Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA299111 Ann I. Jones and Norman J. Shapiro, Judges. Affirmed with directions.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
David Vincent Osby appeals from the judgment entered upon his convictions by jury of first degree robbery (Pen. Code, § 211, count 1) and carjacking (§ 215, subd. (a), count 2). The trial court found to be true the allegation that he had suffered one prior prison term within the meaning of section 667.5, subdivision (b). It sentenced defendant to an aggregate state prison term of six years. Defendant contends that (1) the trial court prejudicially erred in denying his Faretta motion, violating his Sixth Amendment right to self-representation, and (2) the abstract of judgment should be ordered corrected to properly reflect his convictions and sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
We affirm with directions.
FACTUAL BACKGROUND
On March 1, 2006, near noon, Thomas Lee (Lee) drove his Mercedes Benz to the Ramona Motel, on West Jefferson Boulevard, in Los Angeles, and checked into a room. That evening, while walking back from a nearby liquor store, he met Tanya Woods (Woods). He brought Woods back to his room, where he drank Jack Daniels and beer. Woods spent the night and left the following morning before noon.
A couple of hours later, Woods returned with defendant, whom she introduced to Lee as her boyfriend, and asked if defendant could use the bathroom. Lee allowed them to enter. After a short time, they all left the room. When they returned, Lee and defendant sat on the bed, and Woods stood by the door. A woman from next door joined them.
Lee felt threatened with how Woods had “posted” herself by the door. He wanted to leave. He discreetly took a military knife from his pocket, opened the blade, held it by his side and tried to exit with the woman from next door. After allowing the woman to leave, Woods grabbed Lee’s arm, and she and defendant took Lee’s knife and pulled him back into the room. They tied his feet and hands behind him and gagged him.
Lee was placed face down on the floor, and defendant punched and kicked him. Defendant and Woods went through his pockets and removed his wallet, containing his driver’s license, automatic teller machine (ATM) cards, and other documents. Defendant put a knife against Lee’s throat and told him to give defendant his ATM pin number, which Lee did. One of the assailants removed Lee’s car keys from his pants.
Defendant gave Woods the ATM card, and Woods left the room. Sometime later, she returned and told defendant that Lee had given them the correct pin number, and she obtained $40 from the ATM. At one point, Lee freed his legs and tried to escape, but defendant caught him and tied him again. Woods hit him in the eye with a golf club. Lee was tied up for several hours.
Eventually, Lee realized defendant and Woods had left the room. He managed to free his leg and hobbled to the motel office and saw that his car was missing. Someone called paramedics and police for him. The next day, Lee called his bank and learned that a little over $200 had been withdrawn.
At approximately 9:00 p.m., on March 3, 2006, defendant was apprehended after trying to flee from officers. He had in his possession Lee’s knife, wallet, driver’s license and other personal documents, as well as $181 in cash. On March 9, 2006, Lee’s Mercedes was recovered at a nearby parking lot. It had been damaged.
DISCUSSION
I. Faretta motion
A. Procedural background
1. Judge Hank Goldberg (Preliminary hearing)
At his arraignment, defendant requested self-representation. Court Commissioner Bianco granted the request, warning that self-representation could be revoked “if you engage in disruptive conduct.”
Defendant’s preliminary hearing was before Judge Hank Goldberg. During the hearing, defendant was disrespectful and contentious. He claimed his constitutional rights were violated and accused Judge Goldberg of bias. When Judge Goldberg sustained objections to defendant’s cross-examination questions, defendant argued with him, rather than asking his next question as ordered. Finally, exasperated by defendant’s rambling, irrelevant and repetitious questions, Judge Goldberg limited him to an additional 15 minutes of questioning. This elicited the defendant’s comment: “What is the grounds for the time limits . . . I have the right to cross-examine my witness without a time limit. . . . If it takes five days, I have the right to cross-examine witnesses.” During the hearing, Judge Goldberg warned defendant multiple times not to interrupt.
2. Judge Stephen Marcus (Pretrial)
After defendant was held to answer, the matter was transferred to Judge Stephen Marcus. At a hearing on defendant’s discovery motion, Judge Marcus appointed Peter Weiss (Weiss) defendant’s standby counsel. Defendant’s misbehavior continued. The judge told him that his repeated interruptions and ignoring the court’s directions prevented it from reviewing the document production “in a systematic matter [sic] where I go through each item you listed.” A few days later, at the continued discovery hearing, Judge Marcus was forced to admonish defendant, that: “You are not conducting yourself in a manner that is allowing me to have an orderly administration of justice.” The judge warned that if defendant continued to interrupt, his pro se status would be terminated.
At another hearing, Judge Marcus was again forced to warn defendant against interrupting and threatened to terminate defendant’s self-representation. Defendant disrespectfully told the judge that, “You’re not going to railroad me.”
Later, defendant was before Judge Marcus on his motion to suppress. When defendant’s request to continue the hearing was denied, he persisted in arguing the ruling. Judge Marcus told him to be quiet and that he was “not going to permit [him] to play games with the court. Everybody is here. We’re ready to go.” Defendant continued to interrupt and be disruptive and disrespectful, forcing Judge Marcus to reiterate that continued interruptions would result in the loss of defendant’s pro se status. Defendant nonetheless continued, at one point necessitating the court reporter to complain that she was unable to report. The trial court warned defendant that, “You’re to obey the court or you’ll be removed.” During defendant’s cross-examination of a witness, when Judge Marcus told him to move to another subject, defendant responded, “You cannot force me to move on from the focal point of this argument.” When Judge Marcus asked for defendant’s trial time estimate, defendant said, “Hurry up so I can get back to my unit and finish filing my motions.” He also said, “I’m ready to go. You can take my pro per status. You can have it.” Judge Marcus said, “Let us finish here” and ordered defendant removed from the courtroom. Defendant responded that he could not wait to get out of the judge’s presence. The matter was transferred from Judge Marcus to Judge Norm Shapiro for trial.
On the transfer memorandum, Judge Marcus wrote: “‘This defendant made it almost impossible to conduct the proceedings. When I told him at the end of the 1538.5 motion I was going to terminate his pro per privileges, he said, “Go ahead. You’re just a hypocrite.” He constantly interrupts—well he constantly interrupts and says everyone is against him.’” Judge Marcus also wrote, “‘[t]he court would have terminated the defendant’s pro per privilege except stand-by counsel was not available.’” “[The section 1538.5 motion] [t]ook three hours. Should have been thirty minutes. . . . This defendant is on the verge of being a disruptive defendant. I came close to terminating his pro per privileges on about five occasions. He constantly interrupts the judge and counsel.”
3. Judge Norm Shapiro (First trial)
In the middle of June 2006, before Judge Shapiro, defendant moved to continue the trial, claiming he was being “ran over.” Judge Shapiro said that the presiding judge had denied defendant’s motion to continue and that he could not contravene that ruling. He told defendant that he had read the transfer memorandum from Judge Marcus, and warned that he had authority to revoke propria persona privileges if defendant misbehaved.
After jury selection, defendant said he was not prepared to make his opening statement and requested to make it the next day. Judge Shapiro agreed and recessed the trial until then. The next day, after giving an opening statement, defendant claimed he was not ready to cross-examine witnesses. He charged the judge with trying to rush him to trial and deny him time to prepare. When Judge Shapiro tried to speak, defendant kept interrupting. When he continued to do so after being warned that he would be removed from the courtroom, Judge Shapiro had him removed. As defendant left, he stated: “The defense gives up his pro per status at this time, Your Honor, and defense is going to recuse you, Your Honor. We will hold this trial in another court.” Judge Shapiro found defendant’s statement to be a waiver of his propria persona rights and assigned Weiss to handle the defense.
Weiss met with defendant, after which he declared a doubt as to defendant’s competence to stand trial. Judge Shapiro granted a mistrial, suspended the proceedings and ordered psychiatric evaluations of defendant. When the evaluations were received a month later, Judge Shapiro found defendant competent and resumed the proceedings. He told defendant that Weiss was defending him. Defendant interrupted and started talking at the same time as the judge. Judge Shapiro admonished him not to interrupt. The judge then concluded the hearing and defendant said, “I am not dismissed until I finish my matter with the court, Your Honor.” Defendant refused to leave the court and had to be forcefully removed by the deputies.
At another hearing, defendant was warned by Judge Shapiro to stop interrupting and was removed from the courtroom for failing to comply. On September 11, 2006, the matter was transferred to master calendar, and Judge Wesley assigned it to Judge Ann Jones, after both sides answered ready.
4. Judge Ann Jones (Second trial)
At the pretrial hearing, Judge Jones indicated that she had reviewed the entire court file. Defendant objected to Weiss representing him, and a Marsden motion was heard and denied. During that hearing, Judge Jones warned defendant three times not to interrupt and threatened to remove him.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
When the Marsden hearing was concluded, in open court, Judge Jones indicated that she was aware that Judge Shapiro had removed defendant from the courtroom. She stated: “I am fairly well-acquainted with Judge Shapiro. It takes quite a bit for him to remove people from courtrooms.” Defendant continued to interrupt and was warned numerous additional times by Judge Jones. Defendant then requested to exercise his Faretta rights, which Judge Jones denied “as untimely.” The jury was on the way upstairs. Judge Jones then called a recess.
After the recess, defendant continued to interrupt, leading Judge Jones to warn that further outbursts would result in his removal. Defendant said, “I do have the right to speak,” and Judge Jones removed him from the courtroom. As he left, defendant said, “This is a kangaroo court, violating my constitutional rights,” In defendant’s absence, the trial court began voir dire. At each subsequent recess, Judge Jones gave defendant the opportunity to return to the courtroom, which he refused.
The next day, defendant was in the courtroom out of the jury’s presence when the proceedings resumed. Judge Jones warned him that if he continued interrupting her he would again be removed. Defendant ignored the warning, continued interrupting, filed a motion and asked to be removed. After voir dire was completed, defendant again said he did not want to be in the courtroom but wanted the proceedings piped into his holding cell. Judge Jones said that the court lacked the capacity to do so.
The next day, Judge Jones stated that defendant “voluntarily absented himself from the proceedings by refusing to answer up” at the jail. She proceeded in his absence. At 1:30 p.m., defendant was finally brought to court. His misbehavior led Judge Jones to state: “Defendant continues to be rude and obstreperous and I warned him repeatedly to be silent. He refuses to be silent, he cannot conduct himself in a reasonable manner, he is unable to continue in the courtroom.” When the presentation of trial evidence was concluded, defendant was brought back in the courtroom. He was then again escorted out because he would not be silent and said he did not want to be present.
After the jury verdict and trial of defendant’s prior convictions, Judge Jones reinstated defendant’s propria persona privileges, and released Weiss as counsel.
B. Contention
Defendant contends that the trial court violated his Sixth Amendment right to self-representation by summarily denying his Faretta motion as untimely, without evaluating the factors required under People v. Windham (1977) 19 Cal.3d 121, 128 (Windham). We disagree.
C. Applicable law
1. Absolute right to self-representation for timely request
A right to self-representation is implied in the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at p. 819.) The right to counsel, guarantees a defendant the assistance of counsel if the defendant wants it. It does not require a defendant to use an attorney. “[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.” (Windham, supra, 19 Cal.3d at pp. 127–128.) This right is absolute and unconditional if the motion is timely made and if the defendant is competent to waive counsel. (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891.)
2. Discretion to grant self-representation for untimely request
But the right to self-representation is sharply curtailed once trial has begun. (See Windham, supra, 19 Cal.3d at pp. 124, 128.) At that point, whether to permit self-representation is within the sound discretion of the trial court. (Windham, at pp. 124, 128.) “[O]nce a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court.” (Id. at p. 128.)
3. Defendant’s motion was untimely
A Faretta motion is timely if made a reasonable time before trial. (Windham, supra, 19 Cal.3d at p. 128.) If made on the eve of trial, it is not timely and is addressed to the sound discretion of the trial court. (People v. Frierson (1991) 53 Cal.3d 730, 742.) Defendant’s Faretta motion was untimely as it was made the day trial was to begin, as prospective jurors were on their way to the courtroom. As a result, the trial court had discretion in deciding whether or not to grant the motion.
4. Standard of review
We review the ruling on whether or not to grant self-representation for abuse of discretion. (People v. Welch (1999)20 Cal.4th 701, 735 (Welch).) The ruling is entitled to deference. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177–178, fn. 8 [calling for “the usual deference” to the trial judge when making Faretta “‘judgment calls’” like those reconciling the participation of pro se defendant and standby counsel].)
5. Failure to make Windham inquiry
The gravamen of defendant’s argument is that the trial court abused its discretion in denying his Faretta motion by failing to consider the Windham factors. We disagree. Where, as here, the record of proceedings in front of four different judges, over a period in excess of six months, makes absolutely clear that granting self-representation will result in delay and impede the orderly administration of justice, the trial court’s failure to make the Windham inquiry and to fully articulate its reasons for denying the Faretta motion do not compel reversal.
When a “midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among other factors to be considered by the court in assessing such requests made after the commencement of trial are the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Windham, supra, 19 Cal.3d at p. 128.)
But the Windham inquiry is required primarily for the purpose of insuring an adequate record for any subsequent appeal. Windham states: “We decline to mandate a rule that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation which is based on nonconstitutional grounds. Although we are of the view that such a procedure is the preferred practice, . . . a strict and unbending rule is unnecessary in the present context. . . . In the instant case we impose a requirement that trial courts confronted with nonconstitutionally based motions for self-representation inquire sua sponte into the reasons behind the request. . . . [T]here should be a sufficient record on appeal in such cases in order to sufficiently evaluate alleged abuses of discretion when motions for self-representation are denied.” (Windham, supra, 19 Cal.3d at p. 129, fn. 6.)
The Supreme Court in People v. Dent (2003) 30 Cal.4th 213 (Dent) indirectly weighed in on the question of the necessity of the Windham inquiry. There, a Faretta motion was denied without a Windham inquiry solely because it was a death penalty case, an improper reason. The Supreme Court stated: “Even though the trial court denied the request for an improper reason, if the record as a whole establishes defendant’s request was nonetheless properly denied on other grounds, we would uphold the trial court’s ruling.” (Dent, supra, at p. 218.) In that case, the Supreme Court concluded that the record did not otherwise support denial of the motion. Thus, Dent sanctions appellate review of the entire record, even where the trial court based its denial of self-representation on an improper ground and without a Windham inquiry.
Several appellate court decisions have concluded that failure of the trial court to conduct a Windham inquiry does not preclude affirming its denial of a Faretta motion, at least where the record strongly supports the denial. In People v. Scott (2001) 91 Cal.App.4th 1197, our colleagues in Division Three of this District state: “Scott argues that even if his Faretta motion was untimely, the trial court abused its discretion by denying it without considering the Windham factors. Not so. . . . [W]hile the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors. [Citations.]” (People v. Scott, supra, at p. 1206; see also People v. Perez (1992) 4 Cal.App.4th 893, 904–905, fn. 10 [“While the [trial] court did not specifically make such inquiry [as discussed in Windham], we conclude there were sufficient reasons on the record for the court to exercise its discretion to deny the request.” It explained that while not relieving the trial court from complying with Windham “[w]here, as here, however, the reasons for the denial of the motion are absolutely clear on the record, we conclude there will be no detrimental effect on the justice system for the appellate court to draw the inferences necessarily implied by the court’s ruling”].)
Here, the trial court’s failure to conduct a full Windham hearing does not preclude our affirming its denial of defendant’s request for self-representation.
6. Obstructive conduct
Of overriding significance in determining whether to grant a request for self-representation is whether the defendant representing himself will interfere with the orderly administration of justice. “This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.” (Welch, supra, 20 Cal.4th at p. 734.)
Faretta warned that a trial court “may terminate self-representation by a defendant who deliberately engages in serious obstructionist misconduct.” (Faretta, supra, 422 U.S. at p. 834, fn. 46; Welch, supra, 20 Cal.4th at p. 734.) “We assume the same rule applies to the denial of a motion for self-representation . . . when a defendant’s conduct prior to the Faretta motion gives the trial court a reasonable basis for believing that his self-representation will create disruption.” (Welch, supra, at p. 734.) “[A]n accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol.” (McKaskle v Wiggins, supra, 465 U.S. at p. 173, italics added.) A trial court must determine “whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of self-representation.” (Welch, supra, at p. 735.)
Here, when the matter was referred to Judge Jones, she reviewed the entire file which reflected a lengthy history of misbehavior by defendant in front of three other judges, each of whom warned him on multiple occasions about interrupting and being disrespectful, and two of whom removed him from the courtroom. Defendant’s conduct was so aberrant that his attorney declared a doubt as to his competence. Judge Marcus commented on the transfer memorandum that, among other things, “[t]his defendant made it almost impossible to conduct the proceedings.” Judge Jones, who was very familiar with Judge Shapiro, noted that he removed defendant from the courtroom although Judge Shapiro was not one easily moved to such action. By the time defendant made his Faretta motion before Judge Jones, she had already suffered a healthy dose of his misbehavior during the Marsden hearing. Given defendant’s record of misbehavior, the trial court had to have implicitly considered this factor in her ruling. Given the overriding impact of defendant’s misbehavior, further consideration of the Windham factors could not have made any difference in the ruling on the motion.
Where the record, as here, clearly establishes that a defendant refuses to abide by courtroom propriety, refuses to obey orders of the court, and shows wanton disrespect for court officers such that the orderly administration of justice is impeded, denial of self-representation is justified. Judge Jones had every reason to believe that if defendant represented himself the trial proceedings would have been disrupted and protracted.
7. Harmless error
An untimely Faretta motion is not based on the Constitution as is a timely motion. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) An error in denying an untimely request for self-representation may be harmless error under the Watson test, that it is not reasonably probable that defendant would have received a more favorable result had the error not occurred. (People v. Rivers, supra, at p. 1050; People v. Nicholson (1994) 24 Cal.App.4th 584, 594–595; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.) The evidence against appellant was overwhelming and uncontradicted. Lee identified him as the assailant and defendant was arrested in possession of Lee’s wallet, driver’s license and other documentation. The defense presented no evidence on defendant’s behalf.
People v. Watson (1956) 46 Cal.2d 818, 836.
II. Correction of abstract of judgment
The trial court sentenced defendant to six years in state prison consisting of the middle term of five years on count 2 for carjacking plus one year for the prior prison enhancement. It imposed a concurrent four-year sentence on count 1 for first degree robbery. The abstract of judgment indicates that defendant was sentenced to four years on count 1 plus an additional two years for the one year prison priors. It indicates that he was sentenced to concurrent five-year sentence on count 2.
Defendant contends that the abstract of judgment is inaccurate and should be corrected to reflect the oral pronouncement of judgment of the court. He argues that it inaccurately states that the principal count is count 1, that he was sentenced to four years on that count plus two additional years for two prior prison term enhancements and a five-year concurrent sentence on count 2.
The Attorney General agrees that the abstract of judgment must be corrected to reflect the correct sentence. But the Attorney General argues that there is no need to correct the abstract of judgment to make count 2 the principal count as that term has no meaning in the context of a concurrent sentence. We agree with the Attorney General.
Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Ibid.;§ 1207.) An abstract of judgment is not the judgment of conviction and cannot add to or modify the judgment it purports to summarize. (People v. Mesa, supra, at p. 471.) The oral pronouncement of judgment controls over the abstract of judgment. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) If a minute order or abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa, supra, at p. 471; see also People v. Williams (1992) 10 Cal.App.4th 827, 830, fn. 3; People v. Jack (1989) 213 Cal.App.3d 913, 915–916.)
Consequently, the abstract of judgment should be corrected to reflect a sentence of five years on count 2 plus one year for the prison prior and a concurrent sentence of five years on count 1. There is no need to designate count 2 as the principal count and count 1 as the subordinate count as those terms are inapplicable to concurrent sentencing. (See § 1170.1, subd. (a).)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment as orally pronounced.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.