Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF127423, Carol Koppel-Claypool, Judge (retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and Roger A. Luebs, Judge.
Judge Luebs was the trial judge and Judge Koppel denied defendant’s motion under Faretta v. California (1975) 422 U.S. 806 (Faretta) on September 19, 2006.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P. J.
Defendant was convicted of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), shooting at an occupied vehicle (§ 246; count 2), unlawful possession of a gun (§ 12021, subd. (a)(1); count 3), active participation in a criminal street gang (§ 186.22, subd. (a); count 5), and second degree burglary (§ 459; count 6).
All further statutory references will be to the Penal Code unless otherwise indicated.
A charge of assault with a firearm (§ 245, subd. (a)(2); count 4) was subsequently dismissed pursuant to section 1118.1.
The jury also found that the attempted murder was willful, deliberate and premeditated, that defendant personally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)), and that the attempted murder was committed for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)). The criminal street gang finding was repeated for counts 2 and 3.
Subsequently, defendant admitted three prior conviction allegations arising from a prior conviction for participating in a criminal street gang. These were allegations pursuant to sections 667.5, subdivision (b) (one-year enhancement), 667, subdivision (a) (five-year enhancement), and the second strike allegations of sections 667, subdivisions (c), and (e)(1), and 1170.12, subdivision (c)(1).
Defendant was sentenced to 15 years to life in prison for the attempted murder, doubled for the prior strike, plus 20 years on the firearm enhancement and five years for the serious felony prior conviction, for a total of 55 years to life in prison. Defendant was sentenced to a concurrent indeterminate term of 35 years to life for shooting at an occupied vehicle and related allegations; however, this term was stayed under section 654. Defendant was sentenced to a consecutive determinate term of seven years for the unlawful possession of a firearm. Defendant was sentenced to a concurrent eight-year term on counts 5 and 6.
Defendant appeals, contending that (1) he was denied his right to self-representation, (2) the evidence was insufficient to prove that he had the specific intent to kill, and (3) the evidence was insufficient to prove the gang enhancements.
Finding no error, we affirm.
FACTS
On December 5, 2005, the victim, Muriel Lopez, lived in the city of Rubidoux. On the morning of that day he was preparing to go to work around 7:00 or 7:30 a.m. His two cars were parked in the driveway of his home. He happened to look outside and saw that the trunk of one of the cars was open. He ran outside and saw two heads at the rear of the car. The two individuals (defendant and a woman) ran away and Lopez got into his car and chased them while calling 911.
Lopez identified defendant as the man he was pursuing. After a short pursuit, defendant stopped running. Lopez caught up to him in the car and yelled at him to drop the items he was carrying. Defendant turned, pulled out a gun, and pointed it at Lopez. Lopez stopped and defendant ran away. Lopez followed him and saw defendant jump a fence and enter a back yard. Lopez then drove to a nearby area where he had a view of the field that was behind the backyard.
Lopez heard a dog barking and saw defendant near the dog, at the corner of a gazebo. Defendant pointed the gun towards Lopez’s car and fired. Lopez drove away.
Lopez was not asked how far away the defendant was at the time the shot was fired, but an officer testified from an exhibit that the distance was 25 yards.
Responding officers arrested the woman and recovered items taken from the car that had been discarded by defendant during the pursuit. Defendant was found hiding in a nearby garage and was arrested. A gun was found in the engine compartment of a car in the garage where defendant had been hiding.
At trial, the prosecution offered other testimony to support the gang enhancements. As noted above, defendant was convicted of five charges and the gang enhancements were found to be true.
DISCUSSION
A. Alleged Denial of Defendant’s Right of Self-representation.
1. Introduction.
“‘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 defendant’s 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. [Citations.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 931-932 (Stanley).)
The issue in this case is whether defendant’s request was unequivocal. In this regard, Stanley states: “We have observed that ‘a [Faretta] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal-even if the defendant has said he or she seeks self-representation.’ [Citation.] ‘Equivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent.’ [Citation.]” (Stanley, supra, 39 Cal.4th at pp. 932-933.)
2. Facts of the Faretta Issue.
The preliminary hearing was held on April 13, 2006, before Judge Hanks. Defendant was represented by a deputy public defender.
On May 25, 2006, defendant made an oral Marsden motion, which was heard by Judge Zellerbach. Defendant complained that, after six months, the investigators had not talked to him or the victims, and the public defender had not done some of the things defendant asked him to do. Defendant complained that he felt his attorney was not working for him, and he stated that he would not cooperate further with his attorney. The Marsden motion was denied.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On June 22, 2006, defendant asked Judge Tranbarger for permission to represent himself. He completed and signed a form which informed him of the consequences of self-representation. The court also discussed the consequences of self-representation. After thoroughly advising the defendant, the trial court granted the motion for self-representation. The court appointed an investigator to work with defendant.
On July 19, 2006, defendant told Judge Tranbarger that he would like an attorney because he was scheduled for surgery in approximately a month. Judge Tranbarger noted that the request for self-representation was automatically granted the first time, but defendant could not go back-and-forth. Defendant replied that he wanted an attorney, knowing that he would keep the attorney. The public defender’s office was reappointed.
On September 18, 2006, defendant made another Marsden motion. The motion was heard by Judge Koppel. Defendant said: “I had him before, and I went pro per because . . . I felt he wasn’t doing adequately what he was supposed to do, and I was pro per, and then I’m supposed to be going to surgery, and I cannot defend myself. I asked to have another attorney reappointed, and they gave me back the same one that I had before. My whole purpose of going pro per was defending myself and getting to see if I can do it . . . .” The trial court carefully asked defendant to explain all his grievances, and responded to them. The trial court then said: “It would not be in your best interest for me to rule. It’s denied without prejudice at this time.”
Defendant responded: “I’d like to go pro per then.” The court replied: “You said you weren’t going to do that. I’m not going to let you do it today.” The court urged defendant to cooperate with his attorney, and suggested that he file another Marsden motion if he remained dissatisfied.
Jury selection began on November 14, 2006. Verdicts were reached on November 22, 2006.
3. Discussion of the Faretta Issue.
The parties cite the leading case of People v. Marshall (1997) 15 Cal.4th 1 (Marshall). In that case, our Supreme Court discussed the problem of insincere self-representation requests which were made in an emotional reaction to an adverse ruling or for the purposes of delay rather than requests made in a sincere effort to obtain self-representation.
Close scrutiny of self-representation requests is necessary because of the conflict between self-representation and defendant’s right to counsel: “The right to counsel is self-executing; the defendant need make no request for counsel in order to be entitled to legal representation. [Citation.] The right to counsel persists unless the defendant affirmatively waives that right. [Citation.] Courts must indulge every reasonable inference against waiver of the right to counsel. [Citation.]” (Marshall, supra, 15 Cal.4th at p. 20.) Accordingly, for defendant’s protection, waivers of his or her right to counsel must be examined carefully.
Similarly, for the court’s protection, the request must be genuine in order to protect against gamesmanship for delay or as an attempt to create reversible error: “Many courts have explained that a rule requiring the defendant’s request for self-representation to be unequivocal is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation. Without a requirement that a request for self-representation be unequivocal, such a request could, whether granted or denied, provide a ground for reversal on appeal. This problem has irked many courts, and some of their opinions have given examples of such abuse. [Citations.]” (Marshall, supra, 15 Cal.4th at p. 22.)
In this case, defendant’s second request was an immediate response to the denial of his September 18th Marsden motion. It therefore falls into the category of emotional responses described by our Supreme Court in Marshall: “Several lower courts have declared that a motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation. (Reese v. Nix (8th Cir. 1991) 942 F.2d 1276, 1281 [the defendant stated ‘well I don’t want no counsel then,’ but this was deemed a mere impulsive response to the trial court’s denial of a request for new counsel]; . . . .) As one court expressed it, a court ‘properly may deny a request for self-representation that is a “momentary caprice or the result of thinking out loud.”’ [Citation.] In People v. Hacker [1990] 563 N.Y.S.2d 300, for example, in response to defendant’s request, the trial court inquired whether the defendant was certain he wanted to proceed pro se, and he responded affirmatively. The reviewing court nonetheless found the record as a whole did not reflect an unequivocal request, but rather a spur of the moment decision prompted by the denial of defendant’s motion for substitute counsel. [Citation.] And in Jackson v. Ylst [1990] 921 F.2d 882, 889, the defendant stated: ‘“I want to fight it in pro per then. Relieve him and I do this myself.”’ The reviewing court considered the record as a whole, including the defendant’s failure to assert the right of self-representation at a later hearing, and independently determined that the defendant’s request for self-representation was an impulsive response to the trial court’s denial of his request for substitute counsel. Examining the question whether the defendant in fact wanted to represent himself, the court stated: ‘Jackson’s emotional response when disappointed by the trial court’s denial of his motion for substitute counsel did not demonstrate to a reasonable certainty that he in fact wished to represent himself.’ [Citation.]” (Marshall, supra,15 Cal.4th at pp. 21-22.)
In this case, defendant had initially elected to represent himself because of his dissatisfaction with the public defender. When it became apparent to him that he needed counsel, he asked for an attorney, and the public defender was reappointed. Defendant expressed concern that the same public defender would be assigned to him, and the same public defender was reassigned to the case. Defendant eventually filed another Marsden motion concerning that attorney. When that motion was denied, he immediately requested permission to represent himself. He did not renew the motion at any time before trial, although the same public defender represented him throughout. These facts suggest that the second request for self-representation was merely a response to the denial of his Marsden motion, not a fully thought-out sincere request.
Defendant’s second request for self-representation can also be interpreted as a vacillation. Defendant’s conduct can be characterized as equivocal because he was originally represented by the public defender, he was then allowed to represent himself, he then sought counsel and the public defender was reappointed, and he then filed a Marsden motion and sought to assert his right to self-representation after the motion was denied, and then failed to renew his request before trial.
“Some courts have held that vacillation between requests for counsel and for self-representation amounts to equivocation or to waiver or forfeiture of the right of self-representation. [Citations.]” (Marshall, supra,15 Cal.4th at p. 22.) Accordingly, “[b]ecause the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (Id. at p. 23.)
Under questioning, defendant conceded that he was not familiar with the Sixth Amendment right he was asserting, and that he had not been able to “study my whole everything.” He also conceded that his purpose in seeking self-representation was to get rid of his public defender, rather than to represent himself. In addition, defendant’s Marsden complaints concerned the public defender’s investigators as well as his appointed counsel. While acting as his own attorney, he had also been unsuccessful in getting the investigators to interview specific witnesses.
Defendant was specifically advised when counsel was reappointed that he could not go back-and-forth between having counsel and self-representation. He accepted the appointment of counsel knowing that he would have to keep the counsel. His later attempt to represent himself when his subsequent Marsden motion was denied may be seen as gamesmanship. (People v. Horton (1995) 11 Cal.4th 1068, 1110.) It may also be viewed as an emotional response to the denial, and as a vacillation that amounts to equivocation. “Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration. [Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.)
In Stanley, supra,39 Cal.4th 913, as here, the defendant made an oral request for self-representation during a Marsden hearing after expressing annoyance or frustration with his appointed counsel. (Stanley, at pp. 932-933.) Our Supreme Court held that defendant was not making a knowing and intelligent waiver of his right to counsel because he failed to comprehend that such a waiver would “lead to a full relinquishment of that constitutional right.” (Id. at p. 933.) An impulsive request for self-representation upon denial of a Marsden motion is not an unequivocal assertion of the right of self-representation. (People v. Barnett (1998) 17 Cal.4th 1044, 1087-1088.)
We note another similarity between Stanley and this case: In both cases defendant never renewed his request of self-representation. As a result, our Supreme Court concluded that “he must further be found to have ultimately abandoned his desire to invoke his Faretta rights in these capital murder proceedings. [Citations.]” (Stanley, supra, 39 Cal.4th at p. 933.)
Our review is de novo. (People v. Dent (2003) 30 Cal.4th 213, 218.) Considering the entire record here, we conclude that defendant’s statements did not represent an unequivocal and sincere invocation of the right of self-representation. The request for self-representation was made as an emotional response to the denial of defendant’s Marsden motion, and it was not later renewed. When considered with the vacillation shown earlier, it is apparent that defendant did not make an unequivocal request for self-representation with the intent to waive his constitutional right to counsel. Instead, it appears from the record that defendant desired a different public defender, rather than to represent himself. We find no Faretta error.
B. Sufficiency of the Evidence of Intent to Kill.
In People v. Smith (2005) 37 Cal.4th 733, our Supreme Court discussed whether substantial evidence supported a finding of intent to kill in an attempted murder case. It found that “‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (Id. at p. 739.) Specifically, “it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.] ‘“The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]’ [Citation.]” (Id. at p. 741.)
After discussing the relevant principles further, the court summarized the discussion: “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been on target”’ is sufficient to support an inference of intent to kill. [Citation.] Where attempted murder is the charged crime because the victim has survived the shooting, this principle takes on added significance.” (People v. Smith, supra, 37 Cal.4th at p. 742.)
Defendant relies on an earlier Supreme Court case, People v. Ratliff (1986) 41 Cal.3d 675. In that case, the Supreme Court reversed an attempted murder conviction because the trial court had instructed the jury on implied malice when a specific intent to kill was required. (Id. at p. 695.) In discussing whether the error was prejudicial, the Supreme Court noted that, while there was evidence of a shooting to disable, the evidence of a specific intent to kill was not conclusive. Accordingly, prejudice was found and the attempted murder conviction was reversed. (Id. at pp. 695-696.)
Defendant concedes that circumstantial evidence may be used to prove defendant’s mental state, and that circumstantial evidence may support a conviction. (People v. Ferrell (1990) 218 Cal.App.3d 828, 834.) He quotes People v. Chinchilla (1997) 52 Cal.App.4th 683: “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.]” (Id. at p. 690.) However, the immediately following words are not helpful to his position: “The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .’ [Citation.] ‘The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.’ [Citation.]” (Ibid.)
The quotations in Chinchilla, supra, are from People v. Lashley (1991) 1 Cal.App.4th 938, a case relied on by the People. Preceding the portion quoted above, the court said: “The question of defendant’s intent at the time of the shooting was a factual issue that the trial court determined adversely to him. The only possible reason for reaching a different result here rests on the untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent. There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill.” (Id. at p. 945.)
In this case, Lopez testified that defendant pointed a gun at his car and that he then heard a gunshot. More specifically, he testified that defendant pointed the gun with his arm straight out, at shoulder height. “I took my sight off from him, and I heard the gunshot. I looked back up, and I saw smoke coming out of the gun still pointing in the same direction.” Lopez then reported to the 911 operator that defendant had fired at him. Lopez later explained that “it all happened . . . in a fraction of a second.”
Defendant attempts to build an argument from subsequent testimony of Lopez. While being examined on the 911 tape, Lopez testified that he actually said: “‘He just shot, he just shot.’” Defendant now argues that it is significant that Lopez did not tell the 911 operator that defendant shot at him, but we find the argument unpersuasive.
Defendant argues that his “discharge of the firearm, without evidence of where he aimed at the time of the firing” is insufficient to prove a specific intent to kill. We disagree. The testimony of Lopez that defendant was aiming at him before and after the shot was fired, and that he looked away only at the moment he heard the shot, is sufficient to allow the jury to infer that the shot was fired at Lopez. Since the jury could infer that defendant fired at Lopez, it could also infer that defendant intended to kill Lopez. As Lashley holds, the fact that the shot missed is of no consequence, and the issue of intent is a factual issue for the jury. (People v. Lashley, supra, 1 Cal.App.4th at pp. 945-946.) “[O]ur sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Id. at p. 946.)
We therefore conclude that there is substantial evidence to support the jury’s determination that defendant had the requisite specific intent to kill Lopez when defendant aimed and fired at him from a distance of 25 yards.
C. Sufficiency of Evidence to Support the Gang Enhancements.
Defendant was convicted of violating section 186.22, subdivision (a), and the enhancements described in section 186.22, subdivision (b), were found to be true.
Section 186.22, subdivision (a), states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
The enhancement of section 186.22, subdivision (b), applies to “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .”
The requisite elements of these charges were the subject of testimony by the prosecution’s gang expert, Deputy Padilla. Defendant contends that the officer’s testimony was insufficient to allow the jury to conclude that defendant actively participated in a gang, or that he committed the offenses for the benefit of his gang. Specifically, he contends that there was “a complete lack of actual evidence showing the offenses were at the direction of the gang, with gang approval, for gang profit or that any proceeds were to be used to benefit the gang.” Defendant cites the officer’s testimony that any crimes committed by defendant, with certain exceptions, were gang related. Defendant finds this testimony “blatantly incorrect” and “inherently incredible” and concludes that it does not constitute substantial evidence.
The specific testimony is as follows: “[Question]: And association with [sic] simply because he is a gang member anything he does in terms of committing any kinds of offense such as theft related or anything of that nature in your opinion gang related other than maybe a child molest or something to that effect? [¶] [Answer]: That’s correct.”
Deputy Padilla testified that he studied gangs at the police academy and had then spent 18 months working in the gang housing unit of the jail. He then worked in the gang enforcement unit of the Riverside County Sheriff’s Department for four years. During that time he worked in the Glen Avon/Rubidoux area. He focused on the West Side Rivas gang which, in his opinion, was a criminal street gang. He testified to specific crimes committed by West Side Rivas gang members.
The officer testified that defendant was a member of West Side Rivas. In 1997 and 1998, defendant admitted to his probation officer that he had been a member of the gang since 1995. Defendant has numerous gang tattoos, and the officer testified that they show his loyalty to the gang. The officer offered the opinion that defendant was an active member of West Side Rivas.
The officer also opined that defendant committed the crimes to benefit his gang. Specifically, shooting at Lopez benefited the gang by increasing his reputation in the gang and instilling fear in the community which causes crimes to be unreported.
On cross-examination, the officer testified that there were crimes the gang members could commit that would not benefit the gang. Asked for examples, the officer mentioned child molestation, elder abuse, and other crimes committed for personal satisfaction. But the officer concluded that, in committing the offenses charged in this case, defendant benefited the gang by enhancing its reputation.
Other witnesses also testified that defendant was a self-admitted gang member. A classification deputy from the jail testified that he interviewed defendant in 2004 and defendant admitted he was a member of West Side Rivas. A Riverside probation officer testified that she interviewed defendant in 1997 and 1998 and he stated that he was a member of West Side Rivas.
Expert opinion testimony is commonly used to establish the elements of a violation of section 186.22. (See, e.g. People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) It can be substantial evidence to support the jury’s findings under section 186.22. “We agree the expert’s testimony was circumstantial evidence, but it was still evidence supporting defendant’s conviction. The hypothetical facts presented to the gang expert were properly rooted in the evidence presented at trial. [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
The parties overlook Evidence Code section 411, which states: “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” Here three witnesses testified that defendant was a self-admitted member of West Side Rivas; and the gang expert testified that West Side Rivas was a criminal street gang, defendant was an active member, and that the crimes committed by defendant benefited the gang within the statutory definitions. There was nothing “blatantly incorrect” or “inherently incredible” about the deputy’s expert testimony, and it was for the jury to determine the credibility of the witness. The jury believed the testimony, and the expert testimony was substantial evidence to support the jury’s conclusions. We therefore find no merit in defendant’s substantial evidence arguments.
DISPOSITION
The judgment is affirmed.
We concur: KING, J. MILLER, J.