P. v. Luna

Filed 4/10/07 P. v. Luna CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Julio Luna pled no contest to being a felon in possession of ammunition and giving false identification to police officers after the court denied his suppression and Faretta^[1]motions. On appeal, defendant argues that the court improperly denied the suppression motion because the Sacramento police officers relied on information from anonymous informants that failed to establish a reasonable suspicion of criminal activity. He also argues that he made two unequivocal Faretta motions, and as a result he was denied the right to represent himself.

Disagreeing on both issues, we affirm the trial courts judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 26, 2005, the Sacramento police received a call from two people on a bicycle path that a man had just ridden by them on a blue bicycle with a handgun in the waistband of his shorts. Officers Adam Feuerbach and Keith Hoversten responded and met the witnesses in a grocery store parking lot. The witnesses confirmed their previous description of the man: a Hispanic man wearing a white tank top and loose blue shorts riding a blue bicycle. They told Officer Feuerbach the man they had seen had gone into the market and pointed out the suspects bicycle parked outside. Without encouragement, the female witness walked past the officers and into the store. When she came out, she told Officer Feuerbach she had seen the man in the store buying beer. Although the witnesses refused to give the dispatcher or the officers their names, they waited around the corner from the store while the officers investigated their report.

Officers Feuerbach and Hoversten detained defendant as he left the store and reached for the blue bicycle the witnesses had identified. He matched the description given by the witnesses and had a beer in his hand. Officer Hoversten immediately placed him in a control hold due to the nature of the officers suspicions of criminal activity. When Officer Hoversten forced defendant to stand up straight, Officer Feuerbach saw a handgun in defendants front waistband. Officer Hoversten placed defendant in handcuffs, and that exposed a magazine in his left pants pocket. Defendant then consented to a search of his pockets, during which Officer Feuerbach found five live bullets in his right pocket. When asked to identify himself, defendant gave a false name.

Officer Feuerbach later identified the gun as a pellet gun and not a handgun. Defendant was held to answer on charges of being a felon in possession of ammunition and falsely identifying himself to an officer.

On August 22, 2005, after watching his attorney perform at the preliminary hearing, being held to answer on the charges, and having the magistrate, Judge James Henke, ask about the possibility of a plea bargain, defendant asked the court, Can I have a motion for pro per? Is there anyway I can go -- be my own lawyer? The magistrate responded, Yes, but at this point just talk to the judge at the time of the pretrial. The magistrate continued to talk about setting the trial date and tried to obtain defendants time waiver. At no point did the magistrate inquire further into defendants apparent desire to represent himself. In fact, in response to a question from defendant, the magistrate said, Im not even discussing the pro per. Im discussing the trial date.

Defendant asked, [C]an I also say something to you, Judge? His attorney told defendant to listen, and defendant spent the rest of the hearing conferring with his attorney. The court set the case for trial on October 11 and set a pretrial conference for October 4, 2005.

At the end of September, defendant filed a written motion to suppress evidence to be heard on October 11, before trial. Defendant appeared in court on October 4 and the court quickly confirmed the trial date. On October 11, defendant was present when the court trailed the case because there were no courtrooms available, and the People filed a response to defendants suppression motion. Defendant said he did not want to continue postponing the trial and asked about his speedy trial rights when the court again trailed the case on October 13. All of these appearances were short, each representing only about a page of transcript. However, neither defendant nor his attorney mentioned that defendant desired to represent himself.

On October 19, defendant appeared before Judge Jack V. Sapunor who was assigned to conduct defendants trial. Defendant made a Marsden^[2]motion that the court denied, and then the court proceeded to hear his suppression motion. When the judge denied the suppression motion, defendant was angry and swore at the court. The judge proceeded to prepare for jury selection the next morning and heard pretrial motions from both sides. Defendant was present throughout the hearings and never mentioned any desire to represent himself.

On October 20, the day scheduled for jury selection, defendant made a Faretta motion. The court denied the request as untimely because the jurors were waiting in the hallway and defendant needed a continuance. After the court denied the Faretta motion, and defendant discussed with the judge and his attorney minimum and maximum sentencing exposure, defendant asked for a short continuance to consider accepting an offer of a 32-month state prison sentence. A few days later, defendant pled no contest to both counts and admitted three priors. The court sentenced him to 32 months in state prison, with 90 days in county jail to run concurrently.

Defendant appeals, arguing the court erred in denying his suppression and Faretta motions.

DISCUSSION

I

The Trial Court Did Not Err In

Denying The Motion To Suppress

Defendant argues the court should have granted the suppression motion because Officers Feuerbach and Hoversten did not have a reasonable suspicion of criminal activity when they detained him. He claims that the basis for the detention was unco[rro]borated information from anonymous informants who did not . . . suggest that [he] was engaged in any form of criminal activity. We disagree.

In reviewing a motion to suppress, we defer to the trial courts findings of fact that are supported by substantial evidence. We select the applicable law and apply constitutional principles to those facts de novo. (Ornelas v. United States (1996) 517 U.S. 690, 696-698 [134 L.Ed.2d 911, 918-920]; People v. Alvarez (1996) 14 Cal.4th 155, 182.)

The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L.Ed.2d 889, 905].) A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)

Defendant suggests the officers did not have knowledge of any facts suggesting he might be engaged in criminal activity because [a]pparently, the gun [the informants saw] was in plain sight. Defendant concedes that carrying a concealed weapon without a permit is a crime. (Pen. Code, 12025, subd. (a).) However, defendant argues carrying a weapon in his waistband was not concealing it, but he does not offer any law to support his argument. Moreover, the law we have found defeats his argument because only partial concealment of a weapon is necessary. (People v. Hale (1974) 43 Cal.App.3d 353, 356.) Although a gun carried at a persons waist in a holster is not concealed (Pen. Code, 12025, subd. (f)), a gun that is carried in a pocket or partially concealed in a car is considered concealed (People v. May (1973) 33 Cal.App.3d 888, 890-892 [finding a small gun carried in a pocket was concealed even though a police officer could identify the gun without searching the defendant]; People v. Koehn (1972) 25 Cal.App.3d 799, 802-803, 806 [upholding an arrest for carrying a concealed weapon in a vehicle when the handle of a gun was protruding from the floorboard]). Under these authorities, carrying a gun stuck in a waistband is carrying a concealed weapon. Accordingly, Officers Feurbach and Hoversten had reasonable suspicion of criminal activity, namely, carrying a concealed weapon, sufficient to justify the detention.

Defendant next argues that the officers could not rely on the information provided by the witnesses. He argues it was presumptively unreliable because the witnesses refused to identify themselves to the police, which places them in the category of anonymous . . . informants. We disagree.

Police officers may base a reasonable suspicion of criminal activity on any information they receive as long as the quality and quantity of the information, in light of the totality of the circumstances, support a reasonable suspicion. (Alabama v. White (1990) 496 U.S. 325, 330-331 [110 L.Ed.2d 301, 308-309].) Examining the quality of the information includes considering the source of the information and its reliability. (Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 548-549]; Adams v. Williams (1972) 407 U.S. 143, 146-147 [32 L.Ed.2d 612, 617-618]; People v. Souza, supra, 9 Cal.4th at pp. 230-231.) However, we found no case law supporting defendants argument that a witness who refuses to identify himself or herself to the police is as unreliable as an anonymous informant.

In general, private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable. (People v. Ramey (1976) 16 Cal.3d 263, 269.) This rule presupposes that the police be aware of the identity of the person providing the information and of his status as a true citizen informant. (Ibid. [probable cause to believe defendant guilty of offense based on information from a citizen informant].) However, the fact that a witness refuses to share his or her name with an officer does not mean that person is a true anonymous tipster.

In Florida v. J. L. (2000) 529 U.S. 266 [146 L.Ed.2d 254], the United States Supreme Court focused on the fact that the information upon which the police officers based the detention of the defendant came from a completely anonymous phone call. (Id. at p. 270 [146 L.Ed.2d at p. 260].) The court distinguished that from an instance where an informants reputation can be assessed and [she] can be held responsible if her allegations turn out to be fabricated. (Ibid.) In Justice Kennedys concurring opinion, he argues that considering the totality of the circumstances involves assessing the credibility of the officer and the informant. (Id. at pp. 275-276 [146 L.Ed.2d at pp. 263-264 (conc. opn. of Kennedy, J.).) Therefore, when an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. (Id. at p. 276 [146 L.Ed.2d at p. 263] (conc. opn. of Kennedy, J.).)

People v. Coulombe (2000) 86 Cal.App.4th 52, the case cited by the trial judge here in denying the motion to suppress, is also persuasive that witnesses with whom the police have personal interaction are not as unreliable as truly anonymous tipsters. In that case, two people separately informed police that an individual at a New Years Eve party had a gun. (Id. at p. 58.) The case fails to state if the witnesses remained in the area while the police investigated. Nonetheless, the Court of Appeal for the First Appellate District, in upholding the reasonableness of the search, relied on a heightened possibility of danger given the large numbers of people at the celebration, a type of exigent circumstance, and the increased indicia of reliability because of the officers ability to judge the witnesses credibility. (Ibid.)

Here, the witnesses tip was not provided solely over a telephone or otherwise completely anonymously. The man and woman from the bike path called the police and waited for the officers to arrive. They described defendants clothing, his ethnicity, his bicycle, and the butt of the handgun they had seen in his waistband. They met with Officers Feuerbach and Hoversten face to face and allowed the officers to assess their credibility. Furthermore, they waited at the scene, as directed by the officers, and could have been held accountable if their information proved to be false. The circumstances did not indicate the same type of exigency as the increased danger in Coulombe because there were few people, the witnesses did not seem to feel threatened, and there was no sign of crime inside the store. However, the fact that the witnesses stayed in the area while the police investigated increased the reliability of the information given by the witnesses. The witnesses statements were legally sufficient to create a reasonable suspicion that defendant was carrying a concealed gun. Accordingly, the trial court properly denied defendants suppression motion.

II

The Trial Court Properly Denied Defendants Faretta Motion

Defendant argues that he made two separate Faretta motions, both of which the court denied in error. Defendant contends his question at the August 22 preliminary hearing was an unequivocal Faretta motion that the court was required to hear at that time. He further argues that the court abused its discretion when it denied his October 20 Faretta motion because, in doing so, the court considered improper factors. We disagree. Defendants August 22 question was not an unequivocal assertion of the right to self-representation and the court did not abuse its discretion in denying his October 20 motion.

Upon a timely and unequivocal request, a defendant in a criminal trial has a constitutional right to self-representation. (Faretta v. California, supra, 422 U.S. at p. 836 [45 L.Ed.2d at p. 582]; People v. Windham (1977) 19 Cal.3d 121, 127-128.) The requirements for self-representation are, for the most part, relatively straightforward. First, the request must be unequivocal. (People v. Hines (1997) 15 Cal.4th 997, 1028.) Second, the motion must be made a reasonable time before trial. (Windham,at pp. 127-128.) Third, the trial court must satisfy itself that the decision is knowing and intelligent. (People v. Welch (1999) 20 Cal.4th 701, 729.) Faretta error is reversible per seand eligible for appeal after a guilty or no contest plea. (People v. Marlow (2004) 34 Cal.4th 131, 146-147.)

A

Defendants Statement On August 22, 2005,

Was Not An Unequivocal Faretta Motion

Defendant contends his question at the August 22 preliminary hearing was an unequivocal Faretta motion. In the alternative, defendant argues the court had a duty to determine whether he wanted to represent himself by inquiring further when he first raised the subject of Faretta. He also analogizes his case to People v. Dent (2003) 30 Cal.4th 213, saying that the magistrates response prevented [defendant] from taking any steps to make his request more clearly unequivocal at that time.

As we will explain, we disagree. Defendants mention of Faretta was equivocal and a court does not have a duty to clarify a defendants equivocal request. Moreover, this case is distinguishable from Dent.

A defendant must articulately and unmistakably demand to proceed pro se or else be deemed to have waived the right to self-representation. (People v. Marshall (1997) 15 Cal.4th 1, 21, quoting United States v. Weisz (D.C. Cir. 1983) 718 F.2d 413, 426.) Judges must draw every reasonable inference against supposing that the defendant wishes to waive the right to counsel. (Marshall,at p. 23, citing Brewer v. Williams (1977) 430 U.S. 387, 404 [51 L.Ed.2d 424, 439-440] [finding no waiver in the context of police interrogation].) These mandates preserve a defendants right to be represented by counsel, which is more carefully protected than the right to self-representation. (Marshall, at pp. 20-21.)

The court may review the entire record of the proceeding, including events that happened after the statement alleged to be a Faretta motion, de novoto determine whether the trial court had a basis for finding that a statement was equivocal. (People v. Dent, supra, 30 Cal.4th at pp. 217-219.) To determine whether a statement is equivocal, courts have considered the use of equivocal language (People v. Valdez (2004) 32 Cal.4th 73, 99 [finding that use of the word if made the statement ambivalent and equivocal]; the motivation for making the statement (People v. Marshall, supra, 15 Cal.4th at pp. 25-26 [finding that statements may be equivocal if they are the result of emotional outbursts or for the purpose of delay]); and whether the defendant raised the issue later (People v. Barnett (1998) 17 Cal.4th 1044, 1087 [Under these circumstances, defendants single reference to mak[ing] a motion to proceed pro se is properly viewed as an impulsive response to the magistrates refusal to immediately consider his Marsden request. As such, it did not constitute an unequivocal assertion of the right to self-representation]).^[3]

Here, defendants language was equivocal, he asked the question in a moment of frustration, and he never otherwise mentioned a desire to represent himself until the day of trial. Defendant did not say that he wanted to represent himself; he asked if it was possible. Although the magistrate did not allow defendant to elaborate, even when defendant raised the topic again he did so in the form of a question. Defendant failed to clearly and unambiguously assert the right to self-representation as required.

In addition, defendant asked his question immediately after being held to answer and discussing a possible plea with his attorney. After asking the question and having the magistrate tell him it was possible to represent himself, defendant continued to confer with his attorney through the end of the hearing. The court could conclude from this behavior that defendant wished to retain his counsel and therefore his previous statement was simply a momentary emotional reaction to the possibility of making a plea.

As to whether a trial court has a duty to inquire whether a defendant wishes to invoke the right to self-representation when faced with what appears to be an equivocal statement, defendant argues that People v. Marshall, supra, 15 Cal.4th 1 offers support for a courts duty to inquire about whether a question is a Faretta motion. That case is of no assistance. Defendant cites from Marshall: [O]ne of the trial courts tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. (Marshall,at p. 23, italics added.) The court in Marshall outlined a trial courts duties when a motion is made, not what duty the court has to determine whether a motion is being made. (Ibid.)

Furthermore, the California Supreme Court has found no error in cases where the trial court failed to ask any questions of the defendant to determine whether a Faretta motion is being made. (See People v. Marlow, supra, 34 Cal.4th at pp. 145-147 [finding no error when the judge responded to defendants question, Is it possible that I just go pro per in my own defense and have someone appointed as co-counsel? saying, No. Thats an absolute disaster. . . . I will decline to do that at this time]; People v. Valdez, supra, 32 Cal.4th at pp. 98-99 [upholding the trial courts decision when the judge responded to the defendants statement, Well, in this matter I am--my constitutional rights if I want to go pro. per. on this case I could do that, by saying, I wouldnt let you go pro. per. on this case]; People v. Danks (2004) 32 Cal.4th 269, 291 [finding no error when the judge responded to defendants question, What about going pro. per.? by saying, Well, then, we really have problems having counsel prepared and cut off further conversation by discussing procedure and adjourning the hearing].)

Defendant analogizes his case to Dent, saying that even if his request was equivocal, [g]iven the trial courts absolute refusal to consider the issue, [defendant] could not be expected to have made a clearer or more definitive request at that time. Unlike Dent, where the trial judge unequivocally stated that he would not allow the defendant to represent himself at any point in the trial (People v. Dent, supra, 30 Cal.4th at p. 219), here the judge reacted to defendants equivocal statement by attempting to move the process forward without foreclosing the possibility of a later motion.^[4] As in Marlow, the magistrate responded to defendants request for information without treating it as a Faretta motion because it was not one. (People v. Marlow, supra, 34 Cal.4th at p. 147, fn. 6.) Like in Valdez, defendant had the opportunity to make a motion in front of another judge but failed to do so until the eve of trial. (People v. Valdez, supra, 32 Cal.4th at pp. 100-101.) Defendant argues he did not renew his request because he would not have had time to prepare for his trial. This argument is undermined by his request for a continuance when he did make his motion on the day of jury selection. The analogy to Dent is misplaced in light of cases like Marlow and Valdez.

Because defendants August 22 question was equivocal, the trial court did not err in failing to treat it as a Faretta motion.

B

Defendants Faretta Motion On October 20, 2005,

Was Properly Denied Within The Courts Discretion

As An Untimely Motion That Would Cause Undue Delay

Defendant concedes that if his preliminary hearing request is ignored, his subsequent request would not be considered timely. Defendant argues that the court should treat the October 20 request as timely because a request made on August 22 would have been timely. The California Supreme Court has followed such a procedure when a judge postponed hearing an earlier unequivocal request. (People v. Clark, supra, 3 Cal.4th at p. 99 [finding that the determination of whether a motion was timely should be decided based on the date the motion was first unequivocally made].) Here, however, as discussed above, there was no earlier, unequivocal Faretta motion. Previous equivocal Faretta statements do not affect the analysis of a later, untimely Faretta motion. (Clark,at pp. 98-101.) The timeliness of the motion must be determined as of the date of the motion, October 20.

The timeliness of a Faretta motion does not determine whether a court must consider the motion, but whether the court has discretion in granting it. (People v. Windham, supra, 19 Cal.3d at pp. 127-129.) A motion is timely when it is made within a reasonable time prior to the commencement of trial. (Id. at p. 128.)

Here, the motion was made on October 20 -- the day of trial. The court heard pretrial motions the day before with the intention of beginning jury selection the next day. This motion was subject to the courts discretion because it was untimely.

Defendant argues that the court abused its discretion in denying the motion even if it was untimely. When deciding an untimely motion for self-representation, the court must consider, the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. (People v. Windham, supra, 19 Cal.3d at p. 128.) Defendant argues that the court considered impermissible factors and that it improperly applied the Windhamfactors it considered.

Defendant argues that the court considered defendants lack of legal knowledge, an impermissible factor after Faretta, in deciding to deny the motion. In Faretta, the United States Supreme Court expressly held that a lack of legal knowledge was not a factor to be considered in denying a motion for self-representation. (Faretta v. California, supra, 422 U.S. at p. 835 [45 L.Ed.2d at pp. 581-582].) Defendant argues that the judge was questioning defendants legal knowledge because the judge said, Before I allow you represent yourself, I have to be convinced that you know what you are doing. The court then proceeded to give defendant all of the required admonitions. We interpret the judges statement as knowing that the judge needed to be certain that defendant was aware of the ramifications of his decision, not that he needed to have some specific legal knowledge. The court did not consider defendants legal knowledge as a factor in deciding whether to grant the Faretta motion.

Defendant also argues that the court should not have considered whether he mentioned the right to self-representation after the preliminary hearing. It is not clear for what legal proposition defendant offers that argument. We find that it relates to the equivocal nature of defendants first mention of Faretta. The judge asked defendant why he had waited until the day of trial to make the motion and defendant said he had requested to represent himself numerous times. The judge appropriately reviewed the record to be sure that defendant had not unequivocally moved for self-representation previously because, as discussed above, a prior motion could have changed the courts analysis.

Defendant argues that the court improperly applied the Windham factors it considered. He focuses mostly on a contention that the court improperly denied the motion on the basis that defendant needed a continuance because it was willing to grant him a four-day continuance to consider a plea.

We find no error or abuse of discretion, the court examined the quality of defendants representation, why he wanted to remove counsel, and noted the prior unsuccessful attempt to substitute counsel. The court focused its decision on the delay that would be caused because defendant required a continuance to prepare for trial and therefore denied the motion. The fact that the court eventually granted a continuance for another reason is irrelevant to the consideration of whether granting the Faretta motion would have caused undue delay. This ruling was within the courts discretion and was a proper denial of an untimely motion that would have caused undue delay.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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^[1]Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

^[2]People v. Marsden (1970) 2 Cal.3d 118.

^[3] For this reason, the People seem to focus their argument on waiver like that in People v. Kenner (1990) 223 Cal.App.3d 56. In Kenner, there was unequivocal invocation of the right to self-representation, a hearing scheduled, and express waiver of the right before the court held the hearing. (Id. at pp. 58-59.) Here, the question was never addressed as a Faretta motion. The waiver argument from the Kenner line of cases is inappropriate.

^[4] This case is not enough like Dent to require reversal; however, it is generally inappropriate for a court to tell a defendant he must wait to make a Faretta motion until the time of pretrial when there is a possibility that it will be denied as untimely. (See People v. Clark (1992) 3 Cal.4th 41, 99 [noting it was arguably wrong for a judge to tell a defendant to bring his Faretta motion in the master calendar court]; People v. Ruiz (1983) 142 Cal.App.3d 780, 790-791 [holding that a Faretta motion made six days before trial began was untimely].)