Opinion
B200261
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. WYATT T. MILES, Defendant and Appellant.
Marilee Marshall & Associates, Inc., Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Wyatt T. Miles (appellant) appeals from the judgment entered following a jury trial resulting in his convictions of making a criminal threat (Pen. Code, § 422), assault by means of force likely to produce great bodily injury and with a deadly weapon, a shovel (§ 245, subd. (a)(1)), and first degree residential burglary (§ 459). In bifurcated proceedings, appellant admitted that he had a prior conviction of a serious felony that required a five-year enhancement, as well as sentencing pursuant to the "Three Strikes" law (§§ 667, 1170.12), and that he had served a prison term for a felony (§ 667.5, subd. (b)). The trial court struck the prior serious conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court imposed an aggregate term of seven years in state prison, consisting of two years for the burglary, plus a five-year enhancement for the prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the trial court abused its discretion by terminating appellants self-representation, and he requests (2) that this court review the record of the in camera proceedings on the Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) as is authorized by the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc ).
The People request that we correct the judgment so as to impose a total of $60 in section 1465.8 court security fees.
This court finds no merit in appellants contentions. However, we will order vacated the trial courts previous order for a $20 section 1465.8 court security fee. The judgment will be modified to require appellant to pay $60 for court security fees pursuant to section 1465.8. As modified, the judgment will be affirmed.
FACTS
The Peoples Case-in-Chief
In August 2005, Wauhillau Davie (Davie) was employed at a Los Angeles residence as a caregiver by an elderly woman, Pearly Miles. In exchange for looking after Ms. Miles, Davie, her boyfriend, Jorge Hernandez (Hernandez), and her son, Jose Prado, were permitted to live in Ms. Miless converted garage. Ms. Miles lived in the front house with a daughter Marilyn and her son, appellant. Davie acknowledged that she and appellant had a history of weekly, violent arguments. Previously, the arguments had ended when one or the other of them apologized and the hostility had ended.
On January 19, 2006, Ms. Miles was temporarily living in a convalescent home. At about 4:30 p.m., Davie was preparing to visit Ms. Miles at the convalescent home. She wanted to take a DVD player to Ms. Miles and asked appellant for his mothers DVD player as her own equipment had missing parts. Appellants response was to start an argument and curse at Davie. Davie responded angrily, telling appellant that it was for his mother, and that he should be the one visiting her. Appellant swore at Davie, said Davie was going to lose her job, and called her a "b____." He followed Davie into the converted garage.
An angry argument followed, in which appellant twice entered Davies garage residence without permission, once with a shovel that he shook at her in anger, holding it like a baseball bat. With the shovel in hand, appellant told Davie that he would kill her. Davie obtained her sons DVD player and went outside to leave in her car. Again, appellant confronted her at the car with the shovel and threatened to kill her. Davie testified that appellants conduct went beyond what had occurred during their earlier quarrels and made her afraid for her safety, although she did not display her fear. Davies boyfriend, Hernandez, corroborated Davies claims about the assaults and the threats.
Davie in part recanted her testimony at trial, and the police officers testified to her initial out-of-court statements describing the assaults and the accompanying threats.
Davie later telephoned the police and had them accompany her when she returned to the residence. The officers arrested appellant. Appellant threatened to kill Davie and told her that he would evict her. He also told her that he would kill her if she testified against him.
The police officer who responded to Davies call testified that he saw no signs that appellant, Davie, or Hernandez was under the influence of alcohol and/or a drug.
The Defense
Appellant did not testify on his own behalf.
Appellants defense investigator and the investigators daughter testified to inconsistent statements Davie had made to them during an investigation of the crimes. Also, Davie had told them that she did not want to prosecute. She also told them that the authorities had informed her that it was no longer up to her whether the prosecution went forward.
During final arguments, trial counsel argued that the charges were fabricated by Davie and Hernandez. Trial counsel did not question the officers credibility.
DISCUSSION
I. Self-Representation
Defendant contends that the trial court abused its discretion when it revoked his in propria persona (in pro. per.) status.
We disagree.
A. Background
On June 26, 2006, appellants case was transferred from the master calendar court to a trial court for trial. Previously, appellant had been granted self-representation. The trial court ascertained that appellant did not want to plea bargain or to plead guilty. The prosecutor informed the trial court that he was filing an amended information alleging that appellant had a prior serious felony conviction pursuant to section 667, subdivision (a), which required a five-year enhancement. The trial court explained the significance of the amendment to appellant. Appellant responded, as follows: "Dont add but a year prior. Thats all they are, are a year prior. Im not stupid. Im not ignorant with the law. Dont play games with me in here."
The trial court instructed appellant that he was not to assume such a hostile attitude. Appellant ignored the trial court and continued to make belligerent statements. He told the trial court that when the trial commenced, he would let standby counsel take over.
The trial court told appellant that if he demanded counsel for trial, the trial court intended to reappoint the office of the public defender. Standby counsel would not be representing him. Also, the trial court informed appellant that if he was disruptive or discourteous, or if he failed to abide by court procedures during trial, the trial court would revoke his in pro. per. status. If that occurred, he would have to accept representation by standby counsel.
The trial court inquired whether he wanted representation by counsel during trial. Appellant replied that he did not want the deputy public defender to represent him. The trial court repeated its admonition that a deputy public defender would be appointed if he requested counsel: on the other hand, if appellant was disruptive during the trial, and the trial court was forced to revoke his in pro. per. status, standby counsel would be appointed to complete the trial. The trial court reminded appellant that if he was represented by counsel, he would not be permitted to play the role of an attorney at any point in the case.
Appellant said, "Im not tripping on that. Im saying this a____ over here—"
The trial court replied, "Here we go again. Do not use that language in this court."
Appellant replied: "What he need to do [apparently referring to the prosecutor] is be precise about the charges that he trying to give me. Im not stupid to the law." Appellant then said, "Dont come back at me with sh— because Im not going for it."
The trial court repeated, "Ive warned you already, sir." Appellant replied: "Im just telling you, you respect me and give me the—what they—he coming at me with that crap, okay? Aint no 20 years for no—for no ADW. Okay? Nowhere near that. ADW. And I got proof that the b____ aint gonna testify."
The trial court commented: "I think [appellant] was trying to get his pro. per. status revoked since hes—"
Appellant interrupted and said, "I dont give a f____ what you all prepared on doing. I say what the f____ I want to say."
The trial court replied, "Are you finished?" It instructed the court reporter, "Make sure you get all of this." Appellant interjected: "Get it all. Get it all. F____ you, yeah, we going to trial with this case. F____ you. Yeah, get that. Get me the f____ out of this courtroom."
The trial court instructed the bailiff to leave appellant seated in the courtroom. Appellant blurted out, "Playing no f____ games with me."
The trial court said: "All right sir. This is the third warning Im giving you. Are you going to continue with that behavior?"
Appellant replied, "Youre damn right I am."
The trial court ruled that it was revoking appellants in pro. per. status. It said that appellant "continues to be disruptive, obstreperous, disobedient, disrespectful, and obstructionist in his actions and his words after repeated warnings by this court that if he did not abide by the courts rules and procedures and respect the decorum of this court, that his pro. per. status and his right to represent himself would be revoked." It cited the decision in People v. Welch (1999) 20 Cal.4th 701. The trial court said that he had warned appellant a number of times about his behavior. It therefore found there was no other alternative but to revoke appellants in pro. per. status.
It requested the bailiff to remove appellant from the courtroom.
The trial court appointed the alternate public defender to represent appellant. The trial court explained that it had wanted to appoint standby counsel. However, standby counsel was not in court that morning, and the courtroom clerk could not reach him by cellular telephone or with a message left at his office. Accordingly, the trial court was appointing the alternate public defender.
The trial court set a new trial date and ordered the trial witnesses who were present to return on that date.
Three days later, on June 29, 2006, the parties appeared in the master calendar court. The prosecutor informed the master calendar court about the events in the trial court. He recounted the details of how appellant had lost his in pro. per. status and complained that it was obvious that appellant had successfully engaged in a "delay tactic." The prosecutor claimed that appellant had two purposes in engaging in the disruptive behavior. He wanted an attorney of his own choosing, that is, standby counsel, rather than a deputy public defender. Also, the People had witnesses present and were ready for trial, and appellant had successfully delayed the trial.
The master calendar court agreed that the turn of events was frustrating. It observed that the better remedy might have been to start the trial immediately. However, as things stood now, the trial court had exercised its discretion. The master calendar court had no authority to undo what had been done. It inquired whether the prosecutor had witness problems. The prosecutor informed the court that his witnesses had been ordered to return on the next trial date. The master calendar court told the prosecutor that at this juncture, the best course of action was to proceed to trial on the date scheduled. However, it would and did order the alternate public defender relieved as attorney of record and appointed standby counsel to represent appellant.
B. The Relevant Legal Principles
In Faretta v. California (1975) 422 U.S. 806, the court recognized that a "trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. See Illinois v. Allen [(1970)] 397 U. S. 337." (Faretta, supra, at p. 834, fn. 46.) The court also said the following: "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel." (Faretta, supra, 422 U.S. at p. 834, fn. 46.) "Whenever `deliberate dilatory or obstructive behavior threatens to subvert `the core concept of a trial (United States v. Dougherty [(1972)] 473 F.2d [1113,] 1125) or to compromise the courts ability to conduct a fair trial (see Allen, at p. 343), the defendants Faretta rights are subject to forfeiture. Each case must be evaluated in its own context, on its own facts . . . ." (People v. Carson (2005) 35 Cal.4th 1, 10.)
In making a decision to revoke a defendants in pro. per. status, "a trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendants right to self-representation and the exercise of that discretion `will not be disturbed in the absence of a strong showing of clear abuse. [Citations.]" (People v. Welch, supra, 20 Cal.4th at p. 735.)
C. The Analysis
There was no abuse of discretion here. Immediately, upon appellants appearance in the trial court, appellant used foul language and was disrespectful. The trial court warned appellant several times that disruptive behavior, bad language, and the failure to comply with court rules would result in the revocation of his in pro. per. status. It appears from this record that appellant intended in any event to have counsel represent him during trial. The record also supports a reasonable inference that appellant did not expect witnesses Davie and Hernandez to appear for trial, and his reaction to the amendment of the information may well have been calculated, as the prosecutor suspected, to abort his trial.
Nevertheless, given appellants repeated use of foul language, and his apparent intention to engage in rude and disorderly conduct during trial in order to disrupt its orderly proceedings, the trial court properly exercised its discretion by revoking appellants in pro. per. status.
II. Review of the In Camera Pitchess Proceedings
Appellant requests that this court conduct a review of the in camera Pitchess proceedings as authorized by the decision in Mooc, supra, 26 Cal.4th 1216.
On April 14, 2006, appellant filed a Pitchess motion. (Pitchess, supra, 11 Cal.3d 531.) He requested "[a]ll complaints . . . from . . . all sources relating to acts of . . . fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause . . . false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, planting of evidence, . . . and any other evidence of misconduct amounting to moral turpitude within the meaning of People v. Wheeler (1992) 4 Cal.3d 284 against Officers [unintelligible] (# 2095), Smith (# 26608), Woods (# 263521)."
The trial court granted the Pitchess motion only as to Officer Fernandez and only with respect to "false reports, evidence, perjury."
The trial court held an in camera hearing. Thereafter, the trial court told appellant that there was one relevant complaint in Officer Fernandezs file. The trial court set a compliance date of May 17, 2006. There is no minute order for May 17, 2006. However, the minute order of June 8, 2006, indicates that appellant made no complaint about a lack of Pitchess discovery. Also, on that date, appellant had personally announced that he was ready for trial.
Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (Mooc, supra, 26 Cal.4th at p. 1217.)
This court has reviewed the sealed transcript of the in camera Pitchess hearing. After doing so, this court ordered the record augmented with the peace officer personnel records the Honorable William C. Ryan had reviewed in camera. After the record was augmented, this court independently reviewed the record and concluded that the trial court properly exercised its discretion by ordering discovery of the one citizen complaint against Officer Fernandez. (Mooc, supra, 26 Cal.4th at p. 1228; see People v. Prince (2007) 40 Cal.4th 1179 1286-1287.)
III. The Section 1465.8 Court Security Fees
The People request that we correct the judgment to impose three $20 court security fees, or $60, pursuant to section 1465.8.
The abstract of judgment provides for only one $20 court security assessment pursuant to section 1465.8, subdivision (a)(1). Section 1465.8 provides, "(a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code."
Section 1465.8 requires a $20 court security fee be imposed for each "conviction for a criminal offense." Appellant suffered three convictions in this case. Accordingly, the one $20 fee constitutes an unauthorized sentencing order, and we must correct the judgment to impose three $20 court security fees, or $60 in court security fees. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-867; People v. Crittle (2007) 154 Cal.App.4th 368, 371 (review den.).)
DISPOSITION
The order requiring appellant to pay a $20 court security fee pursuant to section 1465.8 is vacated. The judgment is modified to provide for that appellant is required to pay three $20 court security fees, or $60 pursuant to section 1465.8. As modified, the judgment is affirmed.
On remand, the trial court is ordered to cause its clerk to prepare an amended abstract of judgment reflecting the modification in the judgment. The amended abstract of judgment is to be sent to the California Department of Corrections and Rehabilitation.
We concur:
BOREN, P. J.
CHAVEZ, J.