P. v. Phillips

Filed 9/13/07 P. v. Phillips 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

A jury convicted defendant Donald Gene Phillips of possession of methamphetamine for sale (Health & Saf. Code,

11378). In bifurcated proceedings, the court found a

strike prior (1985 robbery) (Pen. Code, 667, subds. (b)-(i), 1170.12) to be true.

The court sentenced defendant to state prison for an aggregate term of six years, that is, the upper term of three years, doubled for the strike prior.

Defendant appeals. He contends (1) the trial court erred in permitting him to represent himself, (2) the prosecutor committed misconduct during closing argument and (3) imposition of the upper term contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We affirm.

FACTS

Sacramento County Sheriffs Department investigated and arrested a methamphetamine dealer who had baggies, a digital scale and a cell phone. During the dealers arrest, defendant called the dealer on the dealers cell phone, stating that he wanted his scale returned. Pretending to be the dealer, the deputy arranged to meet defendant at a nearby location. Upon defendants arrival, he was stopped and searched. A deputy found a methamphetamine pipe with white residue. Upon arrest, deputies learned defendant was a parolee at large. Defendant wanted to make a deal, offering information on another drug dealer. A search of defendants bedroom in his home revealed a digital scale with white residue, baggies and more than 15 grams of methamphetamine.

DISCUSSION

I

Defendant contends that the trial court failed to obtain a knowing and intelligent waiver of defendants right to counsel in allowing defendant to represent himself. Defendant acknowledges he signed a Faretta^[1]form, but argues he never orally or in writing waived his right to counsel. He claims the trial court should have denied his request to represent himself because it was an emotional reaction. We reject defendants contention.

Background

Up until the date set for trial, defendant was represented by counsel. On that date, counsel informed the court that he was in the midst of trial in another case but would be ready in a few days. Counsel also stated that defendant did not want to wait but preferred to represent himself. The court questioned defendant whether he wanted to wait for counsel. Defendant responded, No. I just as soon represent myself. The court asked defendant whether he understood the consequences if convicted, that is six years and a $10,000 fine. Defendant stated he understood. The court advised defendant it was not a wise choice to represent himself; he would not receive any special treatment; he would be required to comply with all the rules of criminal procedure and evidence; a prosecutor with experience would oppose him; he could not raise on appeal that he was incompetent to represent himself; and that if he was disruptive, he would be removed and counsel would be reappointed to represent him. (RAT 2-3) Defendant stated he understood. (RAT 2-3) He claimed he had 20 years of experience as a paralegal in criminal law and had been through a jury trial. (RAT 3-4) Defendant signed the Record of Faretta Warnings form.^[2] The court concluded defendant had knowingly, intelligently and voluntarily decided to represent himself with full knowledge of the risks and dangers of doing so. In arguing a motion later that day, defendant noted that he had had five attorneys. The court pointed out that he had chosen not to have counsel. Defendant claimed, Well, that was just to get to trial.

After the jury convicted defendant, he moved to dismiss for failure to obtain a waiver of his right to counsel. The court noted that the form reflected that defendant had been advised of his right to be represented by counsel. Defendant claimed he never waived the right. When the court queried what defendant intended in requesting not to have counsel but to represent himself, defendant reiterated that he never waived his right to counsel. The court concluded otherwise and denied defendants motion.

Analysis

We conclude that the record reflects a valid Faretta waiver. The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. [Citations.] . . . [] On appeal, we examine de novo the whole record -- not merely the transcript of the hearing on the Faretta motion itself -- to determine the validity of the defendants waiver of the right to counsel. [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070 (Koontz).)

To make a valid Faretta waiver, the trial court must make the defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. [Citation.] [Citation.] No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citations.] (Koontz, supra, 27 Cal.4th at p. 1070.)

Defendant filled out a written Faretta waiver form. Defendant makes much ado about the word waiver which is missing from the form and the oral advisement. He also claims that the record reflects an emotional reaction to the fact that counsel was unable to proceed to trial on the date set.

We conclude that the whole record reflects a knowing, intelligent and voluntary waiver of defendants right to counsel and decision to represent himself. He signed the form. The form states that he had the right to be represented by counsel. He was advised both on the form and orally by the court that it was not a wise choice to represent himself. Other risks and disadvantages were also described on the form and orally by the court. Defendant signed the statement on the form, I acknowledge the advisements and inquiry above, and hereby request to represent myself. Defendant stated that he had 20 years experience as a paralegal in criminal law. He later stated he waived his right to counsel to get to trial. The record reflects defendant knew what he was doing and the consequences of the same. He waived his right to counsel.

II

Defendant next contends that the prosecutor committed prejudicial misconduct in closing argument to the jury when he commented on defendants failure to testify and shifted the burden of proof to defendant to prove his innocence. We conclude that defendant has forfeited his claim on appeal by his failure to object in the trial court. In any event, we find no misconduct or prejudice.

Background

In closing argument, defendant claimed the deputies made inconsistent statements and altered the evidence logs. He then stated, I didnt take the stand today, and I didnt ask the woman to come and take the stand and testify . . . . Not necessary. Because theres no way that you can honestly say that the evidence belongs to me. He claimed that there was no evidence he had knowledge of the presence of the items and methamphetamine in the house. Now, they cant tell you how many people live there. They cant tell you that my name is on the lease. They cant tell you whether or not I own it. They cannot tell you if any of the utilities are in my name. Why? Why cant they tell you that? Do you think they would have investigated those items in order to convict me? Do you think [the prosecutor] would have investigated those? Of course they would, but theres no evidence to support that. He claimed he was representing himself but did not know how to impeach or cross-examine witnesses. Defendant stated, I chose not to take the stand or call any witnesses because beyond that there is no case. Defendant called the prosecutor a trooper in his attempt to prove his case even though he saw all the evidence is tainted, every single piece. Defendant stated that the prosecutor was doing his job. You know, I was surprised he didnt ask for a dismissal when he saw it, when he realized --. The court sustained the prosecutors objection on the ground of improper argument. Defendant then said, Im not an attorney. And, you know, Im sure that theres a lot of things I should be saying right now that are not going to get said because Im not an attorney. I got 20 pages of notes. You know, crazy. They get me up at two oclock in the morning --. The court again sustained the prosecutors objection. Defendant finished, Okay. Excuse my unprofessionalism. [] I did the best I can, but, you know, you have to consider all the evidence as tainted.

In rebuttal argument, the prosecutor noted that defendant had had an attorney but chose to represent himself. The prosecutor commented that defendant lacked objectivity in representing himself which was demonstrated in his cross-examination of witnesses. The prosecutor then made the following set of comments:

So you cant -- you cant have it both ways. You cant say, I want to represent myself and do it all and say, I apologize for not knowing everything that I was doing. There are rules of evidence. There are rules of law. He has to know certain things before hes allowed to represent himself. He has to be made assured of things. He has the same subpoena power that I do. If there was any other witness or document or any other things like other bills or other people in the house, things of that nature, if there were anything that would have helped him out, he would have had them here, and he didnt. Those things are designed to make you speculate about what the evidence is not, and that is what youre not allowed to do. You cant speculate on what else could be alternate explanations that show the Defendant is innocent. You have to go by what the evidence is.

The prosecutor dismissed defendants arguments about altered logs, discussed reasonable doubt and then made the second set of comments:

There may have been questions that you wanted answers to that you didnt get. There may have been a few things that you thought I would have liked to have known. Or darn it, I wish [the prosecutor] would have asked that, but you have to examine what the evidence is, because the evidence is what came from that witness stand. And you can have a level of doubt and still convict [defendant]. Every question is not going to be answered. It has to be a reasonable doubt, beyond a reasonable doubt. If [your] doubt isnt reasonable, then it cant be considered. [] Youll hear the instructions which will guide you based in reason. You heard the evidence. [] The points about the Defendant not testifying, you cant consider that. He mentioned it in his closing, his choice as to why. Something comes with being a witness in this case. You get to be placed under oath. You get to be asked questions on direct examination --.

The court interjected, stating Id prefer you stayed away from that area please.

The prosecutor did so and commented, [Y]ou heard what the evidence was. You heard who testified, and thats what this case is about.

Defendant did not object to either of the two sets of prosecutors comments, request jury admonitions to disregard them, or move to strike them.

In his motion for new trial, defendant claimed the prosecutor committed misconduct in commenting that defendant did not take the witness stand in order to avoid cross-examination.^[3] The prosecutor responded that it was invited comment by the Defendants informing the jury of his reasons why he chose not to testify and, in any event, the court immediately intervened. Defendant repeated that the prosecutor had argued that he (defendant) did not testify because he did not want to be cross-examined. Noting that the prosecutor did not get that far and that defendant had failed to timely object and request a curative admonition, the court found defendants rights were not violated by the prosecutors comments.

Defendant raised the issue of prosecutorial misconduct again in motions to renew (reconsider) and to dismiss. The court denied the motions.

Analysis

A prosecutors behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 427.)

To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citations.] (People v. Earp (1999) 20 Cal.4th 826, 858.)

Claims of prosecutorial misconduct in the form of Griffin error are forfeited unless defendant timely objected and requested an admonition. (People v. Mincey (1992) 2 Cal.4th 408, 446.)

Here, defendant has not demonstrated that he should be excused from the requirement of a timely objection and request for an admonition. (Compare People v. Hill (1998) 17 Cal.4th 800, 820-822.) Defendant failed to object to the first set of now-objectionable comments by the prosecutor. At the end of the second set of the prosecutors comments, the court interjected and, had defendant so requested, could have admonished the jury not to speculate why defendant did not testify, that other witnesses could have been called to testify, what such testimony might have been or that the prosecutor could have presented other evidence. The lack of an objection and admonishment was later cured by the jury instruction given on witnesses: Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.

In any event, we conclude the prosecutors statements did not constitute misconduct. The right to remain silent cannot be used to cut off the prosecutions fair response to the evidence or argument of the defendant. (People v. Austin (1994) 23 Cal.App.4th 1596, 1612, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.) Contrary to defendants claim, the prosecutor was prevented by the trial courts interjection from commenting either directly or indirectly that defendant did not testify because he did not want to be cross-examined. With respect to the prosecutors argument about other evidence, the prosecutor can rightly comment upon defendants failure to call logical witnesses. (People v. Brown (2003) 31 Cal.4th 518, 554.)

Nor were the remarks prejudicial. It is not reasonably probable that the jury would have reached a result more favorable to defendant absent the prosecutors misconduct. (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) The prosecutors comments were brief. After the court interjected sua sponte, the prosecutor did not continue along the same lines. The court later instructed the jury that statements by trial counsel were not evidence and that defendant had an absolute constitutional right not to testify. The evidence was overwhelming. Defendant, a parolee at large, called the cell phone of a known drug dealer to recover his own drug scale, talked with and later met, unwittingly, with a deputy sheriff. A subsequent search of defendants bedroom in his house revealed a scale with residue and more than 15 grams of methamphetamine. Defendant offered information on another drug dealer in exchange for a deal. Defendant suffered no prejudice as a result of the remarks.

III

Finally, defendant raises Blakely error, and by extension, Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), error. We reject his claim.

The probation report recommended the upper term. At sentencing, defendant requested the low or middle term, considering that [he had] been arrest[ed] for shoplifting once in the last ten years -- actually once in the last twelve years -- so its the only arrest [he] had prior to [the current case] in twelve years but admitting that his adult record is horrendous. Based on defendants record and the facts of the offense, the prosecutor requested that the court impose the upper term.

In choosing the upper term, the court stated:

The factors calling for the upper term are that the defendants prior convictions as an adult or sustained petitions in juvenile delinquency are numerous and of increasing seriousness, and the defendant has served a prior prison term. The court cited no factors in mitigation.

Blakely reiterated its holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi): Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301.) The statutory maximum is the greatest sentence the court can impose based on facts the jury found or the defendant admitted. (Id. at p. 303.) Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] reaffirmed its holdings in Blakely and Apprendi, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I), in part, to the extent it rejected the challenge that Californias judicial factfinding for imposition of the upper term violates Blakely. (Cunningham, supra, 549 U.S. at pp. ___, ___ [166 L.Ed.2d at pp. 864, 868, 873, 876].)

People v. Black (2007) 41 Cal.4th 799 (Black II) held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Id. at p. 812, italics in original.)

Here, the trial court relied on defendants prior adult convictions and juvenile adjudications which were numerous and of increasing seriousness and the fact he had served a prior prison term. (Black II, supra, 41 Cal.4th at pp. 818-820 [the fact of a prior conviction broadly construed covers a defendants criminal history as reflected in records of the prior convictions].) We conclude that the trial court did not violate defendants constitutional right to a jury trial in imposing the upper term.

In any event, any error in the trial courts consideration of facts other than defendants prior convictions, that is, defendant has served a prior prison term, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Sandoval (2007) 41 Cal.4th 825, 838-839.)

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P.J.

We concur:

RAYE , J.

ROBIE , J.

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

^[2] The Record of Faretta Warnings form sets forth the following:

A. Defendant has been advised personally of the following:

1. You have the right to be represented by an attorney at all stages of this case and if you cannot afford your own attorney the Court will appoint one to represent you.

2. It is generally not a wise choice to represent yourself in a criminal matter.

3. Penalties for offense if found guilty are 6 y[ea]rs s[tate] p[rison] [and a] $10,000 fine.

4. The Court cannot help you present your case or grant you any special treatment.

5. You will be opposed by a trained prosecutor.

6. You must comply with all the rules of Criminal Procedure and Evidence just as an attorney must.

7. If you are convicted you cannot appeal based on the claim that you were not competent to represent yourself.

8. If you are disruptive you will be removed from the courtroom and an attorney will be brought in to finish your case.

9. You have the right at anytime to hire your own attorney. However the Court willnot delay your case to allow an attorney to prepare to represent you.

B. The Court made inquiry into defendants legal background, training and knowledge.

C. I acknowledge the advisements and inquiry above, and hereby request to represent myself.

[Defendants signature and date]

D. The Court determined that the defendant has knowingly, intelligently and voluntarily decided to represent him/herself with full knowledge of the risks and dangers of doing so.

[Judges signature, department number and date] (Underscoring in original.)

^[3]Griffin v. California (1965) 380 U.S. 609, 614-615 [14 L.Ed.2d 106, 109-110] (Griffin) held that the Fifth and Fourteenth Amendments prohibit the prosecutor from commenting on a defendants failure to testify.