P.v . Robinson

Filed 2/11/10 P.v . Robinson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.

Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Donald Robinson, pled no contest to inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a))^[1]and admitted a great bodily injury enhancement ( 12022.7, subd. (e)). On December 30, 2008, the trial court sentenced Robinson to an aggregate term of seven years.

On appeal, Robinson contends the trial court denied him his right to represent himself. We will affirm.

FACTS

In October and November 2007, Robinson lived in an apartment in Rosamond with P.J.

On October 31, 2007, when P.J. arrived home from work, Robinson began arguing with her over a call she received, so she went to bed in her childrens room.

On November 1, 2007, when P.J. got up to go to work, she discovered that someone had placed a large entertainment center in front of the front door. When P.J. asked Robinson what happened, he stated, No. You are going to die today. Im going to kill you today. P.J. went to her room, opened the window, and saw a police car outside that just happened to be passing by. She was then confronted by Robinson, who was holding two knives in one hand and accusing her of calling the police. P.J. walked out of the bedroom and Robinson stabbed her in the left arm and punched her in the face. P.J. eventually was transported to the hospital by GG.

On August 25, 2008, the district attorney filed an information charging Robinson with inflicting corporal injury on a cohabitant (count 1/ 273.5, subd. (a)), assault with a deadly weapon (count 2/ 245, subd. (a)(1)), making criminal threats (count 3/ 422), and false imprisonment (count 4/ 236.) Counts 1 and 2 alleged a great bodily injury enhancement and counts 1 and 3 a personal use of a weapon enhancement ( 12022, subd. (b)(1)).

On October 14, 2008, the trial court conducted a Marsden^[2]hearing pursuant to Robinsons motion for substitution of appointed counsel. During the hearing Robinson complained that defense counsel had not contacted certain potential witnesses. Defense counsel then outlined his unsuccessful efforts to locate GG, whom he knew only by that name. Defense counsel also had repeatedly tried unsuccessfully to contact Antoinette Howard, who lived in the victims apartment complex when the assault occurred but apparently no longer lived there.

After Robinson stated the underlying incident began when he received a call on October 31, 2007, from a woman named Cheryl Stubbs, defense counsel advised the trial court that he had contacted Stubbs. Defense counsel anticipated calling Stubbs to testify but had not yet subpoenaed her because Stubbs was a friend of Robinsons and had told him she would appear voluntarily. At the conclusion of the hearing, the court stated:

Okay, Mr. Robinson, Im not granting the Marsden motion. I know I heard some of what I heard the last time. Ive heard even more details of what Mr. Jabury [defense counsel] has tried to do.

As I said, if he cant find these people and hes gone to great lengths to do it, he cant find them, and youre just going to have to do without, and thats unfortunate for your part, but he has made the efforts to find these people, GG or â€‘‑ hes still looking for the other person that you referred to, [Howard], hes still trying to get ahold of her, and Cheryl Stubbs is available.

So the motion is going to be denied. [] []

Mr. Robinson, sometimes there are crimes like your case, I remember the preliminary hearing. Whether this is -- whether youre guilty or not guilty is going to depend on whether the jury believes the person, the lady that you were with. I remember it was in the house, [there] was a fight and there was a stabbing. Theres only two people in that house that know what went on, you and her, so this case is going to boil down to you and her.

You can bring in these other people, but they werent there, they didnt see it. They might add a little bit of information here and there, but its coming down to you and her. Theres not much more than that.  

After the trial court denied the motion, the following colloquy occurred:

THE DEFENDANT: Your Honor, then at this time Im going to go pro per.

THE COURT: All right. What were going to do, Mr. Robinson, is Im going to give you a form, and I guess youre going to take that with you, because youre going to come back tomorrow, October the 15th. Tomorrow I want you to read this petition. It explains to you some of the problems of representing yourself.

Now you need to understand these -- youre going to be in a difficult bind trying to get Ms. Stubbs, trying to get GG or trying to get Ms. Howard when youre in custody; do you understand that?

THE DEFENDANT: Your Honor, it is my understanding that I have certain rights to investigative services and other services through pro per.

THE COURT: Well, you may; you may not. The People have the right to a speedy trial as well, sir, so one of the things that I have to decide, if theyre not willing to give up their right to a speedy trial, I have to balance all this. You may just be required to represent yourself on the trial date.

After the district attorney returned to the courtroom, Robinson acknowledged receiving the petition that he had to fill out in order to represent himself. The trial court then admonished Robinson as follows:

And now, between now and the next time you come back, I need you to read that. I need you to fill it out. I need you to give some serious consideration, Mr. Robinson, whether you want to do that.

You, yourself, know that youre looking at a substantial amount of time. Representing yourself is going to put you in a very dangerous position. Youre clearly intelligent and appear to be capable of representing yourself. Its going to be a matter really of whether you give this some thought, whether you really want to do this, because you are going to be at a great disadvantage.

Youre going to be responsible for following the rules of evidence. You ask certain questions, if theyre not proper, Ms. Nargie [the prosecutor] is going to end up objecting to those. Youre going to be the person responsible for picking a jury, asking questions of the jurors and deciding whether they are going to be on the jury to represent you. Youre going to be responsible for cross-examining or questioning the witnesses that are called against you. Its a tall order. It requires some expertise.

So I want you to give some serious thought, Mr. Robinson. Mr. Jabury has already put significant time into the case. He knows what hes doing. He knows what he has to do in order to defend you, and if its simply a matter of pride, you need to start thinking about whether you need to swallow that a little bit.

Speak with Mr. Jabury. Youd be surprised what kind of information you can get from Mr. Jabury, the help that hell provide. He may not do what you want to do, sir, but you need to understand, he is a professional. Hes -- as I told you, hes been at this a long time, he knows what hes doing.

So give that some thought, Mr. Robinson, and well set the matter.

On October 17, 2008, Robinson withdrew his request to represent himself and the trial court granted defense counsels motion to continue the trial date.

On November 25, 2008, Robinson entered his no contest plea to inflicting corporal injury on a cohabitant and admitted the great bodily injury enhancement in that count in exchange for the dismissal of the remaining counts and enhancements and a lid of seven years.

On December 30, 2008, the trial court sentenced Robinson to an aggregate term of seven years -- the middle term of four years on the substantive offense and a three-year great bodily injury enhancement.

DISCUSSION

Robinson contends the trial court misadvised him when it told him that he would be in a difficult bind trying to obtain witnesses while in custody and that the Peoples right to a speedy trial could outweigh his right to a continuance to obtain necessary witnesses. Thus, according to Robinson, since he invoked his right to represent himself, the misadvice by the trial court resulted in an invalid waiver of that right and a denial of his right to self-representation. We disagree.

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.] Thus, [a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required. (People v. Burgener (2009) 46 Cal.4th 231, 240-241, italics added; see also U.S. v. Lopez-Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [the focus should be on what the defendant understood, rather than on what the court said or understood].)

The record establishes that the trial court did not coerce Robinson into withdrawing his motion. Rather, the trial court properly advised Robinson of the pitfalls of self-representation, including that his in-custody status would make it more difficult for him to find and subpoena the people he wanted to testify at trial and, that in ruling on any request for a continuance, the trial court would have to consider the Peoples right to a speedy trial.

Nevertheless, Robinson contends that as a pro se defendant he would have been entitled to investigative services and to a reasonable continuance to prepare for trial. He further contends that the trial court acknowledged that Stubbs was an important witness. Thus, according to Robinson, it was improper for the trial court to suggest to him that self-representation would put him in a difficult bind trying to get Stubbs, an identified and necessary witness, to testify on his behalf and that this coerced him into withdrawing his request for self-representation.

Preliminarily, we reject Robinsons contention that the trial court acknowledged that Stubbs was a necessary witness. Robinson premises this contention on the trial courts use of the word bind, which he posits means a difficult situation or predicament. According to Robinson, the trial courts recognition of the value in getting the three witnesses to testify was implicit in the courts use of the word bind because [t]here would be no predicament, no difficulty to the situation, no bind if there were not an important value in obtaining the presence of [these]witnesses. However, the trial court never explicitly stated that the three potential witnesses were material to Robinsons defense and his semantic argument simply is unpersuasive.

Moreover, although a pro se defendant is entitled to investigative services (People v. Faxel (1979) 91 Cal.App.3d 327, 330), such services will be granted only upon a showing of reasonable necessity. (Ibid.) Aside from the inherent difficulty in conducting an investigation while incarcerated, it was undisputed that Robinsons three potential witnesses were not present during Robinsons assault of the victim and thus likely were of limited value to Robinsons defense. It also was undisputed that two of these witnesses had been difficult to locate, even for defense counsel and his investigator. Thus, the trial courts comment that if Robinson represented himself he would be in a difficult bind trying to get these witness to appear was accurate because of his custody status and because the dubious relevance of their testimony made the granting of a motion for investigative services to locate and subpoena these potential witnesses uncertain, at best.

In any event, it is clear from Robinsons statement to the trial court that he was aware he might be entitled to investigative services and that the trial courts comments did not cause him to believe he would not be able to obtain these services to prepare his case. Thus, it is also clear that these comments did not influence Robinsons decision to withdraw his request for self-representation.

Robinson contends a trial court must grant any necessary request for a continuance once it grants a timely motion for self-representation. Thus, according to Robinson, since the trial court would have to grant him a continuance if it granted him his pro se status, its statement that it would have to consider the Peoples right to a speedy trial before granting a continuance was inaccurate and coerced him into withdrawing this request. Robinson is wrong.

Even if the trial court grants a timely Faretta^[3]motion prior to the start of trial, it has the discretion to deny a continuance if it finds that the motion was a delay tactic. (People v. Douglas (1995) 37 Cal.App.4th 1681, 1689.) Additionally, a court would not be compelled to grant a request for a continuance that it believed was longer than necessary for the defendant to prepare his or her case. In either situation, the trial court would be required to consider the Peoples right to a speedy trial in considering a defendants request to continue his trial date. Thus, the trial courts statement regarding continuances was accurate and properly made in advising Robinson of the potential perils and consequences of self-representation.

It is settled that the Faretta right may be waived by failure to make a timely request to act as ones own counsel (People v. Windham (1977) 19 Cal.3d 121, 127-128), or by abandonment and acquiescence in representation by counsel (People v. Stanley (2006) 39 Cal.4th 913, 929). Robinson waived his right to self-representation on October 17, 2008, when he withdrew his request to represent himself and accepted representation by defense counsel Jabury. Since the trial courts comments did not contain any

misadvisements, we conclude that Robinsons waiver of his right to self-representation was valid.

DISPOSITION

The judgment is affirmed.

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^* Before Gomes, Acting P.J., Dawson, J. and Kane, J.

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

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

^[3]Faretta v. California (1975) 422 U.S. 806.