Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS032885
RUSHING, P.J.
I. Statement of the Case
A jury convicted defendant Richard Lucero of forcible sodomy in a state correctional facility. (Pen. Code, § 286, subds. (c)(2) & (e).) After a court trial, the court found that he had a prior serious felony conviction for robbery and a prior felony conviction for negligent discharge of a firearm and that both convictions qualified as strikes. (§§ 1170.12, subd. (c)(2), 211, 246.3, 667, subd. (a)(1).) The court imposed a term of 25 years to life for each conviction, stayed one of the terms, and added a five-year enhancement for the serious felony conviction.
All further unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims the court erred in denying his Faretta motion. Defendant claims the court improperly limited his testimony and erred in permitting cross-examination about prior, non-felonious criminal conduct. He claims the court erroneously denied his motion for mistrial and his post-verdict motion for a new trial and failed to preserve his motion pleadings. Last, he claims the court erred in finding that his prior conviction for negligent discharge of a firearm qualified as a strike.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Defendant was sentenced in June 2005. We granted his motion for relief from default, and he filed his notice of appeal in January 2008.
We reverse the judgment and remand the matter for the limited purpose of conducting further proceedings on defendant’s motion for new trial.
II. Facts
On December 13, 2002, defendant, aged 42, and Steven Mendez, aged 22, were inmates at Salinas Valley State Prison and had been sharing a cell for around two weeks. Mendez testified that that night, they watched TV together and then went to bed. Around 3:00 a.m., he was in the lower bunk trying to go to sleep when defendant, who weighed more than he did, suddenly put him in a choke hold and pinned him face down to his bed with his arms above his head. It was difficult for Mendez to breathe, and he thought he was going to pass out. Defendant got on top of him, and Mendez asked what he was doing. Defendant responded, “Shut up, you are going to enjoy this....” Mendez responded, “You’re sick. Just kick back” and “What are you doing? What the fuck are you doing?” Undeterred, defendant grabbed a bottle of aftershave lotion, put some on his hand, rubbed Mendez’s buttocks, and then forcibly sodomized him. Defendant continued to do so for 10 minutes and then went to the toilet and wiped his hands. Mendez did not yell out because there was no one to hear him. Mendez testified that as a “southern” Mexican, homosexuality is taboo. He said that this was his first homosexual experience, and it was sickening.
Mendez said that he had gained much weight and height since the incident. A prison investigator who interviewed Mendez after the incident corroborated Mendez’s testimony.
After the assault was over, Mendez got up and stood by the door of their cell until later that morning. Defendant watched him and warned that he or someone else would kill him if he told anyone. He laughed at Mendez, called him his “bitch, ” and said that it would be happening all the time, and he would enjoy it.
Later that morning, Mendez met with Doctor Talbert, his psychological group leader, and reported what had happened. The doctor told prison authorities, and Mendez was taken to the hospital for a sexual assault exam. He told medical personnel that defendant had choked, sodomized, and digitally penetrated him. He had severe anal pain. Although Mendez had no visible injuries, his rectum was pink, indicating some bleeding. Swab tests revealed the presence of defendant’s sperm. Defendant was also examined. He had cuts on his finger and knee. He said he cut his hand while cleaning the shower; he could not explain his knee injury.
Lieutenant Azell Middlebrooks and Investigator Antonio Rodriguez interviewed Mendez and defendant. At times during the interview, Mendez was demure, quiet, embarrassed, scared, and mad. Defendant was hostile and denied there had been any sexual activity, claiming instead that he and Mendez “just had a conversation.” According to defendant, Mendez said that his wife knew he was gay or bisexual, which defendant thought was odd because Mendez was not married. He could not explain why Mendez would falsely accuse him.
The Defense
Defendant testified that in prison, he was in the outpatient mental health program. On December 12, several days after Mendez became his cellmate, they were watching TV in the cell. Mendez was upset because his mother had insinuated that he was gay. Mendez asked if he could massage defendant, and defendant agreed. Mendez removed defendant’s underwear. After a while, the massage became sexual. Mendez massaged defendant’s buttocks, digitally penetrated his anus, and asked if it felt good. Defendant said it did. When the massage was over, defendant sodomized Mendez with his consent.
Defendant denied strangling Mendez or otherwise restricting his breathing. He explained that he could not have sodomized an unwilling Mendez because they were about the same size and in the same physical condition at the time.
Defendant said he was bisexual. He admitted telling the investigator that there had been no sexual activity but said he was embarrassed to tell the truth because a woman was present. He admitted that he resisted a medical examination. He explained that he was angry because he could not understand why he was being accused of wrongdoing for consensual sexual activity. He testified that at one point during their consensual activity, Mendez asked him to take his penis out of his anus and insert his finger instead. According to defendant, he told Mendez that he was going to tell his “homeboys” that Mendez was a “sissy.” Defendant opined that Mendez falsely accused him because he was scared and wanted to save face with other inmates and show that he was not gay.
After issuing an opinion in which we rejected this claim, we granted rehearing to reconsider it in light of an augmented record.
Background
On January 21, 2005, the court held a final pretrial hearing to see if the parties had resolved the case. At that time, defendant recounted that he had had problems with his original public defender, Rick West, who, he complained, had failed to assert defendant’s right to a speedy trial or challenge certain evidence. Defendant explained that he sought to have West replaced, and in response, West declared a conflict of interest. In July 2004, West was replaced by Stan Evans. At the time of substitution, defendant was under the impression that if the victim declined to testify, the case would be dismissed. Defendant said that the victim had been subpoenaed in February 2002, but he had failed to appear and a bench warrant was issued. According to defendant, when the victim did finally appear in court, an investigator for the prosecutor threatened him and coerced him to testify even though the victim feared that his life was in jeopardy.
In response to defendant’s representation, the court opined that these were matters that could be explored at trial. Defendant complained that he had tried unsuccessfully to get Evans to investigate the misconduct for five months. He further complained that Evans had never visited him in jail and had attended a pretrial conference in chambers that he was not present at. The court explained that he had merely asked Evans if the case had been resolved.
Defendant then told the court he wanted to file a Marsden motion to obtain new counsel “[o]r else... be granted pro per status.” The court opined that it would not grant pro per status “this close to trial, ” noting that the case was “older than Methuselah at this point” and defendant “could have asked for it a long time ago.” Defendant argued that he had a right to a “productive attorney, ” complaining that he had had two “bargain basement” attorneys and that Evans had “prejudiced my case so much I can’t have a fair trial.”
People v. Marsden (1970) 2 Cal.3d 118.
The court disagreed and said the case would proceed to trial on January 31, at which time he could “make whatever motions you want to make then.”
On January 31, defendant made a Marsden motion to dismiss Evans. The court conducted a hearing. Defendant complained that Evans had been appointed six months earlier but had not filed the discovery motions he had wanted; nor had Evans challenged the DNA evidence, as he had requested. He said that Evans had never visited him in jail to talk about strategy. He complained that when he asked about a pretrial hearing, Evans said they had already had one without him in chambers. The court thought the case had been “pre-tried a number of times, ” but defendant said that the pretrial hearing had been postponed numerous times. The court then explained that the purpose of the hearing is simply to discuss resolution of the case; the court noted, however, that because the charges were serious, the prosecutor had not offered anything. Defendant agreed that the charges were serious and said that is why he wanted to replace Evans, who, he said, had not even sent an investigator to talk to him.
In response to defendant’s complaints, Evans said that he understood the seriousness of the charges, recognized the defense they were asserting, and was prepared to go to trial that day. He said that he had reviewed the previous investigation that West had done and prepared the defense accordingly. He said that he had in fact met with defendant, and they had agreed on the trial strategy.
Defendant said that West had been incompetent, and therefore, it was unreasonable for Evans to rely on West’s investigation, which, in turn, showed that Evans had also not provided effective assistance. Defendant also said that Evans had not discussed strategy with him.
The court opined that although the charges were serious, the case was factually simple. The victim is going to claim that there was a forcible sexual assault, and the defense is going to say that was not true, either because there was no assault or because there was consensual sexual activity. The court noted Evans’s assertion that he and defendant had discussed the “game plan” and wanted to know what other strategies defendant was talking about.
Defendant, said wanted Evans to point out inconsistencies and contradictions in the victim’s statements. He wanted Evans to challenged the DNA evidence and its chain of custody and subpoena various witnesses, including the psychologist that the victim confided in and other doctors and nurses, who allegedly had witnessed the psychologist scream at defendant and who had offered to testify on his behalf about the animosity between him and the psychologist. He reiterated that Evans had also failed to investigate misconduct by prosecutor’s office in coercing the victim to testify. Defendant complained that Evans should have done much of this work and filed motions long before trial. Instead, he had done nothing and had not even visited him in jail until recently.
The court inquired whether defendant had ever asked Evans to do any of the things he had just spoken about, and Evans said no. Evans said they had discussed the case and possible defenses, and he was now prepared for trial and to present the defense they had discussed.
The court denied the Marsden motion. It found that Evans was prepared to try the case and present a defense. It found no evidence of incompetence and no unjustified failure investigate or do the things defendant said he had wanted done.
The court then asked if defendant had anything else. Defendant said no.
The case proceeded to trial, and the jury found defendant guilty as charged. After defendant waived a jury on the prior conviction allegations, the court discharged it. The court then stated, “[B]efore... trial, I asked Mr. Evans [defense counsel] if his client wished-I think he had [said] something about self-repesentation last week-if he still wished to pursue that, and he indicated he did not; is that true?” Counsel said that was his understanding. However, defendant said, “No, that was not true. I still wanted to.” The court responded, “Well, I asked Mr. Evans, and he said he had talked to you and that you no longer were interested in self-representation. That’s why I was so-” At that point, defendant interrupted, “Well, you should have asked me because I still wanted to.” The court reiterated what Mr. Evans had said. Defendant said, “All right. Fine.” The court continued, “[N]o further-no further motion was made; the subject was not brought up, and it was not renewed. So-” Defendant then interjected, “It was my understanding that once you refused my motion I couldn’t bring it up again. That was my understanding.” The court replied, “I specifically asked your attorney about that. So that’s where it stands.”
In a settled statement concerning the in-chambers conference before trial, the trial judge stated that he asked Evans “if defendant Lucero wanted to pursue a request for self-representation. Attorney Evans responded that he had spoken to defendant Lucero, and that Lucero stated that he wanted to proceed to trial with Evans as his attorney. Evans said that Lucero did not want to represent himself.”
Defendant now contends the court erred in denying his Faretta motion.
In his opening brief, defendant claims the court erred in conducting a Faretta hearing off the record and in his absence. However, the record does not support this claim, and defendant fails to establish that any such hearing took place. As summarized above, in an unrecorded conversation immediately before trial, the court asked Evans if defendant was interested in pursuing self-representation, and Evans said no. Although defendant later disagreed with counsel’s representation, the brief, unrecorded exchange did not constitute a Faretta hearing. It was simply an informational inquiry.
Applicable Principles
“A defendant has a federal constitutional right to represent himself if he voluntarily and intelligently elects to do so. [Citation.]” (People v. Burton (1989) 48 Cal.3d 843, 852 (Burton); Faretta, supra, 422 U.S. at pp. 819-820.) However, “the right of self-representation is not self-executing.” (People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall).) Rather, a defendant who seeks self-representation must make a clear, unmistakable, and unequivocal demand. (Ibid.; People v. Valdez (2004) 32 Cal.4th 73, 99.) This is so because the United States Supreme Court “has instructed that courts must draw every inference against supposing that the defendant wishes to waive the right to counsel.” (Marshall, supra, 15 Cal.4th at p. 23; Brewer v. Williams (1977) 430 U.S. 387, 404; see United States v. Weisz (D.C.Cir.1983) 718 F.2d 413, 425-426 [court applies a “stringent standard” for judging the adequacy of the defendant’s invocation because of the strong presumption against waiver of the right to counsel]; see also Dorman v. Wainwright (11th Cir.1986) 798 F.2d 1358, 1365-1366 [the right of self-representation readily can be waived if the defendant fails to invoke it properly].)
“A trial court must grant a defendant’s request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently.” (People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch).) “A motion made after this period is addressed to the sound discretion of the trial court.” (Burton. supra, 48 Cal.3d at p. 852; accord, Lynch, supra, 50 Cal.4th at p. 722; People v. Windham (1977) 19 Cal.3d 121, 127-128.)
Sufficiency of the Faretta Request
The Attorney General claims that defendant failed to make a clear and unequivocal request. According to the Attorney General, defendant’s remark on January 21 about being granted pro per status was “an afterthought to his Marsden motion” and thus more like an impulsive comment born of whim, annoyance, or frustration than a considered expression of interest in self-representation. We disagree.
“A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (Marshall, supra, 15 Cal.4th at p. 23; e.g., People Stanley (2006) 39 Cal.4th 913, 932-933 [request for self-representation orally interposed during a renewed Marsden motion not clear and unequivocal]; People v. Roldan (2005) 35 Cal.4th 646, 683-684 [statement that defendant would represent himself if counsel was going to “be like that” deemed equivocal], overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Valdez, supra, 32 Cal.4th at p. 99 [fleeting reference to self-representation not unequivocal assertion]; People v. Barnett (1998) 17 Cal.4th 1044, 1087-1088 [request made in context of Marsden motion]; Marshall, supra, 15 Cal.4th at pp. 17-19, 24-26 [request made in context of seeking new counsel not clear or unequivocal even though trial court formally denied it]; People v. Scott (2001) 91 Cal.App.4th 1197, 1205-1206 [request immediately after denial of Marsden motion deemed equivocal].)
We review the entire record to determine de novo whether the defendant made a clear and unequivocal request for self-representation. (Marshall, supra, 15 Cal.4th at p. 23; People v. Danks (2004) 32 Cal.4th 269, 295.)
The record reveals that defendant, who was no stranger to the criminal justice system, wanted to aggressively defend against the charges. He sought to have his first public defender replaced, and that attorney obliged by declaring a conflict and withdrawing. Evans was then appointed. Later, at the hearing on January 21, defendant aired numerous complaints about him. His complaints went beyond dissatisfaction that counsel never visited him. He specifically complained about counsel’s failure to follow up on matters that defendant considered to be significant, if not vital, to the defense that he envisioned and which he believed a reasonably competent defense attorney would have investigated and pursued. It was in the context of expressing these substantive complaints that defendant said he wanted to file a Marsden motion “[o]r else... be granted pro per status.”
There is nothing unclear or equivocal about defendant’s request. His use the technical terms like Marsden motion and “pro per status” reflects a clear understanding of what he wanted and makes his preference clear: appoint new counsel or let me represent myself. We do not find defendant’s statement to be an expression of frustration or anger at Evans or over some ruling by the court because the court had not even decided the motion yet. Moreover, although the Faretta request was conditioned on the denial of his Marsden motion, it was nonetheless clear and unambiguous.
Indeed, at previous hearings, defendant exhibited familiarity with the rules governing subpoenas of inmates, motions to dismiss under Penal Code section 1381, and his speedy trial rights. Moreover, at one hearing, the court opined that defendant was “the most lucid and savvy of all the defendsant that have come up from-from Salinas Valley Prison.”
The circumstances here are more like those in People v. Michaels (2002) 28 Cal.4th 486 than those in the cases cited above where the request was deemed equivocal. In Michaels, the defendant sought to remove lead counsel and said that if counsel were not removed then he would prefer to represent himself. (Id. at p. 522.) After discussing self-representation with the defendant, the court granted him pro per status. On appeal, the defendant claimed the court erred, arguing that his request was equivocal. (Id. at p. 523.) In rejecting this claim, the court explained, “Defendant confuses an ‘equivocal’ request with a ‘conditional’ request. There is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself. Once the court has decided not to remove counsel, the defendant has the choice of going ahead with existing counsel or representing himself.” (Ibid.)
The Attorney General argues that defendant’s request on January 21 was equivocal because he failed to renew it on January 31 after his Marsden motion was denied. The Attorney General also notes that later, after trial, the court explained on the record that prior to trial, defense counsel, in essence, said that defendant had abandoned his interest in self-representation. We find this argument unpersuasive.
It is true that on January 21, the court deflected defendant’s Marsden motion and Faretta request, saying it would consider any motions defendant might have on January 31, when trial commenced; and on that date, defendant did not renew his Faretta request. However, we note that on January 21, when defendant conditionally requested pro per status, the court immediately told him that it would not grant pro per status “this close to trial” and observed that the case was “older than Methuselah” and defendant “could have asked for it a long time ago.” When viewed in light of the court’s statement, defendant’s failure to renew his request on January 31 does not suggest that his initial request was equivocal or ambiguous. In our view, the court effectively denied the Faretta request right then and there, rendering it futile to renew the request even closer to trial. Indeed, later, after trial, the court asked defendant why he had not renewed his request, and defendant said he understood that he could not renew the request after the court had previously denied it. Under the circumstances, counsel’s representation to the court that defendant did not want to pursue self-representation does not convince us either that defendant’s initial request was equivocal or that he had changed his mind about wanting to represent himself if his Marsden motion was denied. Rather, counsel’s representation could simply reflect defendant’s understanding that further pursuit of self-representation would be pointless and his acquiescence to representation by Evans once his Marsden motion was formally denied.
Timeliness of the Faretta Request
As noted, on January 21, the court told defendant it would hear his Marsden motion on January 31, the first day of trial. Defendant argues, “The fact that the trial court viewed the Marsden motion as timely, notwithstanding its clear potential to require the substitution of counsel and a continuance of trial, necessarily means that the Faretta request should have been deemed equally timely.” We draw no such inference.
Unlike a Faretta request, a Marsden motion need not be filed within a reasonable time prior to trial. Indeed, such motions must be considered even when made after conviction. As our Supreme Court has said, “[i]t is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind.” (People v. Smith (1993) 6 Cal.4th 684, 694-695.)
Here, once defendant said he wanted to make a Marsden motion, the court had to hold a hearing to provide defendant with an opportunity to state why counsel was not providing effective assistance regardless of the stage of the proceedings, and it would have been error to summarily deny the motion on the ground that it was untimely. (E.g., People v. Lopez (2008) 168 Cal.App.4th 801, 809, 815-816.) Thus, that the court declined to hear the motion on January 21 and advised defendant that it would do so when trial commenced does not imply, let alone necessarily establish, that a Faretta motion at that time or earlier on January 21 was timely or that the court thought so. On the contrary, the court expressly found the Faretta request to be untimely. Nor does the fact that the court might later have had to grant the Marsden motion and replace Evans establish that the Faretta request was timely.
Although a Faretta request must be made “a reasonable time prior to the commencement of trial” (Lynch, supra, 50 Cal.4th at p. 721), there is no bright-line test for determining the timeliness. (People v. Clark (1992) 3 Cal.4th 41, 99; Lynch, supra, 50 Cal.4th at p. 722.)
In Burton, supra, 48 Cal.3d 843, the court explained, “The ‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.” (Id. at p. 852.) Thus, “ ‘a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request....’ [Citations.]” (Ibid.) When a self-representation request is made on “ ‘the day preceding trial, ’ ” it “ ‘is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.’ [Citations.]” (Id. at pp. 852-853.)
In Lynch, supra, 50 Cal.4th 693, the court further explained that in exercising its discretion, “a trial court may consider the totality of the circumstances in determining whether a defendant's pretrial motion for self-representation is timely. Thus, a trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation.” (Id. at p. 726.)
The record supports the trial court’s view that the case was old. The offense occurred on December 13, 2002. Defendant was arraigned, and the preliminary hearing was held in October 2003. At a hearing in December 2003, the court conducted pretrial proceedings and set jury trial for February 9, 2004. In early February 2004, the parties filed their pre-trial briefs. The prosecution listed the victim and eight other potential witnesses. On February 9, the trial date was vacated and the case continued because the victim did not appear. The court issued a bench warrant, and trial was reset for February 23. According to defendant, the victim was reluctant to testify, failed to appear, and later had to be threatened by an investigator to compel him to testify. Thereafter, the trial date was set and reset a number of times, to March 22, April 22, April 27, May 18, and June 8. On June 8, defendant made a Marsden motion to replace West. The court ordered a psychological evaluation and continued the Marsden hearing until the evaluation was complete. The case proceeded until July 2004, when West preempted the Marsden motion by declaring a conflict and withdrawing. On July 30, Evans was appointed as new counsel. The case continued, with pretrial hearings in August, September, and November. Then, on January 21, 2005, 10 days before trial, defendant sought to replace Evans, generally complaining that he had not been a productive attorney and had failed to investigate whether the prosecutor had coerced the victim to testify or even visit him in jail.
The record also supports the court’s finding that defendant could have sought to replace Evans sooner. Clearly, defendant had definite ideas about what he wanted Evans to investigate and present as a defense. Defendant also had developed a critical eye concerning how he thought Evans should perform. Moreover long before Evans was appointed, defendant knew how to make a Marsden motion. The record reflects, however, that defendant did not seek to replace Evans until January 21. At that time, he told the court that he had been asking Evans to do things for five months to no avail. This suggests that defendant became frustrated with Evans almost immediately after his appointment. Given defendant’s previous experience with West, one reasonably would have expected defendant to be quick to replace Evans if and when Evans too refused to do what he wanted done or otherwise failed to provide the kind of attentive defense defendant sought. Yet, despite defendant’s lack of timidity about speaking his mind in court, his five months of frustration with Evans, and the opportunities to voice his concerns to the court in August, September, and November, defendant did not make his Marsden/Faretta pitch until 10 days before trial.
Next we note that the court did not find that Evans had provided ineffective assistance and thus there was no reason to replace him. Moreover, both Evans and the prosecutor were ready to proceed to trial, trial had already been delayed for almost a year, and the witnesses were apparently available. This is particularly pertinent given the prosecutor’s initial difficulty in ensuring the attendance of the most important witness: the victim.
Finally, we note that defendant’s complaints about Evans, especially as he more fully explained them on January 31, focus on the Evans’s failure to conduct the pretrial investigation and testing that defendant considered essential to his defense. Thus, defendant’s belated Faretta request posed the potential that he would ask for a continuance so that he could do the investigation and develop the defenses that he could not get West or Evans to do.
“When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, 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. [Citation.]” (Peoplev. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.) Moreover, on appeal, “[w]e must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error-it will not be presumed. [Citation.]” (People v. Garcia (1987) 195 Cal.App.3d 191, 198; accord, People v. Tang (1997) 54 Cal.App.4th 669, 677; People v. Coley (1997) 52 Cal.App.4th 964, 972 [“appellant bears the burden of perfecting the appeal and showing error and resulting prejudice”].
Given the totality of these circumstances, we do not find that the court abused its discretion in denying the Faretta request as untimely, and defendant does not convince us that the court’s ruling was so arbitrary, capricious, or absurd as to constitute a miscarriage of justice. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [abuse of discretion standard]; cf. Lynch, supra, 50 Cal.4th at p. 726 [request three weeks before trial denied as untimely]; People v. Hamilton (1988) 45 Cal.3d 351, 369 [request around one month before trial denied as untimely]; People v. Ruiz (1983) 142 Cal.App.3d 780, 791 [request six days before trial denied as untimely].)
IV. Interference with Right to Testify
Defendant contends the court violated his constitutional right to present a defense by limiting his testimony on direct examination.
At trial, Mendez testified that defendant forcibly sodomized him against his will. Mendez said that after the incident, he did not tell guards what had happened but waited to tell Doctor Talbert, his psychologist. He explained that he did not talk to “cops” and trusted Doctor Talbert. After telling Doctor Talbert, however, he told authorities.
Defendant admitted having prior convictions for robbery and corporal injury to a spouse. He denied using force against Mendez and testified that they had consensual sex. At one point during direct examination, counsel asked defendant if he knew Doctor Talbert. Defendant said he did. Defendant said that Doctor Talbert was never his psychotherapist. Counsel asked if he thought Doctor Talbert disliked him. When defendant responded that Doctor Talbert used to yell at him, the prosecutor objected, and the court sustained the objection, finding the form of the question leading and improper and that whatever Doctor Talbert might have yelled would be inadmissible hearsay.
Later, defense counsel asked defendant whether Mendez had indicated that he was going to accuse him of rape. When defendant said “[n]o” and started to explain, the prosecutor objected, and the court directed counsel to move on. Counsel then asked defendant if he knew why Mendez had accused him. When defendant said “[y]es, ” the prosecutor objected because the question called for speculation. The court sustained the objection.
Defendant claims that the court’s restrictions on his direct examination erroneously prevented him from presenting a defense based on Mendez’s bias against him and motives to lie about the consensual nature of their sexual activity. Defendant asserts that he would have testified that he and Doctor Talbert did not get along, and once Doctor Talbert yelled at him because defendant called him a “bop.” Defendant argues that evidence of Doctor Talbert’s animosity toward him would have allowed him to argue that Doctor Talbert had a motive to persuade Mendez, who trusted and relied on Doctor Talbert, to falsely accuse defendant of rape.
Defendant asserts that there were other mental health workers at the prison who would have testified about “the animosity between Dr. Talbert and appellant.” However, he did not produce them as witnesses or seek to introduce their testimony.
Defendant further argues that he should have been allowed to testify that, in addition to wanting to please Doctor Talbert, Mendez was also motivated to falsely portray himself as a traumatized rape victim because as a victim, he would have been allowed to stay in a desirable prison program away from the main prison population and avoid being attacked by other Hispanic inmates for being homosexual.
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) In the latter situation, an erroneous evidentiary ruling that restricts or excludes evidence is an error of state, not federal constitutional, law, and. Therefore, it is reviewable under the standard announced in People v. Watson (1956) 46 Cal.2d 818 (Watson) and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Fudge, supra, 7 Cal.4th at p. 1103.)
We note that at trial, Mendez testified that defendant threatened to kill him if he said anything about the rape. After the incident, defendant told an investigating officer that he thought Mendez was afraid of him, and at trial, he explained why. He said that Mendez was “running” from other Hispanic inmates in the general prison population who wanted to kill him. Noting that he had been in and out of mental hospitals most of his life, defendant opined that Mendez was afraid because defendant was mental. He also noted that he was helping Mendez, who was not among the general prison population. He opined that Mendez might not be safe if he returned to the main prison population because the other Hispanic inmates consider those who have mental health issues to be “trash.”
Defendant further testified that when he was consensually sodomizing Mendez and Mendez requested that he use his finger instead of his penis, he joked, unwisely, that he was going to tell Mendez’s “homeboys” that he was a “sissy.” Defendant thought that this may have scared Mendez because Mendez could not admit to other Hispanic prisoners that he was homosexual, Mendez needed to “save face with his peers, ” and defendant’s comment would “definitely make him look bad with his peers.”
Defendant’s testimony supported the argument that Mendez had motives to falsely accuse him. Mendez needed to save face with fellow Hispanic prisoners and prevent them from learning that he was homosexual; he needed to protect himself from being considered mental “trash” and attacked; and he wanted to remain outside the general prison population. Under the circumstances, therefore, we reject defendant’s claim that the court violated his federal constitutional right to present a defense by precluding a defense based on evidence that Mendez had motives to falsely accuse him.
Defendant’s reliance on Olden v. Kentucky (1988) 488 U.S. 227 (Olden) does not convince us otherwise. There, Olden and another African-American were accused of rape and sodomy of a young white woman. The defense was consent, and the defendants claimed the victim falsely denied that the acts were consensual to protect her relationship with her boyfriend. The trial court barred the defense from cross-examining the victim about the nature of her relationship apparently because the boyfriend was African-American, and the court believed this fact would inflame the jurors’ racial prejudice and redound against the complaining witness. (Id. at pp. 230-231.) The Supreme Court held that the trial court’s ruling amounted to a denial of the defendant’s right to confront an adverse witness.
This case and Olden have little in common except that both allege an erroneous exclusion of evidence. In Olden, evidence that the complaining witness had a motive to lie (to protect her relationship with her boyfriend) was highly relevant to the issue of consent and whether the sex acts were forced. Moreover, the trial court’s ruling eliminated the entire defense by precluding the introduction of any evidence on this subject.
Unlike Olden, where the court did not permit any evidence concerning the victim’s possible motive to lie, defendant’s testimony, as noted, supported the argument that Mendez had a number of motives to lie: to save face with his peers; to stay out of the general prison population; and to avoid the label of being mental “trash.” Accordingly, even if the court’s rulings were erroneous, they did not implicate defendant’s constitutional right to testify and present a defense.
The court’s ruling did prevent defendant from additionally testifying that Doctor Talbert yelled at him and did not like him and from opining that because of this animosity, Doctor Talbert convinced Mendez to falsely accuse him.
However, Evidence Code section 352 authorizes courts to exclude even relevant 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.” Under this section, the trial court “enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues, supra, 8 Cal.4th 1060, 1124.)
Here, the court reasonably could have concluded that defendant’s proposed testimony and belief that Doctor Talbert instigated the false charges against him had little, if any, probative value concerning whether Mendez lied about the rape. Conversely, the court reasonably could have concluded that permitting such testimony posed a real possibility of unnecessarily consuming time on direct and cross-examination concerning Doctor Talbert’s feelings toward defendant. More importantly, the court could have found that the proposed testimony would invite jurors to engage in misleading and perhaps confusing speculation about (1) whether Doctor Talbert conceived of a plot to have Mendez harm defendant by falsely accusing him and (2) whether Mendez succumbed to Doctor Talbert’s mendacious plan. Indeed, defendant does not argue that the exclusion of this testimony was an abuse of discretion under the Evidence Code.
V. Denial of Motion for Mistrial
Defendant contends the trial court erred in denying his motion for a mistrial after the prosecutor improperly referred to defendant’s prior misdemeanor convictions for the purpose of impeachment.
During cross-examination, the prosecutor impeached defendant with testimony that he suffered prior convictions for robbery, battery on a spouse, negligent discharge of a firearm, and unlawful possession of a firearm. The prosecutor then asked him about 1989 conviction for giving false information to a peace officer and stealing property. Defense counsel objected to the questions as improper impeachment. The court sustained the objection. Defense counsel moved for a mistrial, and the court denied the motion and directed jurors to disregard reference to the two 1989 convictions because they were not felonies and admonished them not consider the 1989 episode in evaluating defendant’s credibility.
Defendant claims that the court erred in denying his motion for mistrial after the prosecutor improperly disclosed and questioned defendant about his prior misdemeanor convictions. He argues that these convictions “would all-too-likely persuade the jury to unfairly discount [his] testimony” and their presentation to the jury compels reversal because the error “cannot be deemed harmless beyond a reasonable doubt.”
First, the erroneous admission of a prior felony conviction for purposes of impeachment is not reviewed under the Chapman standard; rather, the error is reviewed under the Watson standard and does not compel reversal unless it is reasonably probable defendant would have obtained a more favorable result had the evidence been excluded. (People v. Castro (1985) 38 Cal.3d 301, 319.)
Second, the court sustained defense counsel’s objection, directed the jury to disregard the reference to the 1989 convictions, and admonished jurors not to consider them in determining defendant’s credibility.
Generally, we presume that when the court strikes evidence and instructs jurors to disregard it, the jury understands and follows the instruction, thereby ameliorating any potential prejudice. (People v. Hovarter (2008) 44 Cal.4th 983, 1005; People v. Valladares (2009) 173 Cal.App.4th 1388, 1400.) This rule “is not of invariable application; and sometimes the seriousness or peculiar nature of the evidence, or the circumstances, are such that it cannot reasonably be said that its prejudicial effect was eradicated by the instruction.” (People v. Bolton (1932) 215 Cal. 12, 26; People v. Riggs (2008) 44 Cal.4th 248, 299; People v. Coddington (2000) 23 Cal.4th 529, 631, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Morris (1991) 53 Cal.3d 152, 194, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
In People v. Price (1991) 1 Cal.4th 324 (Price), a detective testified at trial that the defendant said he had been “ ‘in prison for the past eleven years.’ ” (Id. at p. 430.) The trial court denied defendant’s motion for a mistrial, but admonished the jury “not to consider evidence that defendant had been in prison ‘in determining his guilt in this particular trial or to determine that he's a bad person.’ ” (Ibid.) The California Supreme Court upheld the denial of defendant’s motion on the ground that the trial court’s admonition to the jury had been sufficient to cure any harm.
Here, the reference to the misdemeanors was not inherently inflammatory or incurably prejudicial. Thus, as in Price, the trial court could reasonably assume that jurors would follow its instruction to disregard the reference. Accordingly, we do not find that the court erred in denying the motion for mistrial.
VI. Denial of Motion for a New Trial
Defendant contends that the court violated his right to due process in failing to conduct a hearing on his post-verdict motion for a new trial, summarily denying the motion, and failing to preserve his motion papers.
After the court trial on the prior conviction allegations, defendant gave the court “papers regarding a new trial motion” and said that defense counsel had failed to file a motion for a new trial, which, he asserted, further showed that counsel continued to provide ineffective assistance. The court said it would address the motion for new trial and the question of ineffective assistance at sentencing.
However, at the sentencing hearing, the court asked defense counsel if there was any legal cause not to proceed; counsel said no, and the court imposed sentence. The court then advised defendant of his right to appeal and then asked if he had any questions. Defendant asked about his motion for a new trial. In particular, he asked if the court had received the “16-page letter” he sent. The court said no but that it had received a two-page letter. Defendant said he had sent copies of his 16-page letter to both the court and the prosecutor. The prosecutor said that he had not received anything. Defendant had a copy with him and wanted to place it in the record. The court responded, “And I did review [defendant’s] request for a new trial, and I found nothing in there to justify a new trial. But I did read it and consider it. It is attached to the-the probation report. Then there is a separate 1-page new trial motion [defendant] filed, and I did read and consider that. And then there’s another one that I got on April 8th, that I read and considered also. I did not get a 16-pager.” Defendant said he had sent it a month before, but the court said he had not seen it and continued, “In any event, judgment has been imposed.”
The record on appeal contains a two-page letter addressed to the “Monterey Herald and To Whom it May Concern” in which defendant complains that his case was mishandled. The letter is attached to the probation report. Presumably, this letter is what the court referred to when it said it “had received a 2-page letter”; and when it said, “And I did review [defendant’s] request for a new trial, and I found nothing in there to justify a new trial. But I did read it and consider it. It is attached to the-the probation report.”
Strangely, also attached to the probation report, is a 16-page letter dated May 22, 2005, which, presumably, is the 16-page letter that on June 8, defendant said he had sent to the court and the prosecutor, and which the court and prosecutor said they had neither seen nor received. The record does not contain the other documents that the court referred to-i.e., “a separate 1-page new trial motion” and “another one that I got on April 8th.” Moreover, a supplemental clerk’s transcript dated June 18, 2008, states, “Defendant’s motion for new trial, handed to the court on April 13, 2005 [see reporter’s transcript, page] 1204), was not file stamped, therefore, deemed not part of the court file. The clerk was also “unable to locate the following augmented items in the court file, ” including “defendant’s other motions for new trial described on June 8, 2005 at [reporter’s transcript, page] 1506.”
The Attorney General asserts that a proper motion for new trial “must be made orally and the grounds relied upon must be specified, ” “ ‘[o]therwise the right to make the motion is waived. [Citations.]’ ” He further asserts that “ ‘[a] statement that a party intends to make a motion in the future, but without indicating any grounds, is not sufficient to require judicial action. [Citation.]’ ” The Attorney general argues, in essence, that the papers and exchange between defendant and the court on April 13 did not constitute a motion for new trial but only an expression of intent to make a motion, which did not require any judicial action. We disagree.
A motion for new trial may be made either orally or in writing any time before judgment is entered. (People v. Braxton (2004) 34 Cal.4th 798, 807, fn. 2; People v. Simon (1989) 208 Cal.App.3d 841, 847; People v. Jaramillo (1962) 208 Cal.App.2d 620, 625-627; §§ 1182, 1200, 1201.)
For this reason, the fact that defendant did not ask about his motion until after the court had orally pronounced judgment did not render the effort untimely. (People v. Jaramillo, supra, 208 Cal.App.2d at p. 627.)
Moreover, here, the court referred to the papers he had received from defendant that day as “a new trial motion, a couple of papers regarding a new trial motion” and said it would take up the question of “your new trial motion” at sentencing. Furthermore, at that time, defendant explained that despite his request, defense counsel had not filed a motion for new trial, which was further evidence of ineffective assistance. This indicated that defendant was pursuing the motion unassisted and that it included a claim of ineffective assistance. Finally, the court expressly indicated that it would address the motion for new trial at sentencing.
The Attorney General next argues that at sentencing, when counsel told the court that there was no legal cause not to proceed with sentencing, counsel, in effect, waived defendant’s right to make a subsequent motion for new trial. Not so.
Defendant had previously indicated that because counsel had not filed a motion, he had to pursue it on his own without the assistance of counsel. Moreover, defendant said that counsel’s failure to file his motion was more evidence of ineffective assistance. Thus, perhaps from counsel’s point of view there was no legal cause not to proceed with sentencing. However, defendant was clearly waiting for the court to address his motion, including the lengthier pleading that he had prepared and said he had sent to the court and prosecutor. These circumstances indicate a possible conflict between defendant and counsel concerning the motion for new trial, and, therefore, we do not find that counsel waived defendant’s right to move for a new trial. (Cf. People v. Viray (2005) 134 Cal.App.4th 1186 [because of an inherent conflict between defendant and defense counsel concerning a possible order requiring defendant to pay for appointed counsel, counsel’s failure to object does not waive appellate claim challenging the order].) This is especially so given defendant’s comments after the court pronounced sentence, which showed that he wanted the court to address his motion for a new trial on the grounds raised in the 16-page pleading that he thought the court had received. As noted, a motion for new trial is timely anytime before judgment is entered. (See fn. 8, ante.)
Finally, when the defendant requests a new trial based on a claim that his counsel was incompetent at trial, the trial court should hold a Marsden hearing to determine if new counsel should be appointed to address the defendant’s concerns. (People v. Smith, supra, 6 Cal.4th 684, 692-693, 695-696.)
The Attorney General notes that the court stated that it had read and considered defendant’s documents and found no grounds for granting a new trial. The Attorney General argues that the court had discretion concerning whether to conduct further proceedings and permit oral argument and that its decision in that regard as well as its decision to deny a motion should not be reversed absent a clear showing that the court abused its discretion. (See People v. Mandell (1942) 48 Cal.App.2d 806, 818; People v. Norton (1941) 45 Cal.App.2d 789, 791.)
Section 1202 provides, in relevant part, “If the court shall refuse to hear a defendant’s motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial.” (Italics added.)
Here, after pronouncing judgment, the court explained that it had read some but not all of defendant’s pleadings in support of his motion for a new trial; and because it did not find anything in the papers it had read that warranted a new trial, it denied the motion. The court said it had not seen the 16-page pleading, which, if it is the document attached to the probation report, appears to be a very extensive discussion of defendant’s grievances and bases for a new trial. Nor did the court consider the appointment of counsel to assist defendant or even allow defendant to argue his motion.
In People v. Braxton, supra, 34 Cal.4th 798, the court considered the “constitutional rule that a judgment of conviction will be set aside only when necessary to prevent a miscarriage of justice, and the effect of this rule on the provision of section 1202 entitling a defendant to a new trial when a trial court has refused to hear the defendant’s new trial motion before pronouncing judgment.” (Id. at p. 815, italics added.) The court concluded that the constitutional rule governing reversal applied to the erroneous failure to conduct a motion for new trial, and, therefore, section 1202 did not create an automatic right to a new trial in the event of an erroneous failure to rule on a new trial motion. (Id. at pp. 815-817.) The court then set forth the procedural remedy for such an error.
“Section 1202 entitles a defendant to a new trial when the trial court has refused to hear or neglected to determine a defendant's motion for a new trial and a reviewing court has properly determined that the defendant suffered actual prejudice as a result. This will occur when, for example, the reviewing court properly determines from the record that the defendant’s new trial motion was meritorious as a matter of law, or the record shows that the trial court would have granted the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion. [Citation.] In these situations, the trial court’s error has resulted in a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. [¶] On the other hand, a judgment of conviction may not be reversed and a new trial may not be ordered for a trial court’s failure to hear a new trial motion when a reviewing court has properly determined that the defendant suffered no prejudice as a result. This will occur when, for example, the record shows that the trial court would have denied the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion, or the reviewing court properly determines as a matter of law that the motion lacked merit. [Citations]” (People v. Braxton, supra, 34 Cal.4th at pp. 817-818.)
However, where the reviewing court is unable to assess the prejudice issue, that is, where the court is unable to determine with sufficient certainly whether a new trial motion was meritorious as a matter of law or whether the trial court would properly have exercised its discretion in favor of granting or denying the motion, the court may remand the matter for a belated hearing on the new trial motion, absent a showing that a fair hearing on the motion is no longer possible. (People v. Braxton, supra, 34 Cal.4th at pp. 818-820.) For example, in Braxton, the court remanded the matter for a hearing on the motion because the trial court did not permit defense counsel to present the juror declarations he had obtained or to explain the nature of the claimed juror misconduct, and the trial court expressed no view on the merits of the proposed motion. (Id. at pp. 818-820.)
Here, the record does not suggest that the trial court considered the appointment of counsel to evaluate a potential motion for new trial on grounds of ineffective assistance; it does not appear that the court considered defendant’s 16-page pleading in support of his motion for new trial; and the court did not specifically address any particular issue raised in the pleadings that it did consider or allow defendant to argue any of the issues raised. Under the circumstances, and because some of the pleadings that the court did consider are not part of the record on appeal, we are unable to adequately assess the prejudice issue with sufficient certainty to reach a conclusion concerning whether the judgment must be reversed. Accordingly, we shall remand the matter for the limited purpose of conducting further proceedings on defendant’s motion for a new trial.
Although we reverse the judgment and remand for a hearing concerning defendant’s motion for a new trial, we address this claim in the event that the court denies the motion and reinstates the judgment.
After the trial, the court found the prior conviction allegations to be true and that the priors qualified as strikes. One allegation related to defendant’s prior conviction for negligent discharge of a firearm in violation of section 246.3.
Such a conviction does not automatically qualify as a strike, but it can be deemed a strike if the perpetrator personally used a firearm in committing the offense. (People v. Golde (2008) 163 Cal.App.4th 101, 113; People v. Bautista (2005) 125 Cal.App.4th 646, 654-655; §§ 667.5, subd. (c)(8); 1170.12, subd. (b); 1192.7, subd. (c)(8) [“any felony in which the defendant... personally uses a firearm”]; § 1192. 7, subd. (c)(23) [“any felony in which defendant personally used a dangerous or deadly weapon”].) Thus, concerning this prior conviction allegation, the prosecution had to prove, and the court had to find, both that defendant suffered the underlying conviction and that he personally used a firearm in committing the offense. (People v. Golde, supra, 163 Cal.App.4th at p. 113; People v. Bautista, supra, 125 Cal.App.4th at p. 655; see People v. Jones (1995) 37 Cal.App.4th 1312, 1315.)
In finding that the conviction qualified as a strike, the court cited People v. Leslie (1996) 47 Cal.App.4th 198 and People v. Bautista, supra, 125 Cal.App.4th 646, which stand for the proposition that a violation of section 246.3 constitutes a strike if the perpetrator personally used a firearm. However, the court then stated, “It’s not necessary or pertinent really to go into the details of the [section] 246.3 [conviction], but the documents in People’s 27 do indicate that that was not an episode of firing a gun into the air on New Year’s Eve; he was shooting at somebody in a foolish argument, missed the person he was shooting at, and hit some innocent lady in the leg. But that-that is not an-it’s not a relevant inquiry. [¶] The offense itself is a strike, regardless of what the facts of it are. So the Court finds beyond a reasonable doubt that those two strike priors are true.” (Italics added.)
People’s Exhibit 27 was a section “969b packet”-i.e., certified records of defendant’s prior offenses and incarceration. It is not part of the record on appeal because the exhibits were previously destroyed.
Defendant contends that the court’s comments show that it did not base its strike determination on a finding that he personally used a firearm. He claims the error requires that the strike finding be stricken and the case remanded for resentencing.
The People argue that although the court “may not have fully appreciated the legal necessity” of a personal-use finding, “it did in fact make such a determination, ” and therefore, a remand would be an unwarranted and unnecessary waste of juridical resources.
The court’s statements that it was not “necessary” to consider the underlying facts and that the prior conviction constituted a strike “regardless” of the underlying facts were erroneous, in that one fact-whether defendant personally used a firearm-controlled whether the conviction could be deemed a strike. Thus, although the court said that defendant shot at someone, missed, and hit someone else, it does not appear that the court formally based its strike determination on the court’s understanding of the offense.
As errors go, the court’s ruling can be likened to a failure to instruct on an element of an offense or an element of a sentence enhancement or to a failure to have the jury determine aggravating sentencing factors. In those situations, the appropriate trier of fact has not been expressly required to make a factual finding that is necessary for the imposition of a particular punishment. In those situations, the error is subject to Chapman standard. (People v. Flood (1998) 18 Cal.4th 470, 475, 503 [failure to instruct on element]; People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [failure to instruct on element of sentencing enhancement]; People v. Sandoval (2007) 41 Cal.4th 825, 838 [failure to submit aggravating sentencing factor to jury].)
Under that standard, the failure to instruct on an element of an offense or enhancement may be deemed harmless where “the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions.” (People v. Flood, supra, 18 Cal.4th at p. 485.) Similarly, the failure to submit an aggravating sentencing factor to the jury may be deemed harmless if “the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (People v. Sandoval, supra, 41 Cal.4th at p. 838.) Stated differently, the error is harmless where “a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury....” (Id. at p. 839.)
Here, the court erroneously thought it was not necessary to make the prerequisite factual finding to sentence defendant as a three-strike offender. Assuming for purposes of argument that the error is reviewable under the Chapman standard, we find the error to be harmless.
Regardless of whether the court appreciated the determinative importance of a personal-use finding, the court expressly stated its understanding of the facts: defendant did not simply shoot into the air; rather he fired his gun at someone, missed, and instead hit a third party. After the court made this statement, neither defense counsel nor defendant said that defendant had not personally used a gun or suggested that the court’s understanding was erroneous. Nor did they object to the court’s reliance on documentary evidence or argue that the evidence was not legally sufficient to show that defendant had personally used a firearm.
In his petition for rehearing, defendant argued for the first time that the strike finding must be reversed because the record does not show what documents the court relied on, and it may have relied “on unsuitable evidence, such as the defendant’s statement in a probation report.” However, arguments cannot be raised for the first time in a petition for rehearing. (Gentis v. Safeguard Business Sytstems, Inc. (1998) 60 Cal.App.4th 1294, 1308.) Moreover, as noted, defendant did not object below when the court considered the documentary evidence and based its understanding of the prior offense on it. (See Evid. Code, § 353 [failure to object forfeits appellate claims of error].)
Under the circumstances, and given the court’s uncontradicted explanation of the incident, which establishes that defendant had personally fired a firearm, we conclude that the error was harmless. We can confidently conclude beyond a reasonable doubt that the trial court, applying the beyond-a-reasonable-doubt standard, and understanding the necessity of a finding, unquestionably would have found that defendant personally used a firearm and again determined that his conviction for negligent discharge constituted a strike.
Accordingly, defendant does not convince us that the court’s misstatement requires that the strike finding be stricken.
VIII. Disposition
The judgment is reversed. The matter is remanded to the trial court for the limited purpose of conducting further proceedings on defendant’s motion for a new trial. If, after a hearing, the court denies the motion, then it shall reinstate the judgment.
WE CONCUR: PREMO, J., ELIA, J.