Opinion
H044901
12-10-2019
THE PEOPLE, Plaintiff and Respondent, v. DWIGHT BENJAMIN JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1577363)
A jury found appellant Dwight Benjamin Johnson guilty of 17 counts of first degree burglary, one count of first degree robbery, and one count of felony evasion of a pursuing peace officer. The trial court found true two prior conviction allegations and sentenced Johnson to 58 years and four months in prison.
Johnson raises six claims on appeal. He contends that the trial court erred by admitting evidence of multiple uncharged burglary offenses, refusing to modify CALCRIM No. 375, admitting certain cell phone location evidence, denying his postverdict requests to represent himself, and denying a motion to dismiss a prior strike allegation. In a supplemental brief, Johnson requests a remand of his case to allow the trial court to exercise its discretion whether to strike the serious felony enhancement under Senate Bill No. 1393.
As explained further below, we conclude the trial court erred in denying Johnson's first request to represent himself in postverdict proceedings. We therefore reverse the judgment, vacate Johnson's sentence, and remand the matter to the trial court. We reject or decline to address Johnson's remaining claims, and we affirm his convictions.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
The Santa Clara County District Attorney filed an amended information charging Johnson with first degree burglary (Pen. Code, §§ 459, 460, subd. (a) ; counts 1-6, 8-16, 18-19), first degree robbery (§§ 211, 212.5, subd. (a); count 7), and fleeing or attempting to elude a pursuing peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a); count 17). The information further alleged that Johnson had suffered a prior strike conviction for a violent or serious felony (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)), specifically a residential burglary (§§ 459, 460, subd. (a)).
Unspecified statutory references are to the Penal Code.
Johnson's jury trial began on May 11, 2016. On June 10, 2016, the jury found him guilty of all 19 counts of the amended information. On August 19, 2016, the trial court found true the prior strike conviction and prior serious felony conviction allegations.
On August 31, 2016, Johnson filed a petition to proceed in propria persona. The trial court denied Johnson's request. Johnson made a second motion to represent himself on November 14, 2016, which the trial court also denied.
On May 22, 2017, the trial court sentenced Johnson to a total term of 58 years and four months.
B. The Evidence Presented at Trial
1. The Charged Crimes
Between July 8, 2014, and December 5, 2014, seventeen homes were burglarized in Saratoga, Sunnyvale, Mountain View, Cupertino, and Santa Clara. Many residents testified that the burglaries occurred when they were away from their homes during the middle of the day. Their homes had signs of forced entry. Several returning residents found doors to their homes that they had left closed were now open. Their homes were ransacked. The items stolen included cash, jewelry, designer handbags, purses, laptop computers, iPads, other small electronics, and pillowcases.
The 17 burglaries in Santa Clara County occurred on: July 8, 2014, in Saratoga (count 1); July 11, 2014, in Sunnyvale (count 2); July 22, 2014, in Mountain View (count 3); July 22, 2014, in Mountain View (count 4); July 22, 2014, in Sunnyvale (count 5); July 31, 2014, in Cupertino (count 6); October 8, 2014, in Santa Clara (count 8); October 8, 2014, in Santa Clara (count 9); November 2, 2014, in Cupertino (count 10); November 4, 2014, in Cupertino (count 11); November 4, 2014, in Cupertino (count 12); November 5, 2014, in Cupertino (count 13); November 5, 2014, in Cupertino (count 14); November 5, 2014, in Cupertino (count 15); November 26, 2014, in Mountain View (count 16); December 5, 2014, in Santa Clara (count 18); and December 5, 2014, in Santa Clara (count 19).
Midday on July 22, 2014, in Sunnyvale, a witness saw a white BMW X5 SUV in the area of the home that was burglarized that day. The driver of the SUV was a young African-American male in his 20s who was nearly bald and clean shaven and holding a phone to his ear. A white BMW X5 was registered to Johnson's girlfriend, Martya Flenaugh.
On the morning of October 8, 2014, W.K. was sleeping at a home in Mountain View when he was awakened by someone pulling off his blankets. W.K. saw two men, at least one of whom was pointing a knife at him. He thought they were African-American based on their dark complexions and accents. W.K. described the man with the knife as about five feet 10 to 11 inches tall, about 150 to 160 pounds, and in his early to mid 20s. The second man was about the same size and age. The men tied W.K. with a jump rope and rolled him over onto his stomach against the wall. The man with the knife asked about the location of the safe, but W.K. said he did not know. Based on the two men's conversations with each other and with someone on speakerphone, W.K. thought the man with the knife was named " 'Omar' " or something with an "O" and the second man was named " 'Dwayne' " or " 'Dwight' " or something starting with "D." W.K. and his housemate testified that the perpetrators took cash. A screen had been removed from a window that had been left open, and the front door was ajar. Clothing was strewn about the housemate's room, and in the living room there was a pillowcase containing iPads, cell phones, and other electronics.
To protect this witness's privacy, we refer to him by his initials only. (Cal. Rules of Court, rule 8.90(b)(4).)
That same day about 11:45 a.m., a neighbor saw a black man standing outside of a car and another black man walking from the house toward the car. The person standing beside the car was about six feet tall, about 180 pounds, bald or with very little hair, and in his 40s. The man who walked toward the car had short black hair, no facial hair, and was shorter, smaller, and younger than the standing man. Shortly thereafter, the neighbor saw the car drive past him with the taller man driving and the shorter man in the front passenger seat. The car was a black BMW 740i sedan.
On November 26, 2014, about 11:00 a.m. in Mountain View, a neighbor called police to report a possible burglary in progress at a house across the street from her home. The neighbor saw a tall, clean-cut, black male about 20 to 30 years old exit a white Mercedes sedan and enter the house. After about five to ten minutes the man came out of the house carrying a bag and returned to the passenger seat of the car. A police officer who responded to the call also saw the white Mercedes. A black male in his late teens or early 20s with dark skin and short hair sat in the driver's seat. After seeing the second man exit the house, get in the car, and drive away, the officer and his fellow officers pursued the car but were not successful at stopping it. The officers terminated the pursuit after the Mercedes had driven on the wrong side of the road and on a sidewalk, run stop signs, travelled at high rates of speed, and narrowly avoided colliding with several other vehicles. The Mercedes was registered to Johnson's girlfriend, Flenaugh.
2. The Uncharged Offenses
The prosecution presented evidence of nine uncharged burglary offenses that occurred in Alameda County. Witnesses testified about eight residential burglaries in Fremont between September 24, 2014 and January 29, 2015, and an attempted residential burglary in Newark on January 30, 2015. The burglaries occurred during the day. The homes were entered by force and were ransacked. Items taken included jewelry, cash, laptops, an iPad, cell phones, small electronics, purses, and a pillowcase.
The eight burglaries occurred on September 24, 2014 (three burglaries), October 29, 2014, November 4, 2014, and January 29, 2015 (three burglaries).
On September 24, 2014, outside one of the burglarized homes, a neighbor saw a four-door white Mercedes. A black male in his 20s with short hair that had a design-like etching in it was sitting in the car. The neighbor later identified both in a photo lineup and in court the person she saw in the car as Johnson.
The neighbor wrote " 'maybe' " next to Johnson's photograph in the lineup. She testified she did this because she wanted to be sure it was him.
Regarding another burglary on September 24, 2014, the prosecution presented evidence that a palmprint found in the burglarized home matched that of Kaulana Moore. In addition, the police found Moore's fingerprint on a plastic bag inside a duffel bag discovered by a Fremont resident on October 29, 2014. The duffel bag contained some jewelry, various identification documents, and gift cards taken from a home that had been burglarized earlier that day.
On January 30, 2015, police officers tracked to Newark a dark blue BMW 745i sedan associated with Johnson. Officers observed two men who had earlier been standing near the BMW attempting to pry open the front door of a residence. Officers confronted and arrested the men, later identified as Kaulana Moore and John Nicacio, and recovered Moore's cell phone. The BMW sped away from the scene and was pursued by police. After a high-speed chase, officers lost sight of the car and called off the pursuit. Later, the police located the BMW and found inside it foreign currency, a box of bracelets, and a vehicle registration bearing the last name of Johnson. A victim of one of the three burglaries that had occurred the day before identified the foreign currency and jewelry as belonging to him.
Police located and arrested Johnson in Oakland later on January 30, 2015. The police had tracked Johnson using his cell phone, which they seized during his arrest.
3. The Cell Phone Evidence
Police obtained cell phone records for Johnson's and Moore's cell phones. Police also extracted information from Johnson's and Moore's cell phones. Generally, the cell phone information incriminated Johnson and Moore.
Sergeant Kurtis Stenderup testified as an expert for the prosecution on cell phone towers, transmission of communications through cell towers, and the identity and location of the source of cell phone communications. He explained that cell phone service providers keep call detail records that include information about the time and date of text messages and calls made and received. These records generally also provide information about the particular tower to which a cell phone was connected. Stenderup said that a cell phone connects to the cell tower that has the strongest signal, which is usually, but not necessarily, the closest tower. A cell phone's connection with a tower is subject to various environmental factors, including weather and obstructions, and to the amount of bandwidth being used by customers in the area. Stenderup estimated the range of the relevant cell phone towers in this case to be approximately halfway between the tower and the next closest tower. He explained that his estimation of the range of the cell tower sectors was a "rough estimation," and he did not know the exact range of the sectors. The exact range of a cell tower sector cannot be known without conducting a survey using specialized equipment.
Stenderup reviewed and explained the call detail and other cell phone records for Johnson's and Moore's cell phones. Stenderup prepared and showed to the jury PowerPoint slides to further explain how cell phones connect to the antennas on cell towers and how the cell phone records showed that Johnson's and Moore's cell phones connected to certain cell towers near the various burglarized residences on the days they were burglarized, but not at other times. The PowerPoint slides depicted the approximate range of the cell tower sectors on maps using green shaded areas. From July 1, 2014, through January 31, 2015, Johnson's cell phone connected most often to cell towers in Oakland and San Leandro, the locations of Johnson's home and school, respectively.
4. The Defense Evidence
The defense presented three witnesses. The first was a police officer who had displayed a six-person photo lineup to the neighbor in Fremont who testified about seeing Johnson in a white Mercedes on September 24, 2014. The officer explained that the neighbor had rejected the first two photos shown to her, wanted to come back to the third photo (which depicted Johnson), rejected photos four, five and six, and then went back to the third photo and wrote " 'maybe.' "
A neighbor who lived near another house burglarized in Fremont on September 24, 2014, testified about seeing a nice white car—possibly a BMW—with two men inside park across the street from her home on that day. The man in the driver's seat was a fair-skinned black man with a nice haircut. The man in the passenger's seat was a dark-skinned black man. About four months later, police showed the neighbor two six-person photo lineups. The neighbor did not identify Johnson from the photo lineups.
Johnson's sister April testified that she had celebrated her birthday on July 8, 2014. She first saw Johnson that day around 9:10 a.m. She was with Johnson from that time until about 2:30 or 3:30 p.m. She said that Johnson did not always carry his cell phone with him between July and December 2014.
II. DISCUSSION
Johnson raises six claims on appeal. He argues that: (1) the trial court improperly admitted evidence of the nine uncharged burglary offenses under Evidence Code section 1101, subdivision (b); (2) the trial court erred by refusing to modify the pattern jury instruction CALCRIM No. 375; (3) the trial court erred by admitting certain exhibits and expert testimony based on cell phone records; (4) the trial court erred in denying Johnson's postverdict motions to represent himself pursuant to Faretta ; (5) the trial court abused its discretion by denying Johnson's motion to dismiss the prior strike allegation pursuant to section 1385 and Romero ; and (6) the case should be remanded for the trial court to exercise its discretion whether to strike the serious felony sentencing enhancement under Senate Bill No. 1393.
Faretta v. California (1975) 422 U.S. 806.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
A. Uncharged Burglary Offenses
Johnson contends that the trial court abused its discretion when it admitted evidence of nine uncharged burglaries from Alameda County under Evidence Code section 1101, subdivision (b) (hereafter Evidence Code section 1101(b)) as evidence of intent, motive, or identity. Specifically, Johnson argues that the uncharged misconduct evidence was inadmissible for the purposes of proving intent, motive, or identity, had minimal probative value that was substantially outweighed by the danger of undue prejudice, and rendered his trial fundamentally unfair in violation of his due process rights. Johnson also asserts that the erroneous admission of this evidence was prejudicial under any standard.
Evidence Code section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
1. Background
The prosecutor moved in limine to present evidence of 10 uncharged burglaries from Alameda County to show identity, common scheme or plan, intent, and knowledge under Evidence Code section 1101(b). Defense counsel countered by moving to exclude this evidence under Evidence Code sections 350, 352, and 1101, subdivision (a). Defense counsel pointed out that identity was the only disputed issue and offered to stipulate to intent and other elements of the charged crimes.
Eight of the uncharged offenses occurred in Fremont between September 24, 2014, and January 29, 2015. One offense (an attempted burglary) occurred on January 30, 2015, in Newark and led to Johnson's arrest. The tenth offense occurred in Dublin in 2011. The charged offenses occurred between July 8, 2014, and December 5, 2014.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The trial court heard argument from the parties, discussed People v. Erving (1998) 63 Cal.App.4th 652 (Erving), and noted that it was "kind of odd" that Johnson, who resided miles away in Oakland, would be near the burglarized residences at the time of the uncharged crimes. The court ruled that all the uncharged crimes from Alameda County could be admitted into evidence with appropriate limiting instructions.
In Erving, the defendant had been charged with multiple counts of arson. The prosecution presented evidence of dozens of fires that had been "set in the immediate neighborhood where [defendant] lived, either at her home or within easy walking distance of it." (Erving, supra, 63 Cal.App.4th at p. 661.) The Court of Appeal concluded that the defendant's "proximity to nearly 40 arson fires in these circumstances provides the 'signature' required for the uncharged fires to be relevant to prove her identity as the arsonist" and that "[t]his mark, standing alone, is sufficient to support the trial court's order of admissibility." (Ibid.)
The trial court at that time did not specify the bases under Evidence Code section 1101(b) for which the evidence was admissible.
Later, the parties discussed further the admission of evidence regarding the 2011 Dublin offense that resulted in Johnson's strike prior. The trial court excluded that offense for lack of sufficient similarity to the charged offenses. The court noted that with all the other uncharged offenses Johnson's cell phone had been in the area at the time of the crimes and mentioned the need to weigh probative value and potential prejudice.
During trial, the jurors heard evidence of nine uncharged burglary offenses. Over a defense objection as to the admissibility of the evidence to prove intent and motive, the trial court instructed the jury with CALCRIM No. 375 regarding intent, motive, and identity. The court told the jurors that they could consider the uncharged offenses for the "limited purpose" of deciding whether Johnson "was the person who committed the offenses alleged in this case," "acted with the intent to commit theft alleged in this case," or "had a motive to commit the offenses alleged in this case."
2. Legal Principles
We review the trial court's admission of uncharged acts evidence under Evidence Code sections 1101(b) and 352 for an abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 500; People v. Merriman (2014) 60 Cal.4th 1, 74.) "A trial court's exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
"Evidence Code section 1101, subdivision (a) sets forth the ' "strongly entrenched" ' rule that propensity evidence is not admissible to prove a defendant's conduct on a specific occasion." (People v. Jackson (2016) 1 Cal.5th 269, 299.) "At the same time, 'other crimes' evidence is admissible under Evidence Code section 1101, subdivision (b) 'when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.' " (Id. at p. 300.)
" 'When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." ' " (People v. Fuiava (2012) 53 Cal.4th 622, 667.)
The degree of similarity between the uncharged and charged offenses matters to admissibility, with a higher degree of similarity required when the uncharged offense is used to establish identity. " ' "In cases in which the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility 'depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.' " [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citation.]' [Citation.] Where other crimes or bad conduct evidence is admitted to show motive, ' "an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself" ' [citation], the other crimes or conduct evidence may be dissimilar to the charged offenses provided there is a direct relationship or nexus between it and the current alleged crimes." (People v. Cage (2015) 62 Cal.4th 256, 273-274.)
In addition, "[e]vidence is prejudicial within the meaning of Evidence Code section 352 if it ' "uniquely tends to evoke an emotional bias against a party as an individual" ' [citation] or if it would cause the jury to ' " 'prejudg[e]' a person or cause on the basis of extraneous factors." ' " (People v. Cowan (2010) 50 Cal.4th 401, 475.) "Due to the[] inherent risks [associated with the admission of other crimes], 'uncharged offenses are admissible only if they have substantial probative value.' " (People v. Foster (2010) 50 Cal.4th 1301, 1331.)
3. Analysis
The uncharged burglary offenses and the charged offenses were substantially similar. Around the same time that multiple residential burglaries were being committed in Santa Clara County, a string of residential burglaries was also occurring in Alameda County. These forced-entry burglaries occurred on weekdays at times when the residents often were at work or otherwise away from home. The perpetrators ransacked drawers and closets and took jewelry, cash, electronics, handbags, and pillowcases. The perpetrators tended to leave doors open. For some of the crimes, a vehicle linked to Johnson's girlfriend was observed in the vicinity of the crime scene. Finally, Johnson's cell phone was near the burglarized residences around the time that all of the offenses occurred.
Johnson "does not challenge the admission of uncharged burglaries evidence to show intent on the ground that they were not sufficiently similar to the charged offenses." Rather, he argues that intent was not a contested issue and the probative value of uncharged crimes evidence was minimal because it was cumulative of other compelling evidence of intent. As to motive, Johnson similarly challenges the admission of the evidence because Johnson's "involvement in the uncharged misconduct was just as unknown as his involvement in the charged offenses," and the evidence was cumulative and minimally probative of any desire to commit burglaries with an intent to steal. Finally, as to identity, Johnson argues that "[t]here were no characteristics of the charged and uncharged burglaries . . . that were particularly unusual and distinctive such that they operated as a signature." Alternatively, Johnson contends that the probative value of the uncharged offense evidence was substantially outweighed by the danger of undue prejudice in that the evidence was "cumulative and largely unnecessary" because the cell phone evidence "potentially linked [Johnson] to th[e charged] incidents. . . . [and the prosecutor] did not need to add on nine extra uncharged incidents." Johnson argues further that the lack of conviction on the uncharged offenses increased their prejudicial effect and the possibility that the jurors would have been confused about the appropriate use of the evidence.
As Johnson acknowledges, "it is the prosecutor's burden to establish every element of the crime, regardless of whether the defendant offers a defense or not." (People v. Erskine (2019) 7 Cal.5th 279, 296-297; People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 822 ["A plea of 'not guilty' 'place[s] all material issues in dispute' [citation], including a defendant's intent."].) Thus, the fact that defense counsel made it clear that intent and motive were not in dispute "is not dispositive" when a trial court exercises its discretion to admit uncharged misconduct. (People v. Jones (2011) 51 Cal.4th 346, 372.) Regardless, even if we assume that intent and motive were beyond dispute and thus not proper grounds on which to admit the uncharged offenses (see People v. Lopez (2011) 198 Cal.App.4th 698, 715), identity clearly was a disputed issue at Johnson's trial. If we conclude that the trial court properly admitted the uncharged offenses for the purpose of proving identity, we must affirm its ruling irrespective of the other grounds. (See People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12 [" 'we review the ruling, not the court's reasoning, and, if the ruling was correct on any ground, we affirm' "].)
Johnson does not argue that, even if the uncharged offense evidence was properly admitted for the purpose of proving identity, instructing the jury with regard to intent and motive amounts to an error that prejudiced Johnson.
Johnson argues that the trial court improperly relied on Erving to find the requisite similarity for the uncharged offenses as to identity because the circumstances in Erving are distinguishable from those in this case. Johnson maintains that defendant Erving's proximity to the fires was conclusively known because she actually lived nearby. (Erving, supra, 63 Cal.App.4th at pp. 658-659, 660-661.) In the present case, however, he contends the cell phone location evidence did not provide the same degree of certainty about Johnson's location at the time of the burglaries.
We are not persuaded that the distinction Johnson asserts is meaningful. Viewing the evidence in the light most favorable to the trial court's ruling, it was reasonable for the court to conclude that Johnson—the known user of the cell phone—was geographically proximate to the cell towers to which his phone had connected and which were also near the burglarized residences. The difference between living near the crime scenes and having one's personal cell phone connect to cell towers near the crime scenes around the time of the crimes is inconsequential under the facts of this case and does not render the trial court's reliance on Erving "misplaced." Had Johnson been at home or school, he would have been in Oakland or San Leandro and not near the cell towers to which his phone connected around the time of the uncharged burglaries.
The record here provided adequate support for the trial court's conclusion that the similarities between the offenses were more than just happenstance and the evidence was admissible with regard to identity. (See People v. Medina (1995) 11 Cal.4th 694, 748 [even absent "particularly distinctive" common features, "in the aggregate, the similarities become more meaningful, leading to the reasonable inference that defendant" was the person who committed the charged and uncharged offenses].)
Having concluded that identity was a material issue and the uncharged burglary offenses were sufficiently similar and relevant to the charged offenses, we turn to the analysis under Evidence Code section 352. Although the trial court did not articulate its reasons for rejecting defense counsel's motion to exclude the uncharged offenses under Evidence Code section 352, the offenses here were highly probative on the issue of identity. The substantial synchrony and proximity of the offenses and Johnson's cell phone location tended to prove that Johnson participated in the offenses.
Our Supreme Court has "recognized that, when ruling on [an Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 214.) The record supports such a conclusion here.
The uncharged offense evidence, moreover, was not unduly prejudicial. Although the number of uncharged burglary offenses was relatively substantial, as defense counsel acknowledged at trial, the uncharged offenses were residential burglaries in which the residents were not inside their homes. " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.) The evidence here was not of such nature that it would inflame the emotions of the jurors or confuse or mislead them from their task of deciding whether the prosecution proved Johnson's guilt on the charged offenses beyond a reasonable doubt. In addition, the trial court instructed the jurors not to conclude from the evidence that Johnson "has a bad character or is disposed to commit crime." We presume that the jurors followed the court's limiting instruction. (People v. Case (2018) 5 Cal.5th 1, 32.)
For these reasons, we conclude that the trial court did not abuse its discretion by admitting evidence of the nine uncharged burglary offenses.
B. Modification of CALCRIM No. 375
Johnson claims that the trial court erred by refusing to modify CALCRIM No. 375 to include language regarding the degree of similarity required to prove identity with uncharged misconduct.
In particular, Johnson argues that the trial court should have instructed the jurors as follows: "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature."
The court refused this instruction, agreeing with the prosecutor's argument that the proposed language called for a legal conclusion and the standard language in CALCRIM No. 375 "discussing the similarity or lack of similarity is sufficient." The court instructed the jurors regarding the uncharged offenses with CALCRIM No. 375, which included the following: "In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses."
A defendant is entitled, on request, to an instruction that pinpoints a defense theory. (People v. Wharton (1991) 53 Cal.3d 522, 570.) A trial court, however, "may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence." (People v. Moon (2005) 37 Cal.4th 1, 30.)
Regarding the standard for our review of Johnson's claim of error, Johnson contends that we must "independently review[] the legal correctness of a proposed instruction," citing People v. Posey (2004) 32 Cal.4th 193, 218. The Attorney General does not discuss the relevant standard of review. Although the California Supreme Court has recently applied abuse of discretion review to a similar question (People v. Mora and Rangel (2018) 5 Cal.5th 442, 497), we do not decide which standard applies because we conclude Johnson's claim fails under either one.
As to the merits of Johnson's claim, the California Supreme Court in People v. Edwards (2013) 57 Cal.4th 658 (Edwards) concluded that language identical to that proposed by Johnson was properly refused by the trial court. (Id. at p. 745.) The court explained that "the first sentence was confusing, because the instructions elsewhere did not address the degree of similarity required for common plan or intent. The second sentence was already contained in the jury instructions. [Citation.] The trial court properly refused to give the third sentence on the ground that it was too vague to assist the jury, and gave adequate instructions to the jury on the standard to apply when determining whether [the] uncharged murder was sufficiently similar to [the] charged murder to demonstrate identity." (Ibid.)
The proposed instruction in Edwards read: " 'The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." [Citation.]' " (Edwards, supra, 57 Cal.4th at p. 745.)
We similarly reject Johnson's argument that the trial court erred when it refused his pinpoint instruction. Based on our independent review, the proposed instruction here was potentially confusing, vague, and unnecessary in light of the standard CALCRIM instruction provided to the jury. (See Edwards, supra, 57 Cal.4th at p. 745; see also People v. Hartsch (2010) 49 Cal.4th 472, 504 [mentioning that a past decision "noted that similar instructions add little to the standard instruction on reasonable doubt" and characterizing the proposed instruction as "simply restat[ing] the reasonable doubt standard"].) For these reasons, Johnson's claim fails.
C. Cell Phone Location Evidence
Johnson claims that the trial court erred by admitting expert testimony and two exhibits regarding the location of Johnson's and Moore's cell phones based on their connection to certain cell towers as documented by call detail records. In particular, Johnson argues that the testimony and accompanying exhibits were inadmissible because this evidence was " 'new' and unreliable within the meaning of People v. Kelly [(1976) 17 Cal.3d 24]" or, at least, should have been subject to an admissibility hearing under Kelly. Johnson argues further that this allegedly unreliable evidence was inadmissible under Evidence Code sections 801 and 802. Finally, Johnson asserts that his claim is excepted from the forfeiture rule because any objection would have been futile and, alternatively, his defense counsel was ineffective for failing to object to this prejudicial evidence.
The Attorney General counters that Johnson's claim is forfeited because he failed in the trial court to request a hearing on the admissibility of the evidence and disclaimed any objection to its admission regarding the charged Santa Clara County offenses. In addition, the Attorney General argues that defense counsel was not ineffective, the trial court properly admitted the challenged evidence, and, regardless of any error, Johnson was not prejudiced.
1. Background
The prosecutor moved in limine to admit expert testimony regarding cell phone communication, cell data analysis, and cell tower information, and the approximate location of the cell phone when it was used. The prosecutor argued that a Kelly-Frye hearing on the proposed evidence was unnecessary because the evidence did not involve any new scientific techniques or technology and had been accepted as reliable.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013; see also Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 585-589 [Frye test superseded in federal court by the Federal Rules of Evidence]; People v. Leahy (1994) 8 Cal.4th 587, 604 [holding the Kelly test remains the rule in California].
The parties and the trial court discussed the proposed cell phone evidence in the course of litigating the admissibility of the uncharged burglary offenses. Defense counsel told the trial court that he had considered "raising the Kelly-Frye issue during these motions in limine; but, based on [his] conversation with coworkers, [he] decided not to do that." The trial court responded by tentatively noting that it was "probably going to admit the . . . cell phone tower records as an issue going to the weight rather than the admissibility" of the evidence.
At a subsequent proceeding during which the uncharged burglary offenses from Alameda County were further discussed, defense counsel expressed uncertainty as to whether the trial court was considering the cell phone evidence as related to the admissibility of the uncharged offenses or the Kelly-Frye issue. In response, the trial court said, "I'm not interested in Kelly-Frye at this point because I think, as [the prosecutor] pointed out in her papers, this is an accepted technology. We don't need Kelly-Frye. I've never seen a case that challenged this. There may be one out there; no one's brought it to my attention." Defense counsel later clarified that he was not seeking to exclude any of the cell tower evidence on the charged offenses from Santa Clara County but was only arguing about the cell tower evidence as related to the admissibility of the uncharged offenses from Alameda County. Defense counsel mentioned again that he had discussed the issue with his colleagues and had consulted with a cell phone expert. Counsel also said he "made a tactical decision not to call an expert in this case." The court then ruled that the prosecution could use the cell phone evidence for the charged offenses from Santa Clara County. The court and counsel continued their discussion about the uncharged Alameda County offenses, including the related cell phone evidence. The court ultimately ruled that the uncharged offenses were admissible. The court did not specifically mention the cell phone evidence related to the uncharged offenses.
Earlier in the proceeding, defense counsel had stated his belief that, based on his consultation with an expert, a cell phone's connection with a cell tower meant only that the phone was within one to three miles of that tower.
As described above, Stenderup, the prosecution's cell phone tower expert, testified about the estimated range of the sectors of the cell towers to which Johnson's and Moore's cell phones had connected around the times of the charged and uncharged offenses. When the prosecutor moved to admit Exhibit 95, Stenderup's PowerPoint slides regarding the charged offenses, defense counsel said he had "[n]o new objections." Similarly, when the prosecutor moved to admit Exhibit 96, Stenderup's PowerPoint slides regarding the uncharged offenses, defense counsel said he "would maintain [his] previous objections and continuing objections but [had] no new objection." The trial court overruled the objection.
2. Analysis
Johnson argues that under Kelly and Evidence Code sections 801 and 802 "it was improper for the trial court to admit the Power Point slides marked as Exhibits 95 and 96 to the extent that they contained a green shaded area and to allow Stenderup to testify that [Johnson's] and Moore's phones were within that green area at the time the calls were made." He maintains that Stenderup's conclusion about the location of Johnson's and Moore's cell phones "was based on a new scientific technique that was not reliable because it has not yet gained general acceptance among the scientific community."
Evidence Code section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
Evidence Code section 802 provides: "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based."
Turning first to forfeiture, Johnson concedes that defense counsel did not object to the challenged evidence under Kelly or Evidence Code sections 801 and 802. He also acknowledges that counsel's failure to object on these grounds amounts to a forfeiture. (People v. Lazarus (2015) 238 Cal.App.4th 734, 786-787; People v. Barnes (2013) 216 Cal.App.4th 1508, 1519; Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1340; People v. Stevens (2015) 62 Cal.4th 325, 333; Evid. Code, § 353, subd. (a).)
Nevertheless, Johnson argues that any objection would have been futile because the record demonstrates that the trial court would have overruled an objection if one had been made. In support of his position, Johnson points to the trial court's pretrial response to defense counsel's statement of uncertainty about whether the trial court was considering the cell phone evidence with regard to the uncharged offenses or the Kelly issue.
We disagree with Johnson's futility argument because we do not understand the trial court's pretrial statement as indicating it was unwilling to entertain any further objection to the cell phone location evidence. The court said that it was "not interested in Kelly-Frye at [that] point" because the prosecutor had persuasively demonstrated that the cell phone evidence was based on "accepted technology" and no one had brought contrary case law to the court's attention. This statement does not demonstrate that any objection on the grounds alleged here would have been overruled. Rather, the statement simply affirmed the court's previously announced tentative position regarding the admissibility of the cell phone evidence and explained that, based on the presentations to that point, the prosecutor's argument had prevailed. It would not have been reasonable for defense counsel to have assumed from the court's statements that any further presentation of relevant evidence, authority, and argument on the Kelly issue or Evidence Code sections 801 and 802 (which were not even mentioned pretrial) would have been pointless and rejected by the court out of hand. (See People v. Peoples (2016) 62 Cal.4th 718, 797.)
Because defense counsel did not raise the grounds now Johnson asserts on appeal regarding the admissibility of Exhibits 95 and 96 and the related testimony, the trial court had no opportunity to pass on them, and Johnson may not now complain that the evidence was improperly admitted on those grounds.
Johnson alternatively claims that his defense counsel was ineffective for failing to object to Exhibits 95 and 96 and the related testimony. In particular, Johnson argues that "there could be no legitimate reason not to object to the admission of Stenderup's Power Point presentations along with his testimony that [Johnson's] and Moore's phones were within the green areas drawn onto the Power Points." He contends that an objection by defense counsel would not have been meritless.
To prove that his defense counsel was constitutionally ineffective, Johnson must establish both that counsel's performance was deficient and that he suffered prejudice as a result of counsel's error. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to the first element of Strickland, Johnson bears the burden of demonstrating by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) To satisfy the prejudice element, Johnson must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to [him], i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Johnson fails to satisfy either element of the Strickland standard. Regarding deficient performance, defense counsel made statements indicating that he affirmatively decided not to challenge the cell phone evidence on Kelly grounds after having discussed the issues at length with other defense counsel. Defense counsel also mentioned that he consulted with a cell phone expert and made a "tactical decision" not to call his expert as a witness. Thus, defense counsel apparently made decisions regarding the prosecution's cell phone evidence after investigating and analyzing the issue. The record does not disclose that defense counsel had no rational tactical purpose for his failure to challenge the exhibits and testimony. Rather, it suggests the opposite.
" 'Generally, failure to object is a matter of trial tactics as to which [a reviewing court] will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (People v. Riel (2000) 22 Cal.4th 1153, 1185; see Strickland, supra, 466 U.S. at p. 689 ["Judicial scrutiny of counsel's performance must be highly deferential."].) "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Strickland, supra, at pp. 690-691.) The trial record here provides little support for Johnson's argument that his counsel's decisions were objectively unreasonable, and we must accord deference to defense counsel's decisions.
Further, the Kelly test " 'only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.' " (Leahy, supra, 8 Cal.4th at p. 605.) As the prosecutor pointed out in her in limine motion, at the time of Johnson's trial, published California appellate cases indicated that cell phone location evidence had been admitted without suggestion that the Kelly standard was implicated. (See People v. Garlinger (2016) 247 Cal.App.4th 1185, 1193-1199 [collecting such cases, and rejecting a claim of ineffective assistance for failing to object to cell phone location evidence under Kelly or Evidence Code sections 801 and 802].) Under these circumstances, without more information about why defense counsel decided not to object to Exhibits 95 and 96 on the grounds Johnson now asserts, we cannot conclude on this record that "there simply could be no satisfactory explanation" for defense counsel's failure to object. Accordingly, Johnson has not carried his burden to show that his counsel's performance was deficient.
Even if we were to assume that defense counsel should have objected on the grounds raised here and that his objection would have been sustained, Johnson has not demonstrated prejudice from defense counsel's failure. Without the green shaded areas on the maps in Stenderup's PowerPoint slides depicting the cell tower sectors, the jury still would have heard testimony about how the cell phone records showed that Johnson's and Moore's cell phones had connected to cell towers that were near the burglarized residences on the relevant dates. In addition, Stenderup conceded that his testimony about the location of a cell phone "is just an estimation of where that phone approximately would be," but he explained that the cell-tower connection information "still puts [the phone] in th[e] general area" of the tower. The key point was not the precise location of Johnson's cell phone near the burglarized residences but instead that Johnson's phone was not near cell towers to which his phone would have connected had Johnson been at his usual locations during the day—namely, his home and school. Therefore, Johnson has not demonstrated persuasively that there is a reasonable probability that, but for counsel's failure to object to Exhibits 95 and 96 and the related testimony, the result of his trial would have been different.
In sum, we conclude that Johnson forfeited his claim that the trial court erred by admitting Exhibits 95 and 96 and the related testimony. In addition, we reject Johnson's ineffective assistance of counsel claim because he has not established deficient performance or prejudice.
D. Postverdict Faretta Motions
Johnson made two Faretta motions after the jury verdict and the trial court findings on the prior conviction allegations. Johnson contends the trial court erred by denying these self-representation requests as untimely. As to his second motion, he argues alternatively that if the request was untimely, the trial court abused its discretion when the court denied it. Johnson asks us to reverse the judgment of conviction and remand his case to allow him to represent himself on a new trial motion and at a new sentencing hearing.
1. Background
The jury found Johnson guilty on June 10, 2016. On August 19, the trial court held a bench trial on the prior conviction allegations. That day, Johnson told the court that he wanted to file a Marsden motion and a motion for a new trial based on ineffective assistance of counsel. The trial court explained that Johnson currently had an attorney and "usually your attorney is the one authorized to file these motions." The court also mentioned Johnson's right to represent himself and set a future date for a Marsden hearing.
All dates in part II(D) are from 2016 unless otherwise indicated.
People v. Marsden (1970) 2 Cal.3d 118.
At the beginning of the Marsden hearing held on August 29, the trial court again explained that because Johnson was represented by counsel, his defense counsel was the only one authorized to file a motion for a new trial. When the court asked Johnson why he thought his defense counsel had been ineffective, Johnson explained his belief that counsel should have moved to suppress evidence related to his cell phone because his cell phone number was obtained improperly by police from his parolee field file and was used to obtain a warrant for his cell phone records. After the court denied Johnson's Marsden motion, Johnson said he wanted to file a Faretta motion.
Thereafter, Johnson filed a written Faretta motion, which the trial court heard on August 31. The court began the hearing by indicating that it had reviewed People v. Miller (2007) 153 Cal.App.4th 1015 (Miller). The court explained that Johnson's Faretta motion was untimely because it was made after his trial had commenced. The court analyzed "the discretionary factors" for deciding whether an untimely request should be granted. The court asked Johnson why he wanted to represent himself. Johnson said he wanted to file a petition for writ of mandate and to seek a stay regarding the denial of his Marsden motion and the use of his cell phone number. Johnson also said that there were things he wanted done that his counsel was not going to pursue. When the court asked Johnson what he thought he could do in propria persona that he could not do with counsel, Johnson said, "I've been trying to file a motion for a new trial and my attorney is not going to pursue that." Defense counsel indicated his belief that there were no grounds for a new trial motion. When asked how much time he would need if the trial court granted his Faretta motion, Johnson said he would be ready by the scheduled sentencing date of November 7. The trial court replied, "Okay. So you're not proposing to delay anything." The court then questioned Johnson about his potential sentence, his relinquishment of any possible claim of ineffective assistance as to sentencing if he represented himself, and his background.
Miller held that a request for self-representation made after the jury's verdict and defendant's new trial motion had been denied, but well before sentencing, was timely and defendant had an absolute right to represent himself at sentencing. (Miller, supra, at pp. 1023-1024.)
The trial court found good cause to deny Johnson's Faretta motion based on its inquiry into Johnson's educational background, training, and knowledge, and "based on the discretionary factors since the request is untimely." The court further explained that, although Miller concluded that sentencing is a separate posttrial matter and self-representation requests made within a reasonable time prior to sentencing are timely, the court was "very reluctant to say that sentencing is a separate process from . . . the trial phase." The court noted that it "is not of the opinion that published appellate cases should be easily disregarded by trial courts." However, the court decided to "pursue the line of reasoning in the Faretta . . . and stick with [its] earlier belief." The court felt it "ha[d] to answer to a higher authority in the United States Supreme Court decision in Faretta versus California."
On November 14, Johnson made a second Marsden motion based on defense counsel's alleged failings related to Johnson's cell phone number and the placement of a GPS tracking device on his car. The trial court denied the Marsden motion. Johnson then said he "would like to go forward with a Faretta." The trial court mentioned that it had previously voir dired Johnson regarding Faretta and had "expressed concern about [Johnson's] technical competence" to represent himself. The court noted this ground was not a valid Faretta consideration under relevant authority. The court asked Johnson if he would be ready to proceed on December 12, the date then scheduled for Johnson's sentencing. Johnson said he wanted "a little more time" because he had not received all of his discovery. When the court noted that the discovery information Johnson sought would not help him "in a sentencing hearing," Johnson said he wanted all of his "discovery so [he] could be ready for when the time comes for an appeal," and the discovery that defense counsel had provided him was not forwarded when Johnson was moved to a different cell in the jail. The prosecutor noted her objection to any further continuance of Johnson's sentencing. The court told Johnson that if he could be ready to proceed by December 12, the court would grant his Faretta motion; if not, the court would deny the motion because it did not want to delay the case. Johnson said he would not be ready by December 12, and the court denied the Faretta motion.
The trial court subsequently continued Johnson's sentencing four times. On May 22, 2017, the trial court denied Johnson's Romero motion pursuant to section 1385 and sentenced him to 58 years and four months in prison.
On appeal, Johnson contends the trial court erred in denying his two Faretta motions and requests that this court reverse his convictions and direct the trial court to grant his motion to represent himself and to permit him to file a motion for a new trial. If the trial court denies his new trial motion, Johnson asserts that the trial court must then conduct a new sentencing hearing at which Johnson can represent himself.
2. Legal Principles
"A criminal defendant has a federal constitutional right to represent himself without an attorney if he voluntarily and intelligently so chooses." (People v. Hardy (1992) 2 Cal.4th 86, 193 (Hardy) [citing Faretta, supra, 422 U.S. 806].)
Whether a defendant's right to self-representation is absolute or subject to the discretion of the trial court turns on whether the request is timely made. (People v. Burton (1989) 48 Cal.3d 843, 852; People v. Halvorsen (2007) 42 Cal.4th 379, 433 (Halvorsen).) Generally, "in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham); see Burton, at p. 853.)
In Miller, the Court of Appeal recognized the absolute right of self-representation in posttrial proceedings and determined that the timeliness of a Faretta request in posttrial proceedings differs from that applicable to the trial itself. The court concluded that a Faretta request made "within a reasonable time prior to commencement of the sentencing hearing" is a timely request. (Miller, supra, 153 Cal.App.4th at p. 1024.) The court reasoned that "sentencing is a proceeding separate and distinct from the trial." (Ibid.) The court observed that "[o]nce the jury returned its verdicts, the trial was finished, and once the court denied the new trial motion, all that remained was sentencing." (Ibid; see also id. at p. 1020 [noting that defendant said he wanted to do his own research regarding sentencing].) Because the trial court in Miller had improperly treated defendant's unequivocal request made two months before the sentencing hearing as untimely, the Court of Appeal concluded that reversal of defendant's sentence was required. (Id. at p. 1024; see also People v. Mayfield (1997) 14 Cal.4th 668, 810, abrogated in part on another ground by People v. Scott (2015) 61 Cal.4th 363 [assuming that a postverdict self-representation motion may be timely if made within a reasonable time before sentencing].)
The timeliness of a Faretta request is a threshold requirement that prevents a " 'defendant from misusing the [Faretta] motion to unjustifiably delay trial or obstruct the orderly administration of justice.' " (People v. Lynch (2010) 50 Cal.4th 693, 722 (Lynch), abrogated in part on another ground by People v. McKinnon (2011) 52 Cal.4th 610.) The right to self-representation upon a timely and unequivocal request knowingly and intelligently made is absolute. If the defendant unequivocally makes such a request, the trial court has no discretion to deny it. (Halvorsen, supra, 42 Cal.4th at p. 434; see also Lynch, at p. 721.) If, however, a Faretta request is untimely, the reviewing court must determine whether the trial court abused its discretion in denying the request. (Hardy, supra, 2 Cal.4th at p. 194; Windham, supra, 19 Cal.3d at p. 128.) "In exercising its discretion to grant or deny an untimely self-representation request, . . . the trial court should consider, among other factors, '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.' " (People v. Buenrostro (2018) 6 Cal.5th 367, 426.)
When examining a trial court's denial of a Faretta motion, " '[a] reviewing court must give 'considerable weight' to the court's exercise of discretion and must examine the total circumstances confronting the court when the decision is made.' " (People v. Bradford (2010) 187 Cal.App.4th 1345, 1353.) An erroneous denial of a timely and unequivocal Faretta request is reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824; Miller, supra, 153 Cal.App.4th at p. 1024.) By contrast, a trial court's erroneous denial of an untimely Faretta request is reviewed under the harmlessness standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.)
3. Analysis
Johnson relies on Miller to argue that his first Faretta request (brought on August 31) was timely and the trial court was required to grant it. He maintains "the fact that [he] sought to represent himself in a motion for new trial as well as at sentencing does not change Miller's applicability to [his] case."
The Attorney General does not explicitly contest Johnson's assertion that his first Faretta request was timely under Miller and does not address Miller in the respondent's brief. Rather, the Attorney General makes two contentions related to Johnson's initial request. First, the Attorney General asserts that Johnson essentially only made one motion, stating that his initial Faretta motion in August was "resumed and reheard" on November 14. Having characterized the first Faretta motion as being "resumed and reheard," the Attorney General proceeds to argue that the trial court properly exercised its discretion when it denied Johnson's second Faretta request, which was untimely because Johnson said he would not be ready to proceed on the scheduled sentencing date.
We are not persuaded by the Attorney General's characterization of Johnson's two Faretta motions as a single proceeding. The record does not support the Attorney General's contention that the court "resumed and reheard" Johnson's first motion, which had been made more than two months earlier. The two motions were distinct, and the trial court treated them as such. When Johnson made his second motion, the court sua sponte acknowledged that it had improperly considered Johnson's "technical competence" when it considered his first motion. In response to a remark from the prosecutor regarding the court's denial of Johnson's first motion, the court affirmed that it had denied that motion "because it was untimely, I thought." There is no evidence in the record that the trial court considered the first Faretta motion as subsumed within the second, and we see no legal basis for such a conclusion.
Although the Attorney General does not separately analyze the timeliness of Johnson's first Faretta motion, the Attorney General generally asserts that "considerations [regarding potential delay or disruption of the proceedings] apply to post-trial Faretta motions." In support of this proposition the Attorney General cites People v. Doolin (2009) 45 Cal.4th 390, 454-455. Doolin, however, did not scrutinize or question the holding in Miller. Rather, the court in Doolin acknowledged that it "ha[d] not addressed . . . the timeliness of a request for self-representation made after the penalty phase verdict" in a capital case and said it "need not do so" presently. (Id. at p. 454.) In a footnote, the court distinguished Miller based on the current defendant's "manifestly untimely" (ibid.), Faretta request (made on the day set for sentencing) and concluded that "[i]n this case, for the reasons stated, defendant's right to self-representation at sentencing was not absolute but subject to the court's discretion." (Id. at p. 455, fn. 39.)
Under the relevant authority and circumstances of the present case, we are persuaded that the trial court's denial of Johnson's first Faretta motion as untimely was error. Johnson made his motion more than two months ahead of the then-scheduled sentencing date. Johnson told the court that he would be ready to proceed on that date. Although Johnson expressed a desire to file a petition for writ of mandate—which the trial court explained was "a losing proposition"—and a new trial motion—which defense counsel believed was meritless—Johnson did not request a postponement of his sentencing in order to prepare his proposed pleadings. (Cf. Lynch, supra, 50 Cal.4th at p. 728 ["reasonable import" of defendant's statements was "that if the self-representation motion had been granted, defendant would have required an undetermined amount of time to investigate and prepare for trial"].) Moreover, if Johnson did ultimately file a new trial motion in propria persona, the trial court would have had up to the time of judgment to decide that motion. (§ 1182; see People v. Jaramillo (1962) 208 Cal.App.2d 620, 625-627; People v. Braxton (2004) 34 Cal.4th 798, 807, fn. 2 [trial court must entertain new trial motion even when not made in advance of a scheduled sentencing hearing and not made in writing].) There is no indication in the record that an unjustifiable delay in Johnson's posttrial proceedings would have resulted from Johnson's self-representation.
The Attorney General does not argue any deficiencies in Johnson's Faretta motions other than their timeliness.
Further, Johnson's expressed desire to file a new trial motion, in and of itself, cannot render his Faretta motion subject to the general rule requiring that a Faretta request be made within a reasonable time prior to the commencement of trial. By definition, a motion for new trial under section 1181 follows the trial verdict and seeks "a reexamination of the issue in the same Court, before another jury, after a verdict has been given." (§ 1179.) Because a new trial motion challenges the verdict (i.e., the outcome of a trial), no delay in the completion of the trial can result from such a motion. Thus, it is appropriate to link the timeliness of a postverdict Faretta request motivated by a desire to file a new trial motion to the time by which the motion must be decided (i.e., entry of the judgment), rather than to the commencement of the trial being challenged by the motion.
In other words, a new trial motion, like sentencing, is properly considered a posttrial proceeding distinct from the trial for Faretta purposes. (See People v. Fosselman (1983) 33 Cal.3d 572, 582-583 [new trial motion is an appropriate vehicle to present issues of counsel's effectiveness and can expedite justice by avoiding appellate review or habeas corpus proceedings]; People v. Moreda (2004) 118 Cal.App.4th 507, 515-518 [defendant not entitled to have the same judge for trial and a motion for new trial]; People v. Norton (1956) 141 Cal.App.2d 790, 792 [no statutory right to have a new trial motion heard by judge who presided over the trial].) For these reasons, we conclude that Johnson made his first Faretta motion within a reasonable time prior to the only proceeding that was then scheduled—i.e., his sentencing—and his request was timely.
In denying Johnson's first Faretta motion, the trial court misapprehended the legal standard that applied to the motion. The trial court treated Johnson's request as equivalent to one made midtrial and rejected Miller's conclusion that sentencing is distinct from trial, citing Faretta. Based on our consideration of the relevant precedent, and recognizing that the Attorney General does not challenge Miller's holding or explicitly argue against its application to Johnson's first motion, we determine that the rule announced in Miller should have been applied by the trial court in this case. In other words, the trial court erred by judging the timeliness of Johnson's postverdict Faretta motion by the start of trial rather than by the date of the sentencing hearing. Because the trial court used an incorrect legal standard when it found Johnson's first Faretta motion on August 31 to be untimely, we hold that the trial court abused its discretion when it denied the motion. (See People v. Knoller (2007) 41 Cal.4th 139, 156 [the trial court abuses its discretion if its ruling is based on impermissible factors or an incorrect legal standard].)
In Faretta, however, the defendant's request to represent himself was made "weeks before trial." (Faretta, supra, 422 U.S. at p. 835.) Moreover, the court in Miller rejected the People's argument that defendant "was not entitled to self-representation as a matter of right because his request was not made prior to the commencement of trial." (Miller, supra, 153 Cal.App.4th at p. 1022.)
Having determined that error occurred, we turn to the issues of prejudice and remedy. Johnson contends that the erroneous denial of his timely Faretta request requires per se reversal of his convictions without resort to any prejudice analysis. Johnson cites Miller, supra, 153 Cal.App.4th at p. 1024 and People v. Valdez (2004) 32 Cal.4th 73, 98 as support for his argument. The Attorney General does not address the issue of prejudice. In the absence of any countervailing argument by the Attorney General, we adopt the approach taken in Miller and apply the structural error standard to the improper denial of Johnson's Faretta motion.
Nevertheless, we do not agree with Johnson that this conclusion necessitates that we reverse his convictions. Johnson's Faretta request occurred after the jury verdicts had been recorded and related only to the posttrial proceedings of his proposed motion for new trial and sentencing. Johnson is not entitled to more than a re-do of the postverdict proceedings that followed his request, this time representing himself. (Miller, supra, 153 Cal.App.4th at p. 1025 [vacating the sentence only].)
Our conclusion renders it unnecessary to address Johnson's further argument that the trial court erred when it denied his second request for self-representation.
For these reasons, the Faretta error requires reversal of the judgment as to Johnson's sentence only. Accordingly, we reverse the judgment and vacate Johnson's sentence. We remand the case to the trial court with directions to grant Johnson's request to represent himself and to allow Johnson to file a motion for new trial, should he still choose to do so. If the trial court denies the motion for new trial or if Johnson fails to file such a motion, the trial court should conduct a new sentencing hearing and resentence Johnson, providing him the opportunity to represent himself.
E. Johnson's Remaining Sentencing Claims
In light of our vacatur of Johnson's sentence, we need not address Johnson's remaining claims pertaining to his sentencing; namely, that the trial court erred by denying his motion under section 1385 and Romero (filed by counsel after Johnson's Faretta motion), and that his case should be remanded under Senate Bill No. 1393's amendment to sections 667 and 1385. (Stats. 2018, ch. 1013, §§ 1, 2.) We do not express any opinion about how the trial court should exercise its discretion when it resentences Johnson.
F. Attorney General's Request to Correct the Abstract of Judgment and Minutes
Because we vacate Johnson's sentence, we will not direct the trial court to correct the abstract of judgment to reflect Johnson's original sentence of 58 years and 4 months, as requested by the Attorney General. As to the clerk's minutes for June 10, 2016, the Attorney General correctly states that the minutes erroneously indicate that Johnson was found not guilty on counts 5 and 14 of the first amended information. Thus, we order the trial court to correct the clerk's minutes regarding the jury's verdicts on counts 5 and 14 to indicate Johnson was found guilty of these counts.
III. DISPOSITION
The judgment is reversed, and Johnson's sentence is vacated. The matter is remanded to the trial court with directions to grant Johnson's request to represent himself and to allow Johnson to file a motion for a new trial. If Johnson files a motion for new trial and if the trial court grants the motion, then the trial court should order a new trial. If the trial court denies the motion for new trial or if Johnson fails to file such a motion, then the trial court should conduct a new sentencing hearing providing Johnson the opportunity to represent himself and should resentence Johnson. Johnson's convictions are otherwise affirmed.
The trial court also is directed to correct the clerk's minutes for June 10, 2016, to indicate that Johnson was found guilty by a jury of counts 5 and 14.
/s/_________
Danner, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.