I. Introduction
Defendant Johnny Lee Howze appeals from a judgment of conviction following a jury trial. The jury found him guilty of two counts of first degree burglary (Pen. Code, § 459; counts 1 and 2) and one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3). The jury also found true allegations that defendant had previously suffered four convictions for first degree burglary (Pen. Code, § 459) that constituted serious or violent felony convictions and therefore qualified as four “strikes” under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The jury further found true allegations that each of the four first degree burglary convictions constituted a serious felony (Pen. Code, § 667, subd. (a)(1)), and that defendant had served two separate prison terms for burglary convictions (Pen. Code, § 667.5, subd. (b)). Defendant was
sentenced to state prison for a total term of 90 years to life, consisting of three consecutive terms of 25 years to life on counts 1, 2 and 3, plus three consecutive five-year enhancements for prior serious felony convictions. The trial court also imposed and stayed one-year enhancements for each of the prior prison terms. Defendant contends: (1) the trial court erred in commencing trial in the absence of defendant; (2) the evidence was insufficient to sustain defendant’s conviction for first degree burglary on counts 1 and 2; (3) the trial court erred in denying his motion to substitute appointed counsel; (4) the trial court erred in denying his motion to represent himself; (5) the trial court erred when it concluded that a consecutive sentence was mandated on count 2
II. Factual Summary 1
A. Burglary of the Kimble Residence (Count 1)
On August 17, 1998, Richard and Lois Kimble lived at 5345 Appian Way in Long Beach. That night, Mr. Kimble went to bed first and was joined shortly thereafter by his wife. The next morning, Mr. Kimble woke up around 7:00 a.m. He was the first person in the house to wake up. He went downstairs and poured a cup of coffee. When he looked out the kitchen window, which was located about four feet above the ground, he noticed the portable butane barbecue had been moved from its usual location. Normally, the barbecue was located directly underneath the window. He observed that one comer of the barbecue had been moved away from the wall of the house
about a foot and a
Mr. Kimble went outside and examined the barbecue. He noticed that little trinkets that had previously been on the kitchen windowsill had been removed and placed on the barbecue. He also saw one of their kitchen paring knives had been placed on the barbecue. The knife was normally stored in a drawer in the kitchen. He then noticed the screen over the part of the kitchen window that opened had been removed. He walked out toward Marine Stadium, which was near his house, to see if he could find the screen. He observed the Screen in his neighbor’s bushes.
Mr. Kimble entered his house again and inspected the area near the kitchen window. He saw that the sink was gritty, and that the window had been pried open. The window had been closed and locked the previous evening. He noticed there was a scratch on the aluminum casement of the window where it had been pried open. Mrs. Kimble also noticed that things were out of place and realized that someone had been in their house. She looked in the cabinet where she normally kept her purse and found it was missing. Her purse had contained her billfold with about $130 in cash. The purse also contained a monocle she needed due to a visual handicap, as well as special magnifying glasses and a lighted magnifying glass. A gold watch that needed to be repaired was also in the purse. About $40 in cash that she kept in a small drawer in the kitchen was also missing.
Mrs. Kimble then called the police to report the incident. She had call waiting on her phone, and while she was calling the police her neighbor, Virginia Collis, called her to tell her that she had found her purse. Ms. Collis, who lived in front of Marine Stadium at 5327 Paoli Way, had observed the purse on the ground while she was gardening, and also noticed a wallet and papers lying near the purse. She saw the name in the wallet and realized it belonged to her neighbor Mrs. Kimble. Mrs. Kimble went over to her neighbor’s house, which was only five houses away, and retrieved her purse and wallet. She then returned home and inventoried the purse. She found that the cash, the monocle, the magnifying glasses, and the gold watch were all missing.
Later that day, Carmen Moncure arrived at the Kimble residence. She was an identification technician who had been employed by the Long Beach Police Department Crime Laboratory for the last six years. She checked for latent fingerprints at the Kimble residence and obtained six latent prints from the inside ledge of the kitchen window, one latent print from the tile on the wall, and one latent print from the tile around the kitchen sink, by using black graphite powder. Manuel Lara, an identification technician employed by the Long Beach Police Department, compared the latent prints to prints taken from defendant and determined that five of the latent prints recovered from the Kimble residence were made by defendant. Specifically, one of the latent prints matched defendant’s right thumbprint, one matched his left middle fingerprint, one matched his right palm print and two of the latent prints matched defendant’s left palm print.
Neither Mr. nor Mrs. Kimble knew defendant, and neither of them had given him permission to enter their residence. Nobody had permission from them to enter their residence through the kitchen window.
B. Burglary of the Stromberg Residence (Count 2)
On August 17, 1998, David Stromberg lived at 5307 Paoli Way in Long Beach with his wife and three children. About 10:00 p.m., he was outside in front of his residence when his wife came out and told him she observed something was wrong with a screen in the house. He went inside and observed that a screen for a bedroom window was bent outward from one of the comers at a 45-degree angle. The window
Mr. Stromberg looked out the window through the bent screen and saw that a blue and white lawn chair or patio chair was up against the house on the walkway directly under the bent screen. He did not recognize the patio chair and it was not one that he owned. It was obvious to him that someone had used the chair to get into his house. He testified that he did not believe the chair was a folding type. Mr. Stromberg checked the house, but found no one else inside except his children.
Mr. Stromberg walked across Appian Way and saw police activity. A police officer told him that they had chased a purse snatcher into the neighborhood. Mr. Stromberg informed the police that there had been a break-in at his residence. When the police officer entered his residence and began talking to him, Mr. Stromberg noticed that his wife’s purse was missing from the nightstand opposite the window, and that his own wallet was missing from the top of the bedroom dresser. He recalled that there was about $40 in his wallet.
A police officer then entered the residence and asked Mr. Stromberg if a wallet he located in a trash can belonged to him. Mr. Stromberg went outside and saw his wallet in a trash can. He also saw his wife’s purse in or near the trash can. Mr. Stromberg determined that the cash was missing from his wallet. Nothing was missing from his wife’s purse. Chairs that matched the one left under his window were located at a house two doors away on Appian Way.
Later that evening, Nancy Preston, an identification technician employed by the Long Beach Police Department Criminal Laboratory, went to Mr. Stromberg’s home and dusted the blue and white patio chair located underneath the bedroom window with black fingerprint powder. She obtained two latent prints from the chair. One latent print was from the side of the frame on the back of the chair, and the other was from the back of the top of the chair frame and was located almost in the middle of the frame. She testified that the chair was a folding patio type chair. The latent prints were subsequently compared with fingerprints of the defendant by Manuel Lara, an identification technician employed by the Long Beach Police Department, and it was determined that the latent print from the side of the frame was made by defendant’s left ring finger, and the latent print from the back of the top of the frame was made by defendant’s right ring finger. There was no way to tell how long defendant’s prints had been on the chair.
Defendant did not have permission to enter Mr. Stromberg’s residence, and no one had permission to bend the screen, enter the window, and take his wallet and his wife’s purse. Mr. Stromberg did not know defendant and had never seen him before.
C. Possession of Cocaine (Count 3)
On August 20, 1998, Long Beach Police Detective Michael Dugan and Long Beach Police Officer Joseph Bahash received information concerning the whereabouts of defendant, who had been identified as a suspect in the burglaries through the fingerprint evidence. They went to the area near Orange and First and Second and Broadway in Long Beach, where they believed defendant might be located. They observed defendant enter a liquor store at Broadway and Falcon. They entered the store and arrested defendant for burglary. After defendant was handcuffed, he was searched by Detective Dugan. Detective Dugan found a small metal container in defendant’s right sock. He opened the container and observed several pieces of rock cocaine inside the container. The rock cocaine was subsequently analyzed
III. Discussion
A. The Decision to Commence Trial in the Absence of Defendant
Defendant contends that the trial court acted in excess of its jurisdiction and violated Penal Code section 1043 when it commenced trial in defendant’s absence. He also asserts that commencing trial in his absence violated his federal and state constitutional rights to be personally present at his trial. We find that defendant is estopped to assert that the trial court acted outside its jurisdiction and violated his rights when it commenced trial in his absence because he consented to the court starting trial in his absence, his absence was caused by his own deliberate conduct and was a deliberate choice on his part with knowledge of the consequences, and because he later chose to participate in the proceedings at trial when he believed it was in his interest to do so without making any objection on jurisdictional or constitutional grounds. We also find that defendant orally waived his right to appear personally at the commencement of trial, and that while such an oral waiver is not in strict compliance with the statutory requirement that waivers be in writing, defendant has failed to demonstrate any prejudice resulting from this error and is entitled to no relief.
In the instant case, the record shows defendant began his disruptive conduct, including failing to appear in court, as early as the preliminary hearing. At the preliminary hearing, defendant claimed to be possessed by two different people, including rap artist Tupac Shakur. He also claimed not to know why he was even having a preliminary hearing. After an evening recess, the preliminary hearing proceeded the next morning. However, defendant was absent from the proceedings. It was represented that defendant refused to come out of the jail for court transportation. The bailiff stated that the night before, defendant had told the bailiff he was not going to come back to court. The bailiff stated that defendant had a long history of refusing to come out of his jail cell. Evidently, defendant was eventually transported to court in time to be present for the remainder of the preliminary hearing. As soon as the testimony resumed, defendant interrupted the proceedings with “bizarre” claims that someone was “poking” him when in fact there was nobody near him. Defendant was eventually bound over for trial.
On defendant’s arraignment date in superior court, October 20, 1998, it was noted that defendant did not appear and was a “miss-out.” A representative of the sheriff’s department informed the court that defendant had previously failed to appear for arraignment in municipal court on August 24, 25, 26, and 31, 1998, and also failed to appear on September 1, 2, and 3, 1998. He did appear and was arraigned in municipal court on September 4, 1998, but was again a “miss-out” for his preliminary hearing on September 21, 22, 23, and 24, 1998. He also was a “miss-out” for his preliminary hearing on October 1 and 2, 1998, before he was finally brought to court and his preliminary hearing began.
An extraction order was obtained from a judge prior to the arraignment date in superior court, but the court presiding at the superior court arraignment was informed that defendant had claimed to have high blood pressure, a heart problem, asthma and seizure problems. The court therefore decided it would not issue an extraction order because it could endanger the health of defendant. The court held a hearing and, after hearing evidence of defendant’s past refusal to come to court and the dangers that physical removal could present due to his potential health
On the next court date, October 21, 1998, defendant appeared in court and started screaming. He continued to scream in court, and then “fell over on the floor” and struggled with the sheriff’s deputies. Defendant was ordered removed due to his disruptive behavior. He was subsequently informed that he could come back to the courtroom if he behaved properly and did not scream. He was then brought back into court. When asked how he pled to the charges, defendant started laughing and defense counsel had to enter a plea on defendant’s behalf.
On November 18, 1998, defendant refused to come to court. The court made a finding, after reviewing medical reports, that defendant was malingering and intentionally refusing to come to court. Defendant had complained to the jail staff that morning that his legs were “not functional” and that was the reason he had to stay in his cell. However, he was observed later that day and his legs appeared to be functioning properly.
On December 10, 1998, defendant refused to come to court and a hearing was held concerning his medical and mental condition. Evidence was presented that defendant had rubbed feces over his body and hands and then challenged deputies to come into the cell to extract him. When the deputies prepared to videotape defendant in his cell, he masturbated and ejaculated toward the camera and threw food at the deputy who was doing the videotaping. The hearing was continued to the following day, and once again defendant did not come to court. The hearing was then continued to December 14, 1998, and once again defendant was not present. On that date, the court declared a doubt as to defendant’s mental competence pursuant to Penal Code section 1368, and the matter was continued to January 25, 1999.
On January 25, 1999, defendant was in the court lockup, but would not speak to a psychologist who was there for a competency hearing. When defense counsel went to speak to defendant, she found he was naked in his cell. Defendant did not respond to counsel’s statements except to repeatedly state “Hey.” The court noted that defendant had previously “gotten naked” at court on numerous occasions, and that defendant had previously refused to talk to any mental health experts. The court indicated it still believed defendant was malingering, but appointed another psychiatrist to interview defendant in jail. The matter was continued to March 1, 1999.
On April 19, 1999, defendant was present in court and a court trial was held on defendant’s competency to stand trial. The court noted that all three doctors who had been appointed to examine defendant concluded that defendant was malingering and feigning mental illness in order to avoid prosecution. The court found there was “no doubt” defendant was malingering and was competent to stand trial. Because of defendant’s history of refusing to come to court on scheduled court dates, the court advised defendant personally after the competency hearing concluded as follows: “Let me tell you that you have a right to come to court every day of your trial, and you have a right to be present at each and every hearing we have on your matter. [^] If you refuse to come out of your cell, the Sheriff has been ordered not to force you out of your cell. That will be deemed a waiver of your right to
On June 15, 1999, two days before the scheduled trial date, defendant appeared in court to make a motion to substitute appointed counsel and a motion to represent himself. Following the trial court’s denial of his motions, defendant personally stated in court “Okay. I am not going to make any further appearances in court if that is the case.” The court once again admonished defendant regarding a failure to appear for trial. The court stated, “Let me explain to you that you have the right to be present during your trial. If you refuse to come out of your cell, that will be deemed a waiver of your right to be present.” Defendant replied, “Just take me out of the courtroom. I don’t want to hear nothing. I’m not coming back, so do whatever you’re gonna do. I’m not coming back.”
On June 17, 1999, the scheduled trial date, defendant refused to come out of his cell at the jail. The deputy sheriff at the jail, Sergeant Escanden, read an admonishment to defendant that had been drafted jointly by the court and counsel, notifying defendant that he had a right to be present at trial, and a right to confront witnesses at trial, and that a refusal to leave his cell would constitute a waiver of those rights. Defendant stated to the deputy at the jail that he did not wish to participate in a “kangaroo court.” He also stated that, “I might go later. I don’t know. It’s not important to me.” Defendant then stated he had nerve damage and a sciatic condition that meant he could not perform procedures required prior to transportation to court, such as bending over for a search of his anal orifice. The admonishment and defendant’s statements were videotaped and the tape was played in court. 3
Defense counsel did not object that the court was without jurisdiction to proceed in the absence of defendant, and only raised the issue of whether defendant had a medical excuse for not appearing in court. The court determined that defendant was malingering again and was trying to manipulate the system for his benefit by refusing to come to court and by engaging in obstructionist behavior. The court found that defendant had voluntarily absented himself from the courtroom on the trial date. The panel of prospective jurors was then brought into court and the trial commenced in the absence of defendant.
On the following day, June 18, 1999, defendant once again was not present in court. Earlier that morning, at the jail, defendant was read the same admonition concerning his refusal to come to court, and once again his refusal was videotaped. The court decided to proceed with jury selection in the absence of defendant. Defense counsel made no objection based on a lack of jurisdiction, and specifically stated, “I have nothing to add.” A jury was impaneled and the prosecution proceeded with opening statement and its case-in-chief.
On the following Monday, June 21, 1999, defendant came to court for the purpose
On the next day, June 22, 1999, the trial resumed and defendant once again was not present in court. On June 23, 1999, defendant came to court for the purpose of making another complaint about his representation by appointed counsel, and for the purpose of testifying in his own defense. He did not make any objection to the court commencing trial or proceeding with the trial in his absence. After hearing his complaints about counsel, the court allowed counsel to continue representing defendant. The court then allowed defendant to testify on his own behalf. Defendant testified that he did not commit the charged burglaries and claimed he was at home at the time of the burglaries. Defendant refused to answer any questions on cross-examination, and then improperly informed the jury that the People were trying to give him 140 years and “strike me out.” The court sent the jury out, and before the court could admonish defendant, he stated, “I don’t want to continue with this trial.” Defendant acknowledged he had been warned he would be removed if there was an outburst, and stated, “Let me know when it’s time for me to be sentenced.” The court told him that if he did not calm down and stop volunteering comments to the jury he would be viewed as having waived his appearance. Defendant stated, “I don’t want to be part of this.” When the court finally ordered defendant removed and asked him if he at least wanted to listen to the proceedings on a loudspeaker, he stated, “I don’t want to hear anything. This is a kangaroo court.” He then reiterated, “I am not' going to participate.”
On the following day, June 24, 1999, defendant was not in court for juryreadback of the reporter’s notes, and counsel stated that she believed defendant had waived his appearance in court until sentencing. Counsel stated that defendant did not come out of his cell to come to court that day “although he was invited.”
On June 25, 1999, the jury convicted defendant in his absence of counts 1, 2, and 3 and found true the alleged enhancements. The court then drafted an admonition to defendant notifying him he had a right to be present for sentencing and that if he refused to come to court he would be sentenced in his absence. Defendant refused to come to court for sentencing on July 12, 1999, and his refusal was videotaped. Sentencing was put over for one day so the videotaped refusal could be reviewed. The next day defendant was absent once again. The videotape of his refusal to come to court was reviewed and it was determined that defendant said “No” when asked if he was going to go to court. The court proceeded to sentence defendant in his absence.
Defendant now claims on appeal that his trial was null and void because the trial was commenced in his absence. He asserts that the requirement that the defendant
A criminal defendant has a right under the Sixth and Fourteenth Amendments to the federal Constitution, and under article I, section 15 of the California Constitution, to be present at his trial.
(People
v.
Hines
(1997)
Defendant asserts that a defendant cannot waive his right to be present at the commencement of trial. He distinguishes the commencement of trial from the subsequent proceedings at trial, and claims the waiver procedure cannot constitutionally be applied to the commencement of trial. He relies on
Crosby
v.
United States
(1993)
We first examine the record to determine if defendant properly waived his right under Penal Code section 977, subdivision (b), to be present at the commencement of his trial. We note initially that no written waiver was executed in open court by defendant as required by Penal Code section 977, subdivision (b). Instead, defendant was advised by the court on April 19, 1999, that he had a right to be present in court, that if he failed to come out of his cell on the trial date it would be considered a waiver of his right to appear and to confront witnesses, that the jury would be picked in his absence, and that the trial would proceed in his absence. On June 15, 1999, two days prior to the trial date, defendant appeared in court and stated, “I am not going to make any further appearances in court . . . .” The trial court once again told defendant that he had a right to be present during trial and that if he refused to come out of his cell it would be deemed a waiver of his right to be present. Defendant in response stated unequivocally, “I’m not coming back, so do whatever you’re gonna do. I’m not coming back.” While this oral statement that defendant was not going to come back to court does not follow the precise language set forth in Penal Code section 977 for a written waiver of personal appearance, we find in light of the repeated admonitions given by the court, that defendant was fully informed of his rights and the intention of defendant to waive his personal appearance and remain in his cell was clear. To the extent that no written waiver was executed, any oral waiver obtained was not in accordance with the requirements of Penal Code section 977.
(People v. Garrison
(1989)
The next question before this court is whether a defendant, who was in custody, and who did not waive his appearance at the time of commencement of trial in strict formal compliance with state law, can later complain
on jurisdictional or constitutional grounds that the trial commenced in his absence when defendant was advised that a failure to leave his cell to be transported to court for the commencement of trial would be considered a waiver of his right to be present, and subsequently chose not to leave his cell to
B., C. *
D. The Denial of Defendant’s Motion to Represent Himself
Defendant contends that the trial court erred when it denied his motion to represent himself. He argues that he had an unqualified right under the federal constitution to represent himself and the trial court violated this right when it ruled his motion was untimely. He also asserts that even if his motion had to be made in a timely fashion, his motion in this case was timely in that it was made two days prior to the trial date and was unaccompanied by a motion to continue. We conclude that the decision whether to grant self-representation status to a defendant is discretionary when the motion is made within days of the trial date, and that trial court did not abuse its discretion when it found the motion to be untimely and denied it based on its findings that the motion was manipulative and that defendant was obstreperous and created a risk of disrupting the proceedings.
While a defendant has a federal constitutional right under the Sixth Amendment to represent himself, in order to invoke an unconditional right he must assert it within a reasonable time prior to the commencement of trial.
(People
v.
Welch, supra,
Where a defendant raises the motion on the eve of trial, the trial court has discretion to deny the motion.
(People
v.
Clark, supra,
When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, a reviewing court must give “considerable weight” to the court’s exercise of discretion and must examine
the total circumstances confronting the court when the decision is made.
(People
v.
Ruiz, supra,
As previously summarized in this opinion, defendant had refused to come to court on many occasions, and had disrupted the proceedings on the few occasions he did appear. He was found to have malingered and pretended to be physically and mentally disabled in an effort to thwart the criminal justice system from working in his case. He did everything he could to sabotage the proceedings, including fighting with deputies, acting as if he was being attacked by imaginary “bugs” or people, claiming to be possessed by different people, claiming to have various physical maladies that prevented him from coming to court, not cooperating with doctors or mental health experts, not cooperating with his attorneys, stripping naked while in the holding tank to prevent having to go into the courtroom, and rubbing feces on himself to prevent his extraction from his cell when he refused to go to court. Given this lengthy and consistent history of disruptive behavior, the trial court acted well within its discretion when it found the motion for self-representation was manipulative and that defendant posed a real risk of disrupting future proceedings if the motion was granted.
E.-I. *
IV. Disposition
The judgment is modified to strike rather than stay the two prior prison term enhancements under Penal Code section 667.5, subdivision (b). The judgment is also modified to award 164 days of conduct credit rather than 162 days, so that the total presentence credits are 492 days rather than 490 days. The clerk of the superior court is directed to modify the abstract of judgment to delete reference to any prior prison term enhancements being imposed and stayed, since the prior prison term allegation for People v. Howze (Super. Ct. L.A. County, 1983, No. A027034) was stricken during trial and since the prior prison term enhancements for People v. Howze, supra, No. A028550, and People v. Howze (Super. Ct. L.A. County, 1990, NA002921) have been stricken on appeal. The clerk is further directed to modify the abstract of judgment to reflect that defendant is awarded 164 days of conduct credit rather than 162 days, and that the total presentence credit is 492 days rather than 490 days. The clerk is then directed to forward the corrected abstract to the Department of Corrections. The judgment is affirmed in all other respects.
Armstrong, Acting P. J., and Godoy Perez, J., concurred.
A petition for a rehearing was denied January 30, 2001, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied April 25, 2001. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In accord with the usual rules on appeal, we will state the facts in the manner most favorable to the judgment.
(People v. Ochoa
(1993)
The videotapes made of defendant’s refusals to come to court were viewed by the court and counsel during the course of the pretrial and trial proceedings. The videotapes were designated as court exhibits. This court had obtained the exhibits from the superior court clerk and has reviewed the videotapes in conjunction with this appeal.
The admonition read to defendant was designated as an exhibit to the superior court file. We have reviewed the admonition contained in the file.
See footnote, ante, page 1380.
See footnote, ante, page 1380.