THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DAVID BUSH, Defendant and Appellant.
No. A140589
First Dist., Div. Four
Jan. 11, 2017
457
COUNSEL
Walter K. Pyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Assistant Attorney General, Catherine A. Rivlin and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.
RIVERA, J.—Defendant William David Bush appeals a judgment entered upon a jury verdict finding him guilty of driving with a suspended license and of receiving and acquiring proceeds knowing them to be derived from a controlled substance offense with the intent to conceal those proceeds and avoid a transaction reporting requirement. He contends on appeal that he did not knowingly and intelligently waive his right to counsel; that there was insufficient evidence he intended to conceal the nature or source of the money; that he could not be convicted for receiving or acquiring proceeds from sales that he allegedly conducted himself; and that the jury should have been instructed on the elements of the underlying controlled substance offense. We shall affirm the judgment.
I. BACKGROUND
We limit our recitation of the facts to those necessary for resolution of the issues on appeal.
On October 6, 2012, California Highway Patrol (CHP) Officer Nicole Brigstock stopped defendant for speeding in a black Mercedes sedan that was
Officer Brigstock told defendant she could smell marijuana coming from his car and asked for his car keys, license, registration, and insurance. Defendant handed her an Arizona driver‘s license, explaining that he lived both in Arizona and with his parents in Santa Rosa and moved all the time. He said the marijuana smell probably was coming from him because he had been touching marijuana earlier that day. Officer Brigstock saw leafy particles that she recognized as marijuana on the center console and passenger side floor area of the car. She asked defendant to get out of the car and noted a “very intense” smell of marijuana on his person when he did so.
Officer Brigstock requested backup and then searched the vehicle. She found $5 bills in the side pockets and on the floorboard near the back seat, two cell phones in the center console, and a binder with papers. In the trunk, she found a big black suitcase and searched the contents. Among the clothing inside, stuffed in a pant leg, she found a plastic parcel. It was four feet long, heat sealed on all sides, and contained 10 individually sealed packs of money, mainly in smaller denominations, $1, $5, $10, and $20 bills. Defendant said the total amount was $100,000 and that it came from his automated teller machine (ATM) business, Mari Marc, in Puerto Vallarta. Officer Brigstock found business cards for Mari Marc but no other documents proving the money came from an ATM. Asked why he was not transporting the money in an armored truck, defendant said it was his life savings, and he wanted to keep it safe.
Officer Brigstock checked defendant‘s Arizona license and learned it was no longer good. She checked if he had a California driver‘s license and learned it had been suspended. Defendant said he had thought both licenses were good.
Although she found no marijuana, Officer Brigstock noted the car still smelled overwhelmingly of it, with all doors opened. She requested a canine unit, thinking marijuana might be hidden in the car‘s body. Taking another look at the papers on the front seat, she noticed a reminder on an August calendar, “Go to DMV and fix license.” Questioned about it, defendant confessed he knew his California license was suspended but insisted he had thought his Arizona license was still good.
Santa Rosa police officer and canine handler, Patrick Gillette, arrived next with his police dog, Utz, who is trained and experienced in detecting the odor of narcotics, including marijuana. Officer Gillette had 22 years of experience, including about six years working in narcotics investigations and had seen marijuana “thousands of times.” As soon as he got out of his car, he noticed “the overwhelming smell of raw marijuana.”
Officers Brigstock and Wood briefed Officer Gillette and then returned the suitcase with the money to the trunk of defendant‘s car, closing the trunk. Officer Gillette got Utz out of his car and brought him to the trunk, instructing him to search for drugs. Utz immediately became excited and signaled he had detected narcotics by scratching on the trunk. Allowed to search inside defendant‘s vehicle, Utz gave the same signal at the glove box and on the driver‘s seat. Standing just outside the car, Officer Gillette could smell marijuana also.
One of the officers then removed the money from the suitcase, placing it about 25 yards down a nearby driveway, upwind of defendant‘s car. Bringing Utz to the start of the driveway, Officer Gillette commanded him to search again and removed his leash. Utz worked his way to the money and signaled that he detected narcotics. Officer Wood moved the money farther down the driveway, and Utz again worked his way to it and signaled he smelled narcotics on it. Utz had a documented accuracy rate of more than 97 percent in detecting narcotics.
At this point, concluding the money “was probably from selling controlled substances,” Officer Brigstock called a narcotics taskforce to investigate. Narcotics Detective Bryan Londo of the Sonoma County Sheriff‘s Department responded. He had 17 years’ experience as a peace officer and specialized narcotics training. Inspecting defendant‘s vehicle, he too noticed an odor of raw marijuana and saw particles inside that he recognized as marijuana.
Detective Londo then went through the papers on defendant‘s passenger seat. He found receipts for $1,900 in electronic money transfers, which he knew people use to purchase narcotics because it leaves no paper trail. He found a legal pad containing the notes “SD” with a number—for example SD 5 and SD 20—which he understood as a common drug sellers’ shorthand for tracking sales of specified pounds of “Sour Diesel,” a particular marijuana
Detective Londo read defendant his Miranda1 rights, and defendant agreed to answer questions. He repeated that the money came from his business of ATMs in Mexico and was his life savings, explaining that he liked to keep it safe in the trunk of his car. After Detective Londo finished questioning defendant, Officer Brigstock arrested him for driving while unlicensed.
When the money found in defendant‘s car later was counted, it totaled $46,959. In reviewing the papers taken from the car, Detective Londo found a $5,000 cashier‘s check from a Tristan Von Junsch made out to Tesla Motors and another $5,000 check to defendant from a business called Web Tab. A Web Tab representative later confirmed the check refunded cash that defendant had put on account for future purchases.
Detective Londo subpoenaed defendant‘s bank records for the past two years and found cash deposits totaling $113,000. He saw several purchases from a hydroponics store, which sells equipment and supplies that can be used to grow marijuana. A forensic download of the two cell phones found in defendant‘s car revealed that the text messages had been erased.
Interviewed again at the county sheriff‘s office, defendant first said his mother had given him the money found in his car and later said he earned it from his ATM business. He presented documents in Spanish that Detective Londo could not read and said he dealt mainly in cash, which is hard to track. He told Detective Londo he had not filed tax returns for at least two years.
Detective Londo searched the Internet for information on a business named Mari Marc and checked with the Board of Equalization. The latter had no permits or sales tax documentation for such a business, and the Internet search yielded a single website, possibly Swedish or German, apparently launched in 2007, containing no contact information.
During the investigation, Detective Londo observed defendant driving a new Jeep Cherokee and obtained the records of that purchase and of the Mercedes defendant had been driving. In both instances, the records reflected large cash deposits, $20,000 for the Mercedes and $10,000 for the Jeep. Detective Londo observed that defendant‘s use of cash meant there was no record of the money‘s source. Based on his investigation, he concluded
The jury found defendant guilty of the felony offense of knowingly receiving and acquiring proceeds knowing them to be derived from a controlled substance offense with the intent to conceal those proceeds and avoid a transaction reporting requirement (
II. DISCUSSION
A. Self-representation
Defendant represented himself at trial and now contends his conviction must be reversed because his waiver of the right to counsel under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta) was defective for lack of proper admonitions. We reject this contention.
1. Background
The original felony complaint was filed in 2012. Defendant was represented by retained counsel early in the case.
a. February 25, 2013—Faretta Hearing
On February 25, 2013, defendant submitted a form requesting leave to represent himself.5 He answered yes to all questions on that form, indicating he understood he had a right to representation by an attorney, including an appointed attorney if he could not pay, and that he understood the listed disadvantages of self-representation.6 At the hearing on his request, he told
The court explained to defendant that, even for experienced attorneys, “it is never a good idea to represent yourself, because you don‘t have the objectivity another professional would have on your behalf.” If it granted the request, the court cautioned, it could not “lean over backwards for [him] because that would be unfair to the People. If there is something you don‘t know or understand . . . as far as making motions, subpoenaing witnesses, laying foundations to get certain evidence, I can‘t help you, do you understand that?” When defendant remained firm in his request, the court granted it, allowing retained counsel to withdraw.
b. May 15—Readiness Hearing
At a readiness hearing on May 15, two days before the original trial date, after defendant explained his reasoning for rejecting a proposed plea agreement, the court returned to the subject, asking “Why didn‘t you hire an attorney so perhaps you could pursue some of these issues . . . ?” Defendant responded, “More money, you know, it was what they were going after in the first place. And I understand[.] I‘ve been in the system[.] [A]nd it started out at $5,000. They want $5,000 and it was going to take a year.” “It went to 15, then 25,” he continued, “and . . . I already have two firms of attorneys in Texas, I didn‘t do anything wrong here, there was nothing illegal, it is a situation where I feel like it could have been resolved between intelligent people. But they wanted my money like everybody does, and I felt like hiring more attorneys was going to be fighting fire with fire.”
The court cautioned, “I just want to make sure it is on the record and you are properly advised that if you are convicted by a jury and ultimately sentenced to the maximum sentence, which I‘m not saying you would be, it could be up to four years in state prison. That would be served locally in the county jail.” “That could also include ultimately the forfeiture of the money” seized from defendant‘s vehicle, the court added.
After further colloquy confirmed no attorney would be appearing to represent defendant, the court asked, “What can I do to dissuade you from going forward without a lawyer? I will emphasize, if you have no money . . . you have the right to the assistance of a public defender. I can appoint an attorney to represent you from right now until this case is concluded. If there is an ability to pay, I may assign some fees at the end of the case, but essentially you have an absolute right to representation by a lawyer.”
The discussion continued in the following colloquy: “THE DEFENDANT: Am I not intelligent enough to represent myself these days? Like I don‘t understand that. I mean we all have to like learn the system and the process. [¶] THE COURT: This is two days set from trial. If you can memorize and fully understand the Evidence Code between now and then. You are already too late to subpoena witnesses. Do you have any defense witnesses? [¶] THE DEFENDANT: Defense against what? [¶] THE COURT: Sir, you are facing a four-year felony here. Defense against that charge . . . You are making—[¶] THE DEFENDANT: If God wants me to go to jail, I‘ll go to jail, that‘s fine. [¶] THE COURT: You are making very poor decisions. You may be extremely intelligent, but you don‘t seem to understand the Evidence Code or procedures for preparing a defense or what a defense even might be in this case. You mentioned a potential for an unlawful stop, yet you brought no motion properly to challenge that stop, either as a motion in limine or as a [Penal Code section] 1538.5 [motion to suppress]. You are not making good choices. [¶] THE DEFENDANT: I‘m not defending the—[¶] THE COURT: Let me finish. Let me characterize it this way[.] [Y]ou don‘t know what you don‘t know. You may not be able to get any evidence before the jury if you don‘t follow rules. You don‘t have witnesses subpoenaed. You are subject to
The hearing concluded shortly after this exchange. The case did not go to trial that month, however, because a prosecution witness was unavailable. As the prosecution was unable to meet the statutory deadline for bringing defendant to trial, and defendant refused to waive time, the court granted his motion to dismiss the case, without prejudice, knowing the prosecution would refile the charges.
c. June 10 and 20
At a hearing on June 10 to discuss the prosecution‘s refiling of charges, the court began with the issue of self-representation, in the following colloquy: “THE COURT: . . . [I]t looks like the People are refiling their case. So my first question to [defendant] is have you reconsidered having an attorney? I can appoint an attorney to represent you . . . [I]f you have no ability to pay[,] you are entitled to a defense. [¶] DEFENDANT BUSH: I‘m speaking with [an attorney] out of Oakland, he‘s a civil rights attorney, he‘s thinking about taking this case pro bono, so he may be here . . . [¶] THE COURT: . . . So you don‘t want me to appoint a public defender? [¶] DEFENDANT BUSH: No, Your Honor. [¶] THE COURT: And I know we‘ve made extensive inquiries on the last case, but I do need to try once again to dissuade you from that. Again, you are entitled to a public defender to represent you through all proceedings. You can also [hire] someone else later or if someone wishes to substitute in pro bono that can occur later.”
Discussing scheduling later in the same hearing, the court reiterated, “I strongly encourage [you] again to hire an attorney, have one appear on your behalf pro bono[,] or allow me to appoint someone to represent you [who] can help sort through these decisions. It is always helpful to have a lawyer provide you advice on the best procedure to follow.” Defendant refused, telling the court, “I‘ve had three or four attorneys in town call me consistently about this case since it started[.] I got advice. I can speak for myself, it just becomes a . . . trust issue.”
d. July, August, September
At each of the hearings on July 8 and 22, August 7 and 9, and September 6, 18, and 23, the court again asked defendant to hire an attorney or accept appointment of counsel at no cost if he was unable to pay, advising him that it would be in his best interest to do so. Defendant declined each time, explaining alternatively that he wanted to speak for himself, he did not trust attorneys, he wanted to learn “the process,” and the prosecution lacked evidence to win a conviction.
2. Legal Principles
” ’A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 835-836); People v. Bradford (1997) 15 Cal.4th 1229, 1363 [65 Cal.Rptr.2d 145, 939 P.2d 259].) A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation.]” (Faretta, supra, 422 U.S. at p. 835.)’ ” (People v. Burgener (2009) 46 Cal.4th 231, 240-241 [92 Cal.Rptr.3d 883, 206 P.3d 420] (Burgener).)
“Our own Supreme Court instructs that ‘[t]he test of a valid waiver of counsel is not whether specific warnings or advisements were given but
Defendant contends his waiver of his Sixth Amendment right to counsel was invalid because the trial court did not warn him of all the possible penal consequences if he was convicted of violating
Defendant contends this omission alone precluded a valid waiver of his Sixth Amendment right to counsel, requiring reversal of his conviction. He relies primarily on Iowa v. Tovar (2004) 541 U.S. 77 [158 L.Ed.2d 209, 124 S.Ct. 1379] (Tovar) and Arrendondo v. Neven (9th Cir. 2014) 763 F.3d 1122 (Arrendondo).9 Reviewing a decision of the Iowa Supreme Court, Tovar addressed a narrow question: ” ‘Does the Sixth Amendment [of the United States Constitution] require a court to give a rigid and detailed admonishment to a pro se defendant pleading guilty of the usefulness of an attorney, that an attorney may provide an independent opinion whether it is wise to plead guilty and that without an attorney the defendant risks overlooking a defense?’ ” (Tovar, at p. 91.) Tovar answered the question in the negative, concluding “neither warning is mandated by the Sixth Amendment.” (Id. at p. 81.) “The constitutional requirement is satisfied,” Tovar observed, “when
In Arrendondo, the defendant petitioned for a writ of habeas corpus, contending his pretrial waiver of counsel was invalid because the court had not explained the potential application of uncharged recidivist sentencing enhancements. (Arrendondo, supra, 763 F.3d at p. 1133.)10 The Ninth Circuit Court of Appeals affirmed denial of the petition, concluding it was not an unreasonable application of United States Supreme Court case law to refuse to require, as the Nevada Supreme Court there had done, that a defendant understand the potential penal consequences of uncharged enhancements. (Arrendondo, supra, 763 F.3d at pp. 1130-1131, 1134-1135.) In analyzing the issue, Arrendondo characterized Tovar, supra, 541 U.S. 77 as establishing a “minimum” constitutional requirement that a defendant waiving counsel to enter a guilty plea “must understand ‘the range of allowable punishments.’ ” (Arrendondo, at p. 1131 & fn. 2.) Observing that the trial court there had informed the defendant of the maximum penalties for conviction of the charged offenses (id. at p. 1132), however, and applying the deferential standard of review required for habeas corpus rulings, it concluded the state court reasonably might have decided “the Tovar right” did not apply. (Id. at p. 1135.)
In characterizing Tovar as establishing a constitutional “minimum“—a so-called ”Tovar right“—Arrendondo, supra, 763 F.3d 1122 overstates the holding of that case. In Tovar, the Supreme Court expressly underscored the narrow nature of its ruling, stating, “We hold only that the two admonitions the Iowa Supreme Court ordered are not required by the Federal Constitution.” (Tovar, supra, 541 U.S. at p. 94, italics added.) Although it affirmed that the constitutional requirement of a knowing, intelligent waiver “is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea” (id. at p. 81), the Supreme Court did not state that courts must give these advisements in every
To the contrary, in Tovar, supra, 541 U.S. 77 the court reaffirmed its long-standing rule that there is no prescribed formula for ensuring a defendant knows what he is doing in electing to represent himself. “The information a defendant must possess in order to make an intelligent election . . . will depend on a range of case-specific factors, including the defendant‘s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” (Id. at p. 88.) Although “[w]arnings of the pitfalls of proceeding to trial without counsel . . . must be ‘rigorous[ly]’ conveyed,” the court observed (id. at p. 89), a waiver of counsel is ” ‘knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specified detailed consequences of invoking it.’ [Citation.]” (Id. at p. 92.) That a defendant “lacked a full and complete appreciation of all of the consequences flowing from his waiver,” will not alone defeat a showing that ” ‘the information . . . provided to him satisfied the constitutional minimum.’ ” (Ibid.) “[T]he information a defendant must have to waive counsel intelligently will ‘depend, in each case, upon the particular facts and circumstances surrounding that case . . . ’ [Citations.]” (Ibid.)
Based upon all of the language in Tovar, supra, 541 U.S. 77, we respectfully disagree with the Ninth Circuit‘s conclusion that Tovar “clearly establishes that a defendant waiving counsel must understand ‘the range of allowable punishments . . . .’ [Citation.]” (Arrendondo, supra, 763 F.3d at p. 1131, fn. 2.) In Burgener, our own Supreme Court interpreted Tovar as simply affirming the long-standing rule that the information a defendant must possess to make an intelligent waiver “depends on the particular facts and circumstances” of each case. (Burgener, supra, 46 Cal.4th at p. 242.) What Tovar requires is that the defendant be “made aware ‘of the hazards ahead’ if he proceed[s] without the assistance of counsel.” (Ibid.) In evaluating this point, Burgener reiterated, ” ’ “the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” ’ ” (Id. at p. 241; see also People v. Weber (2013) 217 Cal.App.4th 1041, 1059 [159 Cal.Rptr.3d 228] [citing Tovar for the proposition that “[a]lthough no particular warnings are required, ‘before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead’ ” (italics added)].)
In People v. Sullivan (2007) 151 Cal.App.4th 524 [59 Cal.Rptr.3d 876], this court applied the same test, re-affirming that no ” ’ ” ’ “specific warnings or advisements” ’ ” ’ ” are required. (Id. at p. 546.) Like Burgener, supra, 46 Cal.4th 231, Sullivan cited Tovar in this context for the narrow proposition that the information a defendant must possess to waive counsel intelligently will vary in every case. (Sullivan, at p. 546.) We do not ignore that in
People v. Noriega (1997) 59 Cal.App.4th 311 [69 Cal.Rptr.2d 127], which defendant also cites, is similar. Although the Court of Appeal there faulted the trial court for not having inquired, among other things, whether the defendant “understood the charges against him and the potential penal consequences if he lost at trial” (id. at p. 319), it did not rule that a trial court in every instance must affirmatively warn a defendant on this point. Nor did it discuss the scope of the required inquiry in this area. (Id. at pp. 319-320.) Ultimately, the Court of Appeal ruled there had been prejudicial error requiring reversal of the conviction in that case because “the trial court did not give any necessary warnings to assure itself [the defendant] was making an informed and intelligent decision to represent himself despite the disadvantages and risks of that choice“; to the contrary, the court “seemed to encourage [the defendant] to take that course” with comments that “were likely to further mislead [him] about the true consequences of [the] waiver.” (Id. at pp. 320, 321, italics added).
More recently, another court reiterated, after acknowledging Sullivan and People v. Noriega, supra, 59 Cal.App.4th 311, that “[t]he overriding principle . . . remains as stated in People v. Bloom, supra, 48 Cal.3d at page 1225: the test of a valid waiver of counsel is based on the record as a whole.” (Conners, supra, 168 Cal.App.4th at p. 455; see also People v. Marshall, supra, 15 Cal.4th at p. 24 [“[e]ven when the trial court has failed to conduct a full and complete inquiry regarding a defendant‘s assertion of the right of self-representation, [appellate] courts examine the entire record” to determine whether the waiver of the right to counsel was knowing and voluntary].)
It is true that the Court of Appeal in Jackio read Tovar differently. It concluded that Tovar requires that a court, in admonishing a defendant desiring to represent himself in a guilty plea, include ” ‘the range of allowable punishments.’ ” (Jackio, supra, 236 Cal.App.4th at p. 454.) Observing that in the guilty plea setting “the crimes and enhancements for which the defendant can be punished are known,” the court concluded that the same cannot be said for a waiver in a pretrial setting. (Ibid.) This is because it is “impractical to try to predict the possible terms and enhancements that will eventually be available to the trial court at sentencing” since it cannot be
It appears that the parties in Jackio did not question whether the court had an affirmative obligation to warn the defendant about the maximum punishment, as it was undisputed in that case that he had been so warned. (Jackio, supra, 236 Cal.App.4th at pp. 451-452.) Instead, the dispute centered on the adequacy of the warning. The defendant contended it was not enough to tell him that he faced “life in prison,” because this could mean “incarceration for the rest of his life” or an indeterminate life term with the possibility of parole after seven years. (Id. at pp. 455-456.) The court disagreed, concluding there was no duty to explain “that defendant was facing possible determinate and indeterminate [life] terms or that he could be subject to consecutive terms of 25 years to life.” (Id. at p. 456.) Because the defendant was warned he could be sentenced to life in prison, the court presumably did not have occasion to consider critically the question of whether a warning about the maximum potential penalty is always required for a valid waiver of the right to representation at trial.
Our review of the relevant cases does not persuade us that a pretrial waiver of counsel cannot be valid if the court did not specifically advise the defendant of all possible penal consequences of the charged offenses, including all monetary fines. While the better practice would be to inform the accused, on the record, of the maximum sentence, including any maximum monetary fine that could be imposed on a conviction, defendant does not cite, and we have not found, any case specifically concluding that an advisement on this point is a constitutional minimum in every case.12
As the California Supreme Court has observed, the purpose of recommended admonitions “is to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a threshold of competency to waive counsel.” (People v. Koontz (2002) 27 Cal.4th 1041, 1071 [119 Cal.Rptr.2d 859, 46 P.3d 335].) No advisements can do more than impress upon the defendant the gravity of the matter and the likelihood that he cannot improve his position by foregoing professional representation. (See, e.g., Lopez v. Thompson (9th Cir. 2000) 202 F.3d 1110, 1119 [“In assessing waiver of counsel, the trial judge is required to focus on the defendant‘s understanding of the importance of counsel, not the defendant‘s understanding of the
3. Structural Error and Harmless Error
“Error that occurs during the presentation of the case to the jury is generally trial error; an error that erroneously adds to or subtracts from the record before the jury can ‘be quantitatively assessed in the context of the other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.’ [Citations.] A court in such circumstances can meaningfully ask ‘whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ [Citation.] In contrast, structural errors not susceptible to harmless error analysis are those that go to the very construction of the trial mechanism—a biased judge, total absence of counsel, the failure of a jury to reach any verdict on an essential element.’ [Citations.] [¶] In short, trial errors can be fairly examined in the context of the entire record and are amenable to harmless error review. Structural errors, on the other hand, go to the very reliability of a criminal trial as a vehicle for determining guilt or innocence and are reversible per se. [Citations.] A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred. For example, it would be impossible to divine how a trial would have been proceeded if a defendant had been allowed counsel or the trial judge not been biased.” (People v. Anzalone (2013) 56 Cal.4th 545, 553–554 [155 Cal.Rptr.3d 352, 298 P.3d 849].)
The United States Supreme Court “has ‘repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal.’ [Citation.] An error is . . . ‘subject to automatic reversal, only in a “very limited class of cases.” ’ ” (People v. Mil (2012) 53 Cal.4th 400, 410 [135 Cal.Rptr.3d 339, 266 P.3d 1030].) It is required, for example, where a court denies an indigent defendant‘s request for appointment of counsel, as occurred in Gideon v. Wainwright (1963) 372 U.S. 335,
Although the denial of a proper request for self-representation has been determined to be structural error (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8), neither the federal Supreme Court nor the state Supreme Court has decided whether the granting of a request for self-representation based on an inadequate Faretta admonishment compels the same result. (See, e.g., McCormick v. Adams (9th Cir. 2010) 621 F.3d 970, 979; Burgener, supra, 46 Cal.4th at pp. 243-244.) Our state courts that have addressed the question have applied the Chapman harmless error standard.13 (See cases collected in People v. Sohrab (1997) 59 Cal.App.4th 89, 99-100 [68 Cal.Rptr.2d 749], disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 366, fn. 10.)14 Although two California courts have applied automatic reversal following errors in allowing self-representation, the cases are readily distinguishable. In both instances the defendants received no self-representation warnings at all before being allowed to proceed without counsel. (People v. Hall (1990) 218 Cal.App.3d 1102, 1108-1109 [267 Cal.Rptr. 494]; People v. Lopez (1977) 71 Cal.App.3d 568, 570–571 [138 Cal.Rptr. 36].)15
Defendant contends a Faretta error involves “choice of counsel,” which is necessarily unquantifiable, and therefore unquestionably qualifies as structural error, citing United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 149 (both denial of counsel and denial of right of self-representation are structural errors). Defendant then points to three California cases holding that ”Faretta error” is reversible per se: People v. Boyce (2014) 59 Cal.4th 672, 702 [175 Cal.Rptr.3d 481, 330 P.3d 812]; People v. Butler (2009) 47 Cal.4th 814, 824 [102 Cal.Rptr.3d 56, 219 P.3d 982]; and People v. Joseph (1983) 34 Cal.3d 936, 946 [196 Cal.Rptr.339, 671 P.2d 843]. These cases, however, all involve
It seems to us that if an erroneous denial of a self-representation request—where the issue of the defendant‘s knowledge or understanding is a close question—is reversible per se, and if the erroneous granting of such a request—where the admonition is incomplete rather than completely absent—is also reversible per se, the trial court is left with the narrowest of channels along which to navigate the shoals of possible error. (See, e.g., People v. Cervantes (1978) 87 Cal.App.3d 281, 287 [150 Cal.Rptr. 819] (Cervantes) [In this context, courts must navigate ” ‘between the Scylla of denying a defendant the right to determine his own fate and the Charybdis of violating his right to counsel by acceptance of an ineffectual waiver’ “], disapproved on another ground in People v. Barnum (2003) 29 Cal.4th 1210, 1219, fn. 1, 1222-1225.) And, although the granting of a Faretta motion based on incomplete warnings can arguably be considered prejudicial per se because it results in an unknowing waiver of counsel (and thus a “denial” of counsel), we observe, as did the concurring opinion in U.S. v. Salemo (3d Cir. 1995) 61 F.3d 214, 223, fn. 1, that “[s]uch a blanket rule could produce some strange results. For example, suppose that a defendant does not validly waive counsel at sentencing but is given the mandatory minimum sentence prescribed by statute . . . . In this case, must the sentence to be vacated and the case remanded so that the very same sentence can be imposed with counsel present?” (Id. at p. 223, fn. 1.)
Based upon all of these considerations, we find Cervantes to be persuasive. There the Court of Appeal rejected the defendant‘s contention “that failure of the trial court to adequately warn [him] of the hazards and risks of self-representation require[d] an automatic reversal,” concluding that the Chapman test applied in such circumstances instead. (Cervantes, supra, 87 Cal.App.3d at p. 291.) The court reasoned, “We perceive a signal difference between a case where an indigent was not advised at the time of trial on the merits that he could have an attorney appointed by the court at public expense and did not waive his right to counsel as in In re Smiley (1967) 66 Cal.2d 606 [58
Cal.Rptr. 579, 427 P.2d 179], which requires a reversal per se and one where defendant, as in the instant case, was fully aware of his right to counsel, requested to represent himself pursuant to Faretta and in fact was granted self-representation but which was predicated on an insufficient record with respect to a warning of the pitfalls involved in self-representation as mentioned in Faretta.” (Cervantes, at p. 292.)16
Although a defendant who “unequivocally requested permission to conduct his own defense pursuant to Faretta should not be precluded on the theory of ‘invited error’ or ‘estoppel’ from raising on appeal the issue of the trial court‘s failure to adequately warn him of the dangers entailed in self-representation,” the court reasoned, “some standard of review short of an automatic reversal should be applied.” (Cervantes, supra, 87 Cal.App.3d at p. 293.) We concur in the court‘s holding that the Chapman standard is appropriate. Applying that standard, we conclude that, if there was demonstrable error, such error here was harmless.
4. Knowing and Intelligent Waiver
The first question posed is whether the warnings provided by the trial court satisfied the constitutional requirement that defendant be made aware of the disadvantages of self-representation, including the risks and complexities of defendant‘s specific case. (Burgener, supra, 46 Cal.4th at p. 245.) The record as a whole convinces us the trial court satisfied that requirement and did not err in failing to inform defendant during the Faretta colloquies of the maximum fine on conviction. But, even if such was error, the record as a whole also convinces us beyond a reasonable doubt that defendant knew what he was doing in requesting self-representation, made his choice with eyes open, and would have done the same even if the court had advised him specifically about the maximum potential fine on conviction.17 (Faretta, supra, 422 U.S. at p. 835.)
As the case progressed, the court strongly cautioned defendant that he was “making very poor decisions.” It noted he did not “seem to understand the Evidence Code,” which created “almost an impossible hurdle of getting any evidence into court,” and also that he did not seem to understand the “procedures for preparing a defense or what a defense even might be in this case.” Observing that he had brought no motion in limine or motion to suppress, although his comments suggested such actions might be appropriate, the court told the defendant, “[Y]ou don‘t know what you don‘t know. You may not be able to get any evidence before the jury if you don‘t follow rules. You don‘t have witnesses subpoenaed.... So ultimately you may not have a defense at all. You ... potentially stand to be convicted of a felony, which the People are willing to dismiss, then have all of your property forfeited anyway, and then ultimately do up to four years in prison.”
The record also shows that defendant was a high school graduate who had completed two years of junior college, had experience as a civil litigant, and claimed to own several businesses through which he had earned “probably $3.8 million” in the “past six years.” He does not claim on appeal that he did not understand the court‘s warnings or the risks in question. In response to the court‘s repeated warnings, he remained adamant, responding that he had already consulted attorneys and was continuing to consult attorneys during the case.
The record reflects that defendant retained one attorney and then substituted in a second during the first four months of the proceedings. In his initial appearance with each, he was provided a copy of the criminal complaint, which cited
B. Sufficiency of the Evidence*
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Health and Safety Code Section 11370.9, Subdivision (a)
Defendant next takes issue with the prosecution‘s theory of the case, for the first time on appeal contending he may not be convicted of money laundering under
Although “we may consider a new theory presented for the first time on appeal if it presents a question of law arising from undisputed facts” (People v. Smith (2014) 227 Cal.App.4th 717, 727 [174 Cal.Rptr.3d 103], citing People v. Butler (1980) 105 Cal.App.3d 585, 588 [164 Cal.Rptr. 475]), we are not persuaded by this argument. As an initial matter, we note ” ‘[i]t is axiomatic the Legislature may criminalize the same conduct in different ways.’ ” (People v. Chenze (2002) 97 Cal.App.4th 521, 528 [118 Cal.Rptr.2d 362], quoting People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 395 [250 Cal.Rptr. 515, 758 P.2d 1046].) In People v. Benavides (2005) 35 Cal.4th 69 [24 Cal.Rptr.3d 507, 105 P.3d 1099], for example, the court observed that the same conduct may be charged alternatively as lewd conduct, rape, or sodomy. (Id. at p. 97; see also id. at p. 99 [“the rape or sodomy and lewd conduct, while based upon the same conduct, were not the same crime[]“]; see also, e.g., People v. Vargas (2014) 59 Cal.4th 635, 645 [174 Cal.Rptr.3d 277, 328 P.3d 1020] [a defendant may be charged with robbery and carjacking based on the same act, forcibly taking a victim‘s car];
Although analysis of any claim regarding legislative intent must “begin with the plain language of the statute” (People v. Watson (2007) 42 Cal.4th 822, 828 [68 Cal.Rptr.3d 769, 171 P.3d 1101] [the statutory language “generally is the most reliable indicator of legislative intent“]), defendant does not discuss or acknowledge the expansive language of
Defendant‘s argument regarding legislative intent is further undercut by the definition of “proceeds” found in
Santos does not require otherwise. Unlike here, the defendant in that case had been charged and convicted of both money laundering and the predicate offense, running an illegal lottery. (Santos, supra, 553 U.S. at pp. 509-510.) The federal money laundering statute made it a crime to use “proceeds” from an unlawful activity in transactions intended to promote specified criminal pursuits. (Id. at pp. 510-511, quoting
Applying the rule of lenity and adopting an interpretation favoring the defense, a majority of the court agreed, where the predicate offense involved a gambling operation, affirming an order vacating the conviction (Santos, supra, 553 U.S. at pp. 510, 519 (plur. opn. of Scalia, J.); id., at p. 528 (conc. opn. of Stevens, J.)), although Justice Stevens, writing separately, concluded “proceeds” could mean either profits or receipts depending on the predicate offense. (Id. at pp. 524-528 (conc. opn. of Stevens, J.).) In reaching its decision, the plurality reasoned in part that the alternative interpretation—construing “proceeds” as receipts—meant “nearly every violation of the illegal-lottery statute would also be a violation of the money-laundering statute, because paying a winning bettor is a transaction involving receipts that the defendant intends to promote the carrying on of the [illegal] lottery.” (Santos, at pp. 515-516.) In other contexts, however, the court has determined Congress purposely intended to enact overlapping statutes, allowing prosecutors discretion in selecting which to charge. (Batchelder, supra, 442 U.S. at pp. 119-121 [The statutory language, structure, and legislative history reflect that “Congress intended to enact two independent gun control statutes” prohibiting convicted felons from receiving firearms].)
Significantly, in Santos the court looked beyond the statutory language to consider the consequences of the alternative interpretations only after determining the word “proceeds” was “truly ambiguous.” (Santos, supra, 553 U.S. at pp. 511-512; see id. at p. 519 [“We interpret ambiguous criminal statutes in favor of defendants” (italics added)].) In other instances, however, where ” ‘Congress has conveyed its purpose clearly,’ ” the court has “decline[d] to manufacture ambiguity where none exists.’ ” (Batchelder, supra, 442 U.S. at p. 122; see id. at pp. 121-122 [Where the defendant “unquestionably” violated a law allowing five years’ imprisonment, the fact that another
The reasoning in Santos also does not apply because, in determining legislative intent, it relied in part on the significant difference between the maximum punishment for money laundering and the maximum punishment for operating an illegal lottery under federal law. As the court observed, a defendant convicted under the former could be incarcerated for up to 20 years, while under the latter the maximum sentence would be just five years. (Santos, supra, 553 U.S. at p. 516, citing
For the foregoing reasons, we reject defendant‘s argument that his conviction under
D. Jury Instructions
Defendant offers a final argument that his conviction under
In his opening brief, defendant presents the barest of arguments on this point, citing two cases for the general propositions that “a jury must be
Although no court as yet has discussed
As an initial point, we agree a “trial court must instruct the jury on all elements of the charged offenses.” (People v. Mays (2007) 148 Cal.App.4th 13, 36 [55 Cal.Rptr.3d 356] (Mays), citing People v. Flood (1998) 18 Cal.4th 470, 480 [76 Cal.Rptr.2d 180, 957 P.2d 869]; see, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 503 [117 Cal.Rptr.2d 45, 40 P.3d 754] [“Instructions regarding the elements of the crime affect the substantial rights of the
Confronting a similar question in U.S. v. Martinelli (11th Cir. 2006) 454 F.3d 1300, that court answered in the negative. The defendant in that case was charged with conspiring to launder money in violation of
In an analogous case, People v. Shields (1990) 222 Cal.App.3d 1 [271 Cal.Rptr. 228] (Shields), a California Court of Appeal reached a similar conclusion. The defendant there was convicted of being an accessory to murder after the fact and claimed instructional error. (Id. at p. 3.) Although the jury had been instructed on the elements of accessory to a felony, and the felony was identified as murder, the instruction did not include the elements of murder. (Id. at p. 4.) Observing that it found no cases concluding that a trial court had a sua sponte duty to include the elements of the uncharged felony (murder) when instructing on the charge of accessory, the court considered several analogous cases involving charges of assault likely to produce great bodily injury. (Id. at pp. 4-5, citing People v. Miller (1981) 120 Cal.App.3d 233, 236 [174 Cal.Rptr. 479]; People v. Kimbrel (1981) 120 Cal.App.3d 869, 876 [174 Cal.Rptr. 816]; People v. Roberts (1981) 114 Cal.App.3d 960, 964-966 [170 Cal.Rptr. 872].) In three of those cases, the courts had concluded a sua sponte instruction defining “great bodily injury” was not required. (Shields, at p. 5Ibid., citing People v. La Fargue (1983) 147 Cal.App.3d 878, 886 [195 Cal.Rptr. 438].) Shields found these cases persuasive. (Shields, supra, 222 Cal.App.3d at p. 5.) Turning to the charge of accessory, it reasoned, “All that was needed was proof that a felony had been committed.” (Ibid.) Defining that felony in the instruction as murder sufficed as “the jury was not required to find a technical first degree murder in order to convict defendant of being an accessory to a felony.” (Ibid.)
More generally, courts have agreed that “[t]he statutory language defining a crime ‘is generally an appropriate and desirable basis for an instruction.... If the jury would have no difficulty in understanding the statute without guidance, the [trial] court need do no more than instruct in statutory language.’ ” (Mays, supra, 148 Cal.App.4th at p. 36, quoting People v. Poggi (1988) 45 Cal.3d 306, 327 [246 Cal.Rptr. 886, 753 P.2d 1082].) ” ‘[T]erms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.’ ” (Mays, at p. 36, quoting People v. Estrada (1995) 11 Cal.4th 568, 574-575 [46 Cal.Rptr.2d 586, 904 P.2d 1197].)
In this case, the trial court instructed the jury in the statutory language of
Although in People v. Magee (2003) 107 Cal.App.4th 188 [131 Cal.Rptr.2d 834], another Court of Appeal disagreed with Shields, supra, 222 Cal.App.3d 1 about the need to include instruction on the elements of the felony to which a defendant is charged with being an accessory, the alleged felony in Magee was robbery and the elements of robbery are more complex. (Magee, at pp. 191-193; see, e.g., People v. Clark (2011) 52 Cal.4th 856, 943 [131 Cal.Rptr.3d 225, 261 P.3d 243] [” ‘Robbery is the taking of “personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property” ’ “].) In concluding that the trial court there had a duty to instruct on the elements of robbery, Magee reasoned that the jury otherwise “[would] not know the facts the prosecution must prove to establish the underlying felony” and would be left “to guess or speculate.” (Magee, at pp. 192-193 Even if the court did have a sua sponte duty to instruct on the elements of an unlawful sale of marijuana, however, we conclude the omission in this case qualified as harmless error. (See, e.g., People v. Gonzalez (2012) 54 Cal.4th 643, 666 [142 Cal.Rptr.3d 893, 278 P.3d 1242] [harmless error test applies for instruction that erroneously omitted element of offense].) In this context, a demonstration of harmless error requires “proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” (Ibid., citing Neder, supra, 527 U.S. at p. 18.) Where, for example, a defendant contests the omitted element ” ‘and raised evidence sufficient to support a contrary finding,’ ” a court should not find the error harmless. (People v. Mil, supra, 53 Cal.4th at p. 417.) Here, as noted, four law enforcement officers from three different agencies testified defendant‘s car smelled strongly of marijuana when he was stopped. Three officers saw small particles in the car that they recognized as marijuana. A trained narcotics dog known to be highly accurate signaled that he detected the smell of a controlled substance in defendant‘s car, at the lid of the car‘s trunk, and on the cash ($46,959) concealed there. The money was found in packaging that an expert testified, and numerous federal courts have observed, is commonly used to conceal the smell of drugs and avoid detection by drug dogs. (See, e.g., U.S. v. $42,500.00 U.S. Currency (9th Cir. 2002) 283 F.3d 977, 982 [“Unlike a purse or money pouch, cellophane is not a normal repository for carrying large amounts of money“].) The defendant admitted to a police officer he had touched marijuana earlier in the day. When stopped, defendant‘s car contained a shopping list for gardening supplies, and a receipt for the purchase of wood, part of a gate, and a privacy lattice that could be used to conceal a tall outside marijuana grow. It also contained a legal pad with notations, such as “SD” and a number, which an expert testified was common drug sellers’ shorthand for tracking sales of particular marijuana strains, including “Sour Diesel.” Defendant gave the police conflicting and unsupported explanations of the source of the cash found in his car, first maintaining it came from his ATM business and later suggesting it was a gift from his mother. No documentation or testimony was offered at trial to confirm either explanation, and a narcotics detective testified he could find no record with the Board of Equalization or on the Internet indicating the ATM business existed. Although defendant told the police he kept the $46,959 in cash with him in his car to ensure its safety, he did use a bank account to hold other cash deposits totaling $113,000. No evidence was offered to explain defendant‘s different handling of these cash amounts. Evidence was presented, however, that defendant used electronic money transfers and cash for large purchases, a practice that an expert testified had the effect of avoiding a paper trail indicating the money‘s source. Despite defendant‘s claims that he operated an ATM business and evidence that he received and deposited at least $113,000 in cash over the course of the preceding two years, defendant told the police he had not filed tax returns in that period. Based on all of this evidence, an expert in the identification, sales, and distribution of controlled substances concluded defendant acquired the $46,959 found in his car from marijuana sales. (See, e.g., People v. $47,050 (1993) 17 Cal.App.4th 1319, 1325 [22 Cal.Rptr.2d 32] [“[A]n expert‘s opinion on an ultimate issue of fact is admissible, and may constitute substantial evidence“].) In People v. Mitchell (1994) 30 Cal.App.4th 783 [36 Cal.Rptr.2d 150], the Court of Appeal found less evidence—a trained narcotics dog alerting to money in defendant‘s possession, packaging of the money in a manner used by collectors of drug proceeds, untruthfulness about the money‘s source, and expert testimony—was “ample” to prove beyond a reasonable doubt the defendant there knowingly acquired the money from a violation of the Controlled Substances Act. (People v. Mitchell, at pp. 803-804.)23 We conclude that the evidence in this case proved beyond a reasonable doubt that if the trial court had included instruction on the elements of an unlawful sale of marijuana, it would not have altered the jury‘s verdict. A rational jury would have concluded defendant knew the money discovered in his car came from the unlawful sale of marijuana. We have reviewed the record to determine whether it ” ‘contains evidence that could rationally lead to a contrary finding with respect to the omitted element’ ” of knowing the money in question derived from violation of the Controlled Substances Act. (People v. Gonzalez, supra, 54 Cal.4th at p. 666, quoting Neder, supra, 527 U.S. at p. 19.) We have concluded no rational juror could find defendant lacked such knowledge. Attempting to avoid this conclusion, defendant cites only the unsworn, out-of-court statements he made to the police that the money came from a legitimate ATM business. No other evidence was offered indicating such a business actually existed, however, and defendant does not dispute he also provided a contradictory explanation that his mother gave him the money. (See, e.g., People v. Player (1958) 161 Cal.App.2d 360, 362 [327 P.2d 83] [“Inconsistent statements relevant to the crime charged .... tend[] to show a consciousness of guilt“]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [45 Cal.Rptr.2d 16] [evidence of false exculpatory statements ” ‘suggest that there is no honest explanation for incriminating circumstances’ “].) These unsworn, uncorroborated statements, which he later contradicted, could not have led a rational jury to believe the money in his car trunk came from a lawful ATM business. Even if the trial court erred in not instructing the jury on the elements of an unlawful sale of marijuana, therefore, it was harmless error. III. DISPOSITION The judgment is affirmed. Ruvolo, P. J., and Streeter, J., concurred. A petition for a rehearing was denied February 8, 2017, and the opinion was modified to read as printed above. Appellant‘s petition for review by the Supreme Court was denied April 19, 2017, S240090.