P. v. Golden

Filed 8/25/06 P. v. Golden CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant Theotis Golden's motion for self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta) was granted and defendant represented himself in propia persona through all stages of jury trial and sentencing. He was convicted of two felony offenses, possession of a firearm by a person convicted of a prior violent offense (Pen. Code, § 12021.1, subd. (a); count 1)[1] and possession of ammunition by a prohibited person (§ 12316, subd. (b); count 2.) The jury also found true the allegations that defendant had six prior strike convictions (§ 667, subd. (b)-(i)) and one prior prison term (§ 667.5, subd. (b).) Defendant was sentenced to a prison term of 25 years to life on count 1 and a concurrent sentence of 25 years to life on count 2.

On appeal, defendant contends that the trial court committed reversible error when the court denied his requests for appointment of counsel, which included one request made after the jury had commenced deliberations in the guilt phase (and before the bifurcated trial on the prior convictions) and a second request made in the middle of the sentencing hearing. For reasons that we will explain, we conclude that the trial court did not abuse its discretion in denying defendant's requests for appointment of counsel, and therefore we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

In the information filed June 3, 2004, defendant was charged with two felony counts, possession of a firearm by a person convicted of a prior violent offense (§ 12021.1, subd. (a); count 1); and prior offense of robbery (§ 211) and possession of ammunition by a prohibited person (§ 12316, subd. (b); count 2); as stated in the information. The information also alleged that defendant had six prior strike convictions (§ 667, subd. (b)-(i)), for the offenses of robbery (§ 211); attempted robbery (§§ 664, 211); assault with a deadly weapon (§ 245); and first degree burglary (former, §§ 459, 460.1, now § 460, subd. (a)). Additionally, the information alleged that defendant had served one prior prison term for the offense of possession of a controlled substance (Health & Saf. Code, § 11350.)

Defendant was represented by the public defender during most of the pretrial proceedings. His Marsden[2] motion for substitution of counsel was heard and denied on September 8, 2004. On December 8, 2004, defendant filed a motion to proceed in propia persona under Faretta, supra, 422 U.S. 806. The trial court granted the motion the same day. Subsequently, defendant filed a motion for appointment of an investigator, which the trial court granted on December 15, 2004. Trial commenced on January 19, 2005, after the trial court denied defendant's section 1050 motion to continue the trial for the purpose of interviewing witnesses.

At the time of trial, the trial court denied several additional motions brought by defendant, including a motion to dismiss, a motion to quash the jury panel, a motion to reconsider his suppression motion, and a motion to disqualify the district attorney. Over defendant's objection, the trial court granted the prosecutor's motion to bifurcate the trial on the prior conviction allegations.

B. Trial Testimony

The evidence at trial on counts 1 and 2 included five witnesses for the prosecution, Eduardo Rodriguez, Chukishia Glasper, Sheila Fuller, Charles Adams, and Phyliss Dawkins-Thames. Defendant presented one witness, Chaz Ryan, and cross-examined the prosecution witnesses. Briefly summarized, the witness testimony was as follows.

In October 2003, defendant was subject to an arrest warrant because he had failed to maintain contact with his parole agent, Eduardo Rodriguez. On October 29, 2003, Chukishia Glasper telephoned the Campbell Police Department to report that defendant, who was living in the apartment that Glasper shared with her mother, Sheila Fuller, was an absconded parolee. Glasper contacted the police department because her mother feared that defendant would become violent if she asked him to leave. Glasper also told the police that she believed that defendant had a shotgun-style gun that he had hidden outside their home.

Officer Charles Adams of the Campbell Police Department interviewed Glasper shortly after the police department received her call. He verified that defendant was present and they made arrangements for the apartment to be cleared of children when the police arrived to arrest defendant. When Officer Adams arrived at the Glasper home, he explained to Sheila Fuller that police would break down the door to her apartment if she did not give him her keys. Fuller gave Officer Adams the keys and he entered the apartment with four other officers. They found defendant asleep in Fuller's bedroom.

During a search of Fuller's bedroom officers found a gun case in the closet. The gun case contained a Kamper Kimbel single shot, .410 gauge pistol-grip shotgun and a box of .410 gauge shotgun ammunition. When Officer Adams interviewed Fuller, she told him that defendant was her boyfriend. She also told him that the shotgun belonged to defendant and she knew that the gun was in the bedroom closet in a brown leather case.

However, when Fuller testified at trial, she denied that defendant lived with her and she also denied that she had spoken with a police officer on October 29, 2003. While Fuller admitted that she had seen a shotgun in her bedroom closet prior to that date, she claimed that the gun belonged to her friend, Chaz Ryan.

Phyllis Dawkins-Thames, a fingerprint examiner for the San Jose Police Department, testified with regard to the charge of possession of a firearm by a person convicted of a prior violent offense (§ 12021.1, subd. (a)). She stated that the set of fingerprints included in the court record of defendant's prior robbery conviction matched defendant's fingerprints. The parties stipulated that attempts were made to lift latent fingerprints from the gun case and the ammunition, but the prints that were recovered were of no value for identification.

When called by defendant, Chaz Ryan testified that he had met Fuller at a Safeway store about a week before trial, which caused him to suddenly remember that he had left his .22 caliber rifle in at her apartment about three or four weeks ago. Ryan put the rifle in the closet because children were present. He recalled that the rifle was not in a case.

Officer Adams was recalled and testified on rebuttal that that a .22 caliber rifle is different than a .410 gauge shotgun, and the ammunition for the guns is also different. The ammunition for a .22 caliber rifle is a bullet, while the ammunition for a .410 gauge shotgun is a shotgun shell.

C. The Jury Verdict and Sentencing

After the jury commenced its deliberations on January 26, 2005, defendant informed the trial court that if he were to be convicted, he would request appointment of counsel for the remainder of the proceedings. The trial court denied the request while indicating that the court would reconsider defendant's request for appointment of counsel if defendant provided authority to support his request.

On January 27, 2005, the jury reached a verdict. The jurors found defendant guilty on count 1, possession of a firearm by a person convicted of a prior violent offense (§ 12021.1, subd. (a)) and count 2, possession of ammunition by a prohibited person (§ 12316, subd. (b)). The bifurcated trial on defendant's prior convictions was held immediately after the verdicts on counts 1 and 2 were rendered. The jury found true the allegations that defendant had six prior strike convictions (§ 667, subd. (b)-(i)) and one prior conviction for which he had served a prior prison term (§ 667.5, subd. (b)).

Defendant subsequently brought several post-trial motions, including a request for appointment of an investigator, a motion to impeach the verdict and vacate the judgment, and, at the time of the sentencing hearing held May 6, 2005, a request for the trial court to dismiss his prior strike convictions in the interests of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.[3] All post trial motions were denied.

Additionally, in the middle of the May 6, 2005, sentencing hearing, defendant requested that counsel be appointed for the sentencing phase of the trial. The trial court denied the request. Defendant was then sentenced to 25 years to life on count 1 and a concurrent sentence of 25 years to life on count 2. The trial court struck the one-year enhancement for the prison prior (§ 667.5, subd. (b)) and imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)) and a $10,000 parole revocation fine (§ 1202.45), suspended.

III. DISCUSSION

On appeal, defendant contends that the trial court committed reversible error when the court denied his requests for appointment of counsel during trial and sentencing proceedings. To evaluate defendant's claim, we will apply California Supreme Court authority regarding a self-represented defendant's midtrial request for appointment of counsel.

A. A Self-Represented Defendant's Right to Appointment of Counsel Midtrial

Under Faretta, supra, 422 U.S. 806, â€