P. v. Jackson

Filed 3/14/07 P. v. Jackson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Bob S. Bowers. Jr., David Wesley, and Sam Ohta, Judges. Affirmed.

Gail Harper, 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, Michael R. Johnsen and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Stephen Jackson, Jr. was convicted of numerous sexual offenses against multiple victims and was sentenced to life imprisonment with a minimum of 70 years in prison plus a determinate term of 13 years. He appeals his conviction on four grounds: that he was not competent to represent himself and should not have been allowed to do so; that the trial court should have ordered a competency hearing; that the trial court should have granted his requested continuances; and that the trial court deprived him of his right to confrontation by consulting ex parte with another judge. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Jackson was alleged to have sexually assaulted five women near Union Station in Los Angeles between March and September 2004. Jacksons original counsel, the alternate public defender, declared a conflict, and a panel attorney was appointed for Jackson on February 28, 2005, in case No. BA270867. At a March 1, 2005 pretrial conference, new counsel, Arlene Binder, requested a continuance of the March 25 trial date so that she could prepare for trial. Jackson opposed his counsels request because he wanted a speedy trial. The trial judge, Judge Sam Ohta, granted a continuance until March 11, 2005, for attorney Binder to familiarize herself with the case and determine exactly how much preparation time she required.

When the parties returned on March 11, Binder requested that the case be continued to May 2, 2005, so that she could prepare and have DNA analyses performed. Judge Ohta observed that this appeared to be a reasonable request supported by good cause, and asked Jackson for his view. Jackson, apparently upset that his first attorney had declared a conflict, told the court [T]here is some trickery that is coming into play to delay this situation by Mr. Abrahamian [the first attorney], you know, the conflict of interest without me knowing about it in the first place just occurring and now were delaying and delaying. I dont want to delay because I know Im innocent and I want it to just happen. And Im not going to waive any[ ]more time. If today was the day to start the pretrial, I will still say I want it today. I didnt want it back two weeks ago. Im not going to waive no more time. The trial court granted the continuance.

On April 25, 2005, with Binder as his counsel, Jackson was arraigned on an amended information in his other pending case, No. BA277842. At that hearing, Jackson attempted to address the court but was directed to confer with his counsel. After some time, Judge Ohta said, Mr. Jackson, Im going to give you a form. Its called a Faretta[1]motion. You need to go over that form, and on May 2nd you may make that request if thats your desire at that point. Jackson responded, I cant make it today? The court said, You have to think about it and go over it.

Jackson continued, I mean, I already went pro per on another case in December. I even have the forms with me now. I understand I still have pro per status at L.A. County Jail; so I understand the process. And I would like to go pro per right now and have this ready for my signature and go forward with the procedure. The court reiterated, Im not doing it today.

Jackson insisted, Its my right, my Faretta rights to do this. Im not giving attitude or nothing. But at this moment I canits my right to go pro per. Its my right. The court said, Its your right to go pro per when we have a court proceeding for you to go pro per. You do not have a court proceeding for you to go pro per. Jackson said, Im positive this time I want to go pro per. Its my right and I can go pro per right now. Its my right. I understand that, too. I dont have to wait until May 2nd. I know this. I know it. The court told Jackson that they had finished his case for the day and that they would hear his motion at the next court hearing.

At the next court hearing, on May 2, 2005, the first matter was Jacksons desire to represent himself. Judge Ohta commented, I had given him a form. He does not appear to have a form in his hand. Well, first of all speak to your attorney about what you want to do. Jackson said that all of his papers were confiscated by sheriffs deputies. The court directed that a new Faretta waiver form be provided to Jackson. The court then turned to the prosecutors allegation that Jackson had been contacting the victims directly by letter and telephone to dissuade them from testifying. The court informed Jackson that regardless of whether he had counsel or was representing himself, he could not contact the victims directly. The court then engaged in a lengthy advisement to Jackson of the advantages of having counsel and the disadvantages he would face by representing himself. The court told Jackson that [t]hese charges are quite complicated. These charges are complicated for attorneys to handle because they involve[] many different rules of law and how they might interplay in connection with proving up the case.

Many attorneys disagree as to how the law should be interpreted because some of these laws are fairly new. You are not even a licensed attorney. Im not saying that youre not smart or that youre not bright, but even smart bright people sometimes dont comprehend fully what these laws mean or say. You are telling me that you wish to embark upon this journey of representing yourself where you are looking at an indeterminate term of life imprisonment, possibly consecutive 5 separate instances alleged against you. [Five] possible consecutive life sentences, and you are telling me that you want to represent yourself in this case? Jackson responded, Yes. The court directed him to consult further with his counsel, and gave him approximately one-half hour to do so. Jackson continued to want to represent himself.

Judge Ohta engaged in an extended discussion with Jackson about representing himself, offering additional advisements about the disadvantages of representing himself within the context of this case. Jackson reaffirmed his desire to represent himself. The court found that Jackson was freely and voluntarily waiving his right to an attorney and allowed him to represent himself.

Proceeding on to other pretrial issues, Jackson did not oppose the consolidation of the two cases against him. The court consolidated the two cases. The next matter discussed was the trial date. The day of the hearing, May 2, was designated 0 of 15, and the trial court told Jackson that he had a right to go to trial by May 17. The court asked whether Jackson wanted to have the trial within that 15 day window. Jackson responded, Ms. Binder said the DNA experts dont have the information back until, like, May 31st. So I mean if I get it, I still want my speedy trial, due process rights. Would that mean Ill be giving up by waiting until the 31st?

The court told Jackson that he would have to decide whether to have the trial within 15 days or to wait until the information came back from the DNA expert. Jackson asked, Yes, so if I waive time today, I lose control of what Im doing; right? The court responded, No, you dont lose control of what youre doing. You lose control to the extent that you dont get your trial on the date that you originally had it set for. So the next court date becomes 0 of whatever you agree with the prosecutor. So what do you want to do? the court asked. Jackson said, I am not going to waive time. The court ensured that Jackson understood that he was in effect electing to forego his DNA expert: If you do not waive time, you will go to trial by May 17. That means jurors will be selected[,] the prosecution will begin to call witnesses by May 17[,] that will happen. Which means that if the information from the expert is not available until the 31st this case probably will be done by then. So youll be finished before the expert is available. Do you understand? Jackson responded affirmatively and repeated, I dont want to waive time. The trial court appointed Binder as stand-by counsel, ordered a legal runner, and awarded pro per funds to Jackson.

On May 12, 2005, Jackson reiterated that it was his desire that the matter go to trial. Judge Ohta asked, So you want me to send this case to Department 100 tomorrow? Jackson said yes, and the court ordered the matter assigned to Department 100 for trial.

The following day, Judge David Wesley called the matter for trial. The court asked Jackson if he was ready for trial. Jackson said, I need a continuance. The court asked, Did you file a motion to continue? Jackson said that he did not. The court asked the grounds for the continuance, and Jackson answered, Ever since I went on pro per back at the County facility, I havent been hadhavent had access to the law library for like two weeks and havent been able to get in contact with my private investigator due to the fact that I havent been able to use the phones.

When the court asked if Jackson had declared that he was ready for trial the day before, Jackson admitted that he had done so. The court asked, What happened between yesterday and today? Jackson said, Ive been contemplating a lot. The trial court denied the motion for a continuance and sent the matter to Judge Bob Bowers, Jr. for trial.

The parties moved to Judge Bowerss courtroom, where Jackson again complained that he had not been able to use the law library or the telephone to contact his investigator. The court asked why he had told the prior department that he was ready for trial, and Jackson said that he had told the prior department that he was not ready, but they didnt grant it, so Im asking you again. The court asked if Judge Wesley had explained why he denied a continuance, and Jackson said, He just said he wont. But Im asking again because I do need it because I havent been able to use the facility to exercise my pro per rights. The court said that he was bound by the other courts ruling, and said that if he told all this to the other department, then no continuance would be granted. At this point the prosecutor asked to be heard and told the court that he was concerned about appellate review of the case, as it was complicated, Jackson had been pro per for only a short time, he had not filed a particular motion, and he had waived his DNA experts. The court asked if the prosecutor had made this argument before Judge Wesley, and the prosecutor responded that he had tried to, but had been sent out before he could do so. The court ordered a recess because I have to satisfy myself on some issues.

When the court reconvened, the court said, I have checked with Department 100 in this matter. And basically as I was sort of hinting at at our first encounter this morning is that apparently you insisted on not waiving time and announcing ready to go to trial. I believe that Ms. Binder was about to make a motion in that regard, or something in essence in that regard, and was told not to, or wasnt acknowledged. [] So consequently we are at this point in this matter, this matter will go to trial.

After the court and the parties discussed a number of matters, including the start of jury selection the following court session, Jackson announced that he wanted to give up his pro per status. The court said that he would appoint Binder as his counsel, but that even if she took over his representation the trial was going to begin. Jackson said, So, in other words, I still have a chance? Even though I continue to represent myself, I can still get my status after I pick a jury? The court explained that he wanted Jackson to make a final decision over the weekend about whether to represent himself: [W]hen you leave here today Im asking you to prepare a witness list if thats what you want to do, and you come in here Monday and you let me know what you decided, if you are going to keep on representing yourself or have Ms. Binder come in and represent you. Jackson asked a moment later, So if I get my counsel back, Ms. Binder, we can continue this matter? The court said, No. Thats what I said about five minutes ago. . . .  What were really talking about is: One, this trial is going to start on Monday. Thats going to start, okay? So anything were talking about right now is who is going to do the talking.

Jackson responded, Yeah. So no resources, no law library, but on Monday it has to be done. Either I do it or she does it and thats it? The court answered, Well, I mean, again, thats your phraseology of it. Hear me out. I dont agree with it but thats acceptable. All right? Jackson said, But no continuance by me or her? The court repeated that there would be no continuance because nobody forced Jackson to declare that he was ready for trial.

Binder requested to be heard by the court. She said, I would like to make a record that I feel theres some very, very strong reasons why (A) he should not be representing himself; and (B) due to a possible competency-in-understanding issue. The court said that at the advanced stage of the proceedings, it was not in a position to go behind and evaluate his suitability for pro per status. The court observed that when defendants seek to go pro per their competence is evaluated and stated on the record, And as far as Im concerned at this point that will have to suffice until there is further evaluation by some other court. Binder told the court that the information she wanted to share with the court had come to her only the day before. The court said, Thats what Im saying. [] And again, Ms. Binder, what you say to me is not unreasonable. But what I am saying to you is pro pers want to go into pro per status and if these issues come up the court assumes these issues will be raised by the pro pers. And again I appreciate what you are trying to do but its just not appropriate[] at this point in time. In other words, I cant have you advocate for certain positions for your client at this point and be stand-by counsel.

Judge Bowers called the case the following Monday morning, May 16, 2005, outside Jacksons presence, so that Binder could address the court in the presence of the prosecutor. She presented a letter to the court from Jacksons childhood friend, and told the court, Before when I was still his counsel I was just at the point where I was going to ask the court for appointment of a psychiatrist; not because I felt he had psychological problems to the point that it could be [incompetence within the meaning of Penal Code section] 1368although I was concerned about thatI have since spoken with his mother at length and some people very recently and also psychological professionals that tell me the symptoms I describe could possibly be indicative of the onset of schizophrenia.

It would be my opinion that when he became pro per that he was not fully comprehending what that in fact meant. He didnt understand that he most likely would not get pro per privileges in the law library because he had written letters to victims in this case, and I believe thats the reason[,] it would be my guess[,] why they are not allowing him to use the law library.

I felt the reason why were here at this stageand I dont know when he comes out if hes going to say that he wants me to take over or notbut the reason were here I believe is because he did not comprehend what it means to beanything about this process and waiving time, etcetera. And Im very concerned, gravely concerned about his psychological status.

The trial court responded that it was not the court that decided that Jackson was competent to represent himself and that he did previously announce that he was ready for trial. It seems to me that he is somewhat aware of what is going on. Maybe he was making a ploy to find out if the people were ready and if they werent ready what might have happened. I dont know that. [] But what I do know [is] it came out here for trial. The court said, Again, I dont know how long this case has been in the system or how long you represented him before he was granted pro per statusbut it seems to me that what you suggest seems to me there should have been some indication prior to ten days, before he announced ready to go to trial. And its this courts observationagain, I dont profess to be a medical professional at allbut it is this courts observation in the very limited time that I have seen him is that he elected to make this choice. [] And hes not the first person thats ever done this. It just rushes on them right away that its really going to trial. And thats how he seems to be.

Jackson entered the courtroom and told the court that he wanted to continue to represent himself.

After jury selection and opening statements, Jackson told the court that he wanted stand-by counsel to take over the case. Binder took over the representation and immediately began to raise the issue of Jacksons competency again. She acknowledged that Jacksons behavior could be seen as abusing the system but said, On the other hand, I have continued to have conversations with a gentleman who has explained to me certain facts regarding Mr. Jacksons behavior over the past several years. And the court did get an opportunity to review a letter that I presented to the court. And I received further information indicating that Mr. Jackson washad a group of life-long friends. The court said that these issues should have been raised prior to trial and that Mr. Jackson has appeared to me to be a reasonably articulate and intelligent man. He has made some decisions and things here that actually have beenas far as the court is concernedhave been no more than appropriate.

Binder continued to press: The two points I would like to make is this information did not even begin to come to me until last Friday, and further over the weekend. She said, I think the question is this: When somebody assumes pro per status, and I myself in my dealings with Mr. Jackson he most often appeared very intelligent, I know he has college in his background

The trial court interrupted. Ive told you this for the second time: I am not a psychologist. And Im telling you from my experience as a bench officer watching people in the courtroomlawyers, non-lawyersI see nothing, absolutely nothing to distinguish this man from any other person who has attempted to represent himself, or represented himself, or to act a part in any proceedings in the courtroom.

Counsel persisted, I understand the court does not see that. But I ask the court to consider whether this is just a personat what point do we distinguish between a person who is pro per and makes certain decisions based on bad judg[]ment or stupidity or whatever, or based on the possible in[c]ipience of a mental illness. The trial court said, I think that something is going to be taken up on appeal. The bottom line is there is nonothing in the record to indicate there is any kind of mental disorder whatsoever that would prevent him from taking part in his own defense. [] As I indicated before, to the point that he said he no longer wanted to be his own attorney, there was nothing in this courts opinion that indicated at all that there was any kind of mental impairment that would prevent him from taking part. And thats just as I see it from the bench.

Binder asked, Is the court discounting the information on the letter presented? The court responded, That was some childhood friend who made observations, not a physician. This is just somebody thats tantamount to me saying hypothetically if I was to see Mr. Beaart [the prosecutor] and say I think hes crazy. I have no basis for that. Im not a physician. Thats just somebody that observed him. Thats their opinion. I dont know who this person is, or was, I dont know what the basis was for coming to those conclusions that person came to. [] I recognizeI did read the letter, I understand what it means. But it has no meaning or significance in terms of this courts rulings with respect to his mental capacity to take part in these proceedings.

The trial court then denied Binders requests for a continuance, and the trial resumed.

Lee D. testified that on March 26, 2004, she took a train from Union Station and exited at another station to transfer her ticket, but had difficulties purchasing a ticket from the machines. Jackson approached her and told her that he could show her where she could purchase a ticket. She followed him for distance of approximately one block, leaving the Metro station and ending up in a parking garage. In the stairwell there, Jackson removed her jacket with rough force and told her to take off her pants. She refused, and he held a screwdriver close to her face and said he did not want to hurt her. As she pleaded for Jackson to stop, he pulled off her pants, shoes, and underwear, and complimented her body. He placed his finger and his penis in her vagina, then demanded oral sex. Lee refused, and he then forced her to perform oral sex by poking her in the neck with the screwdriver. He then penetrated her vagina again with his penis. Jackson stopped when they heard voices; Lee grabbed for her clothes, put them on, and went up the stairs toward the exit, with Jackson following her up the stairs and tugging on her jacket. At the exit, Jackson ran away. Lee identified Jackson from a photographic lineup and in court.

Ellie R. testified that Jackson attacked her in a Union Station stairwell on July 16, 2004. He threw her against a wall, covered her mouth with her hand when she tried to scream, told her to shut up, and forced her to the ground. Jackson pinned her down and displayed a gun, which caused her to stop fighting back out of fear. Jackson ripped Ellies clothes off, put his penis in her vagina, kicked her as she lay on the landing, and left her there. Ellie identified Jackson as her attacker at the preliminary hearing and at trial. DNA recovered from Ellies vagina matched Jacksons DNA.

Dernisha R. testified that on July 22, 2004, Jackson accosted her in a stairwell at Union Station, grabbed her buttocks, lifted her skirt, ripped off her panties, pinned her down, straddled her, and began unbuckling his pants. She screamed, kicked him in the face, and escaped him after a struggle. Dernisha identified Jackson as the assailant in a live lineup and in court.

Latoya S. testified that she met Jackson on a subway train on September 1, 2004. She told him that she was going to sell her bus pass for money to purchase marijuana. He told her that he sold marijuana, so they agreed that once she sold her bus pass she would buy the marijuana from him. Latoya was unable to sell her bus pass, and Jackson said he would just give her the marijuana. Jackson led them to a Union Station parking structure stairwell, where they smoked some of the marijuana. Latoya then accompanied Jackson to an area near Union Station where he retrieved some additional marijuana, which he gave to her. They boarded another subway train and exited at a different station; Latoya remained with Jackson because he promised her more marijuana. He led her to a parking structure at the Los Angeles Central Library, where he ripped her shirt open, told her he had a gun, and instructed her to remove all her clothes. Jackson then put his penis into her vagina. He heard someone approach, pulled Latoya to the side of the stairs, and he continued to try to have intercourse with her. A security guard approached and told them to leave; Latoya did not tell the guard that she was being raped because she was scared. Jackson took her by the arm and led her to the street, where she broke away and ran to a taxi. A sexual assault examination of Latoya revealed injuries consistent with blunt force trauma occurring during a sexual assault, and were not consistent with engaging in consensual sex. Latoya identified Jackson as the assailant in a photographic lineup.

Ashley H. testified that while she was changing trains at Union Station on September 2, 2004, Jackson approached her and asked her to be a look-out while he purchased marijuana. She agreed, and they went to the parking structure, where Jackson dragged her to a secluded area. Jackson ripped off her clothes, removed his clothes, and then penetrated her anus with his finger and penis. Jackson then placed his penis in her vagina multiple times, orally copulated her, forced her to orally copulate him, urinated on her, and forced her to remain naked to discourage her from fleeing. Jackson kept her there for more than three hours. Ashley gave him marijuana that she had in her purse and agreed to leave the parking structure for the ostensible purpose of buying a marijuana cigarette. On the street, Ashley saw a police car and ran in front of it, causing the car to stop. She told the police that Jackson had raped her. Jackson was arrested. Ashley identified Jackson at the preliminary hearing and at trial.

Jackson was convicted of five counts of rape (Pen. Code,[2] 261, subd. (a)(2)); three counts of forcible oral copulation ( 288a, subd. (c)(2)); one count of attempted rape ( 664, 261, subd. (a)(2)); one count of sexual penetration with a foreign object ( 289, subd. (a)(1)); and one count of sodomy by use of force ( 286, subd. (c)(2)), with an enhancement allegation found true with respect to one rape ( 12022.53, subd. (b).)

DISCUSSION

I. Alleged Error in Granting Pro Per Status

Jackson contends on appeal that the trial court should not have permitted him to represent himself because his request was not unequivocal, competently, knowingly, or intelligently made. A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. (People v. Welch (1999) 20 Cal.4th 701, 729.)

A. Equivocation

We reject Jacksons contention that his request to represent himself was equivocal. Jackson was adamant that he be permitted to represent himself. At the April 25, 2005 hearing, he demanded to represent himself and to be relieved of counsel that day despite the fact that all proceedings on his case set for that court session had concluded at that time. He informed the court that he had been pro per before, still had pro per status in the county jail, and wanted to assume his self-representation immediately.

When the court told Jackson to think about it until the next hearing, Jackson insisted he had a right to go pro per right then. The court told Jackson that they had finished his case for the day and that they would hear his motion at the next court hearing.

At that hearing, on May 2, 2005, the court advised Jackson of the risks of representing himself, then confirmed that Jackson wanted to represent himself despite facing five possible consecutive life sentences. The court directed him to consult further with his counsel about the implication of what you are trying to do. After time to consult, Jackson reiterated that he wanted to represent himself, and the court reviewed and accepted his Faretta waiver.

Jackson contends that although he was intent upon representing himself, the waiver was not unequivocal in that he was frustrated with a delay he did not understand, that he was paranoid, that he was profoundly confused as to what it meant to waive time, and he was therefore unable to consult with his lawyer with a reasonable degree of rational understanding. He claims that statements Jackson made at the hearing after he waived counsel indicated equivocation: specifically, his question to the court during the waiver of counsel discussion, asking whether he would still be unable to argue on appeal that he had ineffective assistance of counsel if he later regained counsel; and his comments that if he waived time for the start of his trial, he would be giving up.

We do not consider these statements evidence of equivocation. The question about what appellate issues Jackson could assert if he later requested counsel to represent him, particularly in the context of Jacksons forceful and definite demands that he be permitted to represent himself, merely was a reasonable question about his appellate options that reflected Jacksons awareness that even though he was going pro per, he could later, if he saw fit, request to alter his status. This was, of course, exactly what Jackson ultimately did after opening argument. Simply because Jackson entertained what appeared to be a strategic possibility that he would ask the court to appoint counsel for him in the future does not render equivocal his absolutely clear and vigorous request to represent himself. (See People v.Marshall (1997) 15 Cal.4th 1, 23 [request for self-representation is equivocal if it is made out of passing anger or frustration, is ambivalent, or is made for the purpose of delay or to frustrate the orderly administration of justice].)

Jackson was equally adamant that he receive a speedy trial. Up until the morning his trial was to begin, Jackson was relentless in demanding that his trial take place as soon as possible, even opposing continuances that would have appeared to be in his best interests, such as one for his newly appointed counsel to familiarize herself with the case prior to trial. This insistence upon a fast trial continued after Jackson obtained pro per status just 10 days before trial. The first issue that Jackson faced after waiving counsel brought into sharp relief the conflict between his desire for a speedy trial and his need for DNA analysis to respond effectively to the DNA evidence that would be introduced at trial. Jackson had to choosegive up having the trial as quickly as possible so that he could await the DNA analysis, or have the speedy trial he wished but without the benefit of the DNA analysis. Jacksons statements reflect that he understood that he could not have both the speedy trial he wanted and the DNA evidence he wanted, and the option he selected was the speedy trial. Nothing in this exchange indicates any equivocation on Jacksons part about whether he wanted to represent himself.

B. Competency

Jackson argues that he was not competent to make a Faretta waiver because he was confused about waiving time and losing control of the proceedings and because he appeared paranoid in stating he believed his prior defense attorney had engaged in trickery in declaring a conflict of interest without disclosing it to him. Competence, for the purposes of waiving the right to counsel, means a sufficient present ability to consult with [ones] lawyer with a reasonable degree of rational understanding and . . . a rational as well as factual understanding of the proceedings against [one]. [Citation.] (People v. Stewart (2004) 33 Cal.4th 425, 513.) Having reviewed the record, we do not view Jacksons preoccupation with a speedy trial and control over the proceedings or his belief that there was trickery afoot to signal incompetence.

Jacksons statements concerning waiving time reveal that he recognized the conflict between waiting for evidence and having the speedy trial to which he was entitled. To the extent he appeared confused, it appears that he may not have understood that a waiver of time could be a waiver to a date certain as opposed to a waiver of time for all purposes. This possible misunderstanding of the scope of the legal concept of a time waiver is not an inability to understand the proceedings or consult with counsel that would signify incompetence.

Similarly, Jackson was understandably upset that the attorney he had worked with suddenly, without warning, disappeared from the representation, and the explanation given after the fact to Jackson was a conflict of interest of which Jackson had been completely unaware. He received new counsel, who began to push for a continuancea desire that legal professionals understand to be reasonable under the circumstances, but to Jackson a sudden change of course. To a defendant who so obviously considered a speedy trial paramount in importance, the entire transaction appeared suspicious, causing him to suspect trickery. His misgivings at the sudden changes in the course of his representation do not demonstrate that he was not competent to understand and participate in his representation. The record discloses no evidence that Jackson was not competent at the time of his waiver; to the contrary, on the record before us, he appears to have been competent to do so.

C. Knowing and Intelligent Waiver

A waiver of the right to counsel must be knowing and voluntary. (People v. Welch, supra, 20 Cal.4th at p. 729.) We review the record, including proceedings after the purported invocation of the right of self-representationand determine de novo whether the defendants invocation was knowing and voluntary. (People v.Marshall, supra, 15 Cal.4th at p. 24.) Jackson contends that his waiver of the right to counsel was not knowing and intelligent because the court did not advise him that he might not be given access to law books and other resources in jail because he had contacted the victims in the case. Jackson, however, acknowledged on the Faretta waiver form that his access to the library and telephone would be limited due to the fact that he was an inmate. The trial court, moreover, was not aware that the defendants privileges to use the library and telephone had been taken away as a result of his contacting the victims in the caseall that the court had been told was that Jacksons paperwork was taken away, and that there had apparently been an attempt to contact the victims. Judge Ohta was not informed that Jacksons privileges had been revoked due to victim contact (and there is no evidence as to the reason for the revocation), and he therefore did not address the subject in his lengthy and thorough personalized advisements to Jackson.

The record demonstrates that the trial court went out of its way to ensure that Jackson knew the consequences of representing himself. In addition to using the standard form Faretta waiver, the court spoke at length with Jackson about why he in this particular complex case would be benefited by having counsel. The trial court clearly made Jackson aware of the dangers and disadvantages of self-representation, (Faretta, supra, 422 U.S. at p. 835). The court advised Jackson that there are certain advantages to having an attorney, such as Ms. Binder, to represent you because when you have an attorney you are able to consult that person about the law and what, if any, action will be permissible under the law. [] Now, again, Im not saying that you did this [contacted the victims in the case], but had you consulted with Ms. Binder, Im certain that Ms. Binder would have counseled you against taking such action that it would not be permissible for you to do so and that, therefore, you would not face yourself in the circumstances of potentially finding yourself in greater trouble than you . . . already are in.

The court advised Jackson that his appointed counsel was experienced, that he was facing serious, complicated charges, and that the law applicable to his case was new and somewhat unsettled. Judge Ohta reminded Jackson that he faced five possible consecutive life sentences as a result of these charges, and then asked if he wanted to represent himself in light of the seriousness of the charges against him. Jackson responded, Yes.

The court directed Jackson to confer with counsel; Jackson continued to indicate his desire to go pro per. Jackson confirmed that he signed the form and initialed its boxes. Judge Ohta engaged in an extended discussion with Jackson about representing himself. The court advised Jackson, and Jackson confirmed that he understood, that the case involved DNA evidence, that it was charged under a relatively new one-strike law for certain sexual offenses, and that defendants who represent themselves cannot appeal on the basis of ineffective assistance of counsel. Jackson asked, [I]f I regainIm not saying I ambut if I regain counsel, that will still be that too? The court explained that once a defendant gives up the right to counsel, the right is surrendered, and that the right to counsel is not a tennis ball. Jackson confirmed that he understood that if he represented himself he could not claim ineffective assistance of counsel. The court then asked, Now, having this awareness fully in mind, is this something you want to do[,] to represent yourself in this case? Jackson said yes.

The trial court warned Jackson extensively of the dangers and disadvantages of self-representation, both orally and in writing, and as there is no indication that Jackson was incapable of reading or understanding the admonishments, we conclude that the record as a whole reflects that Jackson was familiar both with the facts and the difficulties of his particular case and with the risks he faced in representing himself against an experienced prosecutor. (People v. Blair (2005) 36 Cal.4th 686, 709.) We conclude that the record demonstrates that Jackson waived the right to counsel knowingly, intelligently, voluntarily, and unequivocally, and that he was competent to do so.

II. Alleged Error in Failing to Hold a Competency Hearing

When a defendant presents substantial evidence of incompetence, the trial court is required to conduct a full competency hearing. (People v. Koontz (2002) 27 Cal.4th 1041, 1064.) Evidence is substantial if it raises a reasonable doubt about the defendants competence to stand trial. (Ibid.) If the evidence is less than substantial, a courts decision whether to order a competency hearing is reviewed for abuse of discretion. (People v. Welch, supra, 20 Cal.4th at p. 742.) If, however, there is a reasonable possibility, even if it does not rise to the level of substantial evidence, that the defendant is unable to understand the proceedings or assist in his defense, the trial court must order a psychiatric examination before deciding there is no need for a section 1368 hearing. (People v. Campbell (1987) 193 Cal.App.3d 1653, 1663.)

Jackson claims that Binder raised a reasonable doubt as to his competence, mandating a competency hearing under section 1368. We disagree. As set forth in detail above, Binder presented her concerns about Jackson, noting that before Jackson elected to go pro per she had been planning to request the appointment of a psychiatrist, although it was not because I felt he had psychological problems to the point that it could be [incompetence within the meaning of section] 1368although I was concerned about that. Binder had since spoken with Jacksons mother, some people, and also psychological professionals that tell me the symptoms I describe could possibly be indicative of the onset of schizophrenia. She did not think that he completely understood what he was getting into when he went pro per. Binder presented a letter to the court from a childhood friend of Jacksons, who stated that Jacksons behavior had become increasingly erratic in the recent past. She said that she had spoken with an unnamed gentleman who explained certain facts regarding Mr. Jacksons behavior over the past several years.

While it is obvious that trial counsel believed that Jackson might have psychiatric issues, she presented no evidence to the trial court that required it to order a full competency hearing. Comments from a defendants mother, a childhood friend, and an unnamed person about behavioral changes and the assertion that unnamed psychological professionals, who had not reviewed Jacksons case or interviewed him, thought that Binders description of his behavior could indicate the onset of schizophrenia simply do not raise a reasonable doubt as to Jacksons competence to stand trial, nor does Jacksons conduct in court, which reflected a lack of understanding of legal procedure and anger at prior counsel and the prosecutor more than any inability to understand the proceedings and assist in his own defense. We cannot even say that this evidence indicates a reasonable probability that Jackson was unable to understand the proceedings or assist in his defense, which would necessitate a psychiatric examination prior to proceeding. (People v. Campbell, supra, 193 Cal.App.3d at p. 1663.)

Accordingly, the decision whether to conduct a competency hearing was within the trial courts discretion. The court, which by this time had observed Jackson during last-minute motions, jury selection, and opening argument, believed that Jackson was fully competent to stand trial. He found the evidence Binder submitted to be unpersuasive, saying, That was some childhood friend who made observations, not a physician . . . . I dont know who this person is, or was, I dont know what the basis was for coming to those conclusions that person came to. He noted that Mr. Jackson has appeared to me to be a reasonably articulate and intelligent man. He has made some decisions and things here that actually have beenas far as the court is concernedhave been no more than appropriate. Drawing on his experience, he said, I see nothing, absolutely nothing to distinguish this man from any other person who has attempted to represent himself, or represented himself, or to act a part in any proceedings in the courtroom. The bottom line is there is nonothing in the record to indicate there is any kind of mental disorder whatsoever that would prevent him from taking part in his own defense. [] As I indicated before, to the point that he said he no longer wanted to be his own attorney, there was nothing in this courts opinion that indicated at all that there was any kind of mental impairment that would prevent him from taking part. We cannot say that the trial court abused its discretion in proceeding without a competency hearing. (People v. Marks (2003) 31 Cal.4th 197, 220 [appellate court defers to trial court determination on competency hearings because it is not in a position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper].)

III. Refusal to Grant a Continuance

Jackson asserts that Judge Wesley erred in denying Jacksons request for a continuance when the parties appeared in Department 100 to be sent out for trial, and that Judge Bowers erred by denying counsels request for a continuance when she took over the case from Jackson after opening statements. We find it extremely troubling that Jackson went to trial with an attorney who believed herself to be unprepared to try his case. We are also concerned that a pro per defendant who in fact appears to have had no library or telephone privileges was treated as if he had an opportunity to prepare his defense. Given the circumstances under which each continuance request was made, however, we cannot conclude that either Judge Wesley or Judge Bowers abused his discretion in refusing the requested continuances. We consider each request in turn.

Continuances in criminal cases are granted only upon a showing of good cause. ( 1050, subd. (e).) The trial court has broad discretion to determine whether good cause exists (People v. Roldan (2005) 35 Cal.4th 646, 670), but that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (Roldan, 35 Cal.4th at 670.)

At the time that Jackson made his request for a continuance before Judge Wesley, he had consistently pursued a path to bring his case to trial as quickly as possible. Only one day earlier, Jackson had declared that he wanted the case sent to Judge Wesley for assignment to a trial court. He had rejected all continuances offered to him, insisting on his speedy trial rights even when that meant foregoing possibly exculpatory evidence (the DNA analysis). But when the parties appeared before Judge Wesley the day after Jackson declared he was ready for trial, it became apparent that he would have to proceed to trial immediately, and the delays that he so strenuously opposed in the past became attractive. On that day, for the first time, Jackson disclosed to Judge Wesley that he had not had access to telephones or the library for the duration of his self-representation in this matter.

While it is distressing that this pro per defendant appears to have lacked access to resources with which to prepare a defense, it is also evident that Jackson failed to raise this denial in a timely manner and continued to push his case forward despite his inability to prepare for trial. He was obviously aware of his lack of readiness for trial on May 12 but nonetheless said that day that he wanted his case sent out for trial. Jackson was unable to identify any change in circumstance that would account for him reporting that he was ready to proceed on May 12 but needed a continuance on May 13. Nothing had changed, except that he had been contemplating. While Judge Wesley, upon learning that Jackson had not been able to prepare his defense, could very reasonably have granted the requested continuance, it was also reasonable to conclude that Jackson had not demonstrated due diligence in preparing for trial. (People v. Roldan, supra, 35 Cal.4th at 670.) The trial court reasonably could have determined that eleventh-hour contemplation is not good cause for a day-of-trial continuance and that Jacksons sudden about-face was a strategic plan that backfired when the prosecution was in fact ready to proceed despite having only a short time to prepare.

When Binder took over representing Jackson after a jury had been empaneled and opening statements delivered, she requested a continuance to allow her to prepare for trial. The court refused, explaining, Youve had a reasonable time to prepare[;] in a sense youre much different than normal stand-by counsel. And even if you had not had the time, you were counsel before this began. You have been continuously with him since this thing began. [] And, lastly, again, he assumed the status ten days before he announced ready for trial. I dont see any prejudice to you or Mr. Jackson when you are coming in at this point in time. In other words, you didnt come in at the last minute, you dont have to get familiar with the paperwork, or whatever. But heres where we are at this point. [] And the bottom line is I see no prejudice whatsoever to Mr. Jackson by your assuming the case at this point in time; again, with less than a ten day time frame when he was given pro per status and the time he came to [Department] 105 [for trial].

Binder corrected Judge Bowersshe was not Jacksons original counsel, but had been appointed at the end of February, approximately two and one-half months earlier. Moreover, she had not been expecting to go to trial for some time. From the pretrial proceedings that had taken place before Judge Ohta, counsel would not have anticipated going to trial until the DNA analysis had been completed, as she had already obtained one continuance for the DNA analysis to be performed, and she presumably would have been able to obtain another continuance for that purpose had Jackson not elected to go pro per at the May 2 hearing.

Judge Bowers acknowledged Binders points but did not change his view. Binder then requested a continuance to await the DNA analysis, and the court denied that request as well because Jackson had already elected to proceed without having that evidence in order to expedite his trial.

Although it would have been extremely reasonable to grant Binder a continuance, the trial court did not abuse its discretion when it denied this request. A trial court has great latitude in deciding whether to grant a continuance once trial has begun. The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction. [Citations.] Entitlement to a midtrial continuance requires the defendant show he exercised due diligence in preparing for trial. [Citation.] (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.)

As the trial court observed, Binder had been Jacksons counsel until just over 10 days before trial when Jackson went pro per, and remained involved with the matter as stand-by counsel, attending all court proceedings after Jackson began representing himself. Jackson did not relinquish his pro per status until after the trial had begun, but he had been vacillating enough about representation that Binder, although she remained stand-by counsel, was on notice that she could be called in to take over the case at any moment. Given the burden a continuance would have imposed on witnesses, jurors and the court, and the fact that counsel had been on the case for some time before the less-than-two-week period that Jackson acted in pro per, it was not unreasonable for the trial court to deny Binders request for a continuance to prepare for trial.

With respect to the second ground for a continuance, waiting for the DNA analysis, the trial court did not abuse its discretion in refusing the continuance on that basis. While representing himself, Jackson had already elected to proceed to trial without this evidence rather than to accept a continuance to await it. Based on Jacksons decision to go to trial instead of waiting for the DNA evidence to be available, the case was sent out to a trial department, a jury was empaneled, and witnesses summoned. It was not unreasonable to hold Jackson to the consequences of his earlier decision by refusing to grant newly reappointed counsel a continuance to wait for the DNA evidence.

Even if either judge should have granted the requested continuance, we must conclude that any such error was harmless in light of the abundant evidence of Jacksons guilt. Each victim identified Jackson as her assailant; DNA matching his DNA was recovered from the vagina of one of the victims, Ellie R.; and he was arrested while still in the company of and immediately following the assault on Ashley H. Jackson has not demonstrated a reasonable probability of a different outcome had the requested continuances been granted. (People v. Watson (1956) 46 Cal.2d 818, 836.)

We reiterate, however, that it would have been both appropriate and well within either judges discretion to grant a continuance in light of the obstacles to trial preparation experienced by Jackson and his counsel. Even the prosecutor expressed concern at rushing into trial with a defendant who may not have been able to prepare for trial. Although we do not find an abuse of discretion here, given the gravity of the interests at stakea defendants constitutional right to present a defense and the very integrity of the court proceedingsfurther examination of the actual opportunity afforded to the defense to prepare would have furthered the justice of these proceedings at minimal cost to their efficiency.

IV. Confrontation Clause

Jackson alleges that when Judge Bowers consulted with Judge Wesley regarding his denial of Jacksons request for a continuance earlier that day, Jackson was denied his constitutional right of confrontation. Under the Sixth Amendments confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent interference with [his] opportunity for effect cross-examination. [Citations.] [] Similarly, under the Fourteenth Amendments due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a stage . . . that is critical to [the] outcome and his presence would contribute to the fairness of the procedure. [Citation.] [] Under section 15 of article I of the California Constitution, a criminal defendant does not have a right to be personally present either in chambers or at bench discussions that occur outside of the jurys presence on questions of law or other matters as to which [his] presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge. [Citations.] (People v. Waidla (2000) 22 Cal.4th 690, 741-742.)

Here, the facts that were disclosed during the communication between judges were disclosed on the record by Judge Bowers, who returned from his conference with Judge Wesley in Department 100 and immediately said, I have checked with Department 100 in this matter. And basically as I was sort of hinting at at our first encounter this morning is that apparently you insisted on not waiving time and announcing ready to go to trial. I believe that Ms. Binder was about to make a motion in that regard, or something in essence in that regard, and was told not to, or wasnt acknowledged. Not only was this communication disclosed on the record, it concerned a proceeding which itself had been transcribed and included in the record.

Jackson has not identified any risk that as a result of this ex parte communication between judges that he would be erroneously deprived in fact of his interest in being heard and having an impartial tribunal. (People v. Hernandez (1984) 160 Cal.App.3d 725, 744-745.) Nor has he shown that this was a stage critical to the outcome or that his presence would have contributed to the fairness of the procedure; to the contrary, this consultation to clarify what had occurred in open court earlier that day was a matter at which Jacksons presence did not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charges against him. (People v. Waidla, supra, 22 Cal.4th at pp. 741-742.) Accordingly, neither Jacksons state nor federal constitutional rights were violated by the ex parte communications between Judge Bowers and Judge Wesley.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

JOHNSON, J.

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

[2] Unless otherwise indicated all further statutory references are to the Penal Code.