Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE265102, William J. McGrath, Jr., Judge.
HALLER, Acting P. J.
Marion Chillis appeals from a judgment convicting him of first degree murder under theories of premeditation or lying in wait, with a true finding on a lying-in-wait special circumstance allegation. He raises numerous arguments to support his claim that the judgment must be reversed in whole or part. As to lying in wait, he contends (1) the evidence is insufficient to support this theory, and (2) the statutory lying-in-wait special circumstance is unconstitutional. Challenging the fairness of his trial, he asserts the trial court erred when it (1) required that he be shackled during trial, (2) failed to adequately evaluate his requests for new appointed counsel, and (3) after he elected self-representation, denied his requests for advisory counsel, failed to ensure timely provision of discovery materials and access to the law library, and failed to provide him an adequate continuance. Chillis was also convicted of methamphetamine possession. He asserts there was insufficient evidence that he possessed a usable quantity of methamphetamine. We reject all these contentions of reversible error. We also reject his contention of cumulative prejudice.
Chillis was sentenced to life without parole for the lying-in-wait special circumstance allegation. The trial court doubled the life-without-parole sentence because Chillis had incurred one strike prior conviction under the Three Strikes law. The court also imposed a determinate sentence. Chillis asserts it was error to double the life-without-parole sentence. We agree. However, we reject his contention that the court erred in imposing a parole revocation fine.
The judgment is modified to strike the second sentence of life without possibility of parole derived from the doubling provision of the Three Strikes law. As so modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Chillis and the victim Peggy Chillis (Peggy) were married in 2002. When problems developed in their marriage, Peggy periodically left Chillis and moved in with various friends. Chillis made threats that scared Peggy, and in June 2005 Peggy obtained a restraining order against him. Shortly thereafter, on June 23, 2005, Chillis beat Peggy with a baseball bat. About one year later, on September 30, 2006, Peggy was walking in an alley after work when Chillis appeared, chased her, and then fatally stabbed her outside a nearby thrift store.
Numerous prosecution witnesses described how, in the months before the murder, Chillis had become obsessed with Peggy. He was very controlling and jealous, and he would repeatedly call and visit the various residences where he thought she might be staying, demand that she talk to him, and threaten to kill her. For example, Chillis called Peggy's friend (Erika Barber) a couple of times and stated he was going to kill Peggy, and he came to Barber's house and stated that when he found Peggy, "he was going to get her." Chillis called another friend (Avante Jacobson) and stated that Peggy was a liar, cheating on him, " 'using [him]' " and " '[kept] playing games' " with him; he was not going to allow it to go on; he was going to get her; and he was going to kill her. On one occasion Chillis was outside Jacobson's house at 3:00 a.m. yelling and demanding to speak to Peggy. On another occasion Chillis was in the front of Jacobson's mother's house demanding to speak to Peggy; Peggy was scared and climbed over the fence in the back yard to get away from Chillis.
Dolores Smith, one of the friends with whom Peggy had stayed, testified that on several occasions she saw Chillis sitting in his car near her apartment. Smith believed that Chillis was stalking Peggy, "trying to see where [she] was." Chillis repeatedly called Dolores's residence looking for Peggy, saying things like, " 'She [Peggy] better call me.... She don't want me to have to come over there.' "
In late August or early September 2006, Chillis came to Smith's home asking for Peggy (who was not there). Chillis gave Smith some divorce papers, telling her that Peggy needed to sign them immediately. During their conversation, Chillis started "shaking and crying" and told Smith that Peggy had " 'left [him] with nothing.' " A couple of days before Peggy was killed, Chillis called Smith's home asking if Peggy had signed the divorce papers. When Smith told him no, Chillis stated that Peggy had been " 'holding [him] off and holding [him] off' "; either she signed the papers or " 'things ain't going to be right' "; he was " 'just so upset' "; she had " 'really, really just carried [him] to the end' "; she was " 'going to make [him] do something' " that he did not want to do; and he would " 'kill her.' "
At the time of her death, Peggy had been living for several weeks with her boyfriend (Kraylen Richmond) and Valerie Alvarado. According to Alvarado, Chillis did not know the location of their residence. Alvarado testified that on Thursday, September 28, 2006, Peggy called Chillis from a convenience store and asked if he would give her and Alvarado a ride to the welfare office and to the courthouse. Chillis picked the two women up at the convenience store and took them on their errands, and then took them to a casino. Peggy had told Alvarado many times that she was afraid of Chillis. However, when they went to the casino with Chillis on that day, Peggy was in a good mood and Chillis and Peggy were acting like they were friends. The situation changed when Chillis overheard Alvarado say to Peggy that they better leave before Richmond found out they were there and got upset. When Chillis heard that Peggy had a boyfriend, his attitude changed and he started acting "mean." They then left the casino.
After the casino, they went to the fast food restaurant where Peggy worked so Peggy could pick up her paycheck. While they were in the car on the way to the restaurant, Chillis told Peggy he loved her and would do anything for her. When they arrived at the restaurant, Chillis suggested that Peggy call him later and come to his house. Peggy stated she did not want to go to his house. Chillis became angry and started cursing at her. Peggy told Alvarado to ignore Chillis and that they should leave. Peggy and Alvarado went into the restaurant to get Peggy's check, and then walked to Smith's residence which was located nearby.
On the evening of Friday, September 29, Chillis called Alvarado's residence asking for Peggy. Alvarado told him they had company and were busy. Chillis, who sounded angry, said he needed to talk to Peggy immediately. Alvarado told him he could not do so. Chillis stated Peggy was supposed to file for their divorce and started shouting that he needed to talk to her. Alvarado hung up on him. After this phone call, Peggy was worried and locked the doors. That same night, when Peggy and Alvarado discussed the fact that Chillis had found out about Peggy's boyfriend, Peggy told Alvarado that she was afraid Chillis was going to kill her.
On the morning of September 30, Richmond walked with Peggy to her job at the restaurant, which was located in Spring Valley about one or two miles from their residence. Peggy did not want to walk alone in case Chillis showed up. Around 10:30 a.m. that same day, Chillis called the restaurant and asked Peggy's supervisor if he could speak to Peggy. The supervisor told Chillis that Peggy was currently with customers, and Chillis told him to "just let her know her husband called."
During her 11:30 a.m. break from work that day, Peggy walked to Smith's apartment, which was located at the end of an alley near the restaurant (about a two- to three-minute walk away). Because of the threats made by Chillis, when it was time for Peggy to return to work Smith walked with her part of the way in the alley and watched her turn to go to the restaurant.
Around 4:00 p.m., Richmond called Peggy at work to tell her he would go to her work to walk her home as they had planned. Peggy told him she did not get off until 4:30 p.m. However, Peggy's shift ended shortly thereafter, and she left the restaurant to walk to Smith's residence, apparently to wait for Richmond at this location. Peggy walked past the thrift store that was next to the restaurant, and then down the alley towards Smith's residence. Out of concern for her safety because of Chillis, Peggy's coworker (George Alexander) watched her walking until she turned a corner and he lost sight of her.
Meanwhile, at about 2:26 p.m., Chillis notified his work that he had a headache and would not be able to come in for his evening shift. At 3:57 p.m., Chillis went to an ATM near his home in downtown San Diego and withdrew money. He then drove to Spring Valley (a drive of about 12 minutes and 52 seconds) and arrived at the alley where Peggy was walking. Two residents of apartments overlooking the alley witnessed Chillis chasing Peggy in the alley, and several other persons witnessed the stabbing outside the nearby thrift store. A 911 call reporting the stabbing as it was occurring was received at 4:12 p.m.
Michael Hill and Alicia Tuthill witnessed the chase in the alley. Hill was outside on his balcony when he saw Peggy walking in the alley, and then saw Chillis's car driving in the alley. Hill went back inside his apartment, but returned outside when he heard tires squealing. Tuthill, who was in her bedroom, heard car brakes screeching in the alley. She looked out her window and saw Peggy standing in the alley and Chillis's car driving in the alley. When Peggy turned her head and saw the car, she started screaming for help and running towards the thrift store. Chillis got out of his car, leaving the motor running, and started chasing Peggy on foot. Although it was warm outside, Chillis was wearing a hooded sweatshirt with the hood tightened around his face so that only part of his face was showing.
Chillis caught up with Peggy on a sidewalk by the thrift store. Chillis grabbed Peggy's arm and appeared to be trying to pull her away from the area. Peggy was crying and pleading with him, saying "no" and trying to break away. Rita Akins and Nicole Marino were in the thrift store parking lot. Akins yelled at Chillis to stop and that she was going to call the police. Marino and Akins heard Chillis say " 'I will kill you, bitch.' " Chillis slid a knife out of his shirt. Akins tried to call 911 on her cell phone but had trouble getting through, so Marino ran into the thrift store and called 911.
During the struggle, Peggy fell to the ground on the sidewalk. Chillis straddled her and, with great force, repeatedly stabbed her with the knife. Chillis was cursing at Peggy and saying things like, " 'Bitch, you fucked up,' " and " 'I told you not to cheat on me.' " Attempting to stop the attack, people who had gathered in the area hit Chillis with items from the thrift store, including a baby walker, a table leaf, and golf clubs. At first Chillis was unaffected by the blows and continued the attack. He was eventually knocked down and restrained with belts to prevent him from leaving the scene.
At the scene of the stabbing, Peggy's coworker, Alexander, stated to Chillis, "You didn't have to do that. You fucked up. You should have cut your losses and been a man, because she did not want to be with you. You could not accept that. You are lucky if you make it to the reception yard." Chillis responded, " 'You know why I did it. You are lucky I didn't kill her. [¶]... [¶]... She fucked with the wrong brother.' " While he was being treated by paramedics at the scene, Chillis stated that Peggy had been cheating on him for the past two weeks with another man, she stole $500,000 from him, and Peggy should be glad she was not dead.
In addition to the knife found at the scene, law enforcement officers found two additional knives and a hammer in Chillis's car.
Peggy died at the hospital from the infliction of multiple stab wounds. She suffered 21 stab wounds, including two wounds to her breast area, a wound to her head that hit her skull, a wound at the top of her shoulder that exited at the front of her shoulder, and wounds to her back. The deepest back wounds penetrated four to five inches. Two back wounds reached her chest cavity and right lung.
During a search of Chillis's residence on October 5, 2006, the authorities found a plastic baggy containing.89 grams of methamphetamine.
Defense
Representing himself, Chillis testified on his own behalf. He stated that he and Peggy used methamphetamine together. Just prior to the June 2005 domestic violence incident, Peggy took all of the money from his checking account and disappeared, leaving her three children with him. Thereafter, she obtained a restraining order against him, returned home, and had him removed from the home. He was homeless and very angry at Peggy, so he returned to their home and beat her. He felt "awful" about this, cooperated with his arrest, and attended domestic violence classes.
In August 2005, Peggy called him and they started seeing each other again. However, they decided their marriage was not viable and they should divorce. Although Peggy agreed to the divorce, she strung him along and kept promising to get the divorce without following through. She frequently visited him at the hotel where he was living in downtown San Diego and they continued their sexual relationship. He suspected she had a new boyfriend, but she denied this when he asked her about it.
During the week before the killing, Chillis was using methamphetamine; he was not eating or sleeping much; and he was spending a lot of time at the casino. He was distraught because Peggy was cheating on him and lying to him about her new relationship. On the day he went to the casino with Peggy and Alvarado (which he recalled as being Monday, September 25) Chillis confirmed (through a comment made by Alvarado) that Peggy had a new boyfriend, although Peggy continued to deny it. After their outing to the casino, Peggy knew he had some methamphetamine and she kept calling him and "hounding" him for some. He told her she would have to come to his place to get it. On September 27, Peggy went to his residence, where they used methamphetamine and (in exchange for his provision of the drug) she performed oral sex on him.
Chillis then drove Peggy to Spring Valley and dropped her off at a street near her residence. He told her he felt sorry for her new boyfriend and that he did not want to have anything more to do with her. He asked her to take care of the divorce because she could get it done for free. She agreed and stated she would call him on Friday (September 29) after a meeting that she had scheduled with the divorce facilitator at the courthouse. Chillis was devastated because he realized Peggy was a sexual "pro" rather than an "old-fashioned girl" like she had led him to believe, and he was " 'tired of everything.' "
On Friday, Chillis waited for Peggy to call him, but as he had expected, she did not do so. Accordingly, he called the places where he knew she tended to go, and told the people to have her call him. He was still using methamphetamine and was sleeping and eating very little, and he could not stop crying. He came up with the "bizarre" conclusion that Peggy owed him five "blow jobs." He decided to convince her to do this by threatening to harm himself and "possibly her," although he did not intend to actually harm either of them. He planned to tell Peggy that he had a gun, knives, and a hammer, and he thought he would conceal these weapons (except for the gun, which he did not really have) in the pouch of his sweatshirt.
Peggy always told Chillis when she worked, and he knew she was working on Saturday, September 30. On Saturday, he called her work and told her supervisor that it was very important that she call him. He knew that her shift ended at 4:00 p.m., but he decided to go to the casino, thinking he would " 'catch up with her later.' " He did not know where she would go after work because she was living "all over the place" and he never knew "where she might be at any given moment." However, on his way to the casino, he decided to go to Spring Valley to see if she was "heading down towards" Smith's house. He wanted to communicate with her because she had not called him on Friday, but he did not at that time plan to discuss his proposition about oral sex with her. Nevertheless, in his car he had the sweatshirt, knives, and hammer that he planned to use later during a conversation with her to scare her and make her believe he would hurt himself or her.
Chillis drove to the alley and parked his vehicle where he often parked when he had to visit Peggy at the restaurant. He did not park at the restaurant parking lot because there were a limited number of parking spaces there. He got out of his car to go the restaurant, but then saw Peggy walking in the alley. He got back into his car and drove up to her, saying, "Hey, baby, we need to talk, you know." She looked surprised to see him. He said, "You didn't call yesterday." All of a sudden, she started running away and he did not understand why she was doing this. He decided he needed to catch her because she might make up "a story" about him. He also thought he needed to discuss the proposition about oral sex. Accordingly, he put on the sweatshirt, grabbed a knife, and got out of his car. He needed the knife to carry out his plan of discussing the oral sex proposition, and he needed the sweatshirt to conceal the knife.
When Peggy rounded the corner where people were located, she was tired and fell to the ground. He asked her why she was running, stated they needed to talk, and suggested they go back to his car. She said "okay" but was not moving to go with him. Meanwhile, people were coming around saying he should leave her alone. He could not "get [his] mind together" about telling her about the oral sex proposition, and he reached into his sweatshirt and got the knife. He told her to come with him, and, to encourage her to do so, he told her that if he hit her with the knife he probably was not going to stop. She again said "okay"; then people started hitting him; and all of a sudden he started "lashing out at her" and could not stop.
Chillis claimed he had not intended to hurt or kill Peggy, and he went to Spring Valley solely with the intent to talk to her. He stated he was under the influence of methamphetamine when he attacked her, and after the attack he kept hoping she would not die.
On cross-examination of Chillis, the prosecutor played for the jury excerpts of recorded statements that Chillis made to detectives after the attack which reflected that he had planned to kill Peggy when he went to Spring Valley. In response, Chillis introduced additional statements that he made during the interviews, which indicated he went to Spring Valley merely to talk to Peggy about the oral sex proposal and their divorce. The prosecution presented rebuttal evidence showing that Chillis told a detective that he had decided that if Peggy did not cooperate with his proposal for oral sex "he would probably kill her" and then commit "suicide by cop."
When a detective asked Chillis why he had the knives in the car, Chillis responded, " 'Cause I was gonna hurt her... I was gonna show this bitch, I'm gonna hurt her. I was gonna kill her, I didn't care." In another interview, when a detective asked what he had been planning on doing, Chillis responded, "I was gonna hurt her. I wanna hurt her. I was gonna kill her with knives, you know. And then... wait for the police. [¶]... [¶]... run to the cops and get shot. 'Suicide by cop.' "
Toxicology testing of Chillis's blood at the time of the offense showed that he had a methamphetamine level of 274 nanograms per milliliter. Defense expert Dr. Clark Smith testified that this reflected a high level of methamphetamine, and that such a high level can cause unclear and obsessive, irrational thinking; memory loss and distortions; paranoia, hallucinations, delusions, and psychosis; blackouts where the person appears to be alert and functioning but then has no recall; and irrational, unpredictable, and uncontrollable violence.
Jury Verdict
The jury, instructed on theories of first degree murder by premeditation and deliberation or by means of lying in wait, found Chillis guilty of first degree murder. It also found true the special circumstance of murder by means of lying in wait, and found him guilty of possession of methamphetamine. The prosecutor had elected not to pursue the death penalty for the lying-in-wait special circumstance. Chillis was sentenced to life without possibility of parole based on the lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)); the sentence was doubled for a strike prior conviction. He received a 10-year determinate sentence for methamphetamine possession, personal use of a deadly weapon, and a prior serious felony conviction.
The jury was also instructed on second degree murder and voluntary manslaughter.
Subsequent statutory references are to the Penal Code.
DISCUSSION
I. Sufficiency of Evidence for Lying in Wait
Chillis challenges the sufficiency of the evidence to support first degree murder under a lying-in-wait theory and to support the lying-in-wait special circumstance allegation.
The elements of lying-in-wait murder and the lying-in-wait special circumstance allegation are the same, except that the special circumstance requires express malice (an intent to kill), whereas lying-in-wait murder may be committed with implied malice (an intentional act likely to cause death done with awareness of the danger and conscious disregard for life). (People v. Edelbacher (1989) 47 Cal.3d 983, 1023; People v. Superior Court (Bradway) 105 Cal.App.4th 297, 305, 309 (Bradway); see People v. Robertson (2004) 34 Cal.4th 156, 164, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1200-1201.) The other elements required to establish lying-in-wait murder and the lying-in-wait special circumstance are: (1) a physical concealment or concealment of purpose; (2) a substantial period of watching and waiting for an opportune time to act; and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Stevens (2007) 41 Cal.4th 182, 201; People v. Gurule (2002) 28 Cal.4th 557, 630.) The question of whether a murder was committed by lying in wait "must be made on a case-by-case basis, scrutinizing all of the surrounding circumstances." (People v. Morales (1989) 48 Cal.3d 527, 557-558.)
On appeal, Chillis does not dispute that the facts support a finding that he acted with intent to kill, thus satisfying the intent/malice element for both lying-in-wait murder and the special circumstance. Rather, Chillis contends the record does not establish the concealment, watchful waiting, and surprise elements of lying in wait. The contention is unavailing. To assist in our analysis, we review how the courts have interpreted these elements.
An intent-to-kill finding is supported by Chillis's statements prior to and at the time of the fatal attack that he was going to kill; his arming himself with deadly weapons; and his infliction of 21 stab wounds including wounds near vital organs.
Concealment may be based on the defendant's actual physical concealment of his or her person (i.e., an ambush), or on the defendant's creation of a situation where the victim is unaware of the defendant's true purpose even though the victim sees the defendant. (People v. Morales, supra, 48 Cal.3d at pp. 554-555; People v. Stevens, supra, 41 Cal.4th at p. 202.) " 'The concealment which is required, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant's plan to take the victim by surprise.' " (People v. Morales, supra, at p. 555.)
To be substantial, the period of watchful waiting does not have to continue for any particular period of time, as long as the duration is sufficient to show a design to take the victim by surprise and a state of mind equivalent to premeditation and deliberation. (People v. Moon (2005) 37 Cal.4th 1, 23, 24; People v. Stevens, supra, 41 Cal.4th at p. 202; People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1228-1229.) "The purpose of the watching and waiting element is to distinguish those cases in which the defendant acts insidiously from those in which he acts out of rash impulse." (People v. Stevens, supra, at p. 202.) The lying-in-wait durational period may be substantial even if it occurs over a period of only a few minutes. (People v. Moon, supra, 37 Cal.4th at p. 23.) Further, the watchful element does not require that the defendant literally have the victim in the defendant's view; rather, the element is satisfied if the defendant is "alert and vigilant in anticipation of [the victim's] arrival so that [the] defendant could take [the victim] by surprise." (People v. Sims (1993) 5 Cal.4th 405, 432-433.)
The requirement of a surprise attack immediately after the watchful waiting requires a temporal nexus between the killing and the watchful waiting. (People v. Hyde (1985) 166 Cal.App.3d 463, 476.) That is, to show that the lying in wait was the means through which the defendant accomplished the murder, the killing must " 'follow on the heels of the watchful waiting.' " (Ibid.; see People v. Thomas (1953)41 Cal.2d 470, 474, fn. 1 [" 'the act causing death [must] be... the outgrowth of the "lying in wait" ' "].) However, a brief interval of time between the period of watchful waiting and the murder does not necessarily negate the temporal nexus. (See People v. Carpenter (1997) 15 Cal.4th 312, 389; People v. Edelbacher, supra, 47 Cal.3d at p. 1021.) If there was "no lapse in the culpable state of mind between the homicide and the period of watchful waiting," lying in wait is established. (People v. Berberena (1989) 209 Cal.App.3d 1099, 1107; People v. Carpenter, supra, at p. 389.)
The element of surprise may exist even if the victim has been repeatedly threatened by the defendant on previous occasions. (People v. Arrellano (2004) 125 Cal.App.4th 1088, 1095.) Although a victim of continuing death threats may suspect an attack sometime in the future, he or she has no way of knowing exactly when or where the attack will occur. (Ibid.) If the defendant takes the victim by surprise at the time of the killing, this element is established. (Ibid.)
In evaluating 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. Moon, supra, 37 Cal.4th at p. 22.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Arrellano, supra, 125 Cal.App.4th at p. 1094.)
The record shows that Peggy was walking by herself in an alley after work when Chillis suddenly appeared in her path. The suddenness of his appearance is supported by Hill's and Tuthill's description of squealing tires or screeching brakes, followed by Peggy's flight and Chillis's pursuit. Chillis had called Peggy's place of employment that morning, and appeared in the alley at the precise time she was walking home from work. From this, the jury could reasonably infer that Chillis knew she was at work and knew what time she got off work, and that he watchfully waited so that he could appear in the alley and catch her by surprise when she was alone and more vulnerable to attack.
Although Peggy was fearful that Chillis might attack her and had been taking precautions to prevent this, there were no facts suggesting that Chillis had alerted her that he would choose this particular day and location to engage in an attack. To the contrary, the fact that she elected to walk in the alley alone, rather than wait for Richmond as had been planned, supports that Chillis successfully engaged in concealment. The stabbing occurred within minutes of the surprise confrontation in the alley, which establishes the necessary temporal nexus between the watchful waiting and the killing. These facts support the required elements of concealment, watchful waiting, and surprise.
The finding of lying in wait is buttressed by Chillis's own testimony. Chillis testified that he knew Peggy was working at the restaurant that day, he knew her shift ended at 4:00 p.m., and as he was driving away from downtown he decided to see if Peggy was "heading down towards" Smith's residence. This testimony provided further support for an inference that Chillis was planning to catch Peggy alone in the alley after work so he could take her by surprise. The jury was, of course, not required to credit his claim that he only wanted to talk to her, particularly considering that he had armed himself with knives and a hammer and he took one of the knives with him when he chased her in the alley.
Chillis argues the elements of concealment and watchful waiting are refuted by the evidence showing the short lapse of time between his presence at the ATM in downtown San Diego (3:57 p.m.) and the attack at the Spring Valley location (911 call at 4:12 p.m.). He asserts the record does not show he "linger[ed] or loiter[ed]" at the site of the attack, but rather shows he "drove to Spring Valley, tracked Peggy down, got out of his car, chased her, and attacked her, all in one continuous set of actions which were the very antithesis of watching, waiting, and concealment."
Assuming that (as testified by a prosecution witness) it took about 12 minutes and 52 seconds to drive from downtown to the alley, there would have been about two minutes between Chillis's arrival at the location and the attack by the thrift store. This allowed for a sufficient period of time for the jury to find that Chillis waited at the location to see if he could catch Peggy unaware as she walked in the alley after work. Moreover, even construing Chillis's arrival at the alley and his confrontation of Peggy at that location as occurring almost simultaneously, it was not necessary for Chillis to have lingered in hiding at the site of the attack to establish concealment and watchful waiting. The jury could reasonably infer he concealed himself and engaged in watchful waiting by "hiding out" away from the site, out of Peggy's view, but with an awareness that he would time his arrival in the area to hopefully catch Peggy by surprise alone in the alley after work. The jury could also find that Chillis engaged in concealment by initially suggesting to Peggy that he just wanted to talk and by keeping the knife in his sweatshirt until he had reached her, thus hiding his homicidal intent from her until he was too close for her to escape. Under any of these constructions of the evidence, the record supports that Chillis engaged in concealment and a substantial period of watchful waiting until he could take Peggy by surprise.
Chillis also argues that the elements of concealment and surprise are refuted because he told Peggy " 'I will kill you, bitch' " when they were by the thrift store. Although there may be circumstances where a defendant's warning to the victim precludes a finding of lying in wait (see Morales v. Woodford (9th Cir. 2003) 388 F.3d 1159, 1175), this is not such a case. Witnesses Marino and Akins, who were in the thrift store parking lot at the time of the attack, heard Chillis's statement and described it as occurring either before he pulled out the knife or while he was stabbing Peggy. Even if the jury believed Chillis made the statement before he engaged in the stabbing, this would not undermine the lying-in-wait finding. Chillis waited to confront Peggy until she was alone in the alley, and then chased her, grabbed her, and stabbed her. Chillis's surprise emergence in the alley and his stabbing by the thrift store occurred within a matter of minutes. Under these circumstances, the jury was not required to infer that the elements of concealment and surprise had been obviated merely because Chillis may have told Peggy he was going to kill her shortly before he started stabbing her. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 501 [statement of intent to kill that was "virtually simultaneous" with stabbing did not preclude finding that victim was taken by surprise].)
Marino testified that Chillis made the statement when he was approaching Peggy; Peggy "had stopped walking and was kind of just standing there"; Chillis's hands were "still... hidden in [his] sleeve"; and he had not yet touched Peggy. Akins, who at first thought Chillis was merely hitting Peggy but then realized he was stabbing her, testified that Chillis made the statement during the time when she saw him making stabbing motions.
II. Constitutionality of the Lying-In-Wait Special Circumstance
Chillis challenges the constitutionality of the lying-in-wait special circumstance. The lying-in-wait special circumstance is punishable by death or life in prison without possibility of parole, whereas lying-in-wait murder (without the special circumstance finding) is punishable by a sentence of 25 years to life. (§§ 190 et seq., 190.2, subd. (a)(15); Bradway, supra, 105 Cal.App.4th at p. 305.) Chillis asserts the lying-in-wait special circumstance is unconstitutional because there is no meaningful distinction between the lying-in-wait special circumstance and lying-in-wait murder.
The Attorney General asserts that Chillis lacks standing to raise this issue because he is not being subjected to the death penalty. Although Chillis does not have standing to raise a federal constitutional Eighth Amendment challenge based on cruel and unusual punishment for arbitrary infliction of the death penalty, he may raise a substantive due process challenge based on a vague statute that creates a danger of arbitrary application. (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 907; see In re Newbern (1960) 53 Cal.2d 786, 796; Williams v. Garcetti (1993) 5 Cal.4th 561, 567-568, 575.) In the context of this case, the due process inquiry raises essentially the same question as the Eighth Amendment inquiry; i.e., whether there is a meaningful distinction between lying-in-wait murder and the lying-in-wait special circumstance so that juries will not be engaging in arbitrary decisionmaking when deciding whether the special circumstance is true. (See Houston v. Roe, supra, 177 F.3d at p. 907; Bradway, supra, 105 Cal.App.4th at pp. 310-311.)
To resolve this issue, we first reiterate the elements of murder and the special circumstance. First and second degree murder require a killing with malice aforethought. (People v. Robertson, supra, 34 Cal.4th at p. 164.) Malice may be express or implied; express malice exists when there is an intent to kill and implied malice exists when there is an intent to perform an act that is likely to cause death and an awareness of the danger and a conscious disregard for life. (Ibid.) In addition to the malice requirement, first degree murder requires an elevating element such as a killing by means of lying in wait. (People v. Gurule, supra, 28 Cal.4th at p. 629; § 189.) Thus, a defendant who commits a killing with express or implied malice and by means of lying in wait is guilty of first degree murder. (See People v. Berberena, supra, 209 Cal.App.3d at pp. 1107-1108.)
Turning to the special circumstance, a defendant who commits first degree murder by means of lying in wait may also be subjected to the special circumstance if he or she "intentionally killed the victim by means of lying in wait." (§ 190.2, subd. (a)(15).) The distinction between lying-in-wait murder and the lying-in-wait special circumstance is that the murder may be committed with implied malice, whereas the special circumstance requires express malice (i.e., intent to kill). (See People v. Edelbacher, supra, 47 Cal.3d at p. 1023.)
In Edelbacher, the California Supreme Court rejected the defendant's argument that the lying-in-wait special circumstance violated the Eighth Amendment proscription against cruel and unusual punishment because it allowed for the death penalty without providing "a meaningful basis for narrowing the class of murders for which death may be imposed." (People v. Edelbacher, supra, 47 Cal.3d at p. 1023.) The Edelbacher court reasoned: "The lying-in-wait special circumstance also requires that the murder be intentional, thus eliminating murders where only implied malice has been established. [Citation.] We are satisfied that the lying-in-wait special circumstance provides a 'principled way to distinguish this case' from other first degree murders and thus comports with the Eighth Amendment...." (Ibid.)
In People v. Stevens, supra, 41 Cal.4th at page 204, the California Supreme Court again recognized the constitutionality of the lying-in-wait special circumstance, stating that a "narrowing distinction is discernible between the lying-in-wait special circumstance and lying-in-wait murder because the former requires an intent to kill, while the latter does not."
To support his constitutional challenge to the lying-in-wait special circumstance, Chillis notes that a previously-existing temporal nexus distinction between the special circumstance and lying-in-wait murder has now been eliminated. Prior to 2000 the lying-in-wait special circumstance was construed to require a closer temporal nexus than did lying-in-wait murder. (Bradway, supra, 105 Cal.App.4th at pp. 306-307.) This distinction was based on the Penal Code language which defined the special circumstance as existing when the defendant murdered "while" lying in wait, whereas it defined first degree murder as committed when the defendant murdered "by means of" lying in wait. (See Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 1010-1011; People v. Gutierrez (2002)28 Cal.4th 1083, 1148-1149; People v. Lewis (2008) 43 Cal.4th 415, 511-515.) In March 2000, the passage of Proposition 18 (Stats. 1998, ch. 629, § 2) changed the special circumstance statutory language to match the murder statutory language and to thereby equate the temporal nexus requirement, i.e., referring to a murder "by means of" lying in wait for both the special circumstance and first degree murder. (§§ 190.2, subd. (a)(15), 189; see Bradway, supra, 105 Cal.App.4th at pp. 307-308; People v. Lewis, supra, 43 Cal.4th at p. 512, fn. 25.)
In Bradway, supra, 105 Cal.App.4th at pages 309-310, this court concluded that, even without the temporal nexus distinction, the intent to kill requirement necessary for the lying-in-wait special circumstance provided a meaningful distinction between the special circumstance and lying-in-wait murder. Guided by our high court's decisions in Edelbacher and Stevens, we adhere to our conclusion in Bradway. Although the California Supreme Court has at times cited both the intent-to-kill and closer temporal nexus distinctions when upholding the constitutionality of the lying-in-wait special circumstance (People v. Gutierrez, supra, 28 Cal.4th at p. 1149), in both Edelbacher and Stevens, the court relied solely on the intent-to-kill distinction when concluding the special circumstance passed constitutional muster (People v. Edelbacher, supra, 47 Cal.3d at p. 1023; People v. Stevens, supra, 41 Cal.4th at p. 204). Thus, it is apparent the closer temporal nexus distinction is not pivotal to the constitutionality of the lying-in-wait special circumstance.
Once a jury decides a murder was committed by means of lying in wait, it cannot find the lying-in-wait special circumstance to be true unless it makes an additional finding that the defendant acted with express, rather than merely implied, malice. Thus, there is no danger of arbitrary imposition of the lying-in-wait special circumstance based on a vague statutory scheme. Accordingly, we reject Chillis's constitutional challenge to the lying-in-wait special circumstance notwithstanding the removal of the closer temporal nexus distinction.
III. Restraints
Chillis asserts he was denied a right to a fair trial because he was physically restrained during trial without a showing of manifest need.
There was apparently no discussion between the court and the parties concerning the initial decision to use restraints. In the record before us, the issue first surfaced after several prosecution witnesses had testified. Outside the presence of the jury, Chillis (who was representing himself) asked if during his cross-examination of witness Hill he could be permitted to approach an exhibit displayed on a blackboard shelf. As part of this discussion, the trial court described the restraints as an ankle chain attached to the floor, which did not restrict Chillis's ability to stand and move around one or two feet at his table. Because the table at which Chillis was sitting was enclosed around him (as was the prosecutor's table), the restraints were not visible to the jury. The chain was wrapped with electrical tape to eliminate noise so no one could hear the chain as he moved.
Addressing Chillis's request to be able to approach the exhibit, the court commented that it was reasonable for Chillis to request that he be allowed to point to areas on an exhibit rather than attempt to describe those areas from a distance of about 20 feet, and that Chillis had been "respectful and low key and polite and gentlemanly" throughout the proceedings. Nevertheless, the court noted the witness stand and the seated jurors were very close to the displayed exhibits, and several testifying witnesses appeared to be intimated or angry at Chillis because they looked away rather than at him when he examined them on the stand. The court further noted that witness Hill was one of the persons who hit Chillis at the scene of the crime, that Hill was on probation for having committed assault with a deadly weapon on another occasion, and that it was not appropriate to have "a person on trial for murder, standing over or next to a person [who] is on felony probation for assault with a deadly weapon."
To accommodate Chillis's request to be able to point to areas on an exhibit, the court stated that it would have the exhibits placed on a tripod near Chillis so that he could stand up and use a pointer to identify areas on the exhibits. The court stated that if a witness (including Hill) needed to approach an exhibit on the tripod, this would be permissible. The court directed that the tripod be set up to test the procedure, and once this was done, inquired whether Chillis was satisfied. Chillis answered that the system worked "fine." Thereafter, in the presence of the jury, the court directed the prosecutor to serve as "exhibits monitor" and to place exhibits on the tripod when requested by Chillis.
Additionally, outside the presence of the jury, the court outlined the procedure that would be followed regarding the restraints when Chillis testified on his own behalf. The court stated Chillis would be taken to the witness stand while the jury was not in the court room. At this location, his ankle would be chained to the floor. The bolt in the floor was not visible to the jurors, except by one of the alternate jurors if he or she was "really looking." The restraints would not be visible if he kept his feet under the chair. Chillis would stand up when he was sworn and sit down to testify. Chillis made no objection to this procedure described by the trial court.
"When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged." (People v. Duran (1976) 16 Cal.3d 282, 290.) Further, the use of shackles may deter a defendant from taking the stand to testify on his own behalf and may interfere with the clear exercise of his mental faculties. (Id. at pp. 288, 290; People v. Hill (1998) 17 Cal.4th 800, 846.) Accordingly, to avoid these potential impediments to a fair trial, a defendant may not be required to wear physical restraints (even if not visible to the jury) during trial, unless there is a manifest need for such restraints. (People v. Mar (2002) 28 Cal.4th 1201, 1216, 1219.)
Manifest need may arise from a showing that the defendant might engage in violent, disruptive, or other nonconforming conduct. (People v. Anderson (2001)25 Cal.4th 543, 595; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032; People v. Miller (2009) 175 Cal.App.4th 1109, 1114.) The fact that a defendant is charged with a violent crime does not, without more, justify the use of physical restraints. (People v. Mar, supra, 28 Cal.4th at p. 1218.) Rather, the court must make the decision whether to use physical restraints on a case-by-case basis. (Ibid.) When physical restraints are used, they " 'should be as unobtrusive as possible, although as effective as necessary under the circumstances.' " (Id. at p. 1217.) The imposition of restraints in the absence of a showing of a threat of violence or other nonconforming conduct constitutes an abuse of discretion. (Id. at p. 1221.)
If the defendant does not object at trial to the use of restraints, the failure to make a record below forfeits the issue on appeal. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.) Here, Chillis adequately preserved the issue for review on appeal when he asked to be permitted to approach a displayed exhibit during upcoming cross-examination. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 741 and fn. 4.) Moreover, as the Attorney General essentially concedes, the court's statements that Chillis's behavior during trial had been respectful and proper, combined with a silent record concerning the need to restrain Chillis, indicate there was no showing of manifest need for restraints. Absent an indication that Chillis might engage in nonconforming conduct, there was no legal basis to justify the use of the restraints. However, we conclude the error was harmless under any standard of review. (See People v. Mar, supra, 28 Cal.4th at p. 1225, fn. 7.)
Error in the use of restraints is harmless if there is no evidence the jury was aware that a defendant was shackled during trial, and no evidence the shackles impaired or prejudiced the defendant's right to testify or participate in his or her defense. (People v. Anderson, supra, 25 Cal.4th at p. 596.) Similarly, a jury's brief observation of physical restraints is generally viewed as nonprejudicial. (People v. Cleveland (2004) 32 Cal.4th 704,740.) The key concerns are that the defendant not be placed in unjustified restraints visible to the jury for a protracted period during trial, that the defendant not be deterred from taking the stand on his own behalf because of restraints, and that the defendant's mental faculties or ability to communicate not be impaired by embarrassing or uncomfortable restraints. (See People v. Cunningham (2001) 25 Cal.4th 926, 988-989; People v. Anderson, supra, 25 Cal.4th at p. 596; People v. Hill, supra, 17 Cal.4th at p. 846.)
The trial court assessed that the restraints were not visible to the jurors, except, possibly, by an alternate juror during Chillis's testimony. Because none of the alternate jurors participated in the deliberations, there can be no prejudice from any such viewing. Chillis's contention that other jurors may have seen the restraints when he was testifying "unless [he] sat stiffly and kept his feet under the chair" is unpersuasive. Chillis never complained to the court that it was difficult to keep his feet under the chair or that he was concerned that the jury saw the ankle chain while he was testifying. Chillis's suggestion that jurors may have seen the ankle chain is too speculative to show the possibility of prejudice. (See People v. Coddington (2000) 23 Cal.4th 529, 651, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Chillis also asserts it would have been obvious to the jury that he was restrained because (unlike the prosecutor) he was not free to move about the courtroom; he had to rely on the prosecutor to bring him exhibits; and he did not walk to the witness stand like other witnesses but was already there when the jury entered the court room. Assuming the jury surmised he was in some fashion restricted in his movements, this type of restraint does not equate with prolonged, visible exposure to shackles. (Compare People v. McDaniel, supra, 159 Cal.App.4th at pp. 744-746 [jury's view of shackled defendant throughout trial required reversal absent showing that error was harmless beyond a reasonable doubt].) Even if Chillis had been unchained, the trial court could have reasonably decided he should not freely roam the courtroom but rather should stay at the counsel table or the witness stand. Chillis has not cited any authority requiring a trial court to give a self-representing defendant, on trial for a violent murder, unfettered access to all areas of the courtroom. (See People v. Hayes (1999) 21 Cal.4th 1211, 1269 [trial court has broad discretion to maintain courtroom security]; State v. Cook (N.J.Super.A.D. 2000) 750 A.2d 91, 102 [no abuse of discretion to require self-representing defendant to remain at counsel table].) The hidden ankle restraints did not impede Chillis's ability to stand up and sit down at his counsel table and did not deter him from taking the witness stand in his own defense. We are satisfied that the mere fact that Chillis was not allowed to walk around the courtroom did not create a possibility of prejudice akin to visible shackles on a defendant during trial.
We also reject Chillis's contentions that the restraints interfered with his ability to effectively represent himself and testify on his own behalf. Again, Chillis never told the trial court that the restraints were causing him any problems, whether psychological or physical. Chillis's citation to People v. Burnett (1980)111 Cal.App.3d 661, does not persuade us otherwise. In Burnett, the self-representing defendant was restrained in a fashion that confined him to a sitting position in his chair and he elected not to testify. (Id. at pp. 669-670.) Reversing the judgment, the Burnett court reasoned that "on numerous occasions the prosecutor approached witnesses with exhibits and photographs, and undoubtedly stood and faced the jury during voir dire, opening statement and closing argument. In direct contrast, appellant conducted the trial confined to his chair.... [¶] [Further,] [w]hether the election not to testify was based on inhibition produced by the restraints, we cannot tell." (Ibid.) Here, by contrast, Chillis was able to stand up, he testified on his own behalf, and accommodations were made to enable his access to the exhibits.
We are also unpersuaded by Chillis's citation to People v. Mar, supra, 28 Cal.4th at page 1224, a case where the unjustified use of a stun belt (not visible to the jury) was found to create reversible error because of the effect it likely had on the testifying defendant. An ankle chain, unlike a stun belt, cannot deliver an electric shock, and Chillis never suggested to the court that the ankle restraint was causing him discomfort.
There was no prejudice from the use of the restraints.
IV. Replacement of Counsel and Self-Representation Issues
Chillis raises a variety of arguments concerning his Marsden requests for replacement of appointed counsel and his self-representation. He contends the trial erred because its Marsden evaluations were inadequate. As to self-representation, he asserts the court erred when it denied his requests for advisory counsel, failed to ensure he received timely access to discovery materials, failed to resolve his problems with access to the law library, and only granted him a one-day continuance after the prosecution rested. To review his contentions, we present a detailed account of what occurred at trial with regard to these issues.
People v. Marsden (1970) 2 Cal.3d 118.
A. Background
Motions for Replacement of Counsel
During initial pretrial proceedings in 2006 and 2007, including the March 2007 preliminary hearing, Chillis was represented by deputy public defender Thomas Ziegler. At a July 2007 status conference, Chillis made a Marsden motion to replace Ziegler, and the trial court granted the motion. Chillis's complaints included inadequate consultation time with Ziegler and Ziegler's lack of interest in Chillis's ideas about how to defend the case. The trial court appointed Attorney John O'Connell to replace Ziegler.
In his complaints about his representation, Chillis stated, among other things, that Attorney Ziegler (a deputy public defender) "secretly wants my case to be a death penalty case, so that he might receive a 'feather in his cap' for defending such a case." The trial court granted the Marsden motion after Ziegler informed the court that the attorney-client relationship with Chillis had broken down and representation by the public defender's office could not continue. The attorney who was appointed to replace Ziegler (John O'Connell) was not affiliated with the public defender's office. Subsequent to Chillis's complaints about Ziegler, the prosecutor elected not to seek the death penalty.
In August 2007, trial was set to commence in March 2008. On February 22, 2008, at a hearing set to address in limine motions, Chillis made a Marsden motion to replace Attorney O'Connell. At the Marsden hearing outside the presence of the prosecutor, Chillis stated that O'Connell had not provided him with copies of the discovery received in the case, explaining that there were over 4,000 pages of discovery and he had received only 1,241 pages. Further, he stated he had not been given the opportunity to discuss with counsel the matters in the discovery he had been provided, and the case was moving along too quickly without discussion with his counsel. Chillis stated he had been told he might receive the additional discovery by the end of the month, and he would not have enough time to absorb the information by the March 12 trial date. However, he thought he could continue to work with O'Connell if they were given more time before the commencement of trial. He also complained because O'Connell had refused his request to file a motion to disqualify the district attorney's office for bias and to request prosecution by the attorney general's office.
In response, Attorney O'Connell confirmed there were 4,000 pages of discovery; he agreed that these materials were needed by Chillis; and he understood Chillis's complaints about the delay in receiving them. O'Connell explained that his staff had to review each page to redact addresses and other personal information, which was a time consuming process, and that 1,000 additional pages of discovery had just been completed and had been sent to Chillis. O'Connell was hoping to get the remaining discovery materials ready to send to Chillis by the end of the month. O'Connell further explained that he had not been able to give Chillis's case as much attention as he would have liked because he had been in trial for another case, and that rather than visit Chillis he had spent his time preparing for the current proceedings in Chillis's case.
Attorney O'Connell stated he also had concerns about being ready to start the trial on March 12, but he was not yet going to ask for a continuance because his other case was resolved and he was now able to devote his full attention to Chillis's case. He stated he was ready to address the in limine motions scheduled for that day, although he wanted to reserve the right to file additional motions or responses in the event other matters emerged when he looked at the case more carefully. Chillis pointed out to the court that he had not been given the opportunity to give any input to O'Connell on the in limine motions. The trial court denied Chillis's request to relieve O'Connell as counsel. Thereafter, the parties resolved numerous pretrial motions.
On the next hearing date (March 12, 2008, the date set for trial), the parties resolved a number of additional in limine motions. At this time Chillis made another Marsden motion. At the Marsden hearing, Chillis stated he was concerned about the rapid pace of the case; he had received additional discovery (including witness statements) only in the last couple of weeks and had not been given an adequate opportunity to discuss the information with his attorney; he had more information to give his attorney; he did not meet enough with his attorney; and his attorney "brush[ed] off" things that he thought were important. He elaborated that when he started voicing concerns to Attorney O'Connell, O'Connell told him they were not really "a team" but rather O'Connell made the strategic calls. Chillis stated that he was not comfortable with some of the strategies selected by O'Connell, and he thought he would fare better if he represented himself. He qualified this by stating that perhaps he could continue with O'Connell if he had the opportunity to speak more with him before the start of trial, but if they could not have more time, he would rather represent himself. Chillis also reiterated his complaint that O'Connell did not want to present a motion to recuse the district attorney's office.
During the Marsden hearing, the trial court advised Chillis of the difference between a Marsden motion to replace his counsel and a self-representation motion. After concluding the Marsden hearing, the court allowed Chillis to present his self-representation request in the presence of the prosecutor.
Regarding the Marsden motion, the trial court stated that Chillis's complaints concerned disagreements about strategy, and the court had not seen any indication that Attorney O'Connell was not providing a competent defense. The court noted that it was understandable that Chillis wanted to be involved with the preparation of his defense particularly given his high level of intelligence. The court further observed that Chillis probably would never feel he was being given enough time to prepare for trial. The court concluded the disagreement about trial strategy and not having enough time to discuss trial strategy did not warrant putting the case on hold "for months or weeks" to allow a new attorney to prepare for trial. Accordingly, the trial court denied the Marsden motion.
Self-Representation Motions
After the denial of the Marsden motion on March 12, the trial court gave Chillis an opportunity to present his request for self-representation in the presence of the prosecutor. Chillis stated that he wanted to represent himself because he had a lot of insight into the case, and he needed to personally cross-examine the witnesses who would testify against him and he did not think Attorney O'Connell was willing to go to that level of detail. He elaborated that he needed to "put [his] own strategies and efforts to bear a little bit more than Mr. O'Connell, or any other attorney [he would] get, because they have a huge caseload, and they cannot get into the details...." Further, he had not been provided with all the discovery; he did not know if there was important information in the discovery he had not received; and he believed he was only getting discovery at this late date because O'Connell was "cover[ing] his butt."
The court stated that it was apparent that Chillis was mentally competent, as reflected in the well-structured letters he wrote the court, his articulate manner of speaking, and the fact that he had a college degree. The court admonished Chillis about the consequences and risks of self-representation, including that he would not be entitled to any special treatment or help; he would be required to follow all legal rules; he was not entitled to any more library privileges than what was provided to other pro. per. jail inmates; he could not claim incompetency in representation; and it was almost always unwise to self-represent especially in a case of such magnitude. Chillis stated that he understood this, and then asked if he would be moved to the downtown jail to the "pro per tank" to increase his law library privileges. The court responded that it did not know, and that under the law he was not entitled to more library privileges although he might get them. Chillis stated that he understood everything else the court said and that he realized "the jeopardy" he was putting himself in by requesting self-representation.
The court inquired whether Chillis was ready to start jury selection the next day. Chillis responded that he would not be ready, and he did not know how long it would take to be ready. The trial court observed that Attorney O'Connell's representation had been adequate; Chillis had made three Marsden motions (the first one which was granted); and on the day before trial he was now requesting self-representation. The court noted the trial date had been calendared for several months and there were 79 witnesses on the prosecution's witness list, and concluded there would be substantial disruption if the trial was delayed. The trial court found it was not appropriate to continue the trial to allow Chillis time to prepare, and accordingly denied his self-representation motion on grounds of untimeliness.
The proceedings continued on March 13 and 14, with voir dire of prospective jurors and selection of a jury. On Monday, March 17, after the jury was sworn and just before opening statements, Chillis made another motion for self-representation. Chillis stated that Attorney O'Connell had not been adequately communicating with him; he told his attorney on Friday morning that he had some critical information about what "goes into the bedroom of me and my wives" but his attorney did not contact him over the weekend; O'Connell had made decisions during jury selection that were not in his best interest; and he (Chillis) had not received copies of all the discovery and could not assist with his defense without it.
The court responded that it had previously denied Chillis's self-representation motion because Chillis stated he was not ready to proceed to trial and could not say when he would be ready. However, the court stated it would grant the motion if Chillis was prepared to immediately start the trial. The court noted the jury had already been picked, and the administration of justice would be greatly affected if the trial was continued for any substantial period of time. Chillis stated he was prepared to immediately represent himself. After advising Chillis of the risks and consequences of self-representation and obtaining a waiver of his right to counsel, the trial court granted his request for self-representation.
Requests for Advisory Counsel, a Continuance, and Other Materials
After granting self-representation on March 17, the court instructed Attorney O'Connell to provide Chillis with the defense materials and to remain as standby counsel so that he could take over the case in the event Chillis's pro. per. status was terminated. The court clarified that O'Connell was not remaining to serve as advisory counsel to provide advice to the defendant, but was merely to observe the proceedings and be prepared to try the case if necessary. The court appointed an investigator to assist Chillis.
Trial continued on March 17, 18, 19, 20, and 21 with testimony by prosecution witnesses. On Friday morning (March 21), Chillis informed the court that he was extremely exhausted and was suffering from various physical ailments. The court inquired whether Chillis wanted Attorney O'Connell reappointed to represent him. Chillis responded that because O'Connell had never really discussed his trial strategies with him, he did not want O'Connell reappointed. The court noted that Chillis had appeared alert during the trial, but that it would closely monitor him and allow for more frequent breaks if necessary. When Chillis experienced lightheadedness later that morning, he was evaluated by a nurse and then returned to the courtroom when he was feeling normal. The morning session was completed at 12:40 p.m. and the proceedings were adjourned for the day.
Chillis had explained to the court that his fatigue was caused by the conditions of his incarceration; that is, he was required to get up at 3:00 a.m. and he was not returned to the jail until 6:30 or 7:00 p.m. He stated he was getting about three hours of sleep at night; he was diabetic; and since trial began his eating schedule had been disrupted which affected his blood sugar levels. When deciding to continue with the Friday morning trial, the court commented that on the previous trial days (except for one occasion when Chillis had nodded off for about 90 seconds), Chillis had appeared alert and "on top of [his] game," asking appropriate questions and tracking the evidence well. The court noted that when describing his problems that morning, Chillis had been both mentally and physically able to communicate with the court.
On Monday morning (March 24), Chillis filed several motions with the court, which included requests that he be provided advisory counsel and a five- to 10-day continuance to prepare his defense. He also requested that various materials in the prosecutor's or defense counsel's possession be turned over to him.
To support his request for advisory counsel, Chillis stated that other than provision of an investigator, he had not been provided any resources; he did not have access to the law library primarily because he was in court every day; he was operating "by the seat of [his] pants"; he needed advisory counsel to assist him "with any kind of legal problems" he might experience with the case; and he needed legal assistance to prepare his defense. He stated that he elected self-representation because of the problems with his working relationship with Attorney O'Connell, not because he did not want legal assistance. Upon inquiry from the trial court, Chillis indicated that he would be willing to accept any attorney, including O'Connell, as advisory counsel.
Regarding his request for a continuance, Chillis stated that when he was granted pro. per. status, he had explained the differences he had with Attorney O'Connell and he had informed the court he was not ready to proceed to trial, but that he would go forward if that was the only way he could go to trial without O'Connell. The court disagreed with Chillis's characterization of what occurred, stating that Chillis unequivocally told the court he wanted to represent himself and was ready to proceed to trial, otherwise the court would not have granted him pro. per. status. The court stated that it could not have known of "[a]ny subjective intent or belief that [Chillis] may have had to the contrary" because it was not "a mind reader." The court then asked Chillis if he wanted O'Connell back on the case, and Chillis responded, "No, I don't."
The court denied his request for advisory counsel. The court noted there was no constitutional right to advisory counsel. However, the court had given "a great deal of thought" on the issues of pro. per. status and advisory counsel. The court stated it granted Chillis's self-representation request because he indicated he was ready to immediately proceed to trial, and also because the court was impressed with the obvious intelligence Chillis had shown in his writing and speaking abilities. During his self-representation, the court observed that Chillis was coherent; he "pick[ed] things up"; and he represented himself quite well. The court assessed that it was not "productive" to appoint Attorney O'Connell as advisory counsel given "all the things that Mr. Chillis had complained about regarding Mr. O'Connell's representation." Further, if an attorney other than O'Connell were appointed as advisory counsel, a continuance of several weeks would be required so the attorney could become familiar with the case, which would substantially impair the administration of justice.
Regarding Chillis's request for a continuance, the court stated that it concerned preparation of the defense case, whereas the prosecution was still presenting its case. The court reviewed the materials requested by Chillis that were in the prosecutor's or defense counsel's possession, and ordered that all outstanding documents concerning the case be provided to Chillis, and that any materials in electronic format (i.e., CD) be turned over to Chillis's investigator. The court stated that once the prosecution had concluded its case it would reconsider Chillis's request for a continuance prior to the commencement of the defense case.
During the afternoon session on Monday, March 24, the prosecution concluded its case. Chillis informed the court that he had been in contact with his investigator on Saturday and instructed him to subpoena several defense witnesses, but he did not know if the witnesses had been contacted. The trial court granted Chillis a one-day continuance to give him an opportunity to contact the investigator and also to review additional discovery that had been provided to Chillis that day.
Trial resumed on March 26 with commencement of the defense case. Chillis called four witnesses to testify on his behalf. On March 27, Chillis told the court that no other defense witnesses had been subpoenaed (although he had 35 witnesses on his witness list), explaining that his investigator had not had time to find and subpoena the witnesses. Chillis requested a continuance to subpoena the witnesses, and stated that he wanted to testify as the last defense witness. The court denied his request for a continuance, stating that Chillis could take the stand that day if he wanted to testify on his own behalf.
Chillis testified before the jury on March 27. The court was not in session the following morning (Friday, March 28). Trial resumed during the afternoon session on March 28, during which Chillis concluded his testimony. The jury was excused until Tuesday, April 1. After the jury was excused on Friday, the parties and the court discussed at length Chillis's offers of proof concerning additional defense witnesses. Chillis again told the court he was having difficulty subpoenaing defense witnesses. The court noted that Chillis had a three-day weekend to work on the case before the next trial date, and recommended that he ask his investigator to contact the most important defense witnesses.
When trial resumed on April 1, Chillis informed the court that he had not been able to subpoena the additional defense witnesses. Chillis's investigator, who was present in court, explained that he had had some difficulties obtaining contact information for defense witnesses and some witnesses were hard to locate or had moved. The court stated it would not grant a continuance to permit Chillis to look for more witnesses, explaining that his offers of proof did not indicate there were any crucial witnesses that had not been called.
The court gave Chillis an opportunity to voice his complaints about lack of access to legal resources. Chillis stated that he had "two hours set aside on Monday morning from 7:00 to 9:00 and Thursday morning from 7:00 to 9:00 to go to the law library." Chillis acknowledged that he was not being denied access to the law library for any special reason, but that his lack of access was due to his need to appear in court every day. He stated that it appeared that other pro. per. inmates were provided more resources than he had been provided, including such things as a legal runner, the opportunity to bring law library materials back to their cells, and supplies like accordion folders and legal pads. The court noted that Chillis's limited access to the law library and to investigative time likely occurred because he did not elect self-representation until the time of trial. After the conclusion of these discussions, Chillis rested his case.
B. Analysis
1. Marsden Issues
Chillis contends the trial court erred when it failed to solicit a response from Attorney O'Connell at the March 12 Marsden hearing when he made a second request that O'Connell be replaced.
A defendant is entitled to new appointed counsel if the record shows the first appointed attorney is not providing adequate representation or there is such an irreconcilable conflict or complete breakdown in the attorney-client relationship that ineffective representation is likely to result. (People v. Valdez (2004) 32 Cal.4th 73, 95.) Complaints about the number of times the defendant sees counsel, and about the way in which the defendant relates to counsel, do not alone show incompetence. (Id. at p. 96.) Similarly, mere tactical disagreements between the defendant and counsel do not constitute an irreconcilable conflict. (Id. at p. 95.)
When a defendant requests substitution of counsel, the trial court must permit the defendant to explain his complaints, and (depending on the nature of the complaints) the court may also need to question defense counsel. (See People v. Panah (2005) 35 Cal.4th 395, 431-432; People v. Turner (1992) 7 Cal.App.4th 1214, 1219; People v. Hill (1983) 148 Cal.App.3d 744, 753.) However, " 'a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement.' " (People v. Valdez, supra, 32 Cal.4th at p. 96.) We review the trial court's resolution of Marsden issues for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 857.)
Chillis characterizes the record as showing that his complaints at the March 12 Marsden hearing were not about strategy but rather were about insufficient investigation of the case and contact with Attorney O'Connell. He asserts that at the March 12 Marsden hearing the trial court should have asked O'Connell "about his visits and communication, whether he had ascertained the identities of witnesses, what investigation had been done—counsel's visits, interviews or preparation."
The record shows that at the March 12 hearing, Chillis's complaints focused on lack of time to discuss the discovery with Attorney O'Connell, lack of opportunity to provide information to O'Connell, lack of meetings with O'Connell, and his disagreements with O'Connell's strategy choices. These complaints were very similar to the ones Chillis had raised concerning his first attorney (Attorney Ziegler), as well as his complaints concerning O'Connell at the earlier February 22 Marsden hearing. Although Chillis stated that he did not meet enough with his attorney, he also stated that when they spoke his attorney "brush[ed] off" things he (Chillis) thought were important, and that when he voiced his concerns he was told the attorney makes the strategic choices. Thus, it is apparent there was communication between Chillis and his attorney. Further, Chillis repeatedly described his dissatisfaction as arising from his concerns about O'Connell's strategic choices. When the Marsden colloquy is read in its entirety, the record supports the trial court's assessment that Chillis's ongoing complaints reflected his view that he was not being given an adequate opportunity to control trial strategy.
To illustrate, Chillis stated: "Mr. O'Connell, when we first began, as what I considered a team. Then I guess I started voicing some of my concerns, Mr. O'Connell says, 'We're really not a team,' he makes all the strategic calls. And it's gotten to the point where I am not comfortable with some of the strategies he is using to move forward. [¶]... [¶]... Based on the facts of the things we are trying to discuss, Mr. O'Connell does not seem to be receptive to what I want to talk about, or address things that I think would be better for me in the long run if things were brought out in this trial. [¶] And many things we talk about, he says, 'Well, that does not really matter,' or 'everyone is saying these things.' He seems to brush them off when, to me, they are very important, because I would have explanations.... [¶]... [¶] We don't meet enough.... [¶]... and I feel that I would address it in a little different manner than he is doing right now."
It is well established that defense counsel is " ' "captain of the ship" ' " over trial strategy and a defendant cannot obtain replacement counsel merely because the defendant disagrees with counsel's strategic choices. (People v. Valdez, supra, 32 Cal.4th at p. 96.) " 'A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.' " (Id. at p. 95.) Based on the trial court's assessment that Chillis's complaints concerned control over strategy, the trial court was not required to ask Attorney O'Connell to delineate what steps he had taken to communicate with Chillis and to investigate and prepare the case. (See People v. Hill, supra, 148 Cal.App.3d at p. 753 [no duty to question defense counsel concerning defendant's disagreements over tactical decisions].)
Chillis also contends that on March 17 (after the jury was sworn), the trial court denied a third request that Attorney O'Connell be replaced, ruling that the request was untimely. He asserts that this ruling was erroneous because the court failed to hold a Marsden hearing or receive a response from O'Connell. The record shows that on March 17 Chillis complained about lack of communication with O'Connell, his disagreement with O'Connell's jury selection decisions, and his failure to receive copies of all the discovery. However, he did not request that O'Connell be replaced, but instead renewed his earlier request that he be permitted to represent himself. Nevertheless, when responding to Chillis's complaints, the trial court stated, "[t]o the extent that this is a Marsden motion to replace the attorney, it's clearly untimely. And more importantly, the court feels from what it has observed, [O'Connell] is representing the defendant in a professional and effective way as much as he can be expected to. [¶] Now, so to the extent that it's a motion to change attorneys, it's denied." The court then proceeded to consider Chillis's self-representation request, granting this request when Chillis stated he was prepared to start the trial immediately.
To the extent Chillis was implicitly requesting that Attorney O'Connell be replaced on March 17, the record supports that he was again raising the same issues concerning his desire to control his defense. The record does not reflect that there was some important information that Chillis was unable to impart to his attorney because of lack of contact or access to discovery. Because the Marsden issue had already been properly explored on March 12 and because Chillis's complaints on March 17 again concerned control over strategy, the trial court was not required to hold an additional Marsden hearing or conduct further inquiry on March 17. Given that there was no need for further Marsden evaluation on March 17, any error in the trial court's reliance on untimeliness grounds was harmless. (See People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [court erred in citing untimeliness as basis to deny Marsden motion because issue of dissatisfaction with counsel may be raised at any time during trial; however, error was harmless]; but see People v. Abilez (2007) 41 Cal.4th 472, 490-491 [timeliness of Marsden motion is relevant factor for trial court to consider].)
2. Self-Representation Issues
To review Chillis's contentions related to his self-representation, we first summarize the relevant legal principles, and then consider his various assertions.
Legal Principles
To comply with the federal constitutional right to self-representation, a trial court must grant a defendant's request for self-representation if the defendant is mentally competent (i.e., has the ability to understand the nature of the criminal proceedings) and if the defendant knowingly and voluntarily waives the constitutional right to counsel (i.e., knows the dangers and disadvantages of self-representation and is not coerced). (People v. Welch (1999)20 Cal.4th 701, 729, 733-734; People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070.) Even though a defendant's choice to self-represent may be unwise and ultimately to the defendant's detriment, it must be honored as long as the defendant understands the dangers and disadvantages of self-representation. (People v. Dent (2003) 30 Cal.4th 213, 217-218, 222.) When a defendant knowingly and voluntarily elects self-representation, the defendant accepts the risks associated with this choice. (See People v. Garcia (2000) 78 Cal.App.4th 1422, 1431.) The defendant cannot "complain that the quality of his defense amounted to a denial of the effective assistance of counsel." (Id. at p. 1430.)
A trial court is not required, however, to grant a request for self-representation if it is made on the eve of trial. (People v. Hill, supra, 148 Cal.App.3d at p. 756.) Such an untimely request is committed to the discretion of the trial court. (Ibid.) If the trial court does exercise its discretion to grant an untimely self-representation motion and the defendant requests a continuance to prepare, the trial court must grant a reasonable continuance. (Id. at pp. 757-758.) However, the rule requiring a trial court to grant a pro. per. defendant a continuance does not necessarily apply under circumstances where the trial court makes clear that it will not grant an untimely self-representation motion if a continuance is necessary, and the defendant then convinces the court that he or she is able to proceed immediately. (See People v. Clark (1992) 3 Cal.4th 41, 110; People v. Jenkins (2000) 22 Cal.4th 900, 1039.)
A self-represented defendant has a right to reasonable access to resources that are reasonably necessary for his or her defense. (People v. Blair (2005) 36 Cal.4th 686, 733-734.) However, there is no constitutional right to appointment of advisory counsel, although a trial court has the discretion to make such an appointment. (People v. Clark, supra, 3 Cal.4th at p. 111; People v. Sullivan (2007)151 Cal.App.4th 524, 553; People v. Goodwillie (2007)147 Cal.App.4th 695, 709-712; People v. Garcia, supra, 78 Cal.App.4th at p. 1430.) When exercising its discretion concerning advisory counsel, the trial court may consider such factors as the defendant's demonstrated legal abilities and the reasons for the request. (People v. Crandell (1988) 46 Cal.3d 833, 863, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) 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.)
Some courts (including our own) have questioned whether a pro. per. defendant in a noncapital case may challenge a trial court's decision not to appoint advisory counsel (People v. Garcia, supra, 78 Cal.App.4th at p. 1430), although other courts continue to recognize the propriety of such an appellate challenge (see, e.g., People v. Sullivan, supra, 151 Cal.App.4th at p. 554; see also People v. Garcia, supra, 78 Cal.App.4th at pp. 1432-1433 (conc. op. of Huffman, J.)).
Advisory Counsel
Chillis argues the trial court abused its discretion when it denied his request for advisory counsel. He asserts advisory counsel should have been provided because he did not have sufficient legal experience to adequately represent himself; his case was complex and serious, particularly given the lying-in-wait special circumstance which carries a sentence of life without possibility of parole; he had only minimal library access and no legal runner; and standby counsel could have served as advisory counsel with no delay in the trial.
Chillis also asserts the court erred because he did not receive the "promised assistance of a legal runner, who would have provided some legal research and sample motions and reviewed motions for error priors to filing." The court did not promise such services. After granting self-representation, the court stated it would appoint a legal runner to assist Chillis "in terms of producing witnesses who may have been subpoenaed, having talked to them on the phone, and tell them when to show up, and things like that." Later, the court stated it had appointed an investigator instead of a legal runner to assist with the subpoenaing of witnesses and also to provide any investigation Chillis might need during trial.
Assuming arguendo that a trial court may abuse its discretion in denying advisory counsel in a noncapital case (see fn. 10, ante), there was no abuse of discretion here. Chillis was fully warned of the risks of self-representation, and he was told he would receive no special treatment or assistance and that it is almost always unwise to self-represent. As noted by the trial court, the lack of investigative time and the lack of access to the law library were a function of the lateness of Chillis's self-representation election. The mere fact that there were resource limitations did not translate into a right to advisory counsel. Likewise, the mere fact that the court elected to have Attorney O'Connell serve as standby counsel to prevent delay if pro. per. privileges were revoked did not mean the court was required to have him serve in an advisory capacity for Chillis. On two occasions the court gave Chillis an opportunity to reinstate O'Connell as his counsel when Chillis reported his concerns to the court, and Chillis declined this offer. Because Chillis wanted to retain control over his defense, he had to accept that—as he was warned—he was not entitled to any special assistance.
As found by the trial court, the record reflects that Chillis was an educated, articulate, intelligent person. He mounted a defense before the jury which underscored his claim that he did not go to the alley with the intent to kill or attack Peggy, but rather merely to talk to her. In closing arguments to the jury, he argued against the prosecution's theories of intent to kill, premeditation, and lying in wait. He also presented evidence to support theories of provocation and intoxication, and urged the jury to consider these theories. This is not a case where the lack of advisory counsel created a trial that "could rightly be described as a ' "farce or a sham." ' " (People v. Bigelow (1984) 37 Cal.3d 731, 745.) Chillis has not shown the trial court's decision to deny advisory counsel was an abuse of discretion.
To further support his assertion that advisory counsel should have been appointed, Chillis notes that he declined the court's invitation to make a section 1118.1 motion based on insufficient evidence at the close of the prosecution's case. A section 1118.1 motion is designed to end adjudication of a charge when the prosecution has failed to make even a prima facie case warranting submission of the charge to the jury. (People v. Stevens, supra, 41 Cal.4th at p. 200.) When informing Chillis of the availability of this motion, the court stated that it was "not inclined" to grant it. Chillis then stated he was not going to make the motion. Chillis's decision to forego a motion that the trial court was not inclined to grant does not show the court abused its discretion in declining his request for advisory counsel.
Access to Discovery Materials
Chillis contends the court failed to ensure that he received access to the discovery materials in Attorney O'Connell's possession in a timely fashion. To the contrary, the record reflects repeated discussions and orders by the trial court addressing the provision of these materials to Chillis. At one point, the trial court commented that O'Connell had "been diligent in accomplishing what the court had asked" concerning provision of the discovery materials to Chillis. There is nothing in the record to suggest O'Connell was not making a good faith effort to turn over the materials expeditiously.
Chillis points out that some materials were not provided until the close of the prosecution's case (including materials reflecting prior convictions of prosecution witnesses), and that he was not able to access materials on CD because the jail did not permit possession of the CD's and/or provide the facilities to listen to them. He has not shown any prejudice from this. Chillis's investigator was given access to the CD's for review, and Chillis indicated that this procedure was acceptable to him. (See also fn. 12, post.) Further, prior to the conclusion of the defense case, the trial court engaged in a lengthy review with Chillis to evaluate whether any of the prosecution witnesses should be called during the defense case, including for the purpose of impeaching them with prior convictions.
Access to the Law Library
Chillis argues the trial court should have resolved the problem of his limited access to the law library. Chillis stated he was scheduled for access to the law library on Monday and Thursday morning from 7:00 a.m. to 9:00 a.m. It is not clear from the record how many times Chillis went to the law library or how long he stayed there.
In any event, when Chillis was granted self-representation after the jury had been selected, he knew he was not receiving a continuance and he had been told he would not be granted any additional law library time beyond that typically made available to pro. per. inmates. Thus, he knew that he would have to juggle trial time with library time. The record shows that on Monday, March 24, Chillis filed several motions with the trial court which included legal citations. Thus, it is apparent he was provided access to materials setting forth relevant law. On this record, Chillis has not shown that he was deprived reasonable access to resources necessary to prepare his defense.
Continuance
Chillis asserts the trial court abused its discretion when it granted him only a one-day continuance at the conclusion of the prosecution's case. A continuance requires a showing of good cause, and we review a trial court's ruling on this issue for abuse of discretion. (People v. Doolin, supra, 45 Cal.4th at p. 450.)
As set forth above, on the morning of March 24, during the prosecution's case, Chillis requested a five- to 10-day continuance. The court stated it would reconsider the request prior to the commencement of the defense case. After the prosecution rested on the afternoon of March 24, the trial court granted Chillis a one-day continuance, and trial resumed on Wednesday, March 26. On March 26, 27, and 28, Chillis called four witnesses to testify on his behalf and presented his own testimony. After a three-day weekend, the proceedings resumed on Tuesday, April 1, and Chillis requested a continuance to permit his investigator to try to find and subpoena more witnesses. The trial court denied this request, stating that Chillis's offers of proof had not identified any additional witnesses who were crucial to the case. On appeal, Chillis has not specified any particular witness he was unable to call who would have been important to his defense. Absent a showing that he was deprived of the opportunity to call an important witness, he has not shown that the court abused its discretion in denying his request for an additional continuance.
In briefing on appeal, Chillis contends he should have been given more time to review the discovery he was given at the close of the prosecution's case. After receiving the one-day continuance at the close of the prosecution's case on March 24, Chillis did not request more time to review discovery materials. Rather, he requested time to search for more defense witnesses. Chillis has not shown an abuse of discretion.
In proceedings on March 27, Chillis did inquire about whether his investigator had received the CD's for review, and Chillis was told his investigator could contact Attorney O'Connell for this purpose. On April 1 (the date Chillis rested his case), Chillis's investigator was present in court and Chillis discussed his complaints concerning resources. Neither Chillis nor his investigator reported any problem with the investigator's access to the CD's.
V. Usable Quantity of Methamphetamine
Chillis challenges his conviction of possession of methamphetamine, asserting the record does not show he possessed a usable amount. He points out that the prosecution failed to call any witness to testify that the.89 grams of methamphetamine found at his residence were a usable amount.
" '[I]n penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption... does not constitute sufficient evidence in itself to sustain a conviction.' " (People v. Rubacalba (1993) 6 Cal.4th 62, 64-65.) However, there is no requirement that any particular purity or potential narcotic effect be proven. (Id. at p. 65.) The quantity possessed need not be capable of producing a narcotic effect. (Id. at pp. 65-66.) Rather, the "usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." (Id. at p. 66.) The presence of "actual narcotics, even though in minute quantities" (as opposed to a residue) is sufficient to show possession of a usable amount. (People v. Karmelich (1979) 92 Cal.App.3d 452, 456.)
Although no witness testified that the methamphetamine was a usable amount, the baggie containing the drug was introduced into evidence and thus would have been viewed by the jury. The jury was instructed that "[u]seless traces" are not usable amounts. On appeal, Chillis challenges the jury's verdict because there was no testimony that the methamphetamine was a usable amount. He contends "there is no support for a jury being allowed to make the determination of a usable amount by itself, particularly where the jury lacked expert guidance as to how the quantity could be used."
Although it would generally be preferable to have testimony on the issue of usable amount, we are satisfied that the jurors in this case were capable of telling whether the.89 grams of methamphetamine were a usable amount without specific testimony on this point. The distinction between an actual amount of narcotics that can be consumed, and a residual or trace amount that is useless, is something that can be understood by the average person. Chillis has not shown that the jury could not properly evaluate the usable-quantity issue without testimony on this point. His evidentiary challenge to the possession charge fails.
A trace amount is defined as "an amount of a chemical constituent not always quantitatively determinable because of minuteness." (Merriam-Webster's Collegiate Dict. (10th ed. 2002) p. 1245.) A residue is defined as "something that remains after a part is taken, separated, or designated." (Id. at p. 993.) These are concepts within common knowledge.
VI. Cumulative Prejudice
Chillis argues the judgment should be reversed for cumulative prejudice. To support this, he cites his contentions that the court failed to adequately evaluate his Marsden requests to replace Attorney O'Connell, which in turn gave rise to his self-representation; the court should have provided advisory counsel or other ancillary services and given him more time to prepare; the jury detected that he was restrained and thus viewed him as a dangerously violent person and which undermined his ability to self-represent; and the jury should not have been instructed on lying in wait and methamphetamine possession because of insufficient evidentiary support. The contention is unavailing.
As set forth above, the trial court reasonably assessed that Chillis's complaints about Attorney O'Connell did not warrant replacement of counsel because they essentially concerned lack of control over strategy. It is clear from the record that Chillis wanted to be "captain of the ship" over trial strategy, and based thereon, after being fully informed of the risks and that he must immediately proceed to trial, he elected self-representation. Chillis was given an investigator to assist him, and the trial court was under no obligation to afford him advisory counsel. As to the erroneous use of restraints, the ankle chain was not visible to the jurors deciding the case, the restrictions on his movement were reasonable, and accommodations were made to ensure he could present his case to the jury. There was substantial evidence to support the lying-in-wait theory and possession of a usable amount of methamphetamine. There was no cumulative prejudice.
VII. Sentencing
A. Doubling of Life Sentence Without Possibility of Parole
Based on the jury's true finding on the lying-in-wait special circumstance, the trial court sentenced Chillis to a life sentence without the possibility of parole. The trial court then doubled this sentence because Chillis had one strike prior conviction under the Three Strikes law, imposing two life sentences without the possibility of parole.
Chillis asserts there is no authority to double a life sentence that is without the possibility of parole. Chillis's contention is supported by the analysis in People v. Smithson (2000) 79 Cal.App.4th 480, 503. We agree with Smithson.
The doubling provision for one prior strike conviction provides: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (§ 667, subd. (e)(1), italics added.) A determinate term is a sentence consisting of a specific number of months or years in prison. (People v. Smithson, supra, at p. 503.) An indeterminate term is a sentence of life imprisonment; an applicable minimum term is the minimum amount of time the defendant must serve on the life sentence before being eligible for parole. (Ibid.)
A life sentence without the possibility of parole is not a determinate term, and it is not an indeterminate term with a minimum term. Rather, it is a term for life with no minimum term. Thus, it falls outside the category of sentences that are subject to doubling under the Three Strikes law. (People v. Smithson, supra, 79 Cal.App.4th at p. 503; see also People v. Jefferson (1999) 21 Cal.4th 86, 99, 102 [doubling provision requires doubling of minimum term for life sentence, but not two life sentences with possibility of parole.) Because the statutory language is clear and does not lead to absurd results, we disagree with the contrary conclusion reached in People v. Hardy (1999) 73 Cal.App.4th 1429, 1433-1434, where the court inferred a legislative intent to double a sentence of life without possibility of parole. (See Smithson, supra, at pp. 503-504.)
Accordingly, we modify Chillis's sentence to strike the second sentence of life without possibility of parole.
B. Imposition of Parole Revocation Fine
In addition to the sentence of life without possibility of parole, Chillis received a 10-year determinate sentence, which included a term for the methamphetamine possession conviction. The trial court also imposed a $10,000 parole revocation fine, which was suspended unless parole is revoked as provided in section 1202.45.
In his opening brief, Chillis asserts the parole revocation fine was improper because he was sentenced to life without the possibility of parole. However, in his reply brief, he concedes that under People v. Brasure (2008) 42 Cal.4th 1037 the fine was proper based on his receipt of a determinate term for the methamphetamine possession conviction (which involves a period of parole), unless the methamphetamine possession conviction is reversed. (Id. at p. 1075 [parole revocation fine properly imposed on defendant who received death sentence and determinate sentence].) Because we have affirmed the methamphetamine possession conviction, Chillis in effect acknowledges the fine was authorized.
DISPOSITION
The judgment is modified to strike the second sentence of life without possibility of parole derived from the doubling provision of the Three Strikes law. The trial court is directed to prepare an amended abstract of judgment reflecting this change and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
I CONCUR: O'ROURKE, J.
I CONCUR IN THE RESULT: AARON, J.
Later that Friday morning, Chillis's head hit his table. The trial court excused the jury and ordered a recess. Chillis explained that his head slipped out of his hand and he was lightheaded and tired, but his "brain works." After he was evaluated by a nurse and returned to court, Chillis stated he was feeling normal, although tired.
Our analysis regarding the advisory counsel issue applies equally to Chillis's claim that he should have been provided paralegal-type services.