Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. SCE278842 Lantz Lewis, Judge.
HUFFMAN, Acting P. J.
Mario Rigoberto Marin was convicted following a jury trial of multiple felonies arising from the commission of a residential burglary. Marin appeals, contending his request for self-representation made on the day of trial should have been granted, that the trial court committed instructional error and that the trial court erred in imposing rather than staying concurrent sentences. We will reject Marin's contentions except with regard to certain concurrent sentences that should have been stayed pursuant to Penal Code section 654. Accordingly, we will affirm the judgment as modified with directions.
All statutory references are to the Penal Code unless otherwise noted.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted Marin of residential burglary (count 1, §§ 459 & 460), grand theft of a firearm (count 2, § 487, subd. (d)(2)), possession of a firearm by a felon (count 4, § 12021, subd. (a)(1)), receiving a firearm while under a restraining order (count 5, § 12021, subd. (g)(1)), unlawful possession of ammunition (count 6, § 12316, subd. (b)(1)), and unlawful possession of a concealed weapon knowing that it was stolen (count 7, § 12025, subds. (a)(2) & (b)(2)). The court found true three prison priors within the meaning of section 667.5, subdivision (b); one serious felony prior within the meaning of section 667, subdivision (a); and four serious/violent felony priors within the meaning of section 667, subdivisions (b) through (i).
Marin was sentenced to an indeterminate term of 33 years to life consisting of 25 years to life for count 1, plus five years for the serious felony prior and three years for the three prison priors. The court stayed the sentence on count 2 pursuant to section 654 and imposed concurrent 25-year-to-life terms for counts 4 through 7.
Marin came to the attention of police at about 11:00 a.m. on March 14, 2008. Police were notified of suspicious activity of a person later determined to be Marin who was attempting to sell a firearm on the street. When police contacted Marin he had a white plastic bag containing a gun case and an unloaded handgun with a magazine with five hollow point bullets, and a camera bag containing a.35 millimeter camera and lens. A search of Marin's pockets produced jewelry, an engraved buck knife, a box cutter and a white latex glove.
Marin explained to police that he had purchased the gun and camera bag from an unknown man at a 7-Eleven store, and was attempting to sell the materials for a profit.
Further investigation identified the firearm and other belongings as coming from the residence of Mr. and Mrs. Stephan, who lived in the same housing complex as Marin.
Police also found a latex glove at the Stephan residence. The glove was similar to a glove found in Marin's pocket. DNA testing of the glove established that the major contributor of DNA inside the glove was Marin.
The parties stipulated that as of the time of his arrest Marin was subject to a protective restraining order. The parties also stipulated that Marin had been previously convicted of a felony and was prohibited from possessing a firearm or ammunition.
DISCUSSION
I
THE COURT PROPERLY DENIED MARIN'S UNTIMELY REQUEST FOR SELF-REPRESENTATION
Marin's case was continued for trial several times and ultimately was called to trial after pending for approximately eight months. On the day of trial, but before the jury was brought to the courtroom, Marin requested a new attorney. The court then conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). When the trial court denied Marin's request for new counsel, Marin then asked to represent himself. The trial court found the request to be untimely and found that the request was equivocal because what Marin actually wanted was a new attorney and was requesting self-representation only because his Marsden motion had been denied.
Relying principally on cases from the Ninth Circuit U.S. Court of Appeals, Marin contends his motion made on the day of trial was in fact timely, and that even if it was not timely the trial court abused its discretion in denying his motion. We find the trial court correctly analyzed Marin's request and properly exercised its discretion to deny the untimely motion.
A defendant in a criminal case has a Sixth Amendment right to represent himself or herself provided the decision to do so is voluntarily and intelligently made. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) The right of self-representation is, however, not without limitations. In order to assert the right, a defendant must make the request for self-representation within a reasonable time prior to the commencement of trial. (People v. Mayfield (1997) 14 Cal.4th 668, 809.) The trial court, however, has discretion to grant an otherwise untimely request taking into account the reasons for the request, the length and stage of the proceedings and the disruption or delay which might reasonably be expected to follow if such motion is granted. (People v. Burton (1989) 48 Cal.3d 843, 852; People v. Windham (1977) 19 Cal.3d 121, 127-128.)
As previously indicated when the case was called for trial, but before the jury arrived in the courtroom, Marin made a request pursuant to Marsden, supra, 2 Cal.3d 118, to replace his counsel. The trial court conducted a thorough hearing on the issue and denied the request. Marin does not challenge the court's decision to deny his request for new counsel.
After the court explained his reasons for denying the motion, Marin said, "Can I defend myself?" The court responded, "Mr. Marin, it's a little tardy for that, plus I don't believe your request now to defend yourself is really unequivocal." The court went on to explain to Marin that it was obvious Marin wanted a new attorney and that he did not really want to represent himself, and advised Marin that the court interpreted his statement as saying, "can I represent myself" because Marin was disappointed in the court's decision. Marin responded to the court, "Well, I'll be my own attorney if you don't give me a new attorney is what I'm saying." The trial court denied the motion, making a finding that the request was untimely and that it was equivocal and that the request was not actually for self-representation, but out of frustration based upon the court's denial of the Marsden motion.
The following day defense counsel asked the court to reconsider Marin's request for self-representation. During that discussion it became apparent that the case had been pending for months and that Marin had never indicated a desire for self-representation until the point that the court denied his request for new counsel. The court once again denied the request, not on the basis that Marin lacked the capacity to waive the right to counsel, rather the court said, "but it's premised on my conclusions from yesterday that the request was not an unequivocal request. It was done due to frustration, and it was untimely. The case was prepared for jury selection yesterday. We postponed that to hear your Marsden motion, and therefore, I'm finding, again, that the request is not unequivocal, and that it is untimely. And I've considered all the factors under the case of People v. Windham, which is the case that is to guide the court regarding these issues."
Marin relies primarily on cases from the Ninth Circuit U.S. Court of Appeals for the proposition that a motion for self-representation is timely if made before the jury is impaneled unless it was made for purposes of delay. (Savage v. Estelle (9th Cir. 1990) 924 F.2d 1459, 1463, fn. 7.) We observe first that this court is not bound to follow the decisions of the federal circuit courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19.) Further, the Ninth Circuit has, in a different circumstance, found a request untimely when it is made just before or after important trial proceedings have begun. (Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149, 1158 [motion made on the morning of trial untimely].)
The court in Faretta, supra, 422 U.S. 806, itself observed that the right of self-representation is not absolute and that it could be denied if it is untimely or for purposes of delay. The California courts have recognized untimely requests can be an exception to the right of self-representation and have repeatedly upheld the denial of untimely motions made after the case has been sent out for trial. (People v. Clark (1992) 3 Cal.4th 41, 99-100; People v. Moore (1988) 47 Cal.3d 63, 79-81.)
In this matter the trial had been pending for months before the belated request for self-representation. Jurors had been summoned, witnesses had been subpoenaed, and the case was ready for trial. Marin was admittedly not ready to represent himself and had no serious idea of how long it would take him to become ready. While he said he needed one or two months, he acknowledged that he really did not know how long it would take him to be ready to proceed.
We believe the trial court's factual finding that the request was equivocal, that it was a response to denying his Marsden motion and that it was untimely are all adequately supported in this record. Further, even though the court had discretion to allow self-representation notwithstanding the untimely request, it is clear that the court in this instance weighed the nature of the request, the reasons for it, and the circumstances surrounding the case and exercised its discretion to deny the untimely application for self-representation. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205-1206.)
In sum, the trial court after conducting a careful evaluation of the defendant's request properly found the request equivocal and untimely, and properly denied it. There was no error.
II
THE TRIAL COURT DID NOT COMMIT ERROR BY INSTRUCTING THE JURY IN THE LANGUAGE OF CALCRIM NO. 376
Believing it had a sua sponte duty to do so the trial court instructed the jury in the language of CALCRIM No. 376 as follows:
"As to counts 1, 2 and 3, if you conclude that the defendant knew he possessed property, and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of burglary, theft of a firearm, or receiving stolen property based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, you may then conclude that the evidence is sufficient to prove that he committed a burglary, theft of a firearm, or receiving stolen property. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider, how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary, theft of a firearm, or receiving stolen property. Remember that you may not convict the defendant at any time unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Marin objected to the instruction and now argues on appeal that the court erred in believing it had a sua sponte duty to so instruct and that in any event the instruction was not proper and was prejudicial.
When the trial court reviewed the proposed jury instruction, it considered the use notes attached to the January 2006 edition of CALCRIM. Those use notes indicated that CALCRIM No. 376 was an instruction the court should give sua sponte. Since that time, the Supreme Court has determined there is no sua sponte duty to give the instruction. (People v. Najera (2008) 43 Cal.4th 1132, 1138-1141.) Thus, the trial court was incorrect in the assumption that the instruction must be given. The question remains, however, did the instruction either inaccurately state the law, serve as an inappropriate pinpoint instruction for the prosecution, or unfairly define the burdens of proof. We answer those questions in the negative since this instruction has long been an accepted principle of California law.
CALJIC No. 2.15 is the predecessor of the CALCRIM instruction at issue in this case. Both CALCRIM No. 376 and CALJIC No. 2.15 have been repeatedly reviewed by the Courts of Appeal and the Supreme Court. In those instances, challenges were made, similar to that made here or that the instruction lessened the burden of proof or otherwise infringed on the defendant's rights. Giving of either the CALJIC or CALCRIM instructions have frequently been upheld by the appellate courts. (People v. Parsons (2008) 44 Cal.4th 332; People v. Yeoman (2003) 31 Cal.4th 93, 130-132; People v. Harden (2003) 110 Cal.App.4th 848, 857; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1400-1401.)
Recognizing that the principles contained in CALJIC No. 2.15 and CALCRIM No. 3.76 have been regularly approved by the appellate courts and the Supreme Court, Marin argues that the language requiring "only slight corroboration" is not supported in historical case law and is therefore inappropriate. We decline the opportunity to review the entire history of this jury instruction. The language has often been approved, including approval of the use of the term "slight corroboration." In People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036, the court recognized that case law is settled requiring only slight corroborating evidence to support the permissive inference arising from the possession of recently stolen property. The court in Solorzano concluded that the instruction properly reminds the jurors of the prosecution's burden of proving each fact essential for the offense beyond a reasonable doubt. That court found no violation of the defendant's due process rights in the giving of the challenged instruction. (Ibid.;see also People v. Williams (2000) 79 Cal.App.4th 1157, 1173; People v. Hernandez (1995) 34 Cal.App.4th 73, 81.)
The instruction given in this case was a proper statement of law and gave appropriate guidance to the jury on how to deal with circumstances such as presented here where the defendant was found in possession of stolen property within hours of the burglary in which the property was taken. There was no error.
III
THE CONCURRENT SENTENCES IMPOSED FOR COUNTS 4 THROUGH 7 SHOULD HAVE BEEN STAYED PURSUANT TO SECTION 654
Marin was convicted of a residential burglary and of a variety of possessory crimes arising from the possession of a firearm and ammunition taken in the burglary. The trial court stayed the imposition of sentence for count 2, but imposed concurrent terms for counts 4 through 7.
Section 654 provides in pertinent part, that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The interpretation of section 654 has depended upon whether the offenses arise from a single course of conduct that may violate multiple statutes yet comprise an indivisible transaction. Whether that transaction is divisible depends upon the intent and objective of the actor. If the court finds that all of the offenses are incident to one objective the defendant may be punished for any one, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Miller (1977) 18 Cal.3d 873, 885.)
In reviewing the trial court's sentencing analysis, we note the court rejected the application of consecutive sentences recognizing that all of the offenses essentially arose from a single transaction. Marin entered the victims' house, stole their property and attempted to sell it. Without explanation, however, the trial court stayed the sentence for count 2, the theft of a firearm, but imposed concurrent sentences for counts 4 through 7 dealing with the possession or concealment of a firearm and ammunition.
The facts of this case indicate that Marin entered the house, took the property and was arrested within a very brief time where he was trying to sell the property he had taken. A fair analysis of the trial court's reasoning indicates the court did not find separate objectives or intents with regard to the possession or use of the firearm rather than the other stolen property. Accordingly, we agree with Marin that the punishment for the offenses contained in counts 4 through 7 should be stayed. (People v. Padilla (2002) 98 Cal.App.4th 127, 137; People v. Scheidt (1991) 231 Cal.App.3d 162, 164-165.)
DISPOSITION
The concurrent sentences imposed on counts 4 through 7 are vacated and the trial court is directed to stay those sentences pursuant to section 654 and to amend the abstract
of judgment accordingly, and forward the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: HALLER, J., O'ROURKE, J.