P. v. Salazar

Filed 7/24/07 P. v. Salazar CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert ONeill, Judge. Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for plaintiff and respondent.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

A jury found defendant John Salazar guilty of the second degree robbery^[1] of Thuy Tran (Pen. Code, 211).^[2] The jury deadlocked on the allegations that defendant personally and intentionally discharged a handgun ( 12022.53, subd. (c)) and personally used a handgun ( 12022.53, subd. (b)). In a bifurcated court trial, four prior felonies were found true under the three strikes law ( 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and section 667, subdivision (a)(1) (serious felony priors). Seven prior prison term allegations ( 667.5, subdivision (b)) were also found true. After striking five prior prison term allegations, the trial court sentenced defendant to a term of 47 years to life, calculated as 25 years to life on the robbery conviction pursuant to the three strikes law, plus a total of 20 years for the four serious felony priors and two additional years for the prior prison terms.

Defendant contends the trial court violated his Sixth Amendment right to counsel by permitting him to represent himself without adequate warnings as required by Faretta v. California (1975) 422 U.S. 806 (Faretta). Defendant further contends the trial courts exclusion of his proffered impeachment of Tran deprived him of his constitutional rights to present a defense and confront and cross-examine the witnesses against him. Defendant also contends that the trial court abused its discretion when it excused juror

number one based on a finding of bias.^[3] We conclude the trial court properly advised defendant of the risks and dangers of self-representation, reasonably exercised its broad discretion to exclude irrelevant evidence, and properly discharged juror number one for concealment and bias. Accordingly, we affirm the judgment.

STATEMENT OF FACTS

As defendant raises no issue regarding the factual basis of his conviction, we summarize the facts briefly. Tran owned Coast Liquor Store on Inglewood Avenue in Hawthorne. In spring 2003, defendant performed construction work on the building that housed Coast Liquor. He often went into Coast Liquor during that time to buy beer and chat with Tran. On the evening of October 28, 2003, defendant entered the store and demanded money from Tran, who was behind the cash register. Tran handed over about $210 in cash. Defendant ran out of the store and drove away. Defendant was apprehended minutes later.

DISCUSSION

The Trial Court Properly Permitted Defendant to Represent Himself

Defendant waived his right to counsel and the trial court granted his request to represent himself. Defendant represented himself in both trials of this matter. Defendant contends he did not make an adequate, knowing, and intelligent waiver of the right to counsel because the trial court did not ascertain whether he understood the crimes for which he was charged, the enhancements, and the maximum penalties he faced. Contrary to defendants argument, his waiver of counsel was valid.

A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. [Citations.] A defendant seeking to represent himself should be made 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. [Citation.] Rather, 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.] (People v. Blair (2005) 36 Cal.4th 686, 708.)

We review the entire record - including proceedings after the purported invocation of the right of self-representation - and determine de novo whether the defendants invocation was knowing and voluntary. [Citations.] Even when the trial court has failed to conduct a full and complete inquiry regarding a defendants assertion of the right of self-representation, [we] examine the entire record to determine whether the invocation of the right of self-representation and waiver of the right to counsel was knowing and voluntary. (People v. Marshall (1997) 15 Cal.4th 1, 24.)

The record reveals defendant received a multitude of warnings of the dangers and disadvantages of self-representation. Defendant, a 53-year-old high school graduate who could read and write English, acknowledged he understood the warnings but stated he desired to represent himself. The trial court described self-representation a foolish decision and advised against it. The trial court warned defendant he would not be allowed to go in and out of pro per status if he subsequently realized he needed an attorney, his self-representation would not be grounds for appeal but would be at his own risk, he would be held to the same standards as an attorney and would receive no special consideration because he was representing himself, and the rules of evidence would apply to defendant. The Advisement and Waiver of Right to Counsel that defendant filled out warned that the case against him would be handled by an experienced trial attorney and it might be difficult, because of defendants custodial status, to investigate the facts and law of his case. These advisements sufficiently made defendant aware of the dangers and disadvantages of self-representation.

Further, defendant demonstrated an awareness of the risks and complexities of the case against him. He acknowledged in writing he would be required to follow all the technical rules of law and procedure and conduct all pretrial, trial, and post-trial proceedings, which were specifically enumerated, without the assistance of counsel. The trial court made sure defendant understood he was facing spending the rest of [his] life in prison. The record demonstrates defendant was aware of the charge against him even though the space on the waiver form for identifying the crime was left blank. Defendant acknowledged in writing he knew the facts that had to be proved before he could be found guilty of the offense charged and the legal defenses to the charged crime. In fact, defendant had been convicted of the same charge, robbery, in 1978 and 1990. Moreover, defendant was present at the preliminary hearing when he was held to answer for the robbery of Tran and each of the special allegations, and he demonstrated his knowledge of the charged crime and enhancements at trial and the sentencing hearing.^[4] Defendant was granted time to think about his decision and to consult his family before committing himself to choosing self-representation.

Defendant argues the waiver was constitutionally deficient because the trial court did not specifically tell defendant the charges against him, elements of the charges, pleas and defenses that would be available, and punishment range defendant faced. Contrary to defendants argument, no specific advisement is required in order to find that a defendant made a knowing and intelligent waiver of the right to counsel. (People v. Blair, supra, 36 Cal.4th at p. 709, fn. 7 [failure to inquire into defendants awareness of defenses does not invalidate a waiver, and written responses need not be confirmed orally].) There is no binding United States Supreme Court or California Supreme Court precedent holding that the Sixth Amendment requires the specific advisements defendant contends should have been given. Von Moltke v. Gillies (1948) 332 U.S. 708, which defendant cites, is a pre-Faretta plurality opinion. A majority of the justices did not agree with the pluralitys statement that the trial judge must undertake a comprehensive examination of the circumstances to be certain the defendant understands the charges and defenses. (Id. at p. 723.) In re James (1952) 38 Cal.2d 302, relied upon by defendant, does not hold that specific advisements should be given. (Id. at p. 313 [a guilty plea by a defendant who earlier requested counsel, where counsel was not appointed, does not imply a waiver of the right to counsel].)

In sum, the record as a whole establishes a knowing and intelligent waiver of the right to counsel, made with knowledge of the dangers and disadvantages of self-representation and the risks and complexities of the case. We have no difficulty in concluding that defendants waiver of counsel was made with eyes open. (Faretta, supra, 422 U.S. at p. 835, quoting Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279.)

Denial Of Impeachment of Tran Was A Proper Exercise of Discretion

The trial court denied defendant permission to ask Tran whether his liquor license had been revoked, on the ground the evidence was irrelevant. Defendant proffered that the revocation had occurred way before the robbery and was relevant to Trans credibility because it was based on a sale of drugs and paraphernalia to minors.^[5] Defendant contends the ruling denied him his constitutional rights to present a defense and cross-examine Tran.

However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation] the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. (People v. Chatman (2006) 38 Cal.4th 344, 372.)

In this case, evidence that Trans liquor license may have been revoked concerned an event remote in time, not tied to the facts of this case, and having no apparent bearing on Trans veracity as it pertained to the robbery charge. Rejection of this evidence, marginally relevant at best, was well within the trial courts discretion and did not offend the Constitution.

Juror Number 1 Was Properly Discharged For Bias and Concealment

During jury selection, the prospective jurors were asked if any had a family member who had ever been arrested or charged with a criminal offense. When juror number one took her seat in the jury box, she was asked if she had anything to answer from all the questions asked of the other jurors. Subsequently, she and the other prospective jurors were reminded that they were to reveal if any family member had been arrested. Juror number one did not reveal at any time during jury voir dire that her husband had been convicted of a crime, a fact which did not surface until jury deliberations.

Two jurors reported during deliberations that juror number one was bringing up matters not in evidence. Interviews of the jurors revealed that juror number one had told members of the jury her husband had been convicted of a crime years ago because he had been framed and the Hawthorne police had lied, and he received a 30-year sentence. She generalized from her familys negative experiences with the Hawthorne police to this trial, saying the Hawthorne police cannot be trusted. She also made negative generalizations about Vietnamese shopkeepers along Inglewood Avenue in Hawthorne based on those she had known there, insisting that such merchants were untrustworthy and out to get people. She stated that, based on her experiences with many Vietnamese merchants, she did not believe Tran. When interviewed by the trial court, juror number one admitted her husband had a criminal conviction. She claimed she had forgotten this fact during jury voir dire. She admitted she told the jury about her negative experiences with Vietnamese shopkeepers in her neighborhood.

The trial court found juror number ones excuse for not bringing her husbands conviction to the trial courts attention during jury selection was not credible. The trial court found juror number one had a racial bias against Vietnamese shopkeepers. The trial court concluded her concealment of her husbands problems with the police during voir dire, her biased feelings toward the police, and her bias against Vietnamese shopkeepers in Hawthorne were each distinct grounds for removal from the jury. Each individual reason would be grounds to remove her. Collectively, its a considerable bias that she is imparting during the deliberation process that cannot be tolerated. So I will remove her.

Voir dire is the crucial means for discovery of actual or potential juror bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.] (In re Hamilton (1999) 20 Cal.4th 273, 295.) A juror found to be unable to perform her duty may be discharged from the jury. ( 1089.)^[6]Upon becoming aware of possible juror misconduct,

the trial court must make a reasonable inquiry to determine if the juror is able to discharge her duty. (People v. Hayes (1999) 21 Cal.4th 1211, 1255.) The decision to discharge a juror rests within the trial courts sound discretion and will be upheld on appeal if any substantial evidence supports it. (People v. Turner (1994) 8 Cal.4th 137, 205.)

Defendant contends the decision to discharge juror number one was an abuse of discretion because it was not supported by substantial evidence. To the contrary, the evidence of juror misconduct was overwhelming. Juror number one admitted she did not reveal during jury voir dire that her husband had a criminal conviction. Juror number ones giving of a false innocent explanation for the omission evidenced willful concealment. Her statements to fellow jurors that Hawthorne police officers and Vietnamese shopkeepers such as Tran are not to be trusted demonstrated bias. The trial courts finding that juror number one was unable to perform her duty as a juror is supported by substantial evidence. The order discharging her was not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P.J.

ARMSTRONG, J.

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^[1] A second count of robbery charged in the information was dismissed prior to trial under section 995. A first trial had ended in a mistrial after a jury deadlock.

^[2] Hereinafter, all statutory references will be to the Penal Code.

^[3] Defendant has filed a letter with this court, asking that we consider additional contentions. As he is represented by counsel on appeal, we decline to do so. The issues raised by defendant in his letter do not present arguable appellate contentions.

^[4] In the first trial, defendant filed a motion for discovery and a motion to dismiss for failure to disclose exculpatory evidence, called witnesses, and introduced exhibits into evidence. In connection with the second trial, defendant made motions to dismiss the information, for additional discovery, and to bifurcate the prior convictions allegations, cross-examined witnesses, examined his own witnesses, had exhibits admitted in evidence, argued, made a motion for a new trial supported by points and authorities and affidavits, and moved to strike the prior convictions.

^[5] [Defendant]: Your honor, I want to inquire about his license, has it ever been cancelled. [] The Court: Whats the relevance of that? [] [Defendant]: The relevance is towards his credibility, your honor. [] The Court: That has no relevance, whether his license was subsequently after this incident happened cancelled. [] [Defendant]: Way before that, your honor. [] The Court: Was it cancelled at the time? [] [Defendant]: It was selling to minors, selling drugs, paraphernalia. I got all the proof, your honor. I cant use any of that? [] The Court: No.

^[6] Section 1089 provides in pertinent part: If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged[.]