P.v . Smith

Filed 8/30/07 P.v . Smith CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Marsha N. Revel, Judge. Affirmed.

Rita L. Swenor, 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, Keith H. Borjon and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Cornell Smith appeals his conviction on one count of bringing a deadly weapon into jail, in violation of Penal Code section 4574, subdivision (a).^[1] He claims the court erred in permitting him to represent himself because he did not knowingly and intelligently waive his right to counsel. In a related claim, he argues the court should have revoked his in propria persona status and appointed stand-by counsel to represent him when it became evident that he did not understand the nature of the charges against him or the penalties he was facing. He also asserts the court improperly directed his defense. We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The incident giving rise to appellants prosecution occurred in the visitors section of the mens central jail on Bauchet Street in Los Angeles. Posted near the door where the visitors line formed, and at other places inside and outside the lobby, were signs informing visitors that they were subject to arrest for bringing firearms, deadly weapons, explosives, or tear gas onto jail property. Outside the entrance to the visitors lobby were lockers for visitors to lock up personal items which were prohibited.

On the afternoon of May 15, 2005, Los Angeles County Sheriffs Deputy Michael Pellicano was stationed at the only door allowing access to the visitors lobby. At approximately 3:00 p.m., Deputy Pellicano heard loud music coming from a radio. He yelled, Whoevers radio that is, turn it down. He saw the radio next to appellant, who was about 10 places back in the line. Appellant turned the radio down, but about a minute later, Deputy Pellicano heard it again. The deputy again asked appellant to turn the radio down. The radio was turned down, then up again. After the third or fourth time, a sergeant came out and directed the deputy to contact appellant.

Deputy Pellicano directed appellant to move to the side of the line and provide identification. Appellant complied. After checking appellants identification, the deputy handcuffed appellant and brought him inside the visiting office. Appellant motioned to his duffel bag and radio, and Pellicanos partner brought them into the office.

Deputy Salvatore De Bella searched appellants duffel bag. Inside he found an eight and a half-inch throwing knife with a double edge in a nylon sheath. The duffel bag also contained 30 to 40 new CDs, papers, and clothing. When Deputy De Bella pulled the knife out, appellant said, That was something my friend gave to me. That was a knife my friend gave to me. Later, when Deputy Pellicano was filling out paperwork, appellant said he had purchased the knife at a surplus store for $15.

Appellant was originally charged in count 1 with being an ex-convict in a custodial facility, in violation of section 4571; in count 2 with bringing a weapon into a jail, in violation of section 4574, subdivision (a); and in count 3 with carrying a dirk or dagger, in violation of section 12020, subdivision (a)(4). It was alleged he had suffered a prior conviction of a serious or violent felony.

At the request of appellants counsel, the court declared a doubt as to appellants competency, suspended proceedings and appointed two experts to evaluate him. Appellant waived jury trial on the issue of competency, and the issue was submitted on the reports of the two doctors, both of whom concluded appellant was competent to stand trial. The court found appellant was mentally competent to stand trial within the meaning of section 1368, and criminal proceedings were resumed. Count 1 was dismissed, and appellant was arraigned on counts 2 and 3. He entered a plea of not guilty and denied the special allegations.

On November 14, 2005, appellant moved to proceed in propria persona. The court questioned appellant about his understanding of the case. Appellant seemed confused that there were two counts involving the knife, since he only had one knife. The court explained that even if he were convicted on both counts, he would only be punished for one, since they were based on the same incident. The court also advised appellant of the disadvantages of self-representation, and then concluded that appellant had voluntarily, knowingly and intelligently waived his right to be represented by counsel. Appellant was re-arraigned on the amended information, pled not guilty to counts 2 and 3, and denied the special allegation.

On December 16, 2005, the court considered appellants motions to dismiss the charges on various grounds, including lack of probable cause and speedy trial violation. After hearing testimony, the court denied the motions. The prosecutor talked with appellant about a disposition of the case, but appellant decided he wanted to go to trial.

Just before the start of trial on December 19, 2005, standby counsel was appointed for appellant. The court spoke to appellant about the contents of his opening statement, the restrictions on the admissibility of hearsay or irrelevant evidence, and the difficulties of self-representation. The court made it clear that appellant would have to follow the rules in the courtroom or the judge would have standby counsel take over the case. Appellant said he understood. After appellant asked more questions, the court again told appellant it would be in his best interest not to represent himself. Appellant persisted, and the court patiently answered more of his questions. After appellant questioned the validity of the strike allegation, the prosecutor offered to drop the strike, and offered him time served, with a recommendation for formal probation. Appellant turned down the offer, saying he wouldnt take a day probation, not one day. That afternoon, the prosecution moved to dismiss count 3, carrying a dirk or dagger. Additional plea negotiations ensued, but the case was not resolved.

The case proceeded to jury trial on count 2. Appellant was found guilty of knowingly bringing a deadly weapon into jail. He waived his right to a jury trial on the prior, and the court found true the allegation that appellant had suffered a prior strike conviction. The court denied probation and sentenced appellant to the low term of two years, doubled because of the strike conviction. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims his Sixth and Fourteenth Amendment rights to counsel, to present a defense, and to due process of law were violated because the court should not have granted his motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits. [Citations.] Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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.] (id. at p. 835.)

Appellant admits that his legal competency to represent himself is measured by the same standard used to determine if he was competent to stand trial in the first instance. (Godinez v. Moran (1993) 509 U.S. 389, 391.) He had been evaluated by two experts, who concluded he was competent to stand trial. On the basis of their evaluations, the court found him competent to stand trial within the meaning of section 1367, subdivision (a). Appellant does not challenge the conclusion that he was competent to stand trial, and thus competent to waive counsel.

He argues, instead, that his waiver was neither intelligent nor knowing. We disagree. When appellant asked for pro se status, the court verified that he could read and write before asking him to complete the waiver of counsel form. Appellant completed the form, expressly stating that he was charged with having a dagger on jail grounds. He checked boxes showing that he knew what facts had to be proven to establish his guilt, and what legal defenses were available to the charged crimes. He indicated that he did not know whether the charged offenses were general or specific intent crimes.

After appellant completed the form, the court asked him whether he had reviewed the form and whether he understood it. He said he had, and that he understood he was charged with a serious crime, [c]arrying a deadly weapon on jail grounds. When the prosecutor mentioned count 3, carrying a dirk or dagger, appellant questioned how there could be another charge, since there was only one knife. The court explained the additional count was for the same incident. When appellant complained he had not been arraigned on the additional count, the court decided it would re-arraign him, but first continued its inquiry into appellants choice of self-representation.

The court asked appellant if he understood there were two counts against him and a strike allegation. Appellant said he understood there was a strike. The court explained that if appellant was convicted on both counts, he could only be sentenced on one, since they involved the same incident. Appellant then asked the court: After I come into my pro per status and it is granted to me, will I get to argue the facts of those, the strike and the other charge? The other charge is illegally being charged to me now. The court told appellant it could not give him legal advice, and told him he would have to do his own research if he represented himself. Appellant again confirmed his desire to represent himself.

The court completed explaining the difficulties of self-representation, and reminded appellant of his right to counsel. After confirming with appellant that he still wanted to represent himself, the court granted him pro se status.

The record shows careful explanation by the court of the disadvantages of self-representation, and that the court patiently answered appellants questions about the charges against him. There is no indication in the record that appellant failed to understand the courts explanation or the explanation in the waiver of counsel form. Despite the warnings, appellant was unwavering in his desire to represent himself and to challenge the additional count and strike allegation. This record adequately demonstrates that at the time the court granted him pro se status, appellants waiver of counsel was knowing and intelligent. As respondent points out, it would have been error for the court to deny self-representation to this mentally competent defendant who was fully informed of his right to counsel, was literate, and knew the dangers of self-representation. (See People v. Silfa (2001) 88 Cal.App.4th 1311, 1321-1322.)

Appellant claims the colloquy which followed the grant of pro se status, when the court re-arraigned him on the charges, indicates his lack of a knowing and intelligent waiver. When the prosecutor mistakenly read count 1, appellant correctly noted that charge had been dismissed. He also expressed his concern about the strike allegation for assault with intent to commit rape, a claim which later proved to have some substance in light of the reversal of his original conviction and a negotiated plea on a different charge on remand. Appellant listened carefully to the charges which were read, and sought clarification about them. Nothing in this colloquy called for an additional inquiry by the court.

II

Appellant next claims the court should have revoked his pro se status during subsequent pretrial proceedings. On December 9, 2005, appellant brought a motion to dismiss the case. The court noted it was a little difficult for me to follow the motionthat you want the charges in this case dismissed because essentially you have never been convicted and confined prior to arrest in this case; is that right? Appellant said yes. Appellant then explained he had been arrested once, released, and then arrested a second time. He claimed the second arrest was without probable cause. Appellant also claimed he had been denied his right to speedy trial, that the enhancement should be dismissed pursuant to section 1385, and that he was the victim of false imprisonment. Appellant also told the court he was filing a motion because he was being kidnapped, having been incarcerated illegally for six months.

Nothing at this hearing should have caused the court to question appellants ability to continue representing himself. Respondent reasonably characterizes appellants claim that he had been kidnapped as an unsophisticated way of asserting that he had been unlawfully arrested and confined. As to the claim that his right to speedy trial had been violated, the court understood his argument and explained to him that the delay in prosecution occurred because a doubt had been declared about appellants competency. Although his arguments were legally incorrect or brought in a technically incorrect form, appellant nevertheless demonstrated an understanding of the charges, and of the process for having the charges dismissed or reduced. The court denied appellants speedy trial claim, and put the matter over to the next week because the prosecution had not received copies of all the motions.

On December 16, 2005, the court heard the remainder of appellants motions. Deputy Pellicano testified to the circumstances of appellants arrest. Appellant cross-examined him, and also presented argument on his own behalf. When the court corrected him about the form of a question, appellant was responsive. When the court told him he could not read a letter into the record, but instead had to present argument, appellant did so. The court considered the merits of appellants motions before denying them.

The prosecutor opened discussion about a disposition of the case. Appellant indicated he would take time served and leave it at that. The prosecutor rejected that, and explained that with the strike, appellants exposure was eight years eight months. Appellant disagreed, arguing that the basis for the strike allegation was not correct. Appellant may not have shown skill or technical expertise in representing himself, but he was focused on the charges against him, and on the penalties he faced. At this stage of the proceedings, there was nothing questionable about his ability to knowingly and intelligently waive counsel.

Trial was before a different judge, Honorable Marsha N. Revel. The court appointed standby counsel for appellant, and asked the parties to tell her about the case so she would know what to ask the prospective jurors. Appellant presented his version of the events, and told the court he had been wrongfully arrested, that the officer had kidnapped him. The court corrected him, and explained that appellants complaints about his arrest were not admissible.

The court continued: I need to make sure you understand. You are representing yourself. I have had a lot of people that represent themselves, and what happens is I treat you the same as if you are a lawyer, and you have to address the court the same as if you are a lawyer. There is no special treatment. No better treatment or any worse, but whether you want it before the jury is not the issue. It is whether it is admissible or not. The court told appellant he already had challenged the search and seizure, so even if you think it is an illegal search, the jury will not hear about that, because it was ruled it wasnt. Appellant appeared to comprehend the courts direction, and verified that the court meant he could not bring up that issue in his opening statement.

The court then asked appellant if he had decided whether he would testify. When appellant indicated he would instead read his letter saying what happened, the court explained, You cannot tell the story of what happened unless you testify. . . . If you give an opening statement of things you expect to prove, you cant tell the jury this is what happened. This is what I was going to do, because then if you dont testify, you are not subject to cross-examination. So thats improper. You can only tell the jury in opening statement things that are going to happen from the witness stand. The court emphasized that appellant did not have to testify.

The court explained that the letter would not be admissible because it is hearsay, even though appellant claimed he had logged it into evidence. The court acknowledged that was the problem when you represent yourself. It is hard to know the rules of law. Im trying to explain to you ahead of time. It is not testimony. Appellant appeared to understand, and stated he was going to testify.

The court informed appellant that he could present only relevant evidence, and would have to abide by the courts ruling with regard to objections. When appellant raised the issue of speedy trial violation and whether he had been properly arraigned, the court explained these issues were not before the court. Appellant responded, These are the things that are relevant to me. The court corrected him: These are the things that are bothering you but are not relevant in front of the jury.

When appellant continued to question why he was still in jail, the court said: I will tell you now that you must abide by the proper rules of law, whether you agree with them or not to remain pro per. I want you to be able to represent yourself. I want you to be able to proceed with the trial. I have had a lot of pro pers that had trials, and everything was fine. I never met you before, and thats fine, but like everyone else, whether a lawyer or representing yourself, I will call you counsel. I will treat you with respect, but you in turn have to follow the rules. If you cant or choose not to, whether because you dont understand, you dont like them, or you voluntarily choose not to, then I have no choice but to have standby counsel take over the case. I prefer that you continue representing yourself since you have been taking care of the case up to this point. You cant say that I have been railroaded, it should have been dismissed. The only thin[g] that is relevant before the jury is what the evidence is going to be regarding these two charges. They will put on testimony through an officer that you were in line or whether the music was on or what they told [you to] do, what they found and what you said. You can then cross-examine those witnesses or officers about where you were standing and how loud it was, and whether you do anything else, things that are pertinent and related to the charges here. Then after they rest, the case goes with the defense. If you have a witness to call, you can call a witness. If you want to testify and dispute things, you can. If you want to say that you were going to put it somewhere, those are things, if you want to, you can testify about, and then she can cross-examine you, but to put on things like I have been railroaded from day one, that has no bearing at this point in the trial of these two charges.

Appellant said he understood. The court explained that it wanted to make sure because it did not want to embarrass him in front of the jury. Appellant thanked the court for that, and then asked questions about what he would be able to present and the procedure for doing so. After several questions, the court told appellant, I think its in your best interest not to represent yourself, but you have been through that. The court reminded appellant that standby counsel would be ready to take over the trial if necessary, and invited counsel to correct the court if he believed the court was giving incorrect information to appellant. Throughout this lengthy discussion, appellant asked pertinent questions about the conduct of the trial, including the content of arguments, the time permitted for opening and closing statements, and the opportunity for rebuttal. Appellant was focused and appeared to understand the courts explanations and warnings.

After a brief interruption, the court asked appellant to consider whether he wanted to bifurcate trial on the strike, and explained what that meant. Appellant replied that he was not sure it was a strike, and explained that he had been charged with four counts of rape, had gone to prison for eight years, appealed, and was released. Six months later, he was given a years probation. The prosecutor looked through the documentation and admitted appellant was correct, there had been a successful appeal. She was not certain what happened on remand. Appellant adequately represented himself in challenging the record on his prior conviction, even though ultimately it was determined that he had entered a plea on remand. At this point the prosecutor offered to strike the strike if appellant would agree to a bench trial. The prosecutor said she was willing to give him time served, but appellant insisted he would only take that without probation. The prosecutor and the court discussed an offer of time served with unsupervised probation, but appellant declined.

After the morning recess, the prosecution moved to dismiss count 3, carrying a dirk or dagger because it has to be something on his person . . . . The court dismissed the count, leaving only count 2.

Before trial began, the court warned appellant that if he testified, the prosecution could impeach him with his prior felony conviction. Appellant asked whether he would get a chance to explain about the prior, and the court told him why his explanation would not be relevant. Further plea negotiations ensued, with appellant turning down one-year formal probation, and asking for two years unsupervised probation. The prosecutor did not accept that, and appellant rejected the courts offer of one-year formal probation and one year unsupervised. Appellant reminded the court they had been discussing bifurcation of trial on the strike. After additional discussion of the courts inclination about sentencing discretion if appellant waived jury, appellant said he wanted a jury trial, and jury selection began. In light of the courts careful explanations of trial procedure, appellants responses, and his participation in the plea negotiations, we conclude appellant understood the charges against him and the potential penalty he faced.

III

Appellant claims his pro se status should have been revoked during trial because he did not understand the charges and penalties he was facing. We have recounted in detail the courts discussion with appellant about the charges, and the ongoing plea negotiations. These colloquies show that at the outset of trial, appellant understood that the court and the prosecution believed he faced a maximum sentence in excess of eight years, and that the only charge he faced was bringing a knife onto jail grounds, with a potential strike based on his prior conviction for assault to commit rape. Appellants belief that the prior was not a strike was reasonable given that he had successfully appealed his conviction and on remand had been sentenced to time served. That he dogmatically held to this view in the face of the court and the prosecutors explanation does not indicate he lacked the capacity or understanding to represent himself, but that he refused to accept what he was told.

Appellant participated in his own trial, questioning witnesses, objecting to evidence, and testifying on his own behalf. He introduced exhibits to establish his location at the jail. He was polite and respected the courts rules. He presented a cogent defensethat he did not knowingly bring the knife onto the jail grounds. To the extent the court sustained objections to his opening statement or to his testimony, it did so with discretion, so as not to affect the jurys impression of appellant. On this record, we find no support for appellants claim that his in propria persona privileges should have been revoked.

We also find no indication that by attempting to assist appellant, the court improperly inserted itself into the proceedings. The court patiently explained the proceedings to appellant, answered his questions, and warned him of the dangers of self-representation, the risk of impeachment with a prior conviction, and the benefits of bifurcating trial on the prior conviction. It cautioned him not to pursue issues already resolved, such as the legality of his second arrest or the admissibility of evidence. This all comes within the courts authority to control the proceedings in its courtroom. We find nothing improper in the courts actions.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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^[1] All statutory references are to the Penal Code.