P. v. Nash

Filed 6/26/08 P. v. Nash CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed.

Laurie Buchan Serafino, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

Bobby Nash (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of transporting a controlled substance, cocaine base (Health & Saf. Code, 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, 11351.5). In bifurcated proceedings, the trial court found that defendant had one prior conviction of a serious or violent felony requiring sentencing pursuant to the Three Strikes law (Pen. Code,  667, subds. (b)-(i), 1170.12)[1]and that he had served two separate prison terms for a felony ( 667.5, subd. (b)). The trial court sentenced him to an aggregate term of nine years in state prison.

He contends that (1) there was Faretta error (Faretta v. California (1975) 422 U.S. 806 (Faretta)), and (2) the prosecutor committed misconduct. Additionally, as is authorized by the decision in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232, (3) defendant requests a review of the in camera discovery proceedings on the Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)).

FACTS

On May 11, 2006, Los Angeles County deputy sheriffs Derek White and Eric McDonagh stopped defendant for speeding as he was driving his Ford Expedition on Imperial Highway in Los Angeles County. Deputy McDonagh discovered that defendants privilege to drive was suspended. Defendant told Deputy White that he had a state identification card inside his Expeditions console. Deputy White went to retrieve it. While obtaining the identification card, Deputy White saw $560 in currency scattered atop the consoles contents, all in denominations no larger than $20. Underneath the currency was a digital scale covered with residue that, in Deputy Whites opinion, bore a resemblance to rock cocaine.

Deputy White testified that he knew the type of digital scale defendant had in his possession was the same type commonly used by cocaine base dealers. Based on his observations of the items in the console, the deputy concluded that it was probable that defendant was using the Expedition to transport rock cocaine. Deputy White searched the Expeditions interior and found no illicit narcotics. Deputy McDonagh then opened the Expeditions engine compartment and found a brown paper bag, which in turn contained a plastic bag that held 24.7 grams net of an off-white substance that appeared to be rock cocaine. Later, when the substance was tested, a criminalist discovered that the substance in the plastic bag contained cocaine in its base form. The deputies impounded the Expedition and arrested defendant.

Using their computer, the deputies also discovered that the registered owner of the Expedition was defendants wife, Latasha Biddle. There was no evidence in the Expedition or on defendants person suggesting that he was addicted to base cocaine.

As Deputy McDonagh was filling out the booking paperwork inside the police car, defendant volunteered, You got me, man. I havent been caught slipping since 1991.

At trial, Detective Bernadette Gambino, an experienced narcotics officer, testified to her opinion that the cocaine base in the Expedition was possessed by defendant for purposes of sale. The detective reached that opinion primarily because defendant possessed what she characterized as a huge amount of cocaine base.

In defense, 29-year-old Kevin King, an associate of defendant, testified. King claimed that he was a cocaine base addict. He said that he used rock cocaine daily and tried to limit his use to a gram a day. He claimed that he had a very large amount of the illicit substance because he purchased it in bulk to save money. King explained that he had borrowed appellants Expedition on May 11, 2006, just prior to the seizure. He used the Expedition to move his personal belongings from one residence to another. He testified that during the move, he put the paper bag containing the cocaine base inside the Expeditions engine compartment. He said that the digital scale was his, and he had also left the cocaine base inside the Expedition when he returned the vehicle to appellant. After the move, he simply forgot that he had left the items inside appellants vehicle.

King was impeached with prior theft-related felony convictions. Also, Detective Gambino testified that Kings personal appearance belied that he was a cocaine addict. She also opined that Kings claim that he used a gram of cocaine base a day was an exaggeration.

DISCUSSION

I. The Faretta Issue

Defendant contends that the trial court violated [his] constitutional right to represent himself when it denied without consideration [his] timely request to represent himself with the assistance of advisory counsel.

The contention lacks merit. Appellants request for self-representation was conditioned upon the appointment of advisory counsel, and the trial court properly exercised its discretion in concluding that appellant was not entitled in this particular case to hybrid representation.

A. Background

On August 2, 2006, some five months preceding trial, defendant told his trial counsel, a Los Angeles County deputy public defender that he wanted to represent himself with assistance of counsel. Trial counsel explained to defendant that his office would not participate in hybrid representation. Defendant then made the same request to the trial court. After warning defendant about the dangers and pitfalls of self-representation and telling defendant he would not have the assistance of counsel, the trial court gave defendant the standardized in propria persona waiver form to fill out.

Defendant did not complete the form. He explained to the trial court that he was refusing to complete it. He told the trial court that he only wanted to represent himself on the condition that the trial court also appointed advisory counsel to assist him. The trial court replied, You wont get advisory counsel. The trial court denied the Faretta request as it was contingent upon the request for advisory counsel.

B. The Analysis

[A] defendant who elects representation by counsel does not have a constitutionally protected right to appear as cocounsel [citations], and a defendant who elects self-representation does not have a constitutional right to choreograph special appearances by counsel (McKaskle v. Wiggins (1984) 465 U.S. 168, 183). Thus none of the hybrid forms of representation, whether labeled cocounsel, advisory counsel, or standby counsel, is in any sense constitutionally guaranteed. (People v. Stewart (2004) 33 Cal.4th 425, 517-518.) Appointing advisory counsel to a person wishing self-representation is discretionary with the trial court. (People v. Bigelow (1984) 37 Cal.3d 731, 742, quoting the decision in People v. Mattson (1959) 51 Cal.2d 777, 797.)

The trial court here did not abuse its discretion by refusing hybrid representation. This was not a capital case, appellant had a G.E.D., and his prior convictions demonstrate that he had prior experience with the criminal justice system. Also, the facts and the issues in the case were simple. (See People v. Garcia (2000) 78 Cal.App.4th 1422, 1428-1431 [refusing to grant advisory counsel as the defendant was not charged with a capital crime and pointing out that hybrid representation is inconsistent with the exercise of Faretta rights]; Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1394 [expressing the courts view there should be no hybrid representation]; People v. Sullivan (2007) 151 Cal.App.4th 524, 553-555; cf. People v. Bigelow, supra, 37 Cal.3d at p. 743 [advisory counsel should have been appointed upon request in a capital case where the facts and legal issues were complex].)

II. Prosecutorial Misconduct

Defendant contends that certain remarks made by the prosecutor during final argument constituted misconduct that requires a reversal of the judgment.

The contention is only partially cognizable in this appeal, and in any event, lacks merit.

The court in People v. Alfaro (2007) 41 Cal.4th 1277, recently reiterated the following well-established legal principles: A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th 894, 969.) In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (People v. Earp (1999) 20 Cal.4th 826, 858.) (Alfaro, supra, at p. 1328; accord, People v. Morales (2001) 25 Cal.4th 34, 44.)

Specifically, defendant complains that the prosecutor improperly denigrated defense counsel and the defense during his final argument. Defendant complains that in his rebuttal argument, the prosecutor said that he had presented to the jury a mountain of evidence . . . And through all this whole afternoon . . . [the] defense has really done nothing to chip away at that mountain, nothing at all. Trial counsel was half way through an objection when the remainder of her sentence was not recorded by the courtroom reporter as the trial court interrupted her. Trial counsel did not repeat for the record what had been said as she was interrupted.

The prosecutor continued with his argument. He characterized the defense advanced in the case as based on a couple of myths. First, since no one saw the defendant carry the scale, the money or [the] drugs, they cant be his drugs. Second[,] that the deputies are dishonest and lying to you or ultimately the deputies are inept and bungled the investigation. The fourth [sic], that Kevin King is a reliable witness and utterly believable when he says the dope is his. And last but not least, the classic, the People havent proven the case to you beyond a reasonable doubt saying that the elements of the case have not been proven. . . . Now, as I sat there, I was listening to the defendants lawyers argument, the People are trying to tie it into him. . . . And I sort of got the feeling, in listening to the defendants lawyers argument, that they are trying to intimate somehow that maybe its the wifes dope, not the defendants. You know what, wife wasnt there, wife didnt make the statement. . . . Now, defendants lawyer wants you to believe that the statement either wasnt said or that its because he was driving on a suspended license, thats the slip that hes talking about.

The prosecutor commented about the defense claim that the deputies lied during their testimony. He said that he sat there listening to the defendants lawyers argument, she talked to you about the officers are lying, theyre out to get him, theyre making stuff up, and What are the chances that these officers, who are busy and overworked, have the time to sit down and plan out a conspiracy against the defendant? He also argued: And I just find it interesting the number of times that the defendants lawyer talked about the deputies trying to conjure things up. When did they decided to conjure this stuff up? . . . Conjuring things takes time and practice, I would assume. I dont know. Its a Harry Potter thing.

Shortly thereafter, the prosecutor remarked: And heres the thing, as jurors, you only come to [the] system maybe once a year, if youre lucky. . . . Basically, if youre lucky, you dont come to jury duty very often. . . . As a D.A., Im here every day down in the trenches. And blaming the deputies, calling them dirty, calling them shady is just a red herring. Its something that defense attorneys do, because they dont want you to believe the cops because the cops are telling you what they saw that day. Oh, my God. What do I do.

The prosecutor said: And its just this, if the evidence isnt on your side, if you dont have evidence thats what you do. Youve got to start trying to knock down the evidence against you. And thats what the defense is doing. I mean when the deputies came and told you what they saw, Oh, my God, thats not good for my client. We need to knock that out. Lets just call them dirty. They need to attack the credibility and integrity of deputies, because they somehow need to get you to ignore his statement. Theyre just throwing mud.

A. Forfeiture

We agree with the Attorney General that as to most of the prosecutors remarks, appellant did not object and request that an admonition be given to the jury. He did object during the initial comments he now claims are error. As the trial court cut off trial counsels objection, we shall assume that the record discloses that the trial court spoke over trial counsel and a proper objection was made. Consequently, only that single instance of misconduct is properly cognizable on appeal.

Defendant seeks to avoid the forfeiture by arguing that any objection would have been futile and no admonishment could have cured the harm done by the prosecutors remarks. Defendant urges that similar to what occurred in People v.Hill (1998) 17 Cal.4th 800, 820 (Hill) and People v.Bain (1971) 5 Cal.3d 839, 849, footnote 1 (Bain), he was not required to make the objection because continually objecting ran the risk of alienating the jury. Also, further objections would have been futile.

The facts in Hill and Bain are distinguishable. This is not a case such as Hill and Bain where the prosecutor engaged in outrageous and repeated misconduct, and the trial court did little to restrain the prosecutor and failed to sustain a number of objections directed to the misconduct. In this instance, trial counsel made only one objection to the prosecutors remarks. The record fails to show a second objection with a clear statement of grounds and a request for an admonishment that may well have been fully effective in achieving a halt to any misconduct. There is also no indication in this record that any further objection would have been futile. The trial court did not improperly and repeatedly overrule trial counsels objections to the misconduct so that it seems probable that any later, any valid objection was likely to have been futile. On this record, we conclude there was a forfeiture.

B. The Merits

Appellant argues that there was misconduct here requiring a reversal because the prosecutors rebuttal argument attacked trial counsels integrity and implied trial counsel had assisted in fabricating a defense.

It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such attacks on counsels credibility risk focusing the jurys attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. [Citations.] (People v. Bemore (2000) 22 Cal.4th 809, 846.)

Following consideration of the trial transcript and the final arguments by both the prosecutor and trial counsel, giving reasonable interpretation to context, it appears that all the prosecutor was arguing was that the prosecution had presented overwhelming evidence of defendants guilt, and the defense had done nothing to overcome that proof.

It is well established that the prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore, supra, 22 Cal.4th at p. 846.) The prosecutors remarks constituted fair comment on the evidence. The remarks did not constitute an improper accusation of dishonesty in presenting the defense and did not violate defendants rights under the state and federal Constitutions.

The other purported misconduct appellant raises on appeal similarly constituted nothing more than comment on the strength of the prosecution evidence and a description of the flaws in the defense. Such comments were permissible and did not constitute prosecutorial misconduct or deny defendant a fair trial. (People v Bemore, supra, 22 Cal.4th at pp. 846-847.) With respect to these remarks, if any of the prosecutors remarks left the jury with a question as to the prosecutors meaning, the proper defense tactic was to object and to have the trial court clarify any potential misunderstanding with a curative admonition. (People v. Bell (1989) 49 Cal.3d 502, 537-538.)

III. Review of the In Camera Pitchess Proceedings

Defendant requests a review of the in camera Pitchess proceedings pursuant to People v. Mooc,supra, 26 Cal.4th at pages 1228 through 1232.

A. Background

The trial court granted defendants Pitchess motion with respect to prior complaints of lying, perjury, or fabrication of police reports with respect to Deputies McDonagh and White. The trial court then reviewed in camera the items in the deputies personnel files and determined that any complaints contained therein were irrelevant with respect to the initial discovery order. The trial court resumed proceedings in open court and announced that the deputies personnel records contained no discoverable information.

B. The Analysis

We conducted a review of the in camera proceedings contemplated by the decision in People v. Mooc, supra, 26 Cal.4th 1216. The record is adequate to permit meaningful appellate review. (People v. Prince (2007) 40 Cal.4th 1179, 1285-1286.) We independently determined from the entire record and that of the sealed in camera proceedings that the trial court properly exercised its discretion when it concluded that none of the information presented to the trial court by the sheriff departments representative was discoverable.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

CHAVEZ

We concur:

___________________________, P. J.

BOREN

___________________________, J.

DOI TODD

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