

DISCUSSION

Constitutional Issues Arising from Flores's Self-Representation

Flores does not argue that the trial court erred in granting his request for self-representation. Rather, he argues his constitutional rights were violated because he was not granted a continuance to prepare for trial and because advisory counsel was not appointed to assist him.

Continuance

To comply with the federal constitutional right to self-representation, a trial court must grant a defendant's request for self-representation if: (1) the defendant is mentally competent and makes the request knowingly and voluntarily, having been apprised of the dangers of self-representation; (2) the request is made unequivocally; and (3) the request is made within a reasonable time before trial. (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch); People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070 (Koontz).)

In deciding whether to grant a defendant's request for self-representation, it is not proper for the trial court to make its ruling based on an assessment of the defendant's ability to represent himself or herself. (Welch, supra, 20 Cal.4th at pp. 733-734; Koontz, supra, 27 Cal.4th at p. 1070.) The only determinations that govern this issue are whether the defendant is mentally competent (i.e., has the ability to understand the nature of the criminal proceedings) and whether the defendant is knowingly and voluntarily waiving counsel (i.e., knows the dangers and disadvantages of self-representation and is not coerced). (Welch, supra, 20 Cal.4th at pp. 729, 733-734; Koontz, supra, 27 Cal.4th at pp. 1069-1070.) Even though a defendant's choice to self-represent may be unwise and ultimately to his or her own detriment, it must be honored as long as the defendant understands the dangers and disadvantages of self-representation. (Faretta v. California (1975) 422 U.S. 806, 834-835; People v. Dent (2003) 30 Cal.4th 213, 217-218, 222.)

A trial court is not required, however, to grant a request for self-representation if it is made on the eve of trial. (People v. Hill (1983) 148 Cal.App.3d 744, 756.) Such an untimely request is committed to the discretion of the trial court. (Ibid.) If the trial court does exercise its discretion to grant an untimely self-representation motion and the defendant requests a continuance to prepare, the trial court must grant a reasonable continuance. (Id. at pp. 756-758.) "'While it is now settled that a trial court may deny a request for self-representation made on the very eve of trial, on the ground that granting the motion would involve a continuance for preparation, the very rationale of that doctrine requires that, if the trial court, in its discretion, determines to grant the request for self-representation it must then grant a reasonable continuance for preparation by the defendant.'" (Id. at p. 757.) To deny a pro per defendant a reasonable continuance to prepare for trial "'would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.'" (Id. at p. 756.)

The California Supreme Court has clarified that this rule requiring a trial court to grant a pro per defendant a continuance does not necessarily apply under circumstances where the trial court makes clear that it will not grant an untimely self-representation motion if a continuance is necessary, and the defendant then convinces the court that he or she is able to proceed immediately. (People v. Clark (1992) 3 Cal.4th 41, 110.) Delineating the circumstances that showed no constitutional violation, the court in Clark stated: "[T]his trial court made clear its intent to deny the Faretta motion as untimely if a continuance would be necessary. It had in fact denied other Faretta motions on this basis. The Faretta motion was ultimately granted only when defendant expressly represented he was able to proceed without a continuance." (Ibid.; accord, People v. Jenkins (2000) 22 Cal.4th 900, 1039.) The California Supreme Court has also recognized that a continuance is not necessarily required when the trial court reasonably determines that the defendant's motivation for the request is merely to delay the trial rather than a legitimate need for preparation time. (People v. Jenkins, supra, 22 Cal.4th at p. 1038.)

Here, the trial court initially denied Flores's untimely request for self-representation because Flores stated that he needed a continuance to prepare and the court believed Flores was simply trying to delay the trial. When Flores continued to repeat his requests for self-representation and a continuance, the trial court stated Flores could represent himself, but he could not have a continuance. Flores then told the court that he wanted to represent himself, and that he would proceed to trial that day. The court tried to convince Flores that self-representation was a mistake, noting that he had to be prepared to cross-examine and call witnesses. Flores responded that he still wanted to represent himself, and the court granted his self-representation motion.

These proceedings occurred on a Friday morning. After granting Flores's self-representation request, the court offered to delay commencement of the trial until Monday morning so Flores could have time to review the discovery documents provided by his counsel and to fully consider his decision that he wanted to represent himself. Flores refused the offer, insisting he wanted trial to start that day.

These circumstances show that this is not a case where a trial court granted a defendant's motion for self-representation and then denied the defendant's legitimate request for a reasonable continuance to prepare for trial. The trial court at first denied the self-representation motion because Flores stated he needed a continuance to prepare. Similar to the situation in Clark, it was only after Flores told the court he was willing to start trial that day, that the court granted his self-representation request. With a view to giving Flores time to review the discovery documents, the court then offered to give Flores an extra afternoon to prepare. Based on the court's offer, Flores could have had Friday afternoon (in addition to the weekend) to prepare for trial, but he declined this offer.

Thus, Flores prevailed in his self-representation motion because he convinced the court he was able to proceed to trial without a continuance, and he thereafter turned down the court's offer to give him extra time to prepare.^[3] Because Flores indicated he could proceed without a continuance and because the immediate commencement of trial on Friday afternoon was the result of Flores's own choice, the record does not show his constitutional rights were violated because he was given inadequate time to prepare.

Further, the record supports the conclusion that the real motivation for Flores's initial request for a continuance was to delay the trial. If Flores legitimately needed more time, he would have accepted the offer to trail commencement of trial until Monday. His insistence that trial commence on Friday undermines his claim that his rights were violated by a lack of preparation time.

Flores also argues that the court's ruling caused him to have insufficient time to request or use ancillary defense services. A self-represented defendant has a right to reasonable access to resources that are reasonably necessary for his or her defense. (People v. Blair (2005) 36 Cal.4th 686, 733-734.) Had Flores accepted the court's offer to continue the trial until Monday, Flores could have used Friday afternoon to determine what resources he needed. Instead, he told the court he wanted to proceed to trial immediately. His request to have access to the law library over the weekend was apparently granted, and the court also granted his request that he have access to a writing utensil in jail. When trial resumed on Monday and the prosecution presented its case, Flores said nothing about the need for additional resources. He did not raise the issue of ancillary resources until the next day (Tuesday) after the prosecution had finished its case. Even at this time he did not request resources, but rather moved for a mistrial. The court concluded this was another tactic designed to delay the trial.

The record shows that Flores turned down an opportunity for extra time; the trial court granted the requests for resources that he did make; and that he made no further requests. Under these circumstances, we find no merit to his contention that he was given inadequate time to request or use ancillary resources.

Advisory Counsel

A defendant does not have a constitutional right to advisory counsel. (People v. Clark, supra, 3 Cal.4th at p. 111.) Further, in a noncapital case a trial court does not have a sua sponte duty to appoint advisory counsel absent a request by the defendant. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1429 (Garcia).) The issue of whether a defendant has, upon request, any rights to obtain advisory counsel in a noncapital case has not yet been clearly resolved by the courts. (See id. at pp. 1429-1431, & pp. 1432-1433 (conc. opn. of Huffman, J.); Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1394-1397.) However, it is well established that even in a capital case the decision whether to grant a defendant's request for advisory counsel is left to the exercise of the trial court's sound discretion. (Clark, supra, 3 Cal.4th at p. 111.) The trial court's decision will not be set aside "'as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken . . . .'" (Ibid.)

Flores did not ask the trial court to appoint advisory counsel prior to or during the prosecution's case in chief. Further, as we noted earlier, when Flores raised the issue of ancillary resources after presentation of the prosecution's case in chief, he did so in the context of a mistrial motion rather than in the form of a request for assistance. Thus, there was no request for advisory counsel, and accordingly the trial court had no duty to consider the issue.

Flores also suggests that regardless of whether he requested advisory counsel, we should review his claim of error because the trial court's statements indicated any such request would have been futile. He cites the court's comments during the chambers conference with counsel while discussing Flores's self-representation request, where the trial court stated it was not "plan[ning] to," and would "probably not," appoint advisory counsel.^[4] We decline to treat the court's comments as akin to a ruling, and we will not speculate how the trial court might have ruled if Flores had requested advisory counsel. Further, we are not persuaded by Flores's argument that the court's comments suggest it did not realize it had the discretion to appoint advisory counsel. To the contrary, the court's statement that it would probably not appoint advisory counsel shows that it knew it could.

Alternatively, if we liberally construe the record to view Flores's complaints during his mistrial motion that he did not know "what [he was] doing" as a request for help from counsel, the record supports a conclusion that no such assistance was warranted. By the time Flores raised this issue in his mistrial motion the prosecution had already presented all of its witnesses, and appointment of advisory counsel would have delayed the proceedings. The trial court had earlier assessed that Flores was trying to delay the trial, and made this same observation when ruling on his mistrial motion. Further, Flores had repeatedly engaged in uncooperative, manipulative tactics (i.e., telling his counsel he would not talk to him; telling the court he was not going to say anything; refusing to answer the court about whether he wanted to voir dire jurors or cross-examine

prosecution witnesses). Under these circumstances, the trial court was not "required to place an attorney under the personal direction of someone with defendant's history of manipulative[] [and] obstructive . . . conduct." (People v. Clark, supra, 3 Cal.4th at p . 112.)

Flores's constitutional rights were not violated by the failure to appoint advisory counsel.

Substantial Evidence of Attempted Robbery

Flores argues there is insufficient evidence to support the attempted robbery conviction because the evidence shows: (1) he merely demanded money and did not attempt to take it; (2) there was no evidence Ettel had money in his possession or immediate presence; and (3) his intoxication prevented him from having the specific intent to permanently deprive the victim of the property.

The elements of robbery are: (1) the taking of personal property in the possession of another; (2) from the victim's person or immediate presence; (3) against the victim's will and accomplished by force or fear; and (4) with the specific intent to permanently deprive the victim of the property. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057; People v. Ford (1964) 60 Cal.2d 772, 792-793.) Attempt to commit an offense occurs when the defendant has the specific intent to commit the target crime and does a direct but ineffectual act towards its commission. (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185.) The act need not be an element of the substantive offense, but only an overt act towards execution that is beyond mere preparation. (Ibid.; People v. Ross (1988) 205 Cal.App.3d 1548, 1554-1555.) The fact that the crime may be impossible to complete because of circumstances unknown to the defendant does not provide exoneration. (Hatch, supra, at pp. 185-187.) The defendant is guilty of the attempt to commit the offense as long as he or she had the specific intent to commit the substantive offense and took action to consummate it. (Ibid.)

Flores's challenge to the attempted taking element is unavailing. His conduct of demanding money constituted a direct step towards actually taking the money beyond mere preparation. Flores's contention that there was no evidence Ettel had money at the house does not exonerate him. The attempt is established by the fact that Flores evinced an intent to take the money if there was money at the house. Finally, the jury was not required to find Flores's intoxication prevented him from having the specific intent to permanently deprive Ettel of his money. The jury was presented with evidence showing Flores engaged in conduct showing a level of cognitive awareness, including breaking into the house, interrupting the 911 call, setting fire to a towel, fleeing the police, and speaking to the detective during the interview at the police station. Drawing all inferences in favor of the judgment (People v. Crittenden (1994) 9 Cal.4th 83, 139), the jury could reasonably infer Flores was sufficiently alert to form the requisite specific intent.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P.J.

AARON, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

^[1] The court stated: "It's not unusual for me to see a situation where the person sees the discovery, actually tries to get organized about going forward, find out that they're really not ready to do that, not prepared to do it. It's not a question of putting it over. They're never going to be prepared."

^[2] At one point Flores broke his silence and told the court he was not asking questions because he had not been given enough time to prepare. The court reminded Flores that he had had the weekend to prepare.

^[3] Although the trial court stated its assessment that Flores was not prepared to go to trial, when viewed in context the court's statements primarily reflect its view that Flores would have difficulty representing himself (regardless of how much time he spent preparing) and he would be better served by keeping his defense counsel. As the court recognized, Flores's lack of ability (as opposed to mental competency) did not provide grounds for denying his self-representation request.

^[4] The court's comments were made after defense counsel asked the court about the advisory counsel issue, and counsel told the court that it would be awkward for him to sit as Flores's advisory counsel. The trial court explained that advisory counsel was usually not appointed in non-homicide cases.