Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. FSB037295, Michael A. Smith, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
After a jury trial, defendant George Albert Mayns was convicted of second degree murder. (Pen. Code, § 187, subd. (a).) Defendant was sentenced to 15 years to life for the death of Raymond Turner.
On appeal, defendant contends that the trial court (1) should have dismissed the matter because of a 15-year preaccusatory delay by the prosecution in filing the complaint, (2) erred in admitting dental charts and documentary evidence without sufficient foundation, and (3) violated his Faretta right to self-representation when it terminated his in propria persona status.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
We conclude that the court properly denied defendant’s motion to dismiss as the 15-year delay did not deprive defendant of a fair trial. The trial court correctly found that the prosecution had established a proper chain of custody for Turner’s dental and financial records. Finally, we find that the trial court appropriately revoked defendant’s right to represent himself. Consequently, we affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL HISTORY
Turner began dating defendant’s mother, Diana Boyer, in 1983, after he separated from his ex-wife Gwen. In March 1983 Turner confided in Gwen his belief that defendant was making unauthorized withdrawals from his bank account by stealing his checks and then making them out to himself. Turner told Gwen he intended to confront defendant about the thefts.
In order to avoid confusion among several witnesses with the same last name, we refer to them by their given name. We mean no disrespect in doing so. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1287.)
Around March 23, 1983, Turner’s teenage son, Byron, saw his father and defendant enter his father’s camper truck. That was the last time Byron ever saw his father.
Rhonda Andrews (Andrews), defendant’s girlfriend at the time, testified that around that date (March 23) defendant had stayed out all night. When defendant returned home around dawn, he woke her up and told her to come outside with him. She watched him open up the camper shell of Turner’s pickup truck and lift a sleeping bag revealing Turner lying in the back of the truck. Turner was alive and conscious but had been tied up, gagged, and blindfolded.
She later became his wife, then his ex-wife.
Defendant told Andrews to get inside the truck and together they drove to Turner’s trailer. Once they reached Turner’s trailer, defendant ordered her to get into another one of Turner’s trucks. As Andrews sat in Turner’s second truck, defendant removed Turner from the back of one truck and loaded him into the back of the other truck. As they drove out of the trailer park, Andrews heard Turner scream, “‘God help me. Please help me.’”
Andrews watched as defendant stopped to get out of the truck. She next heard a repeated thudding sound. When she turned to look, Andrews saw defendant’s leg stomping down on top of Turner five times. After the third blow, Turner stopped making any sounds.
Defendant then drove to his mother’s house to speak with his brother Michael. He cautioned Andrews not to say anything to his mother.
Defendant spoke with Michael and told him that he was in some trouble and needed help to get rid of something. The two drove away together, scoping out several secluded places where they could dump Turner’s body. Michael directed defendant to Lytle Creek in San Bernardino County where defendant dumped Turner’s body. Afterwards, the two returned to their mother’s residence.
Upon their return, Andrews saw defendant and Michael standing at the back of the truck holding shovels. Defendant, Michael, and their shovels were covered with mud. Defendant directed Andrews to put the blankets used to wrap Turner and Turner’s clothes into trash bags, which she threw into a large trash bin. Defendant threatened Andrews that he would kill her if she ever told anyone what she had seen. Neither Michael nor Andrews ever told anyone of the events of that day.
A few days after the murder, Andrews accompanied defendant to a bank where defendant attempted to cash one of Turner’s checks to withdraw funds out of Turner’s account. She observed defendant forge Turner’s name onto a check by slipping a document with Turner’s signature underneath the check and then tracing Turner’s name onto the check. Unfortunately for defendant, when he submitted Turner’s check to a bank teller, the teller kept his military identification and retained Turner’s remaining checks. Defendant’s identification and the confiscated checks were later turned over to law enforcement.
After Turner had been missing for a few weeks, around April 1983, Gwen and Byron filed a missing persons report with the Colton Police Department. As part of the missing persons report, Gwen provided the police with the checks forged with Turner’s signature and made payable to defendant. Gwen explained to the investigator the reasons why she suspected that Turner’s signature had been forged.
In 1981, Turner had suffered several injuries from a previous fall from a scaffolding. Turner’s injuries included a rib fracture, a hip fracture, and an elbow fracture resulting in a 70 percent disability to Turner’s right arm. Turner’s arm injury caused his signature to convert into a scrawl. Gwen suspected that the 1983 checks made payable to defendant and Michael’s girlfriend were forgeries because those checks carried Turner’s preaccident signature.
However, Turner did not incur any head injuries from the accident.
As part of the missing persons investigation, a Colton detective received the forged checks from Gwen. The assigned detective submitted the forged checks to the sheriff’s department for a comparison match with possible suspects. In 1984, the detective also received Turner’s dental X-rays from Turner’s dentist, which he remitted to the Sacramento central repository for comparison with other unknown dental evidence on file.
Without any leads regarding Turner’s whereabouts or a possible suspect responsible for the check forgeries, the missing persons investigation stalled. In the early 1980’s, scientific analysis of forensic evidence had not advanced very far. As the missing persons detective cogently and colorfully testified, “Twenty years ago we didn’t have the advances that we have now where you can see all these things and . . . [t]here’s no CSI, no DNA, none of this other stuff that people just take for granted nowadays.” At the time of Turner’s disappearance, a check comparison could not be conducted unless police had a writing exemplar from a known suspect that could be compared to the alleged forgery. As the detective did not have any possible suspects at the time, he did not have a known exemplar to compare to Turner’s forged checks.
The same held true for Turner’s dental records. While a statewide dental record collection did exist at the time of Turner’s disappearance, there was no computer database from which unknown dental evidence could be compared with hundreds of known dental records in order to obtain a positive match to locate Turner.
For the next six years, the case lay fallow. It was not until April 1990 when a forest ranger walking in Lytle Creek discovered a human bone wrapped in blankets that the case recommenced. The forest ranger contacted law enforcement and the rest of the skeletal remains were discovered. A forensic anthropologist was called in to unearth the bones and determine their origin. The anthropologist concluded that the bones were human; her analysis of the skeleton revealed that the deceased was a white male over 40 years of age. She found the skeleton had prior rib and hip fractures that had healed, but the skull had a fracture that had not healed.
In order to determine the identity of now-confirmed human remains, a forensic dentist was assigned the task of examining the teeth on the jawbone. A Dr. Johnson performed a dental examination, which included taking an X-ray of the jaw and constructing a dental chart to document the condition of the teeth. Both the X-rays and the dental chart were sent to the Department of Justice repository in Sacramento.
Finally, an autopsy was performed on the skeletal remains in order to ascertain the cause of death. In his report, the deputy coroner noted the existence of a skull fracture, but listed the cause of death as uncertain.
Who died prior to trial.
Another eight years lapsed in the investigation as there was no definitive identification of the skeletal remains, no conclusion as to the cause of death, and no trace as to the whereabouts of Turner.
It was not until 1998 when the state Department of Justice Missing Unidentified System Program made a positive identification of the remains—that the skeletal remains were identified to be Turner’s decayed corpse. The Department of Justice had mailed to Dr. Golden, San Bernardino County’s chief forensic dentist, Turner’s antemortem dental records that were a probable match for the Lytle Creek remains documented by Dr. Johnson’s dental chart and postmortem X-rays.
The state Department of Justice uses a computer assisted postmortem identification program that was developed by the United States Army (the Army) to identify large numbers of bodies recovered in large-scale disasters such as airplane crashes and World Trade Center disasters. The computer program operates by running two databases together to get a match. One database has within it known dental information from an individual’s previous dentists that documents dental work performed on an individual during his lifetime. A second database contains dental information of unidentified persons and decedents (such as fillings and missing teeth). When the two databases are compared, several matches are provided, which are winnowed down by a professional who reviews the X-rays to eliminate those that do not match, then results with one remaining X-ray that is a true match.
In 1979, California was the first state to establish a state dental identification program to process dental records submitted to law enforcement agencies and coroners. (Cal. Atty. Gen., Dept. of Justice <http://www.ag.ca.gov/missing/content/dental.php> [as of May 15, 2008].)
Dr. Golden was the custodian of record of the postmortem X-rays taken by Dr. Johnson, his forensic dental partner. When he compared Turner’s antemortem dental X-rays with the jaw X-rays of the John Doe found in Lytle Creek, Dr. Golden opined that the remains were those of Raymond Turner.
Once Turner’s identity was verified in 1998, law enforcement reopened the investigation. A different coroner reviewed the prior 1990 autopsy records. The new pathologist opined that Turner died from blunt force trauma that caused a lethal skull fracture.
A new investigating detective was assigned to the Turner disappearance case, which was now categorized as a homicide. The homicide detective reviewed the Turner missing person case file prepared by the original investigator. After evaluating possible leads and interviewing several witnesses, among them defendant, his brother Michael, and his girlfriend/wife Andrews, the detective arrested defendant for the murder of Raymond Turner.
DISCUSSION
A. The Trial Court Properly Found a 15-Year Preaccusatory Delay Did Not Deprive Defendant of a Fair Trial.
Defendant contends that the trial court should have granted his motion to dismiss the action because the prosecution delayed filing the murder charge for 15 years. Citing Barker v. Wingo (1972) 407 U.S. 647, 655 factors, defendant asserts this significant delay prevented him from receiving a fair trial, causing him to suffer the following prejudices: (1) he could not establish an alibi to rebut the timelines testified to by his brother Michael and his ex-wife Andrews; (2) Turner’s skeletal remains had deteriorated to such a point that an independent defense expert could not examine the remains to challenge the cause of death; and (3) the passage of time caused the unavailability of an officer who could impeach Byron’s and Gwen’s testimony. He complains that the prosecution should have known Turner’s sudden disappearance was in fact a homicide. He claims check forgeries were so obvious that it should have spurred the prosecution to have more aggressively investigated Gwen’s 1983 missing persons report. We analyze defendant’s state and federal constitutional claims in turn.
1. Fifth Amendment Federal Constitutional Claim.
If a defendant were forced to stand trial for a crime after a long delay, the Fifth Amendment’s due process clause would require dismissal if the preaccusation delay caused substantial prejudice to the defendant. (United States v. Marion (1971) 404 U.S. 307, 323-324.) This is because the Fifth Amendment’s prophylactic effect is to protect our conceptions of justice that define our communal sense of decency and fair play. (United States v. Lovasco (1977) 431 U.S. 783, 790.) Thus under the federal test, a defendant must show that he (1) suffered actual prejudice from the delay, and (2) the prosecution delayed charging the defendant to gain a tactical advantage over the defendant. (People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin), citing United States v. Lovasco, supra, 431 U.S. at p. 790; People v. Butler (1995) 36 Cal.App.4th 455, 467 (Butler).) Contrary to defendant’s assertion, the Barker v. Wingo balancing test is inapplicable here.
In this instance, defendant has failed to assert the prosecution intentionally delayed charging him with murder for 15 years in order to gain a tactical advantage over him. Therefore, we find there was no violation under the Fifth Amendment’s due process clause. Finding no relief available under federal law, we turn to an analysis under the state Constitution. (Butler, supra, 36 Cal.App.4th at p. 466.)
2. Article I, Section 15 State Constitutional Claim.
A defendant seeking to dismiss a charge under the state Constitution must demonstrate prejudice arising from the delay. The prosecution may offer a justification for the delay, and the court considering a motion to dismiss must balance the harm to the defendant against the justification for the delay. (Catlin, supra, 26 Cal.4th at p. 107.) In balancing the harm versus the justification, it is appropriate to consider the evidence adduced at trial to determine whether defendant was in fact prejudiced by the delay—the court’s balancing should not weigh matters in the abstract. (People v. Archerd (1970) 3 Cal.3d 615, 641 (Archerd); Butler, supra, 36 Cal.App.4th at p. 464; People v. Frazer (1999) 21 Cal.4th 737, 775, overruled on another ground in Stogner v. California (2003) 539 U.S. 607, 610, 632-633.)
In performing this balance test below, the trial court found that defendant was prejudiced because Officer Manning, the detective who took the original missing persons report from Byron and Gwen, could not be located. The missing persons report contained inconsistent statements that defendant wished to use to impeach their testimony.
In 1983 Byron told Officer Manning that his father was not at home and noted his pickup truck was already gone when he returned back from school. This is contrary to Byron’s testimony that he saw his father leave with defendant in a car.
During trial, Gwen testified that she probably told police when she first made the missing persons report that Turner was going to approach defendant about the checks, but could not remember if she did so. When the defense confronted her with the missing persons report, Gwen admitted that the original report did not contain a statement from her that Turner was going to discuss the check fraud with defendant.
After the defense rested, defense counsel made a motion to dismiss based on the preaccusation delay. The trial court found that defendant proved he sustained prejudice because Officer Manning was not available to impeach Byron and Gwen with their statements recorded in the original report. It also found that certain witnesses had a loss of memory to the detriment of the defense.
The trial court then analyzed whether the prosecution proved any justification for the delay. It determined that the reasons for the delay were understandable. There was no firm evidence in 1983 that Turner met with foul play when he first disappeared. When human remains were discovered in 1990, there was no connection linking those remains to Turner. It was not until 1998, when the Department of Justice matched the dental records, that it was confirmed Turner was a victim of homicide. When the remains were identified as Turner’s, the investigation reopened and revealed a connection between defendant and Turner. Once that link was made, there was no appreciable delay in charging defendant with Turner’s death. Based on these facts, the court found that the prosecution was not negligent.
When the trial court weighed the prejudice to the defense against the justification for the prosecution’s delay, it found that justification for the delay outweighed the minimal prejudice defendant suffered in losing impeachment evidence. The prejudice defendant sustained could be cured by allowing the defense to call the prosecution’s chief investigator to testify as to the contents of Officer Manning’s original missing persons report. This would have the same effect as Officer Manning testifying from his report to impeach Byron and Gwen’s testimony.
We agree with the trial court’s finding that the prosecution’s justification for the delay outweighed the harm suffered by the defense, and thus the trial court properly denied defendant’s motion to dismiss.
Prejudice may be shown by such things as the loss of material witnesses, loss of other evidence, and fading memories due to the lapse of time. (Catlin, supra, 26 Cal.4th at p. 107; Archerd, supra, 3 Cal.3d at p. 640.) “Whether pre-arrest delay is unreasonable and prejudicial to the defendant is a question of fact. If the court concludes the defendant’s speedy trial right has been abridged, the remedy is dismissal of the charge. [Citation.] The trial court’s ruling must be upheld on appeal if it is supported by substantial evidence.” (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.)
In this instance, the trial court found defendant was prejudiced by the passage of 20 years. Substantial evidence supported that finding: Several witnesses were unable to recall the events of 20 years ago, among them were Gwen, Byron, Detective Nunez, and the bank teller. Dr. Johnson, the first forensic dentist who analyzed the dental records, was mentally and physically unable to testify. Dr. Connelly (Turner’s dentist) and the coroner who performed the first autopsy were deceased. Officer Manning was retired and could not be located by the defense.
Defendant complained that the loss of Officer Manning’s testimony deprived him of favorable, exculpatory evidence in that Officer Manning was no longer available to impeach Gwen’s and Byron’s original statements in the missing persons report.
However, a trial court has discretion to fashion a remedy when the prosecutor’s conduct has resulted in a loss of evidence favorable to the defense. (People v. Zamora (1980) 28 Cal.3d 88, 99; People v. Price (1985) 165 Cal.App.3d 536, 545.) If the government’s actions deprive a defendant of evidence that might conclusively demonstrate innocence, the remedy would be dismissal. On the other hand, if the government’s actions deprive defendant of immaterial evidence, no remedy is necessary. (People v. Zamora, at p. 100.)
Here, the trial court fashioned a remedy that specifically addressed the evidence lost to defendant: It allowed the investigating officer to read Officer Manning’s report to the jury, including all the impeaching statements made by Gwen and Byron, as well as the absence of statements that Gwen and Byron alleged they made to Officer Manning. This had the effect of eliminating the loss of favorable defense evidence, in that the same evidence that Officer Manning would have testified to came in through his report. Thus, the trial court’s remedial actions afforded defendant his rights to due process and a fair trial and were not an abuse of discretion. (People v. Conrad (2006) 145 Cal.App.4th 1175.)
Finally, we disagree with defendant’s assertion that the prosecution should have known in 1983 that the missing person’s case was actually a homicide based on Turner’s sudden disappearance and the “obvious check forgeries.” We conclude that the trial court did not abuse its discretion when it ruled that the prosecution’s justification for the delay outweighed the prejudice to defendant.
The first justification for the delay was that defendant hid the remains in Lytle Creek in 1983, which remains were not discovered until 1990. Defendant may not cache the remains and then claim he was prejudiced because they were hidden.
It has been problematical to evaluate this claim in light of the fact that defendant did not raise his motion to dismiss until after the defense rested. The issue of why the prosecution delayed filing a murder charge was never addressed by the witnesses in the prosecution’s case-in-chief. Although the Colton detective and the forensic dentist testified that the technology for identifying Turner’s remains did not exist at the time Turner was murdered in 1983, the prosecution did not know to ask the witnesses when the technology was developed. Consequently, we are obliged to look at the time the technological advancements came into existence.
Both the forensic dentist and the missing persons detective testified that in 1983, the only thing that existed was a statewide dental record collection. There was no way to physically compare voluminous numbers of dental records from known individuals and match them up with unidentified dental remains. In 1984, Turner’s family turned Turner’s antemortem dental records from his family dentist over to the police. The detective sent those dental records to the Sacramento central repository. Turner’s remains were discovered in 1990. A forensic dentist recorded the dental structure found in the skull and remitted the record to the Sacramento central repository for matching.
Later, the CAPMI system was developed. In 1998 Dr. Golden received, from the Sacramento central repository, a possible dental match between the Lytle Creek remains and Turner’s antemortem dental records provided by the CAPMI system. Dr. Golden compared the two records and found they were the same.
Once the skeletal remains were determined to be Turner’s, the original 1983 investigation was reopened. In 1998, a pathologist reviewed the original autopsy report, and determined the cause of death was blunt force trauma to Turner’s skull. Police conducted interviews of those involved with the earlier events. When Andrews and Michael told police that defendant killed and buried Turner, defendant was arrested and charged within a matter of months.
Developments in medical and scientific techniques assist in prosecuting unsolved cases. Forensic techniques which did not exist at the time of the crime, but now do, because of advances in science that allow prosecution of cases years after the crime’s commission, can and do justify the 15-year delay in charging defendant for Turner’s murder. (See Archerd, supra, 3 Cal.3d at pp. 641-643 [developing medical and forensic techniques and defendant’s additional murders justified the filing of charges 11 years after the commission of a murder]; Catlin, supra, 26 Cal.4th at p. 109 [advances in medical knowledge, and defendant’s involvement in two more murders through paraquat poisoning, made prosecution possible 14 years later].)
We conclude the justification for the delay far outweighed the small, and remedied, showing of prejudice presented by defendant. The trial court did not err in denying the motion to dismiss for delay in prosecution.
B. The Dental and Financial Records Were Properly Authenticated.
Defendant contends the trial court erroneously admitted into evidence Turner’s antemortem dental records, three forged checks, and defendant’s military identification. He asserts the prosecution failed to prove a chain of custody or authenticate the dental and bank records.
With respect to the dental records, defendant claims the former dental assistant from Turner’s dentist’s office failed to testify she was familiar with that office’s procedure two years prior to her working there and did not explain how she became familiar with a former dental assistant’s handwriting.
With respect to the forged checks, defendant asserts the prosecution failed to prove that the checks and the identification were obtained from him by a bank employee. Andrews’s claim that she accompanied defendant to the bank could not bolster the admissibility of the bank records as she was not a credible witness—she could not recall what bank they went to, her moral character was questionable, she was biased against defendant, and she failed to report the murder for 15 years.
Defendant insists that the erroneous admission of these critical pieces of evidence so infected his trial that it denied him his due process right to a fair trial. We conclude that the trial court properly admitted the dental and bank records as they were properly authenticated and a proper foundation was laid for their admission.
The trial court has broad discretion in determining the admissibility of evidence. (People v. Williams (1997) 16 Cal.4th 153, 196.) We review trial court rulings admitting evidence over chain of custody and authentication objections for abuse of discretion. (Catlin, supra, 26 Cal.4th at p. 134; People v. Lucas (1995) 12 Cal.4th 415, 466.)
1. Dental Records.
A “writing,” includes handwriting, pictures, and photographs. (Evid. Code, § 250.) All writings must be authenticated before they may be received in evidence. (§ 1401, subd. (a).) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (§ 1400.)
All further statutory references will be to the Evidence Code unless otherwise indicated.
The authenticity of a writing is a preliminary fact which is an ultimate jury question. (§ 403.) In order for a document to be authenticated, a foundation must be laid by introducing evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is. (§ 1401.) A judge must admit the proffered evidence if there is any showing of preliminary facts “‘sufficient to sustain a finding’” of their existence, and then the jury makes a final determination by rejecting the proffered evidence if it finds the preliminary fact was not established. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 52, pp. 85, 86, 90-91.)
There are any number of methods by which an item of evidence may be authenticated. (§ 1410.) Authentication requires only that it be shown that the writing is what the proponent of the evidence claims it is. (§ 1400.) “The law is clear that the various means of authentication as set forth in Evidence Code sections 1410-1421 are not exclusive. Circumstantial evidence, content and location are all valid means of authentication. [Citations.]” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
Anyone who saw the writing made or executed, including a subscribing witness, may authenticate the writing. (§ 1413.) “A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.” (§ 1421.)
The prosecution called Naomi Miles (Miles), who worked for Dr. Connelly as a dental assistant and an office manager from 1975 to September 1983. Her duties included taking X-rays of teeth and submitting X-rays to insurance companies to obtain reimbursement. Dr. Connelly had been Turner’s dentist since 1958, and had taken X-rays of Turner’s teeth and jaw and had prepared a chart with Turner’s dental treatment plan.
The prosecutor presented Miles with copies of Turner’s X-rays. The date on the X-rays was March 8, 1973, and the name “Ray Turner” was written on the X-ray. She recognized that handwriting as belonging to Laurie, Dr. Connelly’s prior office manager, because it was “very pretty.” Miles recognized the words “Dr. Connelly” on the X-ray as her own handwriting because she said her handwriting was “awful,” so she regularly used print instead. Miles also recognized Dr. Connelly’s handwriting on the chart because it was small and a little sloppy, and his manner in writing a treatment plan was very distinct. She stated that Turner’s dental chart matched the X-rays because the dental work detailed in the treatment plan matched the work that was seen on the X-rays.
The trial court did not abuse its discretion in finding the witness established a foundation for the dental records. It is clear from Miles’s testimony that she had personal knowledge of the handwriting of the dentist and the office manager because she gained familiarity with their handwriting from reviewing and processing their office records for six and one-half years. (§ 1416.) Miles was certainly qualified to recognize her own handwriting. (§ 1413.) She also recognized the handwriting of the office manager and the dentist, which she described as being distinct in penmanship and writing style. (§ 1421.) The combination of the dentist’s distinctive writing style detailing the treatment plan, the content of the X-rays that matched the dental work documented in the treatment plan, and the unique handwriting of the dental assistant and office manager on the X-rays was sufficient circumstantial evidence to find that a proper foundation was laid to prove the chart and X-rays correctly reflected Turner’s antemortem dental history.
2. Bank Records.
Defendant’s claim that the prosecution failed to prove the uncashed bank check and defendant’s identification were obtained from defendant by a bank employee in 1983 is flawed. On this record, we find that the prosecution properly authenticated the documents by establishing a viable chain of custody for the documents. Contrary to defendant’s claim, the detective specifically testified that he received from the bank teller a payroll check, a deposit slip, a personal check, and defendant’s identification.
To establish a chain of custody, “‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.”’” (People v Lucas, supra, 12 Cal.4th at p. 444.)
Here, it is clear that each link of the chain properly proved who had the documents and that the documents were not altered. The detective specifically testified that he received those documents from Betty Shea, the bank teller supervisor.
We view the evidence in a light most favorable to the prevailing party. (People v. Dominguez (2006) 39 Cal.4th 1141, 1153.)
The chain of custody from the bank to the detective is as follows: Betty Shea, a supervisor for 26 years, testified that in 1983 she approved payment for the three forged checks that were presented for payment from Turner’s account in April 1983. Shea recognized her initials on the checks, signifying that she had approved payment of those checks. She explained that if Turner’s account had been restricted at that time, the bank would not have allowed those checks to have been cashed. She testified that banking procedure required any package of questionable financial documents, and any personal identification document that may have been supplied, had to be turned over to her boss, an assistant manager. She could not recall providing forged checks, a payroll check, a deposit slip, or identification to a detective in 1983.
Detective Nunez testified that he received some checks from Gwen, which she suspected were forgeries. They were made payable to defendant and drawn on Turner’s account. The detective then contacted Shea at her bank office. She gave him two checks, a deposit slip, and an identification card displaying a picture that resembled defendant. He bundled all of the evidence and submitted the package to the crime lab for handwriting comparison analysis. He testified that the picture on the identification card resembled defendant. Thus, the financial documents (checks, deposit slip, payroll check) were properly authenticated.
The military identification was authenticated by the detective’s testimony that the picture on the identification resembled defendant. Defendant’s picture on the identification is probative in itself of what it shows: defendant’s facial features, which is used to prove identity. (See People v. Bowley (1963) 59 Cal.2d 855, 861.) In other words, the military identification is self-authenticating.
The checks that Gwen claimed were forgeries were given directly to the detective by Gwen herself.
Defendant claims that the prosecution failed to prove the missing link—that the checks, deposit slip, and the identification came from defendant.
A few days after the murder, Andrews accompanied defendant to a bank to cash Turner’s checks. She observed defendant forge Turner’s name on a check by slipping a document with Turner’s signature underneath the check and then he traced Turner’s name onto the check. When defendant tried to cash the check, a teller retained his military identification and the remaining checks.
Defendant’s claim that Andrews could not bolster the admissibility of the bank records because her memory of the events was poor, she had questionable moral character, and she was biased against defendant did not a fortiori mean the trial court abused its discretion in finding the bank records were authenticated by a proper chain of custody. It was not outside the bounds of reason to admit the financial records. If the possibility that someone tampered with the evidence is supported by only bare speculation, then “‘it is proper to admit the evidence and let what doubt remains go to its weight.’” (People v. Williams (1989) 48 Cal.3d 1112, 1134.)
Section 1414 permits authentication if the writing “has been acted upon as authentic by the party against whom it is offered.” Defendant acted as if the checks and his identification were authentic because he presented them to the bank as documents that would entitle him to be paid monies out of Turner’s checking account. Defendant’s statement to Andrews that the bank had kept his check and identification after he tried to cash Turner’s check was an admission by defendant that those documents came from him. (§ 1220.)
Based on the totality of the circumstantial evidence, we conclude that the trial court did not abuse its discretion in admitting the authenticated bank and dental records.
C. Faretta.
Defendant was found competent to represent himself after a Faretta hearing in a previously filed case. An order was entered granting him in propria persona status. After the district attorney refiled that case, the order granting defendant in propria persona status and all other previously made orders were applied to the current case. Advisory counsel, who had been appointed to assist defendant in that case, Grover Porter (Porter), was reappointed as advisory counsel in this case.
On March 7, 2003, on defendant’s behalf, Porter informed the court that defendant was encountering problems with the jail staff’s continual violation of his privacy regarding his defense work product. The trial court advised defendant to file a motion to seek a remedy for his concerns. Consequently, defendant filed a motion for protective order on April 7.
Defendant’s motion for a protective order to prevent deputies from removing legal materials from his jail cell was heard on May 12. The court granted the motion and ordered the sheriff’s department not to destroy or remove any work product or discovery or legal materials belonging to defendant. Defendant complained that there were two boxes of materials that had been seized by deputies but had not been returned. The trial court advised defendant that he could bring a motion for the return of his property and documents.
Defendant followed the trial court’s advice and filed a motion to return illegally seized property on June 5, 2003. The motion to return property to defendant was called for hearing on August 1, but defendant had failed to serve the sheriff’s department with the motion, so the trial judge refused to hear the matter without giving the sheriff’s department notice and an opportunity to respond. The court ordered defendant to serve the sheriff’s department by the following Monday, August 4, and continued the hearing on the motion for August 8.
After conducting a hearing on August 8, the trial court granted defendant’s motion for return of property. It ordered that defendant be permitted to have three legal boxes of materials in his jail cell and be allowed to maintain them in his cell until the conclusion of the preliminary hearing. If defendant requested an exchange to obtain additional materials, that exchange was to be accomplished within 24 hours, provided the request was made Monday through Thursday. Also at the hearing, the preliminary hearing date of August 22 was confirmed.
At oral argument, the People conceded that the sheriff’s department failed to return defendant’s legal materials to his cell and that its failure to comply with the court’s order was a contempt of court. (Code Civ. Proc., § 1209, subd. (a)(5).)
On August 22, three motions and a preliminary hearing were set for hearing. The three motions were (1) a motion by the sheriff’s department to suspend an order allowing defendant five phone calls, (2) defendant’s motion for sanctions regarding prosecution’s failure to comply with discovery orders, and (3) a motion by Porter to be relieved. In ruling on the motions, the trial court suspended its order giving defendant access to five phone calls, denied defendant’s motion for sanctions, and granted Porter’s motion to be relieved.
When Porter was relieved, defendant agreed to allow another attorney, Victor Marshall (Marshall), to substitute in as advisory counsel. The trial court told Marshall that it would not continue the preliminary hearing because counsel was newly appointed. However both Porter and Marshall implored the court to grant Marshall a two-week continuance to prepare for the preliminary hearing, asserting it would streamline the overall time expended at the preliminary hearing. If Marshall had time to work with the in propria persona defendant, it would winnow down and limit issues that would be raised during the preliminary hearing. The trial court reluctantly agreed to the continuance and set the preliminary hearing for September 12.
On the September 12 preliminary hearing date, defendant filed an order to show cause (OSC) regarding contempt because sheriff’s deputies failed to return his legal materials to his cell. He stated it was impossible to proceed without these documents as they were necessary for his defense at the preliminary hearing. Defendant orally moved for a continuance until the sheriff’s department returned all of his documents. Marshall suggested that the preliminary hearing begin with the witnesses who were present, and have a continuous preliminary hearing. The court agreed, finding there had been a waiver of a continuous preliminary hearing, and any continuance would assist defendant as it would assure he had adequate resources to present his case. If it was necessary to recall witnesses, the court was willing to recall them for further testimony.
Defendant objected to the preliminary hearing proceeding with the People’s first witness. He said that he needed his paperwork to effectively cross-examine the detective’s testimony. Marshall explained that defendant’s intent was to have resolved the motions regarding the return of his property prior to the preliminary hearing. The preliminary hearing judge said that any motions should be set for a different date and brought before another judge handling defendant’s motions. When the prosecution called its first witness, the following occurred:
“[DEFENDANT]: I object to that, and I’m going to move right now to stand mute because I don’t have the items to do that. And also right now I’m going to go one step further; I’m going to withdraw my pro per status.
“THE COURT: All right. You can withdraw your pro per status at this time and understanding that you will not be able to resume your pro per status. [¶] Mr. Marshall, are you ready to proceed? [¶] . . . [¶] At this time the defendant’s status as pro per is hereby revoked, and on the defendant’s own motion we will no longer give him pro per status. . . .” (Italics added.)
Sometime later, defendant said, “And also the only reason why I gave up my pro per status is because I’m not prepared today and I was being pushed into a preliminary hearing due to the forthwith order that was granted on August the 8th.”
Marshall was then appointed as counsel. The court, defense counsel, and the prosecutor were in agreement that the preliminary hearing had to be continued because there were 500 pages of discovery to review, and defense counsel needed time to investigate and prepare for the preliminary hearing. The preliminary hearing was continued to September 18. The judge clarified for defendant, “Let me explain what I’m going to do in this case, Mr. Mayns, so that there is no misunderstanding. I have relieved you [of] your pro per status. I have explained to you that pro per status will not be reinstated in the future.”
The trial court granted defendant’s posttrial in propria persona privileges to file a motion for new trial and appointed separate advisory counsel to assist him.
Defendant contends that the preliminary hearing judge forced him to surrender his in propria persona status because he refused to hear defendant’s contempt OSC to enforce the order for the sheriff’s department to return his work product, and coerced him to proceed with the preliminary hearing without his legal documents. He asserts the judge’s actions “placed [him] in a position where he had no other choice other than to surrender his pro per status, rather than participate in a sham preliminary examination.”
Applying an abuse of discretion standard of review, we conclude that the trial court did not abuse its discretion when it terminated defendant’s right to self-representation. The trial court did not coerce defendant to relinquish his right to self-representation by refusing to enforce prior orders for the return of defendant’s boxes.
A defendant has a right of self-representation under the Sixth Amendment of the United States Constitution. (Faretta, supra, 422 U.S. 806.) For that right to be unconditional, a defendant in a criminal trial must make an unequivocal assertion of the right within a reasonable time prior to the commencement of trial. (People v. Windham (1977) 19 Cal.3d 121, 128-129.)
It is well settled that termination of the right of self-representation is a severe sanction and must not be imposed lightly. Once in propria persona status has been granted, it may be terminated if the defendant deliberately engages in serious obstructionist conduct that compromises the court’s ability to conduct a fair trial, or is not willing to abide by courtroom protocol and procedure. (Faretta, supra, 422 U.S. at p. 834; Illinois v. Allen (1970) 397 U.S. 337, 343; People v. Carson (2005) 35 Cal.4th 1, 6-7; McKaskle v. Wiggins (1984) 465 U.S. 168, 172-173.)
Additionally, trial courts are empowered to terminate self-representation when a defendant changes his mind and asks the court to terminate his self-representation. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.)
In this instance, two things occurred: (1) defendant asked the court to withdraw his in propria persona status, and (2) defendant’s failure to retrieve his materials prior to the preliminary hearing date through available court remedies irrefutably demonstrated his unwillingness to timely follow proper court procedure. The court’s exercise of its inherent power to grant defendant’s request to revoke his self-representation right was not an abuse of discretion. Nor did it abuse its discretion when it appointed counsel following defendant’s failure to timely prepare his preliminary hearing defense.
When reviewing a defendant’s request to change from self-representation to a representation of counsel, a trial judge exercising his discretion must view the totality of the facts and circumstances. (People v. Gallego, supra, 52 Cal.3d at p. 164.) Defendant’s complaints that the sheriff’s deputies removed his work product began March 7, 2003, seven months prior to the preliminary hearing. When Marshall informed the court that the privacy of defendant’s work product was violated by jail staff members, defendant waited one month before he brought a motion for a protective order.
The motion for a protective order was heard and granted three weeks later on May 12. The next legal action defendant took was to file a motion for return of his work product that was removed from his jail cell. Instead of bringing both the motion for a protective order and the motion for the return of property at the same time in March, defendant parsed out the two motions; he did not file his motion for the return of property until June 5, 2003.
Even then, the return of the property could not be resolved on June 5 because defendant failed to serve the sheriff’s department with the motion, causing the matter to be continued until August 8. It was incumbent upon defendant, acting as his own counsel, to know that the sheriff’s department was entitled to notice and an opportunity to be heard on his motion. Defendant’s own procedural delay added to the delay in the return of his legal materials.
When the trial court finally heard defendant’s motion for return of his property on August 8, the trial court granted the motion, allowing defendant to have three boxes at a time in his jail cell until the end of his preliminary hearing. This remedy occurred five months after he first began complaining about the problem.
Next, defendant’s preliminary hearing, which was originally set for August 22, was continued because new advisory counsel had been appointed and had “to get up to speed” on the case. Thus, defendant was afforded yet another three weeks to obtain his work product as the preliminary hearing was now continued to September 12. It was not until the day of the preliminary hearing that defendant filed a contempt OSC to enforce the property return order. Altogether, seven months had elapsed from the date defendant first complained about the sheriff department’s interference with his work product to the date he needed the documents for his preliminary hearing defense.
We find that seven months is more than a sufficient period of time to assert his legal remedies to obtain his work product. Moreover, we note the September 12, 2003, preliminary hearing date was four years after defendant was originally charged on August 31, 1999, in the prior case. Viewing the totality of the circumstances, we conclude the trial court did not abuse its discretion in revoking defendant’s in propria persona status at his request on the date of the preliminary hearing.
Based on this record, there is no hint that the preliminary hearing judge coerced defendant into giving up his in propria persona status. Defendant had a myriad of opportunities over a seven-month period to obtain the necessary documents for his defense. Defendant may not belatedly file a contempt enforcement action on the day of the preliminary hearing and then complain when the judge refuses to hear the motion. Just as any attorney would be rebuffed by a judge for filing a late motion, so should an in propria persona filing a belated OSC be declined.
“[S]elf-representation is almost always unwise and [a defendant] may conduct a defense ‘ultimately to his own detriment.’ [Citation.]” (People v. Lopez (1977) 71 Cal.App.3d 568, 572 (Lopez).) “Both civil litigants and criminal defendants who represent themselves in the trial court are held to the same standards as are parties who are represented by counsel.” (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.) Defendant should not receive any special entitlement to file an untimely enforcement action to retrieve his work product. He is not entitled to special indulgences by the court. (Lopez, at pp. 572-574.)
Moreover, defendant’s relinquishment of his in propria persona status was voluntary, rather than forced. His intransigent stance in “standing mute” and refusing to proceed belies his remonstrance that he was forced to waive his Faretta rights. Defendant did not take advantage of any remedial actions available to him to assist him in cross-examining the detective. First, the trial court offered him the option of recalling witnesses if any further favorable defense evidence needed to be elicited. Second, defendant failed to ask Marshall if he had any of the required documents. Marshall had received 500 pages of discovery three weeks prior to the hearing. Surely, defendant could have inquired whether Marshall had any of those necessary documents; the attorney could have easily supplied those materials if defendant had asked for replacement documents that the attorney might have possessed.
In this instance, defendant’s volitional relinquishment of his Faretta rights is comparable to that which occurred in People v. Boulware (1993) 20 Cal.App.4th 1753, 1756-1757. A defendant who had been granted in propria persona status asked for an attorney on the day of his preliminary hearing, and refused to agree to a continuance of that hearing. The trial court revoked defendant’s in propria persona status and proceeded to hear the matter. After it found sufficient evidence to hold defendant to answer, the court appointed a public defender to represent defendant. The reviewing court held that the trial court did not abuse its discretion in conducting the preliminary hearing without appointing counsel.
Similarly here, the court did not abuse its discretion in revoking defendant’s in propria persona status on the day of the preliminary hearing when witnesses were present. Rather, it exhibited extraordinary patience when, in the face of defendant’s obduracy, it tried to assist defendant by allowing him to recall witnesses to supplement the defense’s evidence. It was only after defendant foreclosed that option that the preliminary hearing judge revoked his in propria persona status. Defendant’s unreadiness amounted to “‘serious and obstructionist misconduct’ within the meaning of Faretta and also an inability or unwillingness to ‘abide by rules of procedure and courtroom protocol . . . .’” (People v. Rudd (1998) 63 Cal.App.4th 620, 632.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.
It was not until 1985 that the technology developed to make positive identification of postmortem remains. As a result of a plane crash involving army personnel in Gander, Newfoundland, the army developed computer software to perform repetitive and time consuming record-by-record comparisons of all possible antemortem and postmortem records so that forensic examiners could concentrate their efforts on making positive identifications.
The program performed a “sort,” which prioritized and listed records based upon the maximum number of tooth matches between the postmortem record of interest and electronic dental records which were previously entered into the antemortem database.
The computer compared all possible record matches and sorted them, listing all possible record matches based upon the number of tooth-by-tooth matches. A forensic examiner then reviewed the matches and compared the known with the unknown dental records to identify a person based upon that dental match. (Lorton, Rethman & Friedman, The Computer-Assisted Postmortem Identification (CAPMI) System: Sorting Algorithm Improvements (July 1989) J. Forensic Sci. pp. 996-1002.)
In 1993, the American Board of Forensic Odontology formed a Missing/Unidentified Person Committee to develop guidelines for forensic dentists to gather and use dental information to assist in identifying missing persons. It determined the CAPMI system was a viable method for use in identifying and matching dental records. (American Board of Forensic Odontology Diplomates Reference Manual; guidelines for use of dental information in missing person and unidentified body cases, pp. 161, 175-176 ( [as of May 15, 2008]).)
In 1995 the California Legislature added section 102870 to the Health and Safety Code mandating coroners to send dental records to the Department of Justice computer center to compare antemortem and postmortem dental records for purposes of identification. (Stats. 1995, ch. 415, § 4, pp. 2484-2485.) Around that time, California had a large backlog of records it was working on to update the system. (Kamb, Without a Trace Part 9: After 21 years, the bones get a name (Feb. 26, 2003) http://Seattlepi.nwsource.com/local/109939_nationalmissing26.shtml [as of May 15, 2008].)
We do not countenance, and strongly disapprove of, the sheriff’s department’s refusal and/or delay in complying with the trial court’s order to return to defendant his legal materials.