Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 2186829/195124
OPINION
Pollak, J.
Defendant Lawrence O’Sullivan appeals from a judgment convicting him of three counts of assault with a knife on a police officer and counts of attempted robbery and misdemeanor petty theft. Defendant appeared in propria persona at trial but is represented by appointed counsel on appeal. He contends that the court violated his right to due process by refusing his request to appoint advisory counsel, failing to provide adequate access to the law library, and unfairly limiting the scope of his testimony. He also contends that there is insufficient evidence to support his assault convictions and that the court erred in failing to instruct the jury sua sponte with the lesser included offense of assault with a deadly weapon (not on a police officer). We affirm.
Factual and Procedural History
Defendant was charged by information with three counts of assault with a knife on a police officer (Pen. Code, § 245, subd. (c)), one count of attempted robbery (§§ 664/212.5, subd. (c)), and one count of misdemeanor theft (§§ 484, subd. (a), 490.5). After a number of continuances, the matter was set for trial in September 2005.
All statutory references are to the Penal Code unless otherwise noted.
On Thursday September 8, the court granted defendant’s motion to represent himself at trial as required by Faretta v. California (1975) 422 U.S. 806 . Defendant requested that his appointed attorney be appointed as advisory counsel, but the court told him that in acting as his own lawyer, he would “not be able to receive the good advice of an experienced criminal lawyer” and that if he chose to represent himself, the court would not appoint a lawyer to assist him. Defendant stated that he understood and chose to represent himself. The court asked defendant whether he would like a brief continuance to further prepare for trial but defendant declined.
The next day, defendant filed a written request for daily access to the law library. In response to the court’s inquiry, the bailiff reported that the library was open “from 8:00 in the morning to 7:00 at night.” He explained that if defendant needs additional library time he would need to make a written request to Prison Legal Services. The bailiff confirmed that no specific order was necessary to ensure that defendant had access “to the law library in the evenings after court and on the weekends.” The court directed defendant to request access through Prison Legal Services, and indicated that if there were a problem the court would address it on Monday morning.
On the following Monday morning, September 12, defendant reported that he had been unable to access the law library over the weekend. After calling the library, the bailiff reported that “normally an inmate goes twice a week and there needs to be a court order.” The court then ordered that defendant have access to the library in the evening from 7:00 to 9:00 p.m. “and on the weekends when the library is open, and according to the Sheriff’s availability to allow him to do so.” The court explained. “It is the court’s intention to allow Mr. O’Sullivan to have access to the library; however, I am not authorizing the sheriff’s department to put an extra deputy on or for overtime so that Mr. O’Sullivan can avail himself of the law library.” Jury selection began Monday afternoon, and the presentation of evidence began on Wednesday, September 14 and continued through Tuesday, September 20. The jury was instructed on Wednesday, September 21.
The following evidence was presented at trial:
On October 14, 2004, defendant left the San Francisco Hardware store without paying for a can of spray paint. When the clerk followed and told him he must pay for the paint, defendant got on his bicycle and tried to flee. The clerk grabbed defendant’s bag, but released him when defendant hit his hand with the paint can and threatened to spray him in the face. About ten minutes later, defendant returned to the store and demanded that the clerk pay him because he had ripped defendant’s bag in the earlier incident. When the clerk refused, defendant brandished a knife and attempted to remove the cash register, but left when he was unable to sever the cables securing the register to the counter.
Later that evening, defendant approached a second victim who was withdrawing money from an ATM machine. He first demanded that the man give him $500, then $100 and finally $60. When the man did not respond, defendant said, “You want to see my knife?” The man ignored defendant and tried to walk away, but defendant followed him. After defendant threatened to kill him, the man punched defendant. Defendant pulled out his knife and lunged at the man. The man backed away and ran to a restaurant to call the police.
Defendant was not charged with a criminal offense based on this incident.
Officer Frank Harrell was responding to the call when he saw defendant on his bicycle. Harrell yelled to defendant to stop and defendant fled. Harrell chased him on foot. Officers George Perez and Thomas Johnson were in a police car when they saw defendant riding his bicycle towards them. Perez and Johnson testified that as defendant was attempting to turn into an alley, his tire hit the curb and he flipped off his bike. Harrell testified that defendant fell off the bicycle when “there was a collision between [defendant] and the right fender of the patrol vehicle.”
Defendant got to his feet and ran down the street. As Perez and Johnson chased him, Harrell approached from the other direction. When he was eight to twelve feet from Harrell, defendant made a stabbing motion with his knife. Harrell pulled out his baton and ordered defendant to drop the knife. Defendant did not comply. Defendant turned towards Perez, coming within two feet of the officer, with the knife held over his head. Perez took out his gun and ordered defendant to drop the knife. Defendant did not comply and instead charged Johnson, keeping the knife raised over his head. Once again he stopped and turned towards Perez. He came within five to eight feet of Perez before again switching directions and charging Johnson, holding the knife “in a very aggressive attacking mode above his head.” Defendant came within seven or eight feet of Johnson before Perez shot him in the leg. On the ground, defendant still refused to relinquish his knife, and Perez kicked it from his hand. Johnson testified that based on his training, he knew that a person, even 10 feet away, has the capability to stab another person. Harrell testified that a suspect can advance 21 feet in 1.8 seconds.
Jill Cincebeaux was the only witness called by the defense. She testified that she witnessed defendant being chased by the officers. She could not tell whether the police car hit defendant’s bicycle because her view was blocked. She saw defendant standing in the street with his arms over his head holding an object in his hand. When the officers yelled “drop it; drop it” she ducked and did not see defendant shot.
In rebuttal, the prosecution called Leon Teekasingh and Michael Rosales, who were having dinner in a nearby restaurant when the shooting occurred. Teekasingh testified that the police car was chasing defendant on his bicycle and that the police car hit defendant’s bicycle as defendant tried to turn into the alley. Rosales did not see the patrol car hit the bicycle. They both testified that they saw defendant make stabbing motions with the knife. The police surrounded defendant and were about four to ten feet from him. Both witnesses moved away from the window when the officers drew their guns.
When the prosecution rested after presenting the rebuttal witnesses, the court asked defendant whether he had any additional witnesses for surrebuttal. Defendant stated that he would like to testify. He explained, “I want to enter exhibits and I think it is the only way I can do so is by testifying.” The court explained to defendant that while he could testify, the court “[was] not inclined to allow [defendant] to reopen [his] defense case because the People already having called their witnesses on rebuttal and also, certainly, there has been more than sufficient time for [defendant] to be able to make those determinations . . . .” The court confirmed that defendant “wanted to testify with regard to the photographs.” Defendant stated, “Yeah. I would like to enter some evidence, but I think the only way I can do that is if I testify; is that correct?” The court declined to give defendant legal advice, but cautioned that “should you decide to testify and you open up matters other than the exhibits, then the People, obviously, would have a right to cross-examine you. [¶] Also, since it is on surrebuttal, your testimony has to be limited to that which is responsive to the People’s rebuttal case.” Defendant replied, “Okay. That is fine.” The court then asked defendant if he was going to testify and he said no.
The jury found defendant guilty as charged and the court sentenced him to the four-year mid term for the first assault conviction, concurrent four-year terms for the other assault convictions, plus eight months consecutive for the attempted robbery. Defendant filed a timely notice of appeal.
Discussion
1. Defendant received a fair trial.
Defendant contends that he was denied due process and a fair trial as a result of the court’s denial of his request for appointment of advisory counsel and its purported denial of access to the law library. We disagree.
First, while the court has discretion to appoint advisory counsel to assist an indigent defendant who elects to represent himself (People v. Crandell (1988) 46 Cal.3d 833, 861), “a defendant who elects to represent himself or herself has no constitutional right to advisory or stand-by counsel or any other form of ‘hybrid’ representation” (People v. Garcia (2000) 78 Cal.App.4th 1422, 1430; People v. Bradford (1997) 15 Cal.4th 1229, 1368 [“A criminal defendant does not have a right to simultaneous self-representation and representation by counsel. [Citations.] ‘[N]one of the “hybrid” forms of representation, whether labeled “cocounsel,” “advisory counsel,” or “standby counsel,” is in any sense constitutionally guaranteed’ ”].) In People v. Garcia, supra, 78 Cal.App.4th at page 1428, the defendant did not dispute the validity of his waiver of the right to counsel, but asserted that the court abused its discretion in refusing to appoint advisory counsel to assist with his defense. The court rejected this argument and explained that “a defendant who has competently elected to represent himself should not be heard to complain that he was denied the assistance of advisory or stand-by counsel.” (Id. at p. 1431.) In the present case, we similarly see no basis to conclude that the court abused its discretion in denying defendant’s request for appointment of advisory counsel.
Defendant’s contention that he was denied access to the law library is similarly unavailing. When a criminal defendant chooses self-representation, “[i]t is certainly true that a defendant . . . may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense [citation], but this general proposition does not dictate the resources that must be available to defendants.” (People v. Jenkins (2000) 22 Cal.4th 900, 1040.) “[T]he Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances. [Citation.] [¶] Thus, the crucial question underlying all of defendant’s constitutional claims is whether he had reasonable access to the ancillary services that were reasonably necessary for his defense.” (People v. Blair (2005) 36 Cal.4th 686, 733-734.) Here, on the Friday before the start of trial, defendant requested and was told that he would have access to the library. Although he was unable to use the library that afternoon or over the weekend, on Monday morning the court took steps to ensure that he would be given access each weekday afternoon thereafter. Although he had been offered a continuance just days before, defendant did not request a continuance following his denial of access to the library over the weekend. Defendant did not object to the sufficiency of the library access provided in the court’s order nor did he ever indicate that he had any further problems obtaining access to the library or otherwise preparing for trial. Neither in the trial court nor in his appellate briefs does he suggest any issue that he was unable to research or any respect in which he was unable to prepare himself adequately. Defendant’s due process rights were fully respected.
2. The court did not improperly limit defendant’s testimony.
Defendant contends that the trial court erred by limiting his testimony to surrebuttal after the prosecution had presented its rebuttal evidence and rested. Initially, we question whether this argument was properly preserved. While a defendant has a fundamental right to testify on his own behalf (People v. Guillen (1974) 37 Cal.App.3d 976, 984), he must make “a timely and adequate demand” to do so (People v. Alcala (1992) 4 Cal.4th 742, 805). Here, defendant first indicated that he wanted to testify after the prosecution had presented its rebuttal witnesses and he indicated that he wished to do so because he thought that was the best way to introduce exhibits into evidence. The court refused to offer legal advice as to how the exhibits should be presented, but did advise defendant of the limitations that would be imposed on his testimony and of the risk of opening himself to cross-examination. In response, defendant chose not to testify. He did not object to the court’s limitation, nor did he renew his request to testify or offer any exhibits into evidence. Indeed, defendant has not stated what exhibits he would have introduced and there is no way to determine whether those exhibits would have exceeded the scope of surrebuttal. Hence, the trial court made no ruling that is susceptible to review.
In his opening brief defendant suggests that he would have testified that he did not try to take the cash register from the hardware store, that the police car hit his bicycle, and that he showed the police officers his knife only because he panicked. However, defendant did not advise the court that he wanted to testify on these subjects. To the contrary, his sole explanation related to the admission of exhibits. It is entirely possible that some of the testimony he now says he would have given would have been permitted as surrebuttal had defendant indicated he wanted to testify to those facts. Defendant cannot object to the exclusion of evidence that he did not offer and that was not necessarily excluded by the trial court’s ruling.
Defendant argues that the court violated his “right to present a defense and witnesses by applying evidentiary standards in an arbitrary or uneven way.” Defendant acknowledges that his request to testify was not made until after the prosecution had presented its rebuttal witnesses and rested, but he argues that the court should not have limited his testimony to surrebuttal because the court did not similarly limit the prosecution’s rebuttal witnesses. But the testimony the prosecutor presented in rebuttal did not exceed the proper scope of rebuttal. “ ‘[P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’ ” (People v. Young (2005) 34 Cal.4th 1149, 1199.) Although Cincebeaux’s testimony was of limited significance, she was asked by defendant whether the police car hit his bicycle and how far the officers were from him when he was shot. In rebuttal, the prosecution properly elicited testimony from Teekasingh and Rosales on those limited subjects. Moreover, defendant did not object to the testimony of either witness on the ground that their testimony exceeded the scope of rebuttal.
Defendant argues that the court abused its discretion in refusing to reopen the defense case. Even assuming that the court’s remarks could be considered as denying a request by defendant to reopen his case, there was no error. The decision to reopen a criminal case to permit the introduction of additional evidence is vested in the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 836; United States v. Walker (5th Cir. 1985) 772 F.2d 1172, 1177.) In reviewing the trial court’s determination, we consider “the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect the jury would accord it undue emphasis, and the significance of the evidence.” (People v. Marshall, supra, 13 Cal.4th at p. 836; United States v. Walker, supra, 772 F.2d at p. 1177 [“ ‘In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not “imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered” ’ ”].) In this instance defendant provided no description of the new testimony he wished to offer, much less why it had not been presented earlier. As discussed above, we do not know what exhibits defendant planned to introduce or whether those exhibits would have been admissible under the court’s ruling. If any additional evidence should have been received, we cannot possibly evaluate the potential prejudice resulting from its exclusion. In short, there is no showing that the trial court abused its discretion or that the defendant was prejudiced in any manner.
3. Substantial evidence supports the assault convictions.
Section 240 defines an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Defendant contends that there is insufficient evidence to support his assault convictions because he “stopped before he could attempt to apply any physical force with a knife. He made no threats or demands which could have demonstrated an implied threat to come even closer so he could stab one of [the officers].” Defendant relies on People v. Williams (2001) 26 Cal.4th 779, 786, in which the court explained that “the crime of assault has always focused on the nature of the act and not on the perpetrator’s specific intent. An assault occurs whenever ‘ “[t]he next movement would, at least to all appearance, complete the battery.” ’ [Citation.] Thus, assault ‘lies on a definitional . . . continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault.’ ” Based on Williams, defendant argues, “It cannot be said as to any officer that [defendant’s] next movement, to all appearances, would have completed the battery. . . . What is lacking is evidence to prove [defendant] had the general intent to commit an act likely to result in the application of physical force on each of the officers.”
Defendant’s argument is contrary to long-standing law. In People v. Yslas (1865) 27 Cal. 630, 633-634 (Yslas), the California Supreme Court explained, “It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self defense or retreat, the assault is complete. In such a case the attempt has been made coupled with a present ability to commit a violent injury within the meaning of the statute.” In Yslas, the court held that the visibly angered defendant had committed an assault when he approached his victim with a hatchet, coming within seven or eight feet of her. (Id. at p. 631.) In the present case, defendant wielded a knife above his head and lunged at the officers, coming within four to ten feet of them. Based on this evidence, the jury reasonably concluded that defendant intended to strike the officers with his knife. The fact that the officers successfully took defensive measures does not render defendant’s actions less than an assault.
4. Defendant was not entitled to an instruction on the lesser included offense of assault with a deadly weapon.
Defendant was charged with three counts of assault with a deadly weapon on a police officer under section 245, subdivision (c). Assault with a deadly weapon under section 245, subdivision (a) is a lesser included offense of the charged crime. An essential element of the greater crime is that at the time of the offense the officer is engaged in the performance of his duties. (People v. White (1980) 101 Cal.App.3d 161, 166-167.)Defendant argues that the jury should have been instructed on the lesser offense of assault with a deadly weapon under section 245, subdivision (a) because the jury could have found that the officers were not engaged in the performance of their duties when he lunged at them with his knife. He contends that the officers could have been found to have used excessive force in hitting his bicycle with the patrol car, rendering his arrest unlawful and the officers’ conduct therefore outside the scope of their duties.
Section 245 provides in relevant part, “(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. [¶] . . . [¶] (c) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.”
The court “is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) Instructions on a lesser offense are required only when “evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (Ibid.) Even if the jury were to have found that the patrol car did hit defendant’s bicycle before he fell to the ground, the evidence was insufficient to establish that the officers were acting beyond the proper scope of their authority. The evidence was uncontradicted that officers Perez and Johnson were pursuing defendant in their patrol car in response to a police broadcast of an armed robbery. Defendant made a sudden sharp turn on his bicycle to avoid the pursuing officers. Whether he fell because his bicycle tire hit the curb, as some witnesses thought, or because he collided with the right fender of the patrol car, as others thought, there was no evidence suggesting that the officers intentionally struck defendant with the vehicle. No witness testified that the officers appeared to be trying to ram defendant with the police car. Moreover, defendant did not stop when he fell. He fled and did not pull out his knife until cornered by officers approaching him from two directions. When the assaults occurred, all witnesses agreed that no officer was touching defendant. Certainly none was exerting excessive force upon him. Under no view of the evidence were the officers acting unlawfully when they were assaulted by defendant. There was no need or justification for an instruction on the lesser included offense.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Parrilli, J.