P. v. Delgadillo

Filed 7/26/07 P. v. Delgadillo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Philip H. Hickok, Judge. Affirmed.

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Teresa R. Barrera, 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, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Jose Alberto Delgadillo chose to represent himself in a jury trial in which he was charged with thirteen felonies including burglary, battery, robbery and intimidating witnesses. The jury convicted him of seven of the counts. On appeal he argues his convictions must be reversed because he did not knowingly and intelligently waive his right to counsel, and he was denied reasonable access to the jail law library. We find the record does not support Delgadillos contentions and therefore we affirm the judgment.

FACTS AND PROCEEDINGS BELOW

Six months before the start of trial Delgadillo moved to discharge his public defender and represent himself. The trial court warned Delgadillo of the dangers and disadvantages of self-representation. With respect to trial preparation the court informed Delgadillo: You will find that you are placed in the pro per module in county jail. You will have very limited access to funds and books. Delgadillo stated he understood these difficulties and, after conferring with the public defender, he announced he wanted to represent himself. The court made a finding Delgadillo voluntarily, knowingly and intelligently waived his right to counsel and granted the motion.

Delgadillo appeared at seven pretrial conferences between October 2005 and January 2006. Each time he complained he was not being given sufficient access to the jail law library to prepare his case.

We cannot determine from the record just how often Delgadillo was denied access to the law library or, conversely, how much time Delgadillo actually spent there. The record does show, however, that on November 5, 2005, Delgadillo was stabbed by another inmate and the sheriff moved him out of the jails pro per module for his own safety. Delgadillos new module had no law library and, consequently, he lost library time for approximately two months.

By December 27, 2005, Delgadillos library access had been restored but he complained his access was not sufficient to allow him to prepare for trial. The trial court ordered that a representative of the Sheriffs Department appear at the next pretrial hearing to discuss Delgadillos complaints. On December 30, 2005, the sheriffs representative appeared and told the court Delgadillo was currently receiving two hours in the library every day. Delgadillo denied he was being allowed two hours a day every day but admitted he was receiving at least some time. The trial court ordered the Sheriffs Department to fax it a copy of the library sign-in sheet prior to the January 6, 2006 status conference.

At the January 6, 2006 status conference the trial court noted the sign-in sheet showed Delgadillo had gone to the law library three out of the last six days. Delgadillo did not claim he had been refused library access the other three days but repeated his claim he was not receiving adequate library time to prepare his defense. He told the court, I want to speak to a representative from the federal courts about my civil rights. The court responded, I am not going to have anyone come in from the federal court. I am not even sure what you mean by a representative from the federal court. It sounds to me like you want an attorney. No, Delgadillo replied, I dont want an attorney. I wouldnt be representing myself if I wanted an attorney. The hearing then moved on to other subjects.

At the next hearing, on January 13, 2006, the People announced ready for trial. Delgadillo stated: I am still not ready [because] I am still being deprived of the law library. Delgadillo told the court he wanted to go to the library every day but [t]hey just dont come pick me up. He conceded, however, he had been to the library 10 out of the last 13 days. The court again ordered the Sheriffs Department to fax it a copy of the library sign-in sheet for the next court appearance and, at Delgadillos request, loaned him a copy of the courts C.E.B. treatise, Criminal Law, Procedure and Practice. Asked how much more time he would need to prepare for trial, Delgadillo responded: I think a month is good enough.

Delgadillo appeared in court on February 16, 2006 and March 13, 2006. He made no further complaints about lack of library access. At the status conference on March 13, 2006, Delgadillo announced ready for trial. A jury trial commenced on March 23, 2006.

The jury convicted Delgadillo of two counts of burglary, two counts of petty theft with a prior, two counts of witness intimidation and one count of forgery. The court sentenced Delgadillo to five years in prison.

DISCUSSION

I. DELGADILLO KNOWINGLY AND INTELLIGENTLY
WAIVED HIS RIGHT TO COUNSEL

Delgadillo contends that he did not knowingly and intelligently waive his right to counsel because he based his decision to represent himself on the trial courts assurances that he would be placed in the pro per module at the Los Angeles County jail and given the usual pro per privileges afforded inmates at the jail but these assurances were not performed. His contention lacks merit.

The sheriff did place Delgadillo in the pro per module until he was stabbed by another inmate after which the sheriff moved him for his own protection. Surely the trial court cannot be expected to anticipate every circumstance which might require moving a pro per prisoner and temporarily delaying the prisoners access to the law library.

As to Delgadillos claim he was denied the usual pro per privileges, the trial court gave him no assurances regarding pro per privileges beyond its statement he would have very limited access to . . . books. The local rules of the Los Angeles County Superior Court state [a]ll pro per inmates shall be entitled to a maximum of two (2) hours per day of law library access. (Super. Ct. L.A. County, Local Rules, rule 6.41, subd. (c)(1), italics added.) This rule recognizes the sheriff has responsibilities beyond escorting prisoners to the law library and that situations may arise in which library access may be curtailed or postponed. (Cf. United States v. Chatman (4th Cir. 1978) 584 F.2d 1358, 1360 [security considerations may justify adjustments to law library schedule].)

For the reasons explained above, we conclude the trial judge did not mislead Delgadillo about what he could expect as a pro per prisoner. On the contrary, the record shows the court went out of its way to accommodate Delgadillo in his efforts to prepare for trial even though the court had advised Delgadillo when he sought pro per status that he would receive no special treatment. The courts assistance included ordering the sheriff to allow Delgadillo to use the law library consistent with his safety, monitoring the library sign-in sheets, granting Delgadillo numerous trial continuances and loaning him the courts own copy of a treatise on criminal procedure and practice.

Delgadillo argues that when the trial court received evidence he was not afforded adequate library time the court should have offered him the opportunity to relinquish his pro per status and accept attorney representation. He cites an advisement by our Supreme Court to trial courts that whenever a determination to modify [pro per privileges] is made, the court should inquire of the defendant whether, in light of the modification, he still wants to proceed in pro. per. or now wants to have counsel appointed to represent him. (Wilson v. Superior Court (1978) 21 Cal.3d 816, 828.)

The record shows, however, the trial court did offer Delgadillo the opportunity to accept representation by counsel. At the January 6, 2006 status conference the court responded to Delgadillos complaint about the denial of library access by suggesting: It sounds to me like you want an attorney. In response Delgadillo categorically rejected appointment of counsel stating: No, I dont want an attorney. I wouldnt be representing myself if I wanted an attorney.

Based on our review of the record we conclude Delgadillo knowingly and intelligently waived his right to counsel not just once but twice.

II. THE RECORD DOES NOT SHOW DELGADILLO
SUFFERED AN UNREASONABLE RESTRICTION ON
HIS LIBRARY PRIVILEGES.

Delgadillo argues that curtailing his access to the law library as described above was an unconstitutional restriction on his right to self-representation and requires his conviction be reversed. We disagree. To be sure, the state may not unreasonably hinder a pro per defendants efforts to prepare his defense (Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1446-1447), but we find no evidence of unreasonable hindrance in this case.

The record shows that after Delgadillo was stabbed in November 2005 the sheriff moved him from the pro per module to a different module for his own protection and, as a result, Delgadillo did not have access to a law library for about a month and a half. The sheriff did not act unreasonably in putting Delgadillos safety ahead of his library privileges. The sheriff restored Delgadillos library access in late December 2005. We cannot determine from our review of the record whether the sheriff could have acted sooner to provide Delgadillo with library access. The record does show, however, that each time Delgadillo complained about lack of library access the court contacted the sheriff to try to resolve the problem and kept continuing the trial until Delgadillos case became one of [the] oldest cases on calendar.

More importantly, the record shows that Delgadillos access problems were resolved nearly three months before the start of trial. At the pretrial hearing on January 13, 2006, Delgadillo told the court he had been to the library 10 out of the past 13 days. At the February 16, 2006 hearing Delgadillo did not complain at all about lack of library privileges. On March 13, 2006, he announced he was ready for trial. The trial commenced on March 23, 2006, without objection from Delgadillo.

In summary, although there were times when Delgadillo did not have access to the jail law library, he has failed to show these limitations on access interfered with his ability to defend himself.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. JACKSON, J.^*

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^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)