Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Nos. NA078123 & NA073088 James D. Otto and James B. Pierce, Judges.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant David Efrain Gutierrez appeals from a judgment entered after a jury convicted him in case No. NA078123 of count 1, selling methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and count 2A, offering to sell a substance in lieu of a controlled substance (Health & Saf. Code, § 11355). The jury found true the allegation that appellant had one prior serious or violent felony conviction (Pen. Code, § 1170.12, subds. (a)-(d); § 667, subds. (b)-(i)) and had served two prior prison terms (§ 667.5, subd. (b)).
In case No. NA078123, appellant was charged by information with count 2, offering to sell a substance in lieu of a controlled substance (Health & Saf. Code, § 11355). In case No. NA073088, appellant was charged with count 2, failure to provide true registration information (§ 290, subd. (e)(2).) For purposes of sentencing, count 2 in case No. NA078123 was renumbered count 2A and count 2 in case No. NA073088 was renumbered count 2B.
All further statutory references are to the Penal Code unless otherwise indicated.
In case No. NA073088, appellant pleaded no contest to count 2B, failing to register as a sex offender (§ 290), and was placed on probation for three years. A violation of probation hearing in case No. NA073088 was held concurrent with the trial in case No. NA078123. After appellant’s closing argument in case No. NA078123, the trial court found appellant to be in violation of probation.
The trial court sentenced appellant to state prison for a term of 10 years and eight months as follows: count 1, six years (the middle term of three years, doubled); count 2A, offering to sell a substance in lieu of a controlled substance, one year and four months (one-third the middle term, doubled); count 2B, failure to register as a sex offender, one year and four months (one-third the midterm, doubled); and two years for the two prior prison term allegations (§ 667.5, subd. (b)).
We affirm the judgment as modified.
CONTENTIONS
Appellant contends that: (1) his right to self-representation was violated when the magistrate denied his motion made pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta); (2) the trial court erred in doubling his term in count 2B, in case No. NA073088; and (3) the trial court erred in considering appellant’s statements in closing argument as evidence during the revocation of probation hearing. The People concede that the trial court erred by doubling appellant’s term in count 2B, in case No. NA073088.
FACTS AND PROCEDURAL BACKGROUND
On April 23, 2008, Los Angeles Police Department Officer Michael Saragueta worked undercover in the narcotics unit on Avalon Boulevard near E Street in Wilmington. He approached a few people and asked if anyone could get him $20 worth of crystal methamphetamine. Appellant asked him if he was a cop, and when Officer Saragueta replied negatively, asked if he was looking for “rock.” After walking to an alley, appellant offered Officer Saragueta off-white solid substances individually wrapped in plastic. Officer Saragueta refused to accept one of the “rocks” because it smelled like soap and did not look like crystal methamphetamine. Appellant then said he knew that Officer Saragueta was not a cop and he would lead him to “get the real stuff.” Appellant and Officer Saragueta walked on. Appellant unsuccessfully attempted to obtain crystal methamphetamine from some other people and finally approached a man named Rebers who said he could procure $20 worth of methamphetamine with payment up front. After Officer Saragueta gave Rebers the money, Rebers fetched a baggie of what appeared to be crystal methamphetamine from a woman, separated some of the substance out, and handed it to appellant. Officer Saragueta took the baggie from appellant. The substance was later determined to be crystal methamphetamine.
DISCUSSION
I. The magistrate did not abuse his discretion in denying appellant’s Faretta motion
Appellant contends that the magistrate abused his discretion in denying his Faretta motion at the preliminary hearing in case No. NA078123 on the basis of untimeliness. We disagree.
“A trial court must grant a defendant’s request for self-representation [pursuant to Faretta]if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 97.) “‘[I]n order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right within a reasonable time prior to trial. The latter requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. [Citation.] If the motion is untimely-i.e., not asserted within a reasonable time prior to trial-the defendant has the burden of justifying the delay.’ [Citation.]” (Id. at p. 102.) An untimely assertion of the right to self-representation, such as the day preceding trial, is addressed to the sound discretion of the trial court. (Ibid.) “‘In exercising this discretion, the trial court should consider factors such as “‘the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’”’” (Id. at p. 103.)
Appellant contends that because he was not granted self-representation until May 23, 2008, 14 days after he made his Faretta motion, he had less time in which to access the law library, work with his investigator, and subpoena witnesses. The record shows that appellant made his motion on May 9, 2008, noted by the magistrate as “the last day” for the preliminary hearing. The magistrate explained the disadvantage of self-representation and closely questioned appellant about his understanding of the charges and whether he was ready to proceed. The magistrate advised appellant that he should allow counsel to represent him at the preliminary hearing and then proceed in propria persona afterward. Nevertheless, appellant requested at a minimum, a two-week continuance of the preliminary hearing, to educate himself about his case because “it takes at least two or three weeks to get even to the law library.” He also stated his desire to make a motion to sever the trial of his codefendant.
But, it is clear that appellant’s Faretta motion to represent himself on the day of the preliminary hearing was not made in a timely manner and that a two-week continuance would have compromised the orderly and expeditious administration of justice. ‘“Although a necessary continuance must be granted if a motion for self-representation is granted, it is also established that a midtrial Faretta motion may be denied on the ground that delay or a continuance would be required.”’ (People v. Valdez, supra, 32 Cal.4th at p. 103.) As stated by the magistrate, May 9, 2008, was the last day for the preliminary hearing. Appellant stated that he was not ready to proceed in propria persona on the preliminary hearing and needed a continuance. However, appellant’s codefendant, Rebers, was not willing to waive time and objected to a continuance when the magistrate denied appellant’s Faretta motion, he assured appellant that he could make a motion for self-representation and a motion to sever at a future time without prejudice.
We are satisfied that a continuance would have caused disruption and delay and that the magistrate did not abuse his discretion in denying the motion on the basis of timeliness. In any event, as previously noted, appellant’s motion for self-representation was granted two weeks later and, appellant’s speculation that he might have been better prepared aside, any error was harmless beyond a reasonable doubt. (People v. Tena (2007) 156 Cal.App.4th 598, 614 [denial of self-representation at the preliminary hearing is subject to harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24].)
II. The trial court erred in applying appellant’s prior strike conviction to case No. NA073088
Appellant contends, and the People concede, that the trial court improperly doubled the term in count 2B because the prior strike in case No. NA073088 was never admitted or proven when appellant entered his no contest plea in that case before being placed on probation. We agree.
The record shows that appellant did not admit a prior strike conviction for violation of section 288 in case No. NA073088 when he pled no contest to a violation of section 290. Indeed, at sentencing on case No. NA073088, the prosecutor represented to the trial court that he believed that it would be improper to double the sentence for the probation violation because the trial court struck the prior strike on the section 290 violation. Nevertheless, the trial court proceeded to double appellant’s sentence on that count.
We shall reduce appellant’s sentence on case No. NA073088 in count 2B from one year and four months, to eight months.
III. The trial court did not err in admitting as evidence statements made by appellant during closing argument
Appellant contends that the trial court erred in revoking probation in case No. NA073088 based on his closing argument because arguments of counsel are not evidence. We disagree.
Appellant urges that statements he made in closing argument could not be used in his concurrent probation revocation hearing, citing the general rule that statements of counsel are not evidence. (People v. Breaux (1991) 1 Cal.4th 281, 313.) It is true that unsworn testimony in general does not constitute evidence within the meaning of the Evidence Code. (People v. Kiney (2007) 151 Cal.App.4th 807, 815.) However, statements made in propria persona in closing argument may be used in a subsequent trial as an exception to the hearsay rule as evidence under Evidence Code section 140 and a party admission under Evidence Code section 1220. (People v. Kiney, supra, at p. 815.) The right of self-representation is based on the recognition that ‘“[t]he right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.’” (Id. at p. 814.) The court in People v. Kiney rejected the defendant’s argument that statements he made while representing himself at his first trial could not be used against him in a subsequent trial because such an assertion “is tantamount to declaring that Faretta rights include a grant of testimonial immunity. That is not the law.” (Id. at p. 815.) While the statements appellant made in his closing argument were used in a concurrent rather than subsequent probation revocation hearing, we find that the rationale of People v. Kiney, supra, 151 Cal.App.4th at page 815 applies equally here, and the statements were admissible.
Appellant argued in closing argument that “Where I’m at we hate rock heads. We do. Okay. So what do we give them? Wax. So they don’t come back. Okay.” Later, appellant argued “I had to go to my buddy’s house anyway. That’s where I was walking to. You know what I mean? I walk up there. I say, “Hey, you got anything?” I’m going to burn this fool, okay, I try to say. So what happened? I got a couple more items, wrapped it up real quick. I thought he wanted methamphetamine at this point. He looked-he’s a white guy. You know what I mean. I try to burn him again. I don’t do drugs out there on the street.”
We find that the trial court did not abuse its discretion by admitting appellant’s statements and concluding by a preponderance of the evidence that appellant had violated a condition of probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-447.) One of the conditions of appellant’s probation was to obey all laws and orders of the court. As previously stated, appellant’s admissions in his closing argument were admissible. After excusing the jurors to start their deliberations, the trial court advised appellant that it would then hold a hearing on the violation of probation in case No. NA073088. The trial court found that appellant made an admission in his closing argument that he had violated Health and Safety Code section 11355 when he stated that he sold false substances in his neighborhood in order to cheat people. The trial court also found that appellant had violated probation by aiding and abetting count 1, in case No. NA078123, selling methamphetamine.
We find that the trial court did not err in admitting appellant’s statements made in closing argument as evidence in the concurrent probation revocation hearing and thereafter revoking appellant’s probation.
DISPOSITION
The judgment is modified to reduce the sentence on count 2B in case No. NA073088 from one year and four months, to eight months. The trial court is ordered to send a certified copy of a corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BOREN, P.J., CHAVEZ J.