P. v. Carter

Filed 10/30/06 P. v. Carter CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Ronald S. Coen, Judge. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5) on the ground that the search of his residence was justified as a proper parole search, defendant Nardell Carter pled guilty to two counts of forgery (id., § 470), possession of a forged item (id., § 475, subd. (a)) and possession of a blank check (id., § 475, subd. (b)). In accordance with the terms of a negotiated plea agreement, the trial court sentenced defendant to state prison for a total term of five years.[1] Defendant thereafter filed a notice of appeal “from the final judgment of conviction pursuant to Penal Code 1538.5.”[2] We affirm.

BACKGROUND

Early in the proceedings, defendant’s appointed counsel informed the trial court that defendant wanted to invoke his right to self-representation. Counsel further advised the court that defendant had “some health problems including apparently active prostate cancer” and that defendant was going to undergo prostate surgery. After the court determined that defendant’s decision to represent himself was knowingly and intelligently made, it granted defendant’s request to represent himself.

Defendant thereafter filed a motion to set aside the information pursuant to Penal Code section 995. When the matter was called for hearing on September 20, 2005, the People declared they were not ready and asked for a continuance. When the court said “[w]e need to get this case going,” the prosecutor agreed and apologized. The court continued the matter to September 23, after which defendant stated that he was thinking about filing a motion to suppress evidence. At this juncture, the court stated, “Here is what is going to happen. You put in your motion; this case is going to trial. If the 995 gets denied, it’s going to trial.” Defendant reiterated that he wanted to file a suppression motion “because there is a search issue.” The court told defendant he had three days to prepare his motion.

On September 23, 2005, defendant filed a motion to suppress all evidence seized as a result of a warrantless entry and search of his residence. The trial court denied defendant’s Penal Code section 995 motion and directed the People to file a new information consistent with certain rulings it had made. In light of defendant’s newly filed suppression motion, the trial court stated it would grant one final continuance. The court explained: “I have had a lot of experience with pro pers. Let me tell you what usually happens. I’m going to give you a warning and I want you to tell me on the record if you understood exactly what I said. A lot of times a pro per has some fun and it goes up to the day of trial and he says, ‘I need a lawyer.’ The law says that that may be too late. I have to look at certain factors in deciding as to whether you may give up your right to represent yourself. If it is too late, and I have done this before, that is denied, then you are stuck with representing yourself.” Defendant acknowledged that he understood what the court said. The court expounded, “So there may come a time when you say you are giving up your pro per status and it’s too late.” Defendant again said he understood. The court then said, “Very well. The next date I make is going to be the last day.” The court continued the matter for one month to October 24, 2005 for the hearing on defendant’s motion to suppress and for trial.

Prior to October 24, 2005, defendant filed an amended supplemental motion to suppress in which he argued that the parole search was a ruse and conducted without reasonable suspicion. Defendant also filed a request that privately retained counsel, Vicken H. Hagopian, serve as cocounsel due to defendant’s declining health.

On October 24, the trial court first took up the matter of defendant’s request for cocounsel. The court denied the request, explaining that defendant did not have the right to be represented by counsel and to represent himself at the same time and that these rights are mutually exclusive. The court further explained that “[s]uch arrangement should not be permitted except on substantial showing that it will promote justice and judicial efficiency in a particular case. The trial court need not expressly invite such a hearing or require a defendant to state a reason for such a request.” The court then invited defendant to explain, “How is this going to help [promote] the efficiency of justice?” Defendant replied, “Well, I suffer from a major distraction disability. That’s what it’s going to do. I’m not alert to be able to keep up with the action here in court.”

“THE COURT: Are you saying you are incompetent to represent yourself?

“THE DEFENDANT: No. I’m not saying I’m incompetent. I’m saying I suffer from major distraction disability. Okay? And what those disabilities is, severe pain like I’m having right now while I’m listening to your words. Life and death. Because I have prostate cancer and that pain is killing me right now.

“THE COURT: You had prostate cancer when you agreed to go pro per, did you not?

“THE DEFENDANT: I had prostate cancer. The pain gets worse every day. Worse every day. I’m not getting any medical treatment in here. I have all the documentation here. I presented the documentation to the court.

“I was supposed to been served this court here, not maybe this court, but the court before this, in Municipal Court, put in three court orders. The doctors just sent them back. He said he just signed them and sent them back.

“I haven’t had any treatment for my cancer. I’m not getting any medication for my cancer. . . . I’m dying. That’s the reason why my family retained an attorney.

“THE COURT: I see. The motion to allow retained cocounsel is denied for the reasons I have stated.”

When the court announced that the hearing on defendant’s motion to suppress evidence would proceed, defendant said he was not prepared. The court said, “Well, it’s going. It’s a must go date.” The following then transpired:

“THE DEFENDANT: I cannot function.

“THE COURT: If you refuse to function, if you refuse to participate, I’ll cite certain cases.

“THE DEFENDANT: I’m not refusing. I cannot --

“THE COURT: You are abandoning your right to self-representation. Now you are playing games.

“THE DEFENDANT: I’m not playing games. I got prostate cancer. I got pain.

“THE COURT: You had prostate cancer when I gave you your pro per rights. You complained of pains at that time.

“THE DEFENDANT: I’ve been complaining of pains all the way through this court.

“THE COURT: That’s right, sir. All right. Let’s proceed.

“THE DEFENDANT: As far as I’m concerned I’m not able to proceed.

“THE COURT: Are you refusing?

“THE DEFENDANT: I’m not refusing. I’m not able to proceed.”

When the trial court invited the prosecutor to call her first witness, defendant reiterated that he was not ready to proceed. The court warned defendant not to interrupt, in that the matter was proceeding. Defendant then stated, “I’m not going to let this court just run over me. I’m not going to let the court do it. I’m not prepared. I’m not ready. My alertness is up. Everybody in this courtroom is sharp. Their minds is alert. I deserve that same right and due process.”

The trial court warned defendant that case law authorized it to terminate his pro. per. status if the court determined that his decision to stand mute was motivated by a desire to disrupt or manipulate the proceedings or to inject error into the proceedings. The court noted that “the right of self-representation is not a license to abuse the court to obstruct proceedings. That’s what this is.”

Defendant claimed he was sincere and that he had documentation showing that he was supposed to have had surgery on June 7, 2005. When defendant reiterated that he was not refusing to participate, the court said, “You said it again sir. Now you are warned. It is your desire to stand mute that is not sincere. We are proceeding.”

At this juncture, Attorney Hagopian inquired as to whether defendant wanted him to move the court to appoint him as standby or advisory counsel. The court stated that it had already ruled on advisory counsel but that if counsel wanted to be standby counsel he could be and directed him to have a seat in the back of the courtroom.

Defendant then inquired about the money his family had paid to retain Attorney Hagopian. The court explained that “[h]e’s retained stand-by counsel.” “If Mr. Hagopian wants to be retained as stand-by counsel, he can remain as stand-by counsel. That means no advice, sir. You do not participate in this lawsuit.”

When the trial court again told the prosecutor to call her first witness, the following took place:

“THE DEFENDANT: I’m not able to -- I’m disabled. I’m not able to do it.

“THE COURT: Sir, that is your choice to remain and stand mute.

“THE DEFENDANT: I’m not standing mute. I’m just unable.

“THE COURT: I find that you are able and this is a game.

“THE DEFENDANT: I’m the one suffering the pain.

“THE COURT: Sir, we are proceeding.

“THE DEFENDANT: Do what you want to do. It’s against my -- I object to it.

“THE COURT: Your objection is noted.

“THE DEFENDANT: Okay.

“THE COURT: You may call your first witness.

“THE DEFENDANT: Do what you want to do.

“THE COURT: All right. You are warned. One more outburst, sir, one more outburst, and you relinquish the right to self representation.”

The People thereafter presented their evidence.[3] Defendant asked no questions, presented no evidence, and made no argument. At the conclusion of the evidence, the trial court denied defendant’s motion to suppress, finding that this “is a proper parole search under People v. Reyes [(1998)] 19 Cal.4th 743.”

Following the denial of his suppression motion, defendant entered his plea. This appeal followed.

DISCUSSION

Defendant contends that the order denying his suppression motion must be reversed, in that the trial court deprived him of due process of law under the federal and state constitutions when it denied his request for the appointment of cocounsel at the hearing on his suppression motion.[4] There is no merit to this contention. “‘While the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel . . . a defendant who elects self-representation “does not have a constitutional right to choreograph special appearances by counsel” [citation]. Thus none of the “hybrid” forms of representation, whether labeled “cocounsel,” “advisory counsel,” or “standby counsel,” is in any sense constitutionally guaranteed.’ [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 723; accord, People v. Kirkpatrick (1994) 7 Cal.4th 988, 1003.)

Just as it is “generally undesirable” to “[a]llow[] a represented defendant to share legal functions with the attorney” (People v. Frierson (1991) 53 Cal.3d 730, 741), it is similarly undesirable to allow a defendant who has successfully invoked his right to self-representation to share legal functions with a retained attorney. “The court’s discretion to authorize such an arrangement is . . . ‘sharply limited,’ and may be exercised only upon a ‘substantial’ showing that it will promote justice and judicial efficiency in the particular case.” (Ibid.) Inasmuch as defendant made no such showing in this case, the trial court properly exercised its discretion when it denied defendant’s request for the appointment of privately retained cocounsel. (Ibid.) Although defendant claimed repeatedly that he was unable to proceed due to health problems, the court did not believe him. Defendant cites no authority that would permit us to disturb the court’s credibility determination.

Defendant next asserts that inasmuch as the trial court believed his decision to stand mute was a ploy to disrupt or manipulate the proceedings, the court could have terminated his pro. per. status and allowed Attorney Hagopian to litigate the motion to suppress. While the court would have acted well within its authority if it had terminated defendant’s pro. per. status (People v. Stansbury (1993) 4 Cal.4th 1017, 1041, cert. granted in part sub nom. Stansbury v. California (1993) 510 U.S. 943 and revd. on another ground sub nom. Stansbury v. California (1994) 511 U.S. 318; People v. Clark (1992) 3 Cal.4th 41, 115), defendant cites no authority that required the trial court to do so.

Here, the trial court made it clear to defendant that he could not simultaneously represent himself and be represented by cocounsel. When the court asked defendant if he was incompetent, defendant denied that he was incompetent, thus evidencing his desire to continue representing himself. At no time did defendant offer to surrender his pro. per. status so that Attorney Hagopian could litigate his suppression motion. Defendant simply insisted on that to which he was not constitutionally entitled, and when he could not get his way, he stood mute. Defendant must now live with the decision he made. No constitutional violation has been established.

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] This sentence was ordered to run concurrently with the sentence imposed on defendant in case number PA048409.

[2] Penal Code section 1538.5, subdivision (m), in pertinent part provides that “[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the . . . suppression of the evidence.”

[3] The facts adduced at the hearing on the suppression motion are not relevant to a resolution of the issue presented on appeal and thus need not be detailed.

[4] Defendant does not challenge the trial court’s ruling that the search of defendant’s residence was a valid parole search.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.