Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD186280, Howard H. Shore, Judge.
HALLER, J.
Joseph Becker appeals from a judgment convicting him of one count of stalking and of numerous counts of making a false bomb report, making and attempting to make a criminal threat, and attempting to dissuade a witness from testifying. The convictions arose from Becker's conduct of making threatening phone calls to several individuals and disseminating witnesses' personal information to jail inmates. Becker represented himself at trial. He argues the judgment should be reversed for the following reasons: (1) the court did not properly advise him of his rights when he elected self-representation; (2) the court erred in denying his requests to address his concern that witnesses would recognize his voice at trial (including his requests for a pretrial voice lineup, a ruling excluding testimony by witnesses that they recognized his voice at trial, and appointment of advisory counsel to cross-examine witnesses who heard his voice during the offenses); (3) there was a discrepancy between the false bomb report charges in the information and the jury instructions for these charges; (4) there was insufficient evidence to support the jury's verdicts pertaining to the counts based on his dissemination of witnesses' personal information; (5) the court erred in denying his request to change to represented status for purposes of a new trial motion and sentencing; and (6) the court erred in imposing consecutive sentences for the counts based on his dissemination of witnesses' personal information.
We find no reversible error as to the judgment of guilt. However, we conclude the trial court abused its discretion in denying Becker's timely request for reinstatement of counsel at the new trial/sentencing hearings. We find the error harmless beyond a reasonable doubt as to the new trial motion, but reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The charges in this case arose after Becker shoplifted merchandise from the Sam Goody Musicland (Sam Goody) store at University Towne Center mall on January 16, 2004, and the Target store on Balboa Avenue on February 29, 2004. Based on this conduct, Becker was charged with petty theft with a prior and burglary (the shoplifting case). He elected to represent himself in the shoplifting case, and was given phone privileges in jail to facilitate his self-representation. In July and August 2004, while Becker was in jail waiting to be tried in the shoplifting case, numerous threatening phone calls were received by entities or persons associated with the shoplifting case. In October 2004, charges were filed against Becker based on this threatening conduct (the threats case). In November 2004, after the initial charges were filed in the threats case, witnesses involved in the threats case were targeted for additional threatening or intimidating conduct. In December 2004, the charges in the threats case were amended to add allegations against Becker based on this conduct occurring in November 2004. Further, in March 2005 the charges were amended to add a stalking charge based on Becker's conduct of repeatedly contacting a particular witness. The threats case is currently before us for review.
At trial, a primary issue in dispute was the identity of the person who made the threatening phone calls. According to the prosecutor, most of the witnesses were not in a position to identify Becker as the person who made the threatening phone calls by listening to his voice, and except for one witness, the prosecutor did not offer witness testimony tying the caller's voice to Becker's voice. Instead, the prosecutor presented evidence showing that Becker had access to jail phones used to call victims' phone numbers during relevant time periods; Becker had a motive to target the entities or persons who received the calls; and Becker made statements to the police showing consciousness of guilt.
Two jury trials were held to adjudicate the threats case. Walker represented himself at both trials. The first jury acquitted Becker of one criminal threat charge, and was unable to reach a verdict on the remaining charges. The second jury convicted Becker on most of the charges. Becker's sentence for the threats case was combined with his sentence for the shoplifting case; he received a total of 20 years, four months for both cases.
The jury convicted Becker on 42 counts, and was unable to reach a verdict on six counts. The trial court granted the prosecution's motion to dismiss the charges for which the jury could not reach a verdict.
We shall briefly summarize the facts, and present more facts as necessary during our discussion of Becker's various challenges to the judgment.
Threats to "Shoot Up" the Sam Goody Store
On July 20, 2004, approximately seven months after the theft at Sam Goody, Becker made two phone calls to the University Towne Center mall making threatening statements directed at the Sam Goody store. The first call was received by Joaquin Barrera, the security supervisor for the mall. Becker stated he was going to "shoot up" the Sam Goody store and that he had problems with his daughter buying drugs from a Sam Goody's manager named Erich. Using the caller ID feature on the security office phone, the authorities ascertained that the call had been made from the county jail. Barrera reviewed his logs and determined that Becker was the only person whom he had arrested at the Sam Goody store that year. Barrera, who had detained Becker during the Sam Goody shoplifting incident in January 2004, recognized the caller's voice as Becker's. Sam Goody's manager, Erich Mroz, had caught Becker shoplifting and had testified against him at his May 2004 preliminary hearing in the shoplifting case.
The second call on July 20 was made to the Red Robin restaurant in the mall. In this call, Becker stated that something bad was going to happen at the Sam Goody store and warned that some of the restaurant employees might get hurt if they came to work.
On July 28, 2004, Becker again called the Red Robin restaurant; in this call he stated that Sam Goody's manager, Erich, and his employees, were dealing drugs at the restaurant. Becker also called the mall's security office and stated that he and a friend were about to go to the Sam Goody store to "shoot it up" and that Sam Goody's manager Erich was selling drugs. The caller ID feature on the security office phone showed the call came from the same jail phone number as the July 20 call received by Barrera.
Sam Goody manager Mroz was informed about the threatening calls, but he perceived them as "ridiculous" and not as legitimate threats.
For this conduct, Becker was convicted of three counts of attempted criminal threat with Mroz as the victim (i.e., two counts occurring on July 20 and one count occurring on July 28).
The jury was unable to reach verdicts on four counts alleging that this same conduct constituted the offense of attempting to dissuade a witness.
False Bomb Reports
Beginning on August 12, 2004, Becker made a series of phone calls to various businesses, stating there was a bomb or an explosive device in the building or parking lot. On August 12, 2004, he made false bomb report calls to the Target store on Balboa Avenue and to the San Diego County Public Defender's office (which had assisted him with complaints about his treatment at the jail). On August 13, 2004, he made false bomb report calls to the Sears store in the University Towne Center mall; to the Target store on Balboa Avenue; to six other Target stores at locations throughout San Diego county; and to a Mervyn's store (which was owned by the same company as Target). On August 20, 2004, Becker made two more false bomb report calls to the Target store on Balboa Avenue.
For this conduct, Becker was convicted of 15 counts of making a false bomb report, 14 counts of making a criminal threat, and one count of attempted criminal threat.
Attempts to Dissuade Witnesses from Testifying
On November 4, 2004, after Becker was charged with making false bomb reports, he received discovery that disclosed the addresses, phone numbers, date of birth, and other personal information of witnesses who had provided information to the police about the false bomb reports. Becker copied the names, ages, addresses, and phone numbers of six female witnesses on two pieces of paper. On the top of one paper he wrote: "Here are some chicks' addresses from a chat line I got." On the top of the other paper he wrote: "All girls want pen pals and will visit." These two papers then came into the possession of two other jail inmates, Cyrus Brooks and Diego LaMadrid.
Three of the female witnesses listed on the papers received phone calls at their homes from other inmates. On November 6, and 10, 2004, Shawn Abbott received numerous messages or calls on her home phone stating she had a collect call from a detention facility from a man named Cyrus Brooks. On November 18, 2004, Nicole Bratman received a call at home from an inmate, who told her he was in Donovan State Prison and had gotten her name, number, and address from a church community group to be a pen pal. On November 18, 2004, Cheryl Melucci received a message on her home answering machine from Diego at the county jail who stated he was looking for her and he would mail her a letter.
Based on his dissemination of the female witnesses' personal information, Becker was convicted of committing (on November 5, 2004) six counts of attempting to dissuade a witness from testifying. The six women specified on the lists were identified as the victims.
The jury convicted Becker of attempting to dissuade the six female witnesses (including Abbott) on November 5, 2004, but was unable to reach verdicts on two counts alleging additional attempts to dissuade Abbott on November 6 and November 10, 2004.
Threats and Stalking Directed at Abbott
Abbott was the receptionist at the San Diego County Public Defender's office who received the August 12, 2004 false bomb report call from Becker. Abbott testified that she later began receiving numerous threatening calls, and that she knew the caller was the same person who made the August 12 call. On November 12, 2004, Abbott received a call at the public defender's office. In this call, Becker stated: " 'I want you to know that this bomb threat issue is not going to be dropped. I've heard them talking in here. There's five or six people involved. I know you're receiving calls from other numbers now. Your information is all over the jail. I got your information from the police report. . . . [¶] . . . Don't think that they are not coming after you because they are. They're not going to let you testify. That's all I needed to let you know.' " The caller also stated her address, phone number, and date of birth. In another call on her birthday (answered by a different receptionist) the caller wished Abbott a happy birthday. When Abbott received the November 12 call, she was "really scared" because she knew the caller was not "playing a game" and the harassment was not going to stop.
For this conduct, Becker was convicted of the following additional offenses against Abbott: (1) one count of stalking on or about between August 12 and November 12, 2004, and (2) making a criminal threat and attempting to dissuade a witness on November 12, 2004.
DISCUSSION
I. Adequacy of Advisement on Self-Representation
Becker contends (1) he was not adequately advised when he elected self-representation at his first arraignment on the original complaint, and (2) he should have been readvised regarding self-representation at his subsequent arraignments.
The prosecution against Becker in the threats case proceeded through the following steps: (1) the filing of the original complaint and a first arraignment; (2) the filing of an amended complaint and a second arraignment; (3) the preliminary hearing where he was bound over for trial; (4) the filing of the information and a third arraignment; (5) hung jury; and (6) the filing of an amended information and a fourth arraignment for retrial. When Becker was arraigned on the original complaint, he requested the right to represent himself. At this first arraignment, he was advised of his rights, signed the acknowledgement form for self-representation, and was granted self-representation. Thereafter, he continued to represent himself throughout the proceedings, with no further explicit advisement regarding self-representation.
A. Advisement at the First Arraignment on the Original Complaint
On October 21, 2004, Becker was arraigned on the original complaint. The complaint alleged numerous counts of making a criminal threat, attempting to dissuade a witness, and making a false bomb report occurring on July 20, July 28, August 12, August 13, and August 20, 2004. At the arraignment, Becker's appointed counsel informed the court that Becker wanted to represent himself, he had been informed of his legal and constitutional rights, and he had signed the written acknowledgment form. The record shows that Becker signed an "Acknowledgement of Constitutional Rights" form stating that he understood he had a right to an appointed attorney at all stages of the proceedings if he could not afford one. Further, he signed an "Acknowledgement Concerning Right of Self-Representation" form (the Lopez acknowledgement form).
People v. Lopez (1977) 71 Cal.App.3d 568.
The Lopez acknowledgment form stated "[t]he defendant wishes to exercise the right to self-representation without the help of an attorney." The form listed the charged offenses against Becker by Penal Code section, and stated the maximum penalty that could be imposed upon conviction for the offenses was 58 years. The form set forth standard advisements regarding a defendant's rights and the risks of self-representation, including that the defendant had the right to an appointed attorney; that self-representation was almost always unwise; and that the defendant must follow all rules, would receive no special treatment or assistance from the judge or prosecutor, would receive an appointed investigator only upon a demonstration of need, and could not claim incompetency of representation on appeal. The contents of the Lopez acknowledgement form were read into the record at the arraignment, and the court instructed Becker to "listen carefully" while this occurred. The court also queried Becker about his education and abilities. Becker informed the court that he had a high school and some college education, he could read and write English, and he was representing himself in "a couple of other cases" (apparently referring to the shoplifting case). The court signed the portion of the Lopez acknowledgement form stating: "The Court, having made inquiry into the defendant's background, training and education, finds that the defendant made a voluntary, intelligent and understanding waiver of the right to counsel and is granted the right of self-representation."
The form stated the charges were: "PC 422, 136.1 (a)(2), 148.1 (a)[.] Total of 41 counts."
A defendant has a constitutional right to self-representation, provided that he or she knowingly and intelligently waives the constitutional right to the assistance of counsel. (Faretta v. California (1975) 422 U.S. 806, 835; People v. Blair (2005) 36 Cal.4th 686, 708.) The right to counsel persists unless the defendant affirmatively waives that right. (People v. Koontz (2002) 27 Cal.4th 1041, 1069.) To validly waive counsel, the defendant should be made aware of the dangers and disadvantages of self-representation. (Id. at p. 1070.) The record should establish that the defendant knew " ' "what he [was] doing and his choice [was] made with eyes open." [Citation.]' " (Ibid.)
To insure a clear record of a knowing and voluntary waiver of counsel, the courts have set forth recommended items to be reviewed with the defendant, including such matters as cautions against self-representation, inquiries about the defendant's education, advisement about the right to appointed counsel, and information about the charges and possible penalties. (People v. Koontz, supra, 27 Cal.4th. at p. 1070.) However, no particular words are required to admonish a defendant who seeks to waive counsel and elect self-representation. (Id. at pp. 1070.) Rather, the test is whether the record as a whole demonstrates the defendant understood the significance and consequences of the decision and the disadvantages of self-representation, including the risks and complexities of the particular case. (Ibid.) The inquiry is pragmatic; the information that must be provided to a defendant in a particular case to intelligently waive counsel depends upon the particular facts and circumstances of the case. (People v. Sullivan (2007) 151 Cal.App.4th 524, 546.)
On appeal, we review the entire record—including proceedings after the invocation of the right of self-representation—to determine de novo whether the defendant's choice to waive counsel and elect self-representation was knowing and voluntary. (People v. Sullivan, supra, 151 Cal.App.4th at p. 547; People v. Goodwillie (2007) 147 Cal.App.4th 695, 719.)
Becker concedes he was adequately advised regarding the risks of self-representation. However, he contends the advisements were inadequate because he was not given information about the nature of the charges and the potential penalties. He contends the advisement in the Lopez acknowledgement form regarding the charges was insufficient because it merely listed the Penal Code sections without identifying the offenses by name or description.
In addition to listing the Penal Code sections for the charges, the Lopez acknowledgement form stated that Becker acknowledged, by his initials, that he received advice concerning the charged offenses. When this item was read into the record and Becker was told to listen carefully, he raised no objection that he was unaware of the nature of the charges. Further, at his arraignment Becker was provided with a copy of the complaint delineating the names of the offenses and the dates they occurred. The complaint also set forth the names of the individuals who received the threatening phone calls (and except for victim Mroz) the businesses where they worked (i.e., the Public Defender's office, Target, Mervyns, and Sears). Because Sam Goody's manager Mroz testified at Becker's preliminary hearing in the shoplifting case, Becker would know that Mroz was associated with the Sam Goody store.
In his brief on appeal, Becker states that it was not clear whether the complaint was given to him. To the contrary, the court instructed defense counsel to give Becker a copy of the complaint. Further, the prosecutor stated Becker would be receiving copies of "a couple of hundred pages of discovery."
In short, the record shows that Becker signed a form acknowledging that he was given advice concerning the charges, and he was provided with a copy of the complaint that provided specifics about the charges. He has cited to nothing in the record suggesting he was unaware of the nature of the wrongful conduct alleged against him in the complaint.
In his briefing on appeal, Becker does not explain why the statement in the Lopez acknowledgement form that he faced a maximum punishment of 58 years was an inadequate advisement of the potential penalties. The complaint also specified the potential penalties for each offense. There was sufficient advisement regarding penalties.
Becker contends that reading the contents of the Lopez acknowledgement form into the record and inquiring about his education was not sufficient, and the court should have engaged in further inquiry. Presentation of advisements in written form, without additional inquiry, does not necessarily mean the defendant's waiver of counsel was uninformed. (See People v. Blair, supra, 36 Cal.4th at p. 709.) There is nothing in the record to suggest Becker did not understand the contents of the form. As noted, he was told to listen carefully and he raised no objection after the form was read. He told the court he had taken college level courses and was representing himself in another case. (Ibid. [self-representation experience in prior trial supports finding of knowing and voluntary waiver of counsel].) The record also reveals comments by the court during the course of the proceedings showing Becker's high level of intelligence and knowledge of the law. Considering all the circumstances, the fact the court did not question Becker about the contents of the acknowledgement form does not suggest he did not fully understand the advisements.
The record shows Becker received sufficient advisement concerning self-representation at the arraignment on the original complaint so as to establish a voluntary, knowing waiver of the right to counsel.
B. Failure to Readvise Regarding Self-representation at Subsequent Arraignments
1. Statutory Duty to Readvise
Penal Code section 987, subdivision (a) provides that if a defendant appears for arraignment without counsel, the defendant shall be informed of the right to counsel and asked if he or she desires the assistance of counsel. Even when a defendant has validly waived counsel and elected self-representation at the arraignment on the complaint, this section has been interpreted to impose a statutory requirement on the trial court to readvise the defendant of the right to counsel and to obtain a new waiver of that right at the arraignment on the information. (People v. Crayton (2002) 28 Cal.4th 346, 361; People v. Sullivan, supra, 151 Cal.App.4th at p. 550.) We will assume for purposes of our analysis that this statutory readvisement requirement applies to all arraignments, including an arraignment on an amended complaint and an arraignment on an information filed for retrial after the declaration of a mistrial.
Subsequent statutory references are to the Penal Code.
The readvisement requirement is not mandated under the federal Constitution. For federal constitutional purposes, a valid waiver of the right to counsel continues throughout the duration of the proceedings (including retrial after a mistrial) unless it is withdrawn or limited to a particular phase of the case. (People v. Crayton, supra, 28 Cal.4th at pp. 362-363.) Thus, when a defendant has been properly advised and waived his right to counsel at an earlier proceeding, the failure to readvise and obtain a new waiver at a subsequent arraignment is evaluated under the state law standard for error, requiring reversal only if it is reasonably probable the defendant was prejudiced by the error. (Id. at pp. 364-365; People v. Sullivan, supra, 151 Cal.App.4th at p. 551.) To establish prejudice, the defendant must show a reasonable probability that he or she was unaware of the right to be represented by appointed counsel at the subsequent proceedings, or that he or she would have requested that counsel be appointed if the court had provided an explicit readvisement. (People v. Crayton, supra, 28 Cal.4th at p. 365; People v. Sullivan, supra, 151 Cal.App.4th at p. 551.)
The record shows that Becker was not explicitly readvised on self-representation at his arraignments following the original October 2004 arraignment. On December 21, 2004, the prosecution filed an amended complaint adding new counts of attempting to dissuade a witness and criminal threat based on Becker's dissemination of the female witnesses' information and his phone call to Abbott in November 2004. At the arraignment on this amended complaint, he was not readvised of his right to appointed counsel. After the preliminary hearing, the prosecution filed the information on March 5, 2005, which for the most part reiterated the allegations set forth in the amended complaint, and also added the stalking allegation involving Abbott. At his March 9, 2005 arraignment on this information, Becker was not readvised of his right to counsel. After the first jury was unable to reach a verdict on most of the charges, on July 27, 2006, the prosecution filed an amended information for retrial, which for the most part reiterated the allegations in the information. At Becker's July 27, 2006 arraignment on this amended information, he was not readvised of the right to counsel.
The court's minute order for the March 2005 arraignment on the information states: "The defendant has been advised of [his] constitutional rights." However, no such readvisement appears in the reporter's transcript for this arraignment.
The trial court erred in failing to readvise Becker of his right to counsel at the arraignments subsequent to the first arraignment. However, because the issue of self-representation was explicitly revisited before both the first and second trials in a manner showing that Becker understood he had a right to counsel and wanted to continue with self-representation, there was no prejudice.
After the prosecutor filed the March 2005 information for the first trial, and just prior to commencement of the first trial in April 2006, the prosecutor filed a motion requesting that the court confirm that a Lopez acknowledgement form had been filed in the case, and if not, that this be done prior to the start of trial. At the April 21, 2006 hearing on this motion, Becker stated that he remembered signing the Lopez acknowledgment form, and he identified the name of the judge who had accepted his waiver of counsel. The court then confirmed that the form was in the file and had been read into the record at the October 2004 arraignment on the original complaint. During this discussion, the court stated that based on all the work Becker had done on the case, it assumed Becker wanted to represent himself. Becker responded to this, stating, "Oh, yes."
Becker's statements that he remembered signing the Lopez acknowledgement form and that he wanted to continue representing himself reflect that he understood he had to waive his right to counsel in order to represent himself at trial, that he had made this waiver earlier, and that he still wanted to waive counsel. Given this reevaluation of his self-representation status shortly before the first trial, there is no reasonable probability that at the earlier March 2005 arraignment on the information he did not understand he had a right to counsel, or that he would have elected to change his status had he been explicitly readvised at that arraignment.
We reach the same conclusion for the July 27, 2006 arraignment on the amended information filed after the first jury hung. At this arraignment, the trial court stated "[d]efendant will continue to represent himself at his request." (Italics added.) By this point in the lengthy proceedings it is not reasonably probable that Becker was unaware that he had the right to appointed counsel. In addition to the original, explicit advisement in October 2004 that he had the right to counsel, there are repeated indications in the record that he knew he had this right. For example, in February and March 2005, after he disseminated the information regarding the female witnesses, the court and parties discussed the possibility of revoking his pro. per. status. The possibility of revocation of pro. per. status necessarily means a return to represented status. As noted, in April 2006, just prior to the commencement of the first trial, Becker explicitly stated that he remembered signing the Lopez waiver form, a form which sets forth the right to counsel. At the July 2006 arraignment prior to retrial, the prosecutor expressly referred to Becker's right to choose attorney representation in the context of arguing against one of Becker's pretrial motions. Further, given the fact that Becker never deviated from his request to represent himself during the prolonged proceedings prior to the second trial, and then affirmatively requested to continue representing himself at the arraignment for the second trial, it is not reasonably probable that he would have decided to change this status had he been explicitly readvised of his right to counsel at this latter arraignment.
This occurred during a discussion of Becker's motion to exclude any witness testimony about recognizing his voice at trial, during which the prosecutor argued that Becker could choose to represent himself or could choose to have an attorney represent him, but he did not have the right to hide his voice.
We note the record does not reflect that the issue of Becker's self-representation was discussed at the December 2004 arraignment on the amended complaint. However, this was not a crucial juncture for purposes of evaluating prejudice because this arraignment did not directly lead to trial. Rather, the first trial was predicated upon the arraignment on the March 2005 information. As stated, the record shows that shortly before the first trial, Becker stated he remembered signing the Lopez acknowledgement form and he indicated he wanted to continue self-representation.
2. Constitutional Duty to Readvise Based on Addition of New Charges
Becker argues the judgment should be reversed at least as to the new charges of attempting to dissuade a witness and criminal threat that were added to the December 2004 amended complaint (i.e., the counts based on the November 2004 dissemination of the female witness information and the November 12, 2004 call to Abbott) and the new stalking charge involving Abbott added to the March 2005 information. Courts from other jurisdictions have concluded that a federal constitutional duty to readvise the defendant regarding self-representation arises if there is a substantial change in circumstances. (See United States v. Fazzini (1989) 871 F.2d 635, 643; United States v. McBride (6th Cir. Ohio 2004) 362 F.3d 360, 367; People v. Simpson (Ill. 1996) 665 N.E.2d 1228, 1239 [new charges may constitute significant change in circumstances].) Assuming the failure to readvise Becker about self-representation constituted federal constitutional error to the extent new charges were added at the December 2004 and March 2005 arraignments, we conclude the error does not require reversal.
Preliminarily, we are not persuaded by Becker's argument that the failure to readvise at the time the new charges were added requires automatic reversal in this case. There is authority for the proposition that when the record shows an uninformed or involuntary waiver of counsel, it is not appropriate to apply a prejudice standard based on whether representation by counsel might have affected the outcome. (Cordova v. Baca (9th Cir. 2003) 346 F.3d 924, 926.) However, case authority also indicates that if the record as a whole shows the waiver of counsel was voluntary and informed, defective advisement is harmless beyond a reasonable doubt. (See id. at pp. 926-929 [defective advisement does not require reversal if "defendant's waiver was nonetheless knowing and voluntary . . . because defendant was well versed in the criminal justice process"]; United States v. Erskine (9th Cir. 2004) 355 F.3d 1161, 1167, 1169; see also People v. Wilder (1995) 35 Cal.App.4th 489, 502-503; People v. Noriega (1997) 59 Cal.App.4th 311, 321-322; People v. Sullivan, supra, 151 Cal.App.4th at pp. 547, 551, fn. 10.)
Here, Becker received adequate advisements at the first arraignment, there is no suggestion of coercion, and any constitutional error arises solely from the failure to readvise after the addition of new charges. Additionally, the record shows beyond a reasonable doubt that even though Becker was not readvised at the time of the new charges, his decision to continue with self-representation was fully informed and voluntary. Under these circumstances, we conclude reversal as to the new counts is not warranted.
To support his contention of automatic reversal, Becker cites In re Peterson (1970) 4 Cal.App.3d 979. In Peterson, the appellate court, without a discussion of prejudice, reversed the portion of a judgment premised on a new count added at the time of an arraignment where there was no showing the defendant waived his right to counsel pertinent to the new count. (Id. at pp. 981-983.) Peterson contains no discussion as to why the error required automatic reversal rather than being subject to the harmless beyond a reasonable doubt standard for federal constitutional error. We do not find its holding controlling here.
At his December 2004 arraignment, Becker was given a copy of the amended complaint. The amended complaint specified the names of the female witnesses who were listed on the paper provided to the other inmates, and set forth the name and Penal Code section for the dissuading a witness offense, the dates the offenses occurred, and the potential penalties. The amended complaint identified Abbott as the victim in the new criminal threat count and specified the November 12, 2004 date that the threat occurred and the applicable penalty. Further, the record shows that prior to and at the time of the critical March 2005 arraignment which formed the basis for the first trial, Becker participated in proceedings (including motion hearings and the preliminary hearing) where the facts underlying the new witness dissuasion and criminal threat charges were at issue and Becker's awareness of these facts was apparent. As to the stalking count involving Abbott, at the March 2005 arraignment, Becker was given a copy of the information, which specified that Abbott was the stalking victim and set forth the time period when the offense occurred and the potential penalties. The stalking offense was alleged to have commenced on the same date (August 12, 2004) as the false bomb report count involving Abbott charged in the original complaint, and to have continued until November 12, 2004. Thus, this allegation notified Becker that he was being charged with contacts with Abbott commencing on August 12 and continuing until November 12, 2004.
The amended complaint also included an additional offense of attempting to dissuade a witness, based on the same November 12 conduct involving Abbott.
For example, on February 3, 2005, Becker filed a motion objecting to the prosecution's request that he provide a handwriting exemplar to compare his writing to the writing on the lists obtained by the other inmates. At the February 15, 2005 preliminary hearing, witnesses were examined on the issue of the lists and the November 12 call to Abbott. At the March 9, 2005 arraignment, Becker referred to the charges involving phone calls from other inmates when discussing his request for advisory counsel.
In addition to the showing that Becker knew about the nature of the new charges and their potential penalties when he continued with his self-representation at the December 2004 and March 2005 arraignments, as set forth earlier the record shows that just prior to the commencement of the first trial he evinced an awareness of his right to counsel and the desire to continue with self-representation; he had experience with self-representation in another case; and he was observed by the court to be intelligent and capable in the handling of his case. We are satisfied beyond a reasonable doubt that he knew he could request counsel at the time the new charges were added, and that he understood the risks associated with self-representation even with the additional charges. Accordingly, because the record shows his self-representation choice continued to be voluntary and knowing even when the new charges were added, the failure to readvise him at the time of the new charges was harmless beyond a reasonable doubt.
Becker also argues that by the time of the March 2005 arraignment, the circumstances had changed so substantially (including his conviction in the shoplifting case, the addition of the new counts, and problems with his case preparation) that if he been explicitly readvised that he still had the right to counsel, he would have given up his self-representation status. We are not persuaded. As noted, Becker was aware of the nature of the new counts. He also was aware of any problems he was experiencing with case preparation, and he knew he had been convicted in the shoplifting case. Notwithstanding this knowledge, in April 2006 just prior to the commencement of the first trial, when the prosecutor and the court explored whether there was a Lopez acknowledgement form in the record, Becker explicitly told the court he remembered signing the Lopez acknowledgement form and he wanted to continue to represent himself. Given these clear statements by Becker showing awareness of his right to counsel and his continued desire for self-representation, we have no doubt that at the earlier March 2005 arraignment he realized he still had a right to counsel and he wanted to continue to waive that right.
This conclusion is buttressed by Becker's statement during closing argument to the jury that he recognized that he "could have had an attorney appointed at any time to explain everything" but he chose to represent himself because he wanted to "make sure that nothing was omitted . . . ."
II. Issues Pertaining to Witnesses' Recognition of Becker's Voice at Trial
A. Background
During the course of the proceedings, Becker recognized that, because he was representing himself, there was a possibility that witnesses who received the threatening calls might testify at trial that they recognized his voice while he was cross-examining them. To address this issue, Becker made several requests, including (1) a request for a pretrial voice lineup; (2) a request for a ruling excluding testimony by witnesses that they recognized his voice at trial; and (3) a request for advisory counsel to conduct the cross-examination of the witnesses who received the phone calls. The trial court denied these requests. On appeal, Becker contends the court abused its discretion in denying his requests.
In August 2005, before the first trial, Becker requested that the trial court order a voice lineup which included his voice, presumably so he could present evidence in the event a witness failed to recognize his voice in the lineup. (See Garcia v. Superior Court (1991) 1 Cal.App.4th 979, 984-987; People v. Vallez (1978) 80 Cal.App.3d 46, 55-56; cf. Evans v. Superior Court (1974) 11 Cal.3d 617, 623, 625 [defendant has right to pretrial lineup that may reveal witnesses, who should be able to identify perpetrator, but who were unable to identify defendant].) Arguing that a voice lineup was not material, the prosecutor stated that Becker "made one brief phone call to each victim, using a Middle-Eastern accent"; Becker did not have a Middle Eastern accent and had disguised his voice; and the prosecution's proof did not rest on witnesses identifying his voice. The trial court denied the voice lineup request.
The prosecutor also asserted the voice lineup request was untimely and the witnesses would not be able to identify Becker's voice given the passage of time.
Thereafter, at various points during proceedings before the first and second trials, Becker requested (1) that prosecution witnesses be prohibited from testifying (either voluntarily or upon examination by the prosecutor) that they recognized his voice when he was cross-examining them, or (2) that advisory counsel be appointed to conduct the cross-examination of these witnesses.
In an April 2006 motion filed before the first trial, Becker requested the exclusionary ruling. In this motion, he pointed out that contrary to the prosecutor's earlier assertion that no witnesses would be able to recognize his voice at trial, University Towne Center security officer Barrera reported to the police that he recognized the caller's voice from his previous contact with Becker during the Sam Goody shoplifting incident. The trial court denied Becker's request for an exclusionary ruling.
At the ensuing first trial, Barrera voluntarily commented while he was being cross-examined by Becker that he recognized Becker's voice as the caller's voice. It also appears that Becker chose not cross-examine most, if not all, of the other witnesses who received the threatening phone calls.
The record on appeal includes part, but not all, of the reporter's transcript for the first trial. We glean this information from the partial transcript of the first trial and other documents in the appellate record.
After the first jury hung and the case was being prepared for retrial, on July 6, 2006, Becker requested that advisory counsel be appointed to cross-examine witnesses (such as Barrera and Abbott) who might identify his voice during cross-examination, pointing out that at the first trial Barrera had identified his voice during cross-examination. Noting that the appointment of advisory counsel was discretionary and not mandatory, the court rejected Becker's request.
At his July 2006 arraignment for the second trial, Becker asserted that it was unfair that the prosecution could take advantage of his exercising his constitutional right to self-representation by obtaining testimony from Barrera that he recognized Becker's voice during cross-examination. The prosecutor responded that Becker could choose to represent himself or could choose to have an attorney represent him, but he did not have the right to hide his voice. The court adhered to its earlier ruling and declined to issue an exclusionary ruling. When denying Becker's requests for an exclusionary ruling or advisory counsel, the court reasoned that Becker did not have a constitutional right to have his voice excluded from evidence because it was nontestimonial in nature, and when he elected self-representation he knew he would have to use his voice to cross-examine witnesses.
At the second trial during direct examination by the prosecutor, Barrera testified that at a prior hearing (i.e., the first trial) when Becker cross-examined him, he recognized Becker's voice as the caller's voice. Additionally, after Becker cross-examined Barrera at the second trial, Barrera reiterated on redirect examination by the prosecutor that he recognized Becker's voice as the caller's voice. Apart from Barrera, at the second trial Becker did not cross-examine any of the other witnesses who received threatening phone calls from him.
B. Analysis
The record shows that at the second trial, eight of the 18 witnesses who testified that they received threatening phone calls described the male caller as having a Middle Eastern accent. The trial court's rulings denying a pretrial voice lineup, advisory counsel for cross-examination, and exclusion of voice identification testimony were not an abuse of discretion as to these witnesses. Because Becker does not have a Middle Eastern accent, the trial court could reasonably conclude that there was no reasonable possibility these witnesses would attempt to make a connection between Becker's voice at trial and the caller's voice. Becker's decision not to cross-examine these witnesses does not alter our conclusion. The fact that Becker may have been subjectively concerned that a witness might recognize his voice does not detract from the reasonableness of the court's conclusion that this was not a valid concern as to these witnesses.
The remaining 10 witnesses who received calls could have potentially identified Becker's voice at trial as the voice of the caller, and indeed Barrera did so. These witnesses variously described the male caller as having an articulate, deep voice; a low-pitched, raspy voice; a monotone voice; and a clear, easily understandable voice. Abbott testified that she recognized the voice in the November 12, 2004 call from earlier calls she had received.
Arguably, it could have been appropriate to grant Becker's request for a pretrial voice lineup for all or some of these witnesses. (People v. Garcia, supra, 1 Cal.App.4th at p. 988 [defendant entitled to pretrial lineup upon timely request when witness identification is material issue and there is reasonable likelihood of mistaken identification which lineup would tend to resolve].) However, when Becker made his request for a voice lineup in August 2005, the prosecutor informed the court that the caller used a Middle Eastern accent in the calls. Thus, the court (and perhaps the prosecution) was unaware at this time that some of the witnesses had the potential to recognize Becker's voice. In any event, almost one year later in April 2006, just prior to the commencement of the first trial, Becker pointed out to the court that Barrera might be able to recognize his voice. Although Becker commented on the prosecution's earlier opposition to his voice lineup request, Becker did not renew his request for a voice lineup but rather requested that all witnesses be prohibited from identifying his voice at trial. He took the same position at the July 2006 hearing before the second trial; i.e., arguing that his earlier request for a voice lineup should have been granted, but requesting an exclusionary ruling rather than a renewed request for a lineup. Because Becker did not clearly renew his request for a voice lineup once it was discovered that Berrara could identify his voice, the court cannot be faulted for failing to order one. Given our holding on this point, we need not discuss the Attorney General's argument that the trial court could properly deny the voice lineup request because it was untimely.
We note that during the hearing before the second trial, Becker made some oral statements that arguably could be construed as suggesting he was again asking for a voice lineup. However, these statements were made in the context of a request for an exclusionary ruling. The trial court cannot be expected to sua sponte glean that a defendant is requesting a discovery procedure absent a clear motion to this effect.
The trial court also did not act unreasonably by declining Becker's request for an order excluding witness testimony identifying his voice at trial. The type of evidence that Becker was trying to keep from the jury—identification of his voice—is not constitutionally protected because it is not considered testimonial. (People v. Ellis (1966) 65 Cal.2d 529, 532-534; People v. Sarkissian (1978) 81 Cal.App.3d 660, 663.) "It is well settled that the privilege against self-incrimination 'offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.' " (People v. Sims (1976) 64 Cal.App.3d 544, 552, original italics.) A defendant's voice is considered " 'merely another identifying physical characteristic.' " (Ibid.) Thus, although voice identification evidence is subject to limits placed on unduly suggestive identification procedures, a defendant may be required to provide a voice exemplar for identification purposes (People v. Ellis, supra, 65 Cal.2d at pp. 533-535; People v. Neely (1999) 70 Cal.App.4th 767, 790; see also People v. Clark (1992) 3 Cal.4th 41, 135-137), and may be required to speak at trial to see if a witness recognizes his voice (People v. Sims, supra, 64 Cal.App.3d at pp. 551-552 [no error in requiring defendant at trial to read statements made by assailant]). Because there is no constitutional impediment to admission of evidence derived from a defendant's voice, the trial court was under no obligation to issue a blanket ruling precluding witness testimony identifying Becker's voice. Moreover, Becker has not shown that witnesses should have been precluded from identifying his voice during cross-examination because any such identification would have been unduly suggestive. (See People v. Clark, supra, 3 Cal.4th at p. 136 [one person voice identification procedure is not necessarily unduly suggestive].)
Likewise, the trial court was not obligated to exercise its discretion to keep voice identification evidence from the jury by appointing advisory counsel, even though the evidence would have been generated by the self-representation choice rather than by the prosecution. Although a trial court has discretion to appoint advisory counsel, there is no constitutional right to such appointment. (People v. Crandell (1988) 46 Cal.3d 833, 861-863; People v. Sullivan, supra, 151 Cal.App.4th at p. 553; People v. Goodwillie, supra, 147 Cal.App.4th at pp. 709-710.) When exercising its discretion, the trial court may consider such factors as the defendant's demonstrated legal abilities and the reasons for the request. (People v. Crandell, supra, 46 Cal.3d at p. 863.) A trial court's discretionary denial of advisory counsel will not be disturbed on appeal if there exists " ' "a reasonable or even fairly debatable justification" ' " for the court's ruling. (Ibid.)
When a defendant knowingly and voluntarily elects self-representation, he or she accepts the risks associated with this choice. (See People v. Garcia (2000) 78 Cal.App.4th 1422, 1431.) Thus, a self-representing defendant cannot expect that the trial court will necessarily appoint advisory counsel to eliminate those risks. Here, Becker requested advisory counsel to protect himself from evidence that could have been admitted even if he had not elected to represent himself. The trial court could reasonably conclude that because the type of evidence potentially generated by Becker's self-representation—i.e., the sound of his voice recognized by witnesses—was not constitutionally inadmissible, appointment of advisory counsel to keep this evidence from the jury was not warranted.
Becker contends the trial court was required to appoint advisory counsel to conduct the cross-examination because it would put him "on the same footing" as a defendant represented by counsel who remains mute, while still allowing him to exercise the right of self-representation. The argument fails because, as stated, a defendant represented by counsel could not have remained mute if the prosecutor sought to admit the sound of his or her voice and the voice identification procedure was not unduly suggestive.
Becker also argues that the trial court did not properly exercise its discretion when considering his advisory counsel request. To support this argument, he points to the fact that the trial court referred to several appellate court decisions discussing denial of advisory counsel, and then concluded Becker's case was more like cases where the appellate court found no abuse of discretion than cases where the appellate court found an abuse of discretion. He contends that this showed the trial court "assumed a predisposition against appointing advisory counsel" and was considering whether its decision would be upheld on appeal rather than whether his particular case warranted advisory counsel for the limited purpose of cross-examination. We are not persuaded. The trial court was entitled to review case authority to inform its decision, and we will not presume from this review that the court failed to recognize, or exercise, its discretion.
Becker has not shown that the trial court abused its discretion in denying his requests pertinent to the voice identification issue.
III. Discrepancy Between Information and Jury Instructions (False Bomb Report Charges)
Becker contends his due process rights were violated because the information charged him with making a false bomb report under section 148.1, subdivision (a), whereas the jury was instructed on the definition of making a false bomb report under section 148.1, subdivision (c).
The offense of making a false bomb report, defined in section 148.1, is committed when a person reports that there is, or will be, an explosive placed or secreted in a public or private place, knowing that the report is false. Section 148.1, subdivision (a) (subdivision (a)) applies to reports made to various specified persons or entities, including law enforcement personnel, mass communication entities, mass transportation employees, and "occupants of a building . . . ." Section 148.1, subdivision (c) (subdivision (c)) applies to false bomb information "maliciously" provided to "any other person." Thus, subdivision (c) includes a maliciousness element not required for a violation of subdivision (a). (People v. Cheaves (2003) 113 Cal.App.4th 445, 451, 453.)
Subdivision (a) states: "Any person who reports to any peace officer listed in [code citations], employee of a fire department or fire service, district attorney, newspaper, radio station, television station, deputy district attorney, employees of the Department of Justice, employees of an airline, employees of an airport, employees of a railroad or busline, an employee of a telephone company, occupants of a building or a news reporter in the employ of a newspaper or radio or television station, that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the report is false, is guilty of a crime punishable by imprisonment in the state prison, or imprisonment in the county jail not to exceed one year."
Subdivision (c) states: "Any person who maliciously informs any other person that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the information is false, is guilty of a crime punishable by imprisonment in the state prison, or imprisonment in the county jail not to exceed one year."
The amended information for the second trial charged Becker with violating subdivision (a). The charging language stated that Becker "did unlawfully report to [name of business and person who received the call] that a bomb and other explosive had been and would be placed and secreted in a place, knowing that such report was false, in violation of PENAL CODE SECTION 148.1(a)." The jury was instructed that to prove Becker guilty of violating "section 148.1(a)," the People had to establish that he "maliciously reported to an occupant of a building that a bomb or other explosive had been or would be placed or secreted in any public or private place." The term "maliciously" was defined for the jury as meaning when a person "intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, annoy, or injure someone else." Thus, although the information and jury instructions consistently referred to subdivision (a), the instructions incorporated the maliciousness element from subdivision (c).
The verdict form completed by the jury stated that Becker was guilty of violating "section 148.1(a)." Thus, Becker was convicted of the same charge that was alleged in the information, even though the jury was instructed with the additional maliciousness element applicable to subdivision (c). Consistent with the information and the jury verdict form, the abstract of judgment refers to subdivision (a), not subdivision (c).
Becker contends the discrepancy between the information and the jury instructions violated his due process rights. He asserts that he was not informed that he was charged with committing the crime maliciously, and he did not know that he could have defended against the charges by proving that the prosecution had not proven beyond a reasonable doubt that he acted maliciously.
Preliminarily, we note that Becker's contention that he was in fact convicted of violating subdivision (c) is incorrect. Although the jury was instructed on the extra maliciousness element for subdivision (c), the jury verdict convicted him of violating subdivision (a), and the trial court made no change to that verdict. This is not a case where the Penal Code section cited in the jury verdict differed from the charging allegations so as to require an evaluation of the meaning of the jury's verdict. (See People v. Bolin (1998) 18 Cal.4th 297, 330-331.) Further, Becker's contention that the record cannot support the subdivision (a) verdict because the calls to the public defender's office and the stores are not encompassed within subdivision (a) is also incorrect. Subdivision (a) is violated if a defendant knowingly made a false bomb report to "occupants of a building." Using its ordinary, common sense meaning, "occupants of a building" refers to a bomb report directed at people in a building. All the bomb report calls were made to an employee in a building, which satisfied the element of a bomb report to occupants of a building. Additionally, the jury verdict form stated the jury had to find the false bomb reports were made to "an occupant of a building"; thus, the jury rendered the necessary finding to support a conviction under subdivision (a).
Equally inaccurate is the Attorney General's assertion that the information correctly set forth the language of subdivision (c) and that the citation to subdivision (a) in the information and verdict form was a clerical error. The information did not set forth the maliciousness element of subdivision (c).
It appears that in subdivision (a), which is violated even in the absence of maliciousness, the Legislature intended to cover false bomb reports directed at persons or locations where the threat could quickly spread to large numbers of people and cause widespread panic and disruption, including threats directed at buildings occupied by people. In contrast, the Legislature imposed a maliciousness requirement on the broader, catch-all subdivision (c) bomb threat provision for threats to "any . . . person."
The jury instruction stating that Becker must have acted maliciously merely required the jury to find an additional element that was not necessary to prove the charged subdivision (a) offense of making a false bomb report to occupants of a building. This discrepancy between the information and the instructions did not impact Becker's due process rights. "Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial." (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) Becker was charged with violating subdivision (a) and he was convicted of violating this same section. Because the allegations in the information notified Becker of the charges he had to defend against to avoid conviction under subdivision (a), the discrepancy between the information and the instructions did not violate his due process rights.
We note that the false bomb report allegations in the information and the instructions were the same for the first trial and for the second trial. Thus, prior to the second trial Becker knew this element had been added for the jury's consideration and he had an opportunity to address this issue at the second trial. In any event, awareness of the maliciousness element was not necessary to protect Becker's due process rights because he was charged with and convicted of violating subdivision (a), which did not require the maliciousness element.
To support his contention of reversible error, Becker cites Gautt v. Lewis (9th Cir. 2007) 489 F.3d 993. The case is distinguishable, and indeed supports our conclusion. In Gautt the defendant was charged with a personal gun use enhancement carrying a 10-year sentence, but he was sentenced for a personal gun discharge enhancement carrying a 25-years-to-life sentence. (Id. at pp. 998-1001, 1008.) Similar to the situation here, the jury in Gautt was instructed on the elements of the uncharged gun discharge enhancement. (Id. at pp. 999-1000.) However, unlike the situation here, the defendant in Gautt was sentenced for violating the gun discharge enhancement even though he had not been charged with that enhancement. In contrast, Becker was convicted of, and sentenced for, violating the same Penal Code section with which he was charged. Consistent with our holding, the Gautt court noted that (notwithstanding the discrepancy in the jury instructions), if the defendant had been "ultimately convicted of the crime actually alleged in the information—a violation of [the gun use enhancement]—his constitutional right to notice [would not have been] actually violated." (Id. at p. 1008.) Moreover, unlike the circumstances of Gautt, a violation of subdivision (a) carries the same penalty as a violation of subdivision (c). There was no violation of Becker's due process rights.
IV. Sufficiency of the Evidence for Counts Based on Dissemination of Personal Information (November 5 Attempt to Dissuade a Witness Counts)
Becker asserts there is insufficient evidence to support the counts that were based on phone calls made by other inmates, not him (i.e., the charges of attempt to dissuade a witness on November 5 arising from his dissemination of personal information for six female witnesses).
Becker concedes that he wrote the information on the papers containing the personal information. However, he contends there was no evidence that he gave the lists, or made the lists available, to the other inmates. To support his argument, he points to the testimony of the jail captain stating that he was not certain how the other inmates acquired Becker's paperwork.
Alternatively, Becker asserts that it is speculative to infer that by providing the lists to inmates, he intended inmates to call the female witnesses and that the females would view the calls as an attempt to dissuade them from testifying. Additionally, he argues the record cannot support a finding that he attempted to dissuade the three female witnesses who never received calls from the other inmates.
When reviewing a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably support the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
Drawing all inferences in favor of the judgment, the record supports the jury's guilty verdicts on these counts. The titles of the two papers, stating "Here are some chicks' addresses . . . ." and "All girls want pen pals and will visit" suggest that the lists were designed to be used by other persons so they could contact the women. Based on these titles and the fact that Becker was housed at the jail, the jury could infer that Becker gave the papers to other inmates. Contrary to Becker's suggestion, the fact that jail personnel may not have been able to ascertain how the inmates acquired the papers does not preclude the jury from inferring that Becker transferred the papers to them.
As to intent, the jury could find Becker intended that the inmates communicate with the women based on the titles of the papers and the inclusion of the contact information on the lists. The jury could reasonably surmise that the female witnesses would feel anxious upon the receipt of an unsolicited communication from an incarcerated male who had their personal information; that the women could suspect the contacts were connected with their involvement in Becker's case; that Becker would realize this; and that by making the lists available to other inmates Becker intended to set up a scenario whereby the women would be contacted by inmates and would feel afraid to testify against an inmate.
It was not necessary that each victim actually receive a communication from an inmate in order to establish Becker's culpability for the offense of attempt to dissuade a witness from testifying. The offense of attempt to dissuade a witness from testifying is complete when the defendant has the intent to influence the witness and the defendant performs an act that goes beyond mere preparation and that shows the defendant is putting his or her plan into action. (§ 136.1, subd. (a)(2), (d); People v. Foster (2007) 155 Cal.App.4th 331, 335.) The defendant's conduct "need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." (People v. Foster, supra, at p. 335.) Becker's act of disseminating the female witnesses' personal information constituted an act that went beyond mere preparation and set his plan into action. The record supports the jury's verdicts as to all the female witnesses.
Section 136.1 states in relevant part: "(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] . . . [¶] (d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section." (Italics added.)
V. Trial Court's Denial of Request for Counsel at New Trial and Sentencing
Becker argues the trial court erred in denying his request to change to represented status during posttrial proceedings.
The jury verdict was rendered on August 23, 2006. The court set the sentencing hearing for September 21, 2006, and requested that any posttrial motions be filed by September 15, 2006. On September 10, 2006, Becker filed a motion requesting that his pro. per. status be terminated and that counsel be appointed to file a new trial motion. On September 15, 2006, Becker (still representing himself) filed (1) a new trial motion arguing he should not have been permitted to represent himself, and (2) a statement in mitigation for the sentencing hearing.
At the September 21 hearing, the court asked Becker if his request for termination of his pro. per. status and appointment of an attorney was moot because he had filed his own new trial motion. Becker responded "[n]o," stating that there were grounds other than those he set forth in his new trial motion; the case had gotten too complicated for him to handle; his statements were being turned around and used against him; and he was having trouble accessing new evidence and materials in jail. He also asked that an attorney be appointed for sentencing, stating the matter was too complicated for him. The prosecutor raised no objection to Becker's request, merely stating that he would defer to the court on the issue. The court denied Becker's request for appointment of counsel, finding there was no reason to appoint counsel. In exercising its discretion, the court stated that it had considered the relevant criteria set forth in case law, the issues in the case, and the defendant's competent level of performance through two trials.
The court then heard the parties' arguments on the new trial motion, and denied the motion. Sentencing was rescheduled for October 6, 2006, to allow Becker time to be interviewed by the probation officer. On October 6, the parties presented arguments, and the court adopted the probation officer's recommendation and imposed a 20-year, four-month sentence.
When a self-representing defendant requests appointment of counsel during or after trial, the trial court has discretion to grant or deny the request. (People v. Lawley (2002) 27 Cal.4th 102, 149; People v. Ngaue (1991) 229 Cal.App.3d 1115, 1124-1125.) Relevant factors to consider include the defendant's prior history in changing representation status, the reasons for the request, the length and stage of the proceedings, the potential for disruption or delay, and the likelihood of the defendant's effective self-representation. (People v. Ngaue, supra, at pp. 1124-1125.) The courts recognize that although the right to counsel is not absolute after it has been waived, a denial of a posttrial request for counsel may be an abuse of discretion if the defendant made a timely, good faith request. (Id. at pp. 1123-1126; see also Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 700-701.)
The record does not support the trial court's decision to deny Becker's posttrial request for appointed counsel. During the course of the two jury trials, Becker never engaged in disruptive requests to switch between self-representation and appointed representation. Rather, he consistently adhered to his choice to represent himself throughout the trials with no requests for alteration of this status. After the second jury rendered its guilty verdicts, Becker requested that he be changed to represented status. This was not an unreasonable point to make the request given that the trial was completed and the posttrial proceedings had not yet commenced. The prosecutor had no objection to appointment of an attorney. There is nothing in the record to suggest that a continuance to allow counsel time to prepare would have caused undue disruption or inconvenience. Indeed, the trial court continued the sentencing hearing for about one and one-half weeks so Becker could be interviewed by the probation officer. The only factor supporting the trial court's denial of counsel was that Becker had competently represented himself during trial. However, because Becker made his request in a timely fashion and at a convenient juncture between trial and posttrial proceedings, this factor alone does not warrant denial of Becker's right to choose represented status.
Prejudice
Our high court has not yet resolved the issue of the standard of prejudice applicable on appeal when a self-representing defendant was erroneously denied reinstatement of counsel. In People v. Lawrence (2008) 158 Cal.App.4th 685, review granted April 9, 2008, S160736, the Court of Appeal held that when a trial court erroneously denies reinstatement of counsel during the guilt trial, reversal is automatic without inquiry as to whether the jury might have rendered a different verdict if the defendant had been represented by counsel. The propriety of the Court of Appeal's holding in Lawrence is currently pending before the California Supreme Court.
In contrast, when evaluating an erroneous denial of reinstatement of counsel at the posttrial stage (i.e., new trial motion/sentencing), the California Court of Appeal in People v. Ngaue rejected a rule of automatic reversal and applied the reasonable probability of a different outcome standard for state law error. (People v. Ngaue, supra, 229 Cal.App.3d at pp. 1126-1127.) The Ngaue court reasoned that a trial court's abuse of discretion in denying reinstatement of counsel after a defendant has exercised the constitutional right of self-representation did not rise to the level of constitutional error. (Ibid.) Diverging from this view, the Ninth Circuit has applied a rule of automatic reversal to the erroneous denial of reinstatement of counsel at the posttrial stage. (Robinson v. Ignacio (9th Cir. 2004) 360 F.3d 1044, 1061 [sentencing]; Menefield v. Borg, supra, 881 F.2d at p. 701, fn. 7 [new trial motion]; see also State v. Dailey (Mo.App.W.D. 2000) 21 S.W.3d 113, 116-117 [applying automatic reversal for denial of reinstatement of counsel for new trial motion].)
As we shall explain, we agree with the Ngaue court that an erroneous denial of reinstatement of counsel for purposes of a new trial motion and sentencing is not structural error requiring automatic reversal. However, we conclude that the appropriate standard is the harmless beyond a reasonable doubt standard for federal constitutional error.
The United States Supreme Court has recognized that harmless error analysis, rather than automatic reversal, is appropriate in some cases even when the error involves a violation of the defendant's right to counsel. (Satterwhite v. Texas (1988) 486 U.S. 249, 251, 255-258 [applying harmless beyond a reasonable doubt standard for denial of right to consult counsel prior to psychiatric examination used to acquire evidence for capital sentencing proceeding]; Coleman v. Alabama (1970) 399 U.S. 1, 11 [applying harmless beyond a reasonable doubt standard for denial of counsel at preliminary hearing].) In Satterwhite, the court observed that structural error requiring automatic reversal occurs when the deprivation of the right to counsel "affected—and contaminated—the entire criminal proceeding." (Satterwhite, supra, 486 U.S. at p. 257; see also United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150 [structural error occurs when the deprivation of the right to counsel of choice at trial has " 'consequences that are necessarily unquantifiable and indeterminate' "]; People v. Ortiz (1990) 51 Cal.3d 975, 988 [automatic reversal required to avoid " ' "impossibly speculative comparison" ' " between performance of actual counsel and requested counsel during guilt phase].) In contrast, automatic reversal may not be necessary in circumstances where "a reviewing court can make an intelligent judgment about whether the [error] might have affected [the outcome]." (Satterwhite, supra, 486 U.S. at p. 258.) In State v. Smith (Idaho App. 1992) 832 P.2d 337, 341-342, an Idaho appellate court applied Satterwhite's criteria and concluded a violation of a defendant's right to counsel based on ineffective advisement on self-representation at sentencing was not structural error and was reviewable under the harmless beyond a reasonable doubt standard.
In Gonzalez-Lopez, the United States Supreme Court applied a rule of automatic reversal for the trial court's erroneous disqualification of the defendant's chosen retained counsel during trial. (United States v. Gonzalez-Lopez, supra, 548 U.S. at pp. 143, 150.) Similarly, in Ortiz, the California Supreme Court applied a rule of automatic reversal for the trial court's erroneous denial of the defendant's motion to discharge retained counsel and obtain appointed counsel after a mistrial and before commencement of retrial. (People v. Ortiz, supra, 51 Cal.3d at pp. 987-989.)
Although a defendant is entitled to be represented by counsel at new trial motions and sentencing (People v. Munoz (2006) 138 Cal.App.4th 860, 867), there are qualitative differences between trial and posttrial proceedings. At posttrial proceedings in a noncapital case, the defendant's right to a jury trial to determine guilt has already been satisfied and the new trial/sentencing matters are generally adjudicated by the trial court. Thus, the denial of reinstatement of counsel at this stage does not implicate the same type of concerns operative when a defendant's guilt is being adjudicated. Although automatic reversal for violation of the right to counsel during trial may be necessary to avoid " ' "impossibly speculative" ' " evaluations (People v. Ortiz, supra, 51 Cal.3d at p. 988), an appellate court may well be able to review a new trial motion and sentencing for harmless error without resort to speculation. For example, there may be cases where the record shows new trial issues have been fully reviewed by the trial or appellate courts, or where the trial court imposed the most lenient sentence possible. We conclude that new trial motions and sentencing are the types of proceedings for which an appellate court can make an informed judgment about whether the outcome might have been affected by the denial of a request to return to represented status. However, because the denial of reinstatement of counsel concerns the federal constitutional right to be represented by counsel, rather than applying the standard for state law error as the court did in Ngaue, we apply the harmless beyond a reasonable doubt standard.
We note that in People v. Munoz, supra, 138 Cal.App.4th at page 870, the court applied a rule of automatic reversal for the trial court's erroneous denial of the defendant's request to change from retained to appointed counsel at sentencing. Munoz relied on People v. Ortiz, supra, 51 Cal.3d at p. 988 to support automatic reversal, without discussing whether different considerations might apply as to the standard of prejudice given that Ortiz concerned a request for new counsel during trial. Moreover, Munoz may involve different considerations because it applies to denial of the right to change from retained to appointed counsel rather than a request to change from self-represented to represented status. (See also People v. Miller (2007) 153 Cal.App.4th 1015, 1024 [applying, without discussion, rule of automatic reversal for denial of defendant's motion to represent himself at sentencing.) We decline to apply Munoz's holding here.
Error is harmless beyond a reasonable doubt if the record shows there is no reasonable possibility the error might have affected the outcome. (People v. Lewis (2006)139 Cal.App.4th 874, 885, 887.) Here, the record shows the error was harmless as to the new trial motion. Based on the new trial motion filed by Becker himself, the trial court considered and rejected a finding that there were grounds for a new trial. To the extent Becker omitted potential issues in his new trial motion, appointed appellate counsel has now reviewed the case for error and we have found no errors warranting a new trial. To the extent a new trial motion can be premised on a request that the trial court act as a "13th juror" by independently weighing the evidence (People v. Lagunas (1994) 8 Cal.4th 1030, 1038 & fn. 6), the record here shows the trial court was persuaded the evidence supported the jury's verdicts. At sentencing, the court stated: "Now, I know you're denying the offenses. I heard the evidence, and there's some cases where I can speak with a great deal of confidence about the facts, others where I just leave it to the Court of Appeal to decide. But I know you made those calls, and you know you made those calls and to pretend otherwise is foolishness . . . ." The trial court was also unpersuaded by Becker's argument that his sentence should be mitigated because there were evidentiary deficiencies associated with the charges arising from his dissemination of female witnesses' personal information to other inmates. The record shows no reasonable possibility that the denial of reinstatement of counsel affected Becker's failure to obtain a favorable new trial ruling.
We conclude the error does require reversal as to sentencing, however. Becker received a three-year, base-term sentence for the burglary offense in the shoplifting case; a consecutive sentence (one-third the middle term) for a petty theft with a prior offense in the shoplifting case; and 23 consecutive sentences (one-third the middle term) for attempted criminal threat, criminal threat, false bomb report, and attempt to dissuade a witness offenses in the threats case. The selection of these numerous consecutive sentences in the threats case was a choice peculiarly subject to the trial court's exercise of its discretion, and the court could have exercised its discretion to select additional concurrent terms. (See People v. Black (2007) 41 Cal.4th 799, 822.) Although Becker himself argued for concurrent sentences, we cannot confidently rule out the possibility that appointment of counsel might have made a difference. At sentencing, the trial court noted there was nothing in Becker's history to indicate he was a violent person, and stated its view that Becker had not actually intended to carry out any of his threats but was simply engaging in "bullying" behavior. Although there was nothing improper in the 20-year, four-month sentence selected by the court, appointed defense counsel might have been able to convince the court to make a more lenient sentencing choice for some of the offenses, resulting in a lower sentence. Accordingly, we shall reverse the sentence and remand for a sentencing hearing where Becker is represented by counsel.
The court imposed concurrent terms for two counts in the threats case, and stayed sentences for 18 counts under section 654.
VI. Consecutive Sentences for Counts Based on Dissemination of Personal Information
Becker received a consecutive sentence for each of the offenses of attempting to dissuade a witness on November 5. Challenging these sentences, Becker asserts that he engaged in a single act of writing the lists containing the female witness's personal information, and accordingly five of the sentences for the six counts should have been stayed under section 654. Although we are remanding this case for resentencing, for guidance on remand we address the section 654 issue because it has been fully briefed by the parties.
When a defendant sustains multiple convictions arising out of a single act or indivisible course of conduct, section 654 permits only one punishment for the defendant's conduct. (People v. Oates (2004) 32 Cal.4th 1048, 1062.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (Id. at p. 1063.) If the offenses are incidental to one objective, the defendant may be punished for only one offense. (People v. Liu (1996) 46 Cal.App.4th 1119, 1133, 1136.) However, if the defendant acted with multiple, independent criminal objectives, the defendant may be punished for each of those objectives even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (Ibid.) The issue of whether the defendant entertained multiple criminal objectives is a question of fact for the trial court, and is reviewed on appeal under the substantial evidence standard. (Id. at pp. 1135-1136.)
There is substantial evidence to support a finding that Becker had six independent objectives to intimidate the six female witnesses so they would not testify against him. Each of the witnesses had information that they could provide at trial to adjudicate his culpability for the false bomb reports. Thus, the court could find Becker had a distinct objective to stop each of them from testifying. The trial court was not required to stay any of these sentences under section 654.
Becker also asserts the court should have selected concurrent rather than consecutive sentences for these counts. A trial court is required to set forth its reasons for selecting consecutive sentences. (People v. Black, supra, 41 Cal.4th at p. 822; People v. Champion (1995) 9 Cal.4th 879, 934.) The record does not show the trial court explicitly set forth its reasons for selecting consecutive sentences. Because we are remanding the matter for a sentencing hearing where Becker will be represented by counsel, we need not evaluate this issue further.
DISPOSITION
The judgment is affirmed as to guilt and reversed as to the sentence. At resentencing, Becker shall be represented by counsel.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.