*1 S004614. Crim. No. 23721. Nov. [No. 1988.] PEOPLE, THE Plaintiff and Respondent, MOORE, JR., CHARLES EDWARD Defendant and Appellant. Nos. 25921. Nov. [Crim. 1988.] MOORE, JR., In re CHARLES EDWARD on Habeas Corpus. *7 Counsel Monroe, Court,
Keith C. and Daniel D. appointment by under the Supreme *8 Zahner for Defendant and and Petitioner. Appellant White, General, John K. Van de Steve Chief Assistant Kamp, Attorney General, Sokolow, Attorney Gorey, H. John R. Donald E. De Norman General, Nicola, Kessel, Ivy Attorneys R. K. for Gary Hahn and Deputy Plaintiff and Respondent.
Opinion Moore, Jr., LUCAS, Defendant Charles C. J. Edward from appeals judgment the death his conviction two imposing penalty following counts Code, degree (former first murder under the 1977 death law Pen. penalty all 187 et further seq.; statutory references are this code unless other § indicated), wise of robbery burglary two counts one count of (§211), (§ 459), accompanied special six circumstance two each of findings, 190.2, robbery-murder, burglary-murder and (former murder multiple § subd. (c)(3)(i), & (c)(3)(v) (c)(5)), weapon-use great bodily with various and 12022.5, injury (§§ enhancements 12022.7 & (b)). subd. We have consolidated defendant’s three for writs of habeas petitions with the corpus As appeal. will we affirm the appear, entirety deny in its judgment habeas corpus petitions.
I. Facts Procedure A. Guilt Phase Evidence
The case against defendant was based entirely testimony almost Terry Avery, who was granted immunity from for prosecution exchange her testimony. Avery’s testimony substantially corroborated physi- cal evidence and witnesses. expert minor,
In late November Avery, defendant coaxed while still Denver, Colorado, leave her parents’ home and travel with defendant and Lawrence, Lawrence, Lee Edward Harris to Avery, Kansas. defendant and Harris attempted rob Woolworth’s store where defendant been had store, previously employed. they As left the grabbed manag- er, car, Norwood. Harris forced Norwood into backseat hit him on the head gun with a and demanded money information about in the store. Harris then ordered Norwood disclose the location of the store safe and searched Norwood’s wallet for the safe’s combination. When Harris combination, found the Norwood said he would help open safe and only he wanted home to get birthday his son’s While party. Norwood life, begged defendant directed Harris to drive to a deserted part *9 Norwood, tracks, and where shot killed town near some railroad defendant took his and wallet.
Thereafter, rob by in order to trio traveled bus to Southern California the Broad- Mrs. of an managers Crumb) apartment complex the and (Mr. formerly They resided. way Avenue in Beach where defendant Long Avery in and regis- into the Kona Hotel Beach. defendant Long checked Brown, Mr. Harris his name as Sam gave tered as and Mrs. Charles and Harris. Broadway complex
That same the three entered the Avenue evening, Jones, tenant, before it security the front door following through James and, and defendant Harris were armed pistols closed locked. Both and with Avery one of the men had a roll of adhesive according Avery, tape. door, into the way knocked on the Crumbs’ and defendant pushed opened when Mrs. Crumb the door. apartment Crumbs, them, hit tying beating After the and and defendant up gagging in money Mr. Crumb with the and from gun the head butt of demanded Avery both victims. then to search the bedroom for Defendant instructed case, Avery jewelry included jewelry. jewelry (which found a and took watches, necklaces), belt buckles and in a cloth rings, placing items victims, several from and jewelry sack. Defendant removed items them in the same sack. placed
Thereafter, Avery go defendant and Harris instructed to the kitchen try to knives She did to find and find some so and be unable pretended Harris kitchen knife. any. large went into the and returned with butcher bedroom, minutes,” Avery to the and after “a few waiting peered retreated Mr. out and saw Crumb while Harris held the victim’s stabbing defendant Avery Harris then instructed to stab Mrs. Crumb with a legs. pocketknife told, stabbing that was on table.1 as she was Mrs. Avery the coffee did Avery near then and Crumb her left the while defendant armpit. apartment Mr. Crumb attack. Harris remained behind. Both and Mrs. died later, Ten and three apartment minutes Harris left and all There they returned to the Kona Hotel. examined the jewelry, gave Avery robbery. some her and Har- participation Defendant rings watches, yellow ris each took in a placed some the remainder the loot Lawrence, Kansas, shoe from a plastic bearing obtained store bag Avery yelled fingers, wipe When the coffee table with her Harris at her to off touched Avery pre leaving fingerprints. apartment, table to avoid she was testified that while fingerprints cautions were the trio to assure no left behind. taken were *10 later, Avery left defendant and days name Shoes.” A few “Arensberg’s Beach, in Harris and returned to Denver bus. Long Denver, in saw defendant and days Avery Three four after she arrived Colorado, Harris, Littleton, first in next in both Denver Inglewood and Avery suburbs. confessed to her mother her involvement subsequently Avery’s both the Norwood and Crumb murders. mother the Denver called they and police, Avery voluntarily surrendered the authorities when Avery arrived at her home and under eve- placed mother’s arrest. On the arrest, her ning Avery of told about the Norwood murder in police Kansas. Thereafter, Avery identified defendant and Harris in a show- photographic told and the authorities that defendant and Harris be at an up, could found located on West apartment complex Belleview Street Littleton. information, Based on the above the Denver officers subsequently secured an arrest warrant and then proceeded to the Belleview Street apartment. defendant, They arrested Harris and who attempted escape through view, bedroom plain window. In found officers Shoes” “Arensberg’s bag numerous containing jewelry articles to the A belonging Crumbs. gun was found on the floor next where defendant was arrested. Defend- ant and Harris were wearing rings robbery two taken the Crumb during murder.
The next morning, Avery was released to Kansas week authorities. One later, Collette, she discussed with Detective Beach Police De- Long partment, the Avery facts surrounding Crumb murders. admitted her participation in attack. At the her attorney, Avery grant- ed complete immunity for her in the involvement Crumb murders in return for her testimony. trial,
At on his testified own behalf. He conceded he had robbery planned the Crumbs and showed and Avery Harris where lived, the Crumbs but stated that he remained at the Kona Hotel while and Avery Harris robbed and murdered the Crumbs. Defendant presented no other witnesses the guilt phase.
B. Penalty Phase Evidence penalty
The phase the trial lasted six days. Defendant again testified behalf. own He told jury that he had “found the Lord” and asked witnesses, mercy. Defendant also six presented his three including brothers sister and a who testified about defendant’s childhood in their broken fami- ly. According to Milton (defendant’s Moore brother), defendant’s mother moved California with one of his brothers when eight defendant was Thereafter, father, had a years old. defendant lived with his who severe All boys shared beds and drinking gambling problem. slept locking basement. The father the children them and punished whipping basement, in a he generally them small room the them with provided food and He also directed the to steal automo- inadequate clothing. children bile hot water heaters and machine from parts, washing parts neighbors’ *11 Defendant, Black, yards. whose mother was White and whose father was a being was often teased other children for “half-breed.” Ph.D. in Maloney, Michael who holds a clinical testified that psychology, he examined defendant and concluded defendant committed the murders environment Maloney in he because of the which was raised. Specifically, described defendant he a “sociopath” explained suffered from early “mixed disorder” in personality stemming training from childhood Downs, stealing. Wayne County sheriff for the of Los deputy Angeles, testified that defendant had in custody behaved while properly awaiting trial.
Four witnesses testified for the Sheriff Reilhan from prosecution. Deputy Littleton, Colorado, in July testified that defendant while escaped Aurora, Reilhan him in transporting to court Colorado. Defendant was Peters, away day. a block the same James captured chief district deputy Colorado, attorney successfully in testified that he in prosecuted robbery. 1980 for the crimes of escape aggravated Avery testified that Lawrence, Kansas, defendant robbed the Woolworth’s store and shot Nor- wood, the store four times at after manager, point-blank range kidnapping him. In testimony, related Michael Malone district (the attorney who prose- cuted the robbery-murder), Norwood stated that defendant was found in 1979 in guilty robbery Kansas and first kidnapping, aggravated degree murder in the Norwood incident.
II. Pretrial Motions Defendant contends the trial court erred in to substi failing counsel, alternative, tute or in the additional counsel to assist trial appoint counsel. He also that the erred complains denying court request to proceed propria persona. Defendant asserts that each error requires reversal of the entire judgment. trial,
The record shows that before defendant sent a letter to the court March postmarked his dissatisfaction with defense coun- stating later, sel.2 Four days at a to determine hearing whether defendant was my lawyer 2The asking go letter stated that “Fve been if I can cocounsel for about [Slick] keeps saying four months. He he think it. will about went to court on March 1984. [[]] counsel, defendant’s effective assistance of the court receiving interpreted counsel, additional counsel letter as alternative for substitution requests counsel, status, cocounsel and as a request proceed to assist defense counsel. We address each of these issues advisory with propria persona separately.
A. Marsden Motion on defendant’s for substitution of coun
During hearing sel, and, his trial regarding preparation court defense counsel questioned Jones, difficulty focused on counsel’s the tenant particular, locating security Broadway who had door to the opened apartment complex resided, defendant, Avery where the Crumbs thus and Harris to allowing *12 3 enter. going my My lawyer. lawyer ready Prior to in the I courtroom talked to said he was for trial. I asked him if he talked to the witness that I had told him He he about. said he hadn’t but anytime. had access to the witness and he could talk I to witness asked him about a few investigator other items that I had him talked to and the He like about. acted he didn’t know about, talking point what I was At this I asked about cocounsel. I said I wanted to work [fi] my my him prepared properly. with case to make sure He he didn’t said defen[s]e did, go me go pro. per. you want to cocounsel and asked if I wanted to When I said I he said left, anyway. would I got not let me. said I would ask the court He mad and I waited all [fl] day go my lawyer my to to court. postponed At about 4:30 told me he had case until March 9, my lawyer my 1984. On March I post- went to court and told me he had case [][] poned again. my postponed Both times being case was without me I court. was [U] holding my right tank. This ‘right violated constitutional under the Sixth Amendment to presence.’ my . . . postponed being believed he had case me without there because he [][] notify didn’t want me go pro. per. to the court that I wanted to cocounsel or This en- []J] my my lawyer representing ability. hances belief that is not me to the best of his I ask that [][] present procedures. court see to it that I am at all appoint court I ask that the court [If] lawyer me cocounsel go pro. per., my with another me allow to which is constitutional ‘self-representation’ of under the Sixth . . Amendment. .” ago, only Defense counsel informed the court: “A ago week and it’s been a week that I’ve fellow, about, my been able feeling, to locate this it was and what I to Mr. talked Moore good People’s along that he is a good witness. I have felt all that People; he’s witness for the but I felt my that he’s bad witness for the investiga defendant. I have located him. I’ve sent tor to talk to him. I have not heard back person from him since that time. And the who helped my investigator me find him—and Long was unable to do so—was Bill Collette of the Department. go Beach Police He was able to out and find that fellow for me and make him []j] Attorney’s available to me I have since learned that this man will be called the District we, office; evidentiary of course would be able to use whatever—whatever value we can balance, testimony. part out of of probably going right, But I felt in proved and I’m to be Well, going helps. that he’s to hurt apparently more than he Mr. Slick ...[][] The Court: man, very [ejlusive him; told me he’s tried to find this and he’s been he but now has and he ei ther has or will talk going produce to them. And also the are this man as a witness Now, People. on behalf of the going help you common sense tells me Mr. that Jones isn’t very identified; much. But the process bottom line is that Mr. Slick has this witness he’s in the trying figure testify going helpful out what it is that this witness can to that’s to be you; testimony you. and he will be here for whatever can be of assistance to . . .” further into defendant’s that court then inquired The record indicates focused Defendant’s claims counsel’s concerning preparation. complaints counsel would not cross- a fear that strategy, including on counsel’s defense the merits of certain trial and would not discuss Avery during examine motions, under section evidence including suppress motion pretrial court concluded that defendant’s considering grievances, 1538.5. After the case for trial and denied de had adequately prepared defense counsel v. Marsden (1970) (People fendant’s motion for substitution counsel. 156, 44].) 465 P.2d Cal.3d Cal.Rptr. [84 a substitution consistently held that the “decision to allow We have of the trial ‘unless there is attorney judge is within the discretion the defendant’s to the assistance counsel showing sufficient that ....’” if his was denied substantially present request be impaired would 98, 702 P.2d Cal.Rptr. 38 Cal.3d (1985) Smith (People [216 8 Cal.3d 180], v. Carr quoting People Marsden, 124-125, 2 Cal.3d at we held 513].) pages 502 P.2d counsel, must allow for substitution of the court ruling on a motion specific examples inadequate defendant an to enumerate opportunity that the trial court there had We determined Marsden representation. to the reasons for which defendant by refusing abused its discretion listen had substitution of counsel. requested *13 contrast, the court here state
By specifically requested he dissatisfied with his counsel’s trial why preparation. the reasons was Likewise, in the court exercised extreme care considering the record shows counsel, for substitution of and asked requesting defendant’s reasons con before that defendant’s thoughtful follow-up questions properly finding justify appointment cerns were either unsubstantiated or insufficient to denied. of new counsel. the Marsden motion was Accordingly, properly B. Keenan Motion motion grant appoint
The decision whether to defendant’s ment of a in a case rests within the attorney second also capital sound 31 Cal. 3d (Keenan (1982) discretion of the trial court. Court Superior In 108]; (d).) 640 P.2d subd. Cal.Rptr. § [180 case, and legal that in a death where the recognized penalty Keenan we there were a alleged, factual issues were other criminal were complex, acts witnesses, testimony and complicated psychiatric scientific large number be made (id., and extensive motions would anticipated, pretrial for a second coun 434), may defendant’s motion grant court record, exercised sel. After we are satisfied the reviewing the court Defendant never discretion in defendant’s Keenan motion. proper denying assistance of addi- any reasons argued specific compelling requiring in the Keenan re- denying counsel. no error occurred Accordingly, tional v. Jackson 28 Cal.3d (See quest.
618 P.2d 149].)
C. Cocounsel Status Request for
Similarly, believe the court considered and denied properly we defendant’s for cocounsel status. It is unclear from the record defendant, fact, in whether wanted act as cocounsel.
The record discloses defendant’s confusion his desire to act as regarding you you cocounsel: “The Court: I’d like to tell me what have in mind you say you go Okay. when want to cocounsel. I’ve The Defendant: [1J] record;—but been—I don’t if in know it’s I’ve been—I have about three Kansas, or four cases on this top of case Colorado and [fl] The Court: your Yes. voice Keep And each time I went to up. [fl] The Defendant: trial, I think my lawyers didn’t me and I think in represent order properly; defense, lawyers for me to in order to I get proper get say to do what and what I feel are on the my that I’m court things doing proce- stuff, to, dures and trials and I that have to be in a in order position you know, them, know, ask them you about and tell make sure things they that cocounsel, do the them things ask to do. But because if I’m not or if [1f] I’m not in a I can position myself, they’re where represent obligated know, Iwhat asked them to they have—did—you do. past things that, know, trial procedures you that I do; they asked them not to didn’t do do; that I had things they evidence; asked them to lied to me about they lied to me about different things my trials. And as of I this point [][] don’t attorneys, trust most because of the fact that have been convicted times, know; three you because of attorneys didn’t me represent proper- *14 ly. .. . ... I think you what be about is might talking [fl] The Court: counsel, what call stand-by we which is you where are to appointed repre- yourself sent you they stand-by and then use what call I counsel. But don’t see the need for . . . Okay.” that. Defendant’s re- ffl] The Defendant: to the sponses court’s revealed he inquiries wished to retain control over tactical decisions that usually exclusively by would be made coun- primary therefore, status, sel. It appears, that defendant not cocounsel but sought primary counsel status.
Even if we were to find court’s of defendant’s disposition here inquiry status, amounted ato denial of cocounsel we would find no error. A defendant has no absolute to in the participate presentation of his case when he is represented by counsel. v. Mattson (People (1959) Cal.2d Indeed, 937].) P.2d the decision whether to confer on a defendant of the trial court which the sound discretion status is within cocounsel actively partici have counsel and to both to litigant “should not permit on a substantial . . . unless the court of the case in the conduct pate justice the cause of of the case that in the circumstances determines showing orderly conduct expeditious and that the thereby be served will hindered, substantially hampered thereby be business will court’s (Id., at delayed.” record, defendant made the we fail to find
After reviewing Mattson, 51 Cal.2d showing” contemplated “substantial requisite exercised discre proper believe the trial court 797. we Accordingly, page him status. to cocounsel refusing grant tion D. Faretta Motion the court continued the Monday March morning,
On his alterna motions to consider discussed hearing previously on defendant’s time, At that the court ordered in propria persona. tive to request proceed informed de filed but propria persona defendant’s petition proceed afternoon, deny it would begin that because the trial was set fendant The day. trial the same begin prosecu his motion unless he was prepared objection proceeding it had no to defendant although tion stressed that continuance of “ready any he long proceed,” as was propria persona prosecution in extreme to the out-of-state hardship the matter would result afternoon, stated, trial this but go “I couldn’t witnesses. After defendant me time to give prepare that if I go pro. per. I would the Court defense,” reasons: following defendant’s motion for the my the court denied one, orderly adminis Number that it would interfere with “The Court: Calendar This court as the Master to continue this case. justice tration have of criminal geared handling Court will state for the record that we to make sure that an court open and civil calendar matters this court versus Moore matter. room be available for the trial of would fl[] March, the 5th of ready Mr. Slick answered apparently counsel] [defense here don’t come all that days, up that was the 44th of 60 the courtrooms if out this matter out it is not sent get and am not sure we could rapidly, held in readiness to it. being accept to the courtroom that is promptly [jf] two, their up witnesses who have given Number we do have out-of-state testify [j[] in this matter. their lives to come out and rearranged plans three, fourthly, And ready, ready. [j[] Mr. announced Number Slick has *15 if the court would grant to to trial forthwith unwilling go the defendant is him status.” pro. per. to request the court filed defendant’s
Initially, although we note that 19, day begin, trial was to defend- on March proceed propria persona
79
made the
on March 16.
defendant
actually
request
Apparently,
ant
oral
granted
not to
to
himself if the court
his motion
planned
request
represent
Marsden,
Accordingly,
under
In a related argument, alternatively asks us to deem his 5, 1984, Faretta motion made on March rather than on March 1984. this regard, he to the points letter he sent to the court on March at (ante, fn. p. 2) that refers to a conversation which took allegedly place between defendant and his counsel on March during which defend ant told his counsel he wanted to himself.4 represent
Defendant’s argument is misplaced. The court first became aware of defendant’s request when it received his March letter. The court prompt- ly held a to determine hearing what defendant was with requesting regard counsel, (Ante, a subject not readily from the apparent letter. at fn. 2.) It is therefore the date of the hearing, when the court was able to elicit concerns, from defendant his that we must treat as the date of defendant’s Faretta motion. argues Defendant also that counsel’s failure to advise the court of defendant’s
proceed propria persona argument constituted ineffective assistance of counsel. This is ad post, page dressed 83.
80 contention, to 5 it would
Even if we were defendant’s March accept its properly not our conclusion that the court exercised discretion change untimely. motion as After two denying self-representation defendant’s 5, continuances, begin again initial trial been set to on March but was had 16, and March because both twice continued—first March 9 then to Thus, days. trial on those had engaged proceedings counsel were other 5, day the trial defendant made his Faretta motion on March was set deny the the have been within court’s discretion to begin, would well 121, Moreover, the untimely. (Windham, 128.) motion 19 Cal.3d supra, as affect fact that continued on March would not our decision trial was deny naturally trial court’s the Faretta motion because the discretion “ they hearing be on the ‘facts as at the time of on appear would based rather than on omit subsequently develops.’ motion what [Citation v. Turner 37 Cal.3d (People ted!” P.2d 669].)5 The that the trial court erred in defendant’s Faret argues denying dissent untimely ta for the on motion as because “but fact that defendant Moore March March 9 remained in a cell while his trial date was holding and absence, have his Faretta weeks continued in his Moore would asserted right trial, course, safely a denial of his motion to co- assuming, ‘go before reasons, counsel.’” the dissent because is no Accordingly, “there showing defendant Moore’s suggesting hinting unequivocal request constitutionally exercise the mandated unconditional self-represen ob delaying tation was made for his scheduled trial or to purpose orderly justice,” struct the administration of the court should have granted on defendant’s Faretta The dissent relies two federal request. principally (Fritz (9th 782; cases for Cir. 682 F.2d Spalding 1982) Chapman support. v. United Cir. 553 F.2d (5th 1977) 889.) States Fritz may deny While it true both held that a court Chapman is day Faretta motion because it is made trial simply begin, deny also a court may dissent fails to observe that both cases reasoned dilatory Faretta if intent is as material long motion defendant’s found are surrounding facts reason for defendant’s late request developed 782, 784-785; hearing. (Fritz, F.2d supra, Chapman, state-court 553 F.2d at Fritz “In determining held that specifically delay, whether a defendant’s to defend himself is a tactic secure course, A may, delay. the court consider the effect of that a showing delay that the required resulting continuance would be would prejudice holding The fact defendant was tank when the case was continued substitute claims, implicate, “independent March an counsel on March 5 and 9 does not as defendant violation,” present to be when Sixth Amendment nor does it violate defendant’s (§ (b).) arraigned subsequent stages trial. or at all other subd.
81 dilatory intent. In this may be evidence a defendant’s prosecution case, already where Fritz’s conduct had caused sub example, pre-trial delay, stantial that his motion included a for a continu showing request delay.” ance be of a strong purpose (Fritz, supra, would evidence F.2d at p. 784.) above,
As noted the trial court herein was well aware of defend delay ant’s stated reasons for asserting self-representation 74, fn. {ante, 2), and concluded that defendant’s properly granting Faretta motion and continuance “would interfere with the request orderly justice administration of to continue this case” and prejudice prosecu Thus, assertions, tion. contrary to the dissent’s we no reason to perceive disturb sound of the trial reasoning denying court defendant’s Faretta motion. 19,
Finally, although eventually trial was set to begin March jury selec- 26, tion did not begin until March in order to allow defense counsel to present pretrial motions to sections pursuant 995 and 1538.5. The fact that trial was a week postponed so that the court could hear the defense motions any does not in way affect our conclusion that the court denied properly defendant’s Faretta motion as untimely, nor does it indicate the court mis- characterized the motion as having day been made on the trial was to begin. Only after it commenced trial proceedings did the court realize defense counsel planned present the foregoing motions.
III. Guilt Phase Contentions A. Assistance Counsel at Trial Effective
Defendant contends he was denied improperly his Sixth Amendment assistance of counsel at trial. His effective argument focuses on four specific instances in which he claims defense and, counsel failed to in reasonably act manner competent he argues, Thus, incompetency seriously prejudiced his case. defendant asserts that counsel’s inadequate performance of a poten withdrawal “constitute^] tially meritorious ‘defense’ within the meaning v. Fossel Pope.” (People 572, man (1983) Cal.3d Cal.Rptr. 1144]; 659 P.2d [189 Pope Cal.3d 423-425 590 P.2d 1].) A.L.R.4th
Defendant claims that counsel failed (i) argue proper legal ground for the suppression evidence seized during Littleton; defendant’s arrest in Jones, (ii) impeach prosecution witnesses Avery, Collette; (iii) advise trial court of an alleged March defendant to selection jury the method challenge and (iv) proceed propria persona; jury. a representative denying *18 constitutionally criminal defendant We held that a long have as a attorney acting by reasonably competent entitled to representation In 23 Cal. 3d at supra, p. advocate. (Pope, diligent, competent however, bears the incompetent, a claim that counsel was making failed to con show counsel and must establishing ineffectiveness burden failure resulted the withdrawal and that such the above standard form to Fosselman, 33 (Id., supra, at p.427; meritorious defense. of a potentially also, 466 U.S. Washington (1984) v. 583; Strickland Cal.3d at see p. 695-699, the stan [determining 104 S.Ct. L.Ed.2d 691-696 2052] [80 Further, test”].) probability under the “reasonable dard of prejudice burden, the court must examine reviewing met his the once defendant has If conduct. for counsel’s any explanation if it contains record to determine it is evident that from the record and is apparent such an explanation choice within the from an informed tactical omissions resulted “counsel’s (Pope, must be affirmed.” the conviction of reasonable range competence, trial ordinarily second-guess Finally, at we will p. 425.) Cal.3d supra, made on an in if those decisions are tactical decisions we find counsel’s 25 Cal.3d (1979) v. Frierson formed basis. (People [158 mind, address each of With the we now 587].) foregoing P.2d contentions. defendant’s ineffectiveness-of-counsel at Pretrial Motions 1. Representation failed to unreasonably because he counsel acted argues Defendant section of evidence at the for the legal ground suppression urge proper invalid, was claims that the arrest warrant 1538.5 Defendant hearing. inadmissible, the warrant to arrest because fruits of the search incident Court deci the United States constitutionally Supreme deficient under was 527, 103 L.Ed.2d S.Ct. v. 462 U.S. sion in Illinois Gates [76 must be presented information Gates held that “[sufficient 2317]. cause; his action probable that official to determine to allow magistrate at (Id., bare conclusions of others.” be a mere ratification of the cannot Here, was based on the arrest warrant 549].) L.Ed.2d at p.239 p. [76 Thus, the informa Avery, an admitted by accomplice. information supplied (Gates, the arrest warrant. the issuance of support tion was sufficient not required Counsel was p. 551].) 462 U.S. at L.Ed.2d supra, and therefore which could not prevail a motion on bring grounds ineffectiveness. cause did not indicate lack of argue probable failure to Frierson, 142, 158.) 25 Cal.3d (People event, 1538.5 hearing, that before the section out any People point evidence seized “to all suppress filed a written motion defense counsel residence, a search during search of the with without Street] [Belleview warrant, all unlaw- statements made the defendant as result grounds (e.g., ful search.” Counsel advanced several in favor of the motion im- warrant executed at no cause to arrest defendant and night, probable delivery authorities), of evidence to Beach and cross-examined Long proper Moreover, four hearing. three witnesses who at the counsel appeared successfully objected to the introduction of several exhibits offered Thus, the prosecution. record shows defense counsel although convincing linking unsuccessful court to the evidence de- suppress murders, fendant to the Crumb counsel defended his client at competently *19 1538.5 the section hearing.
2. Request Concealment Self-representation
Defendant next contends counsel frustrated his de purposefully sire in proceed propria to inform persona failing promptly the court that defendant wanted to himself. Defendant that counsel’s represent argues delay resulted in denial of untimely. defendant’s Faretta motion We reject counsel, this argument because it fails to any show malfeasance nor does it indicate counsel behaved a manner less than diligent Indeed, conscientious. 23 (Pope, supra, Cal.3d 12 412.) defendant’s March letter unclear whether actually he told his he wanted to represent counsel himself. Counsel is certainly entitled state his opinion to his client about success of contemplated motion. We refuse coun “second-guess” sel’s response the context of defendant’s March letter because we believe defendant’s contention does not indicate that counsel’s response was in any (Fosselman, unreasonable regard. 584; supra, p. Cal.3d at Pope, 23 Cal.3d supra, 423-425.) at pp.
3. Impeachment Prosecution Witnesses argues
Defendant next counsel unreasonably failed to impeach witnesses, Jones, three prosecution Avery and we Collette. As be explain low, record, after reviewing we are satisifed that fail defense counsel’s ure to impeach these witnesses involved sound (Frierson, tactical decisions. 25 Cal.3d at We supra, 158.) therefore p. conclude that counsel acted as a conscientious and diligent advocate at all during (Ibid.; times the trial. Fosselman, supra, pp. 583-584; Cal.3d at 423- Pope, Cal.3d supra, 425.)
Jones testified that he was intoxicated on the night Crumb murders and that he did not remember seeing defendant in front of the Beach Long apartment complex where the Crumbs resided. Defendant now claims that counsel should have Jones with impeached testimony he at the trial of gave Jones trial), defendant’s which (which Lee Harris preceded Edward out, Defendant fails to point was sober the night question. stated he trial, however, did not remem- Jones testified that he that at the Harris also at entrance. complex ber seeing testimony defendant’s supported critical of Jones’s portion Because the murdered), they when were (that he not at the Crumbs’ apartment alibi was Jones resulted in the failure to impeach we do not counsel’s agree 23 Cal. 3d at potentially (Pope, supra, withdrawal of a meritorious defense have more favorable defendant would 425), or that determination p. p. Cal.3d (Fosselman, resulted had Jones been impeached. defendant, Indeed, testimony Jones’s was appears because favorable inconsistent state Jones with impeaching prior counsel’s decision to avoid 25 Cal. 3d at (Frierson, supra, a reasonable choice. ment was tactical 158.)6 that counsel’s decision Similarly, our review of record reveals range contemplated also Avery competency well within impeach *20 Fosselman, 423-425, in 3d at and by pages our decisions Cal. Pope, supra, 584. that counsel failed to 33 Cal. 3d at Defendant page complains inconsistencies in her testi following to the three Avery regard impeach back, in the at trial she saw defendant stab Crumb mony: (i) Avery testified chest, abdomen, he in the and whereas the revealed was stabbed autopsy that three Avery preliminary hearing testified at the scalp; (ii) back the murders, trial she testified that knives used in the Crumb whereas at were used;7 falsely at trial (iii) were and she testified she “turned only two knives her who the and told actually phoned police herself in” when was mother an to murder. Avery staying accomplice with her and had been them was of the Harris The reveals had reviewed the transcript record that counsel Avery on to refrain the above impeaching points trial and chose from by relatively minor jury because he did not to distract the out pointing want the execu- Avery’s surrounding recollection the details inconsistencies Instead, to “restrict tion of the crime. counsel believed it would be best [his] re judicial portions of Harris’s trial record that requests Defendant we take notice of the (and Collette). testimony the Harris record is fer the We to do so because Jones decline Code, (Evid. (d).) unnecessary the subd. to our discussion of effectiveness claim. § Collette, investigat argument testimony regarding the 7Defendant makes similar the officer, hearing knives were used in the Crumb ing preliminary who the three stated at that murders, scene. The trial that two knives were at the murder but testified at found only two point trial testified there were out that the record of indicates Collette Harris’s Collette on We not find failure to cross-examine knives seized at the crime scene. do counsel’s testimony incompetent is not inconsistent: representation issue because the this indicative used, only not indicate been two were found. Defendant does three knives could have but only possibility were found further defense. how the that two knives would Crumb on the whether or defendant was
argument apartment [at in the first In this the record shows night place.” regard, murders] incon- Avery (i) prior counsel cross-examined on the her following points: with sistent statement that she stabbed Mrs. Crumb twice which conflicted once; her trial that Crumb that testimony (ii) she stabbed Mrs. evidence Avery lying admitted when she first admitted she had knowl- police of the Crumb murders she never entered the edge telling police Crumb apartment.
Finally, the record that argument, shows before defense de- closing fendant asked to judge with trial to discuss his dissatisfaction with speak jointly counsel and to that he case or request argue jury represent defendant, himself in the final An in camera argument. discussion between the court and defense counsel followed counsel the court’s explained, satisfaction, his tactical decision not to or impeach Avery Collette on their recollection of details of crime or its specific investigation.8 denying cocounsel, (without defendant’s to act prejudice) the alter- native to represent himself final during argument, the court opined defendant “well represented counsel” and that counsel’s tactical appeared decisions well reasoned.
We agree with the trial court’s determination that counsel adequately trial. represented Avery He cross-examined key inconsis- in her tencies pretrial statements and his closing argument stressed the inconsistencies in her overall testimony, her including memory lapse regarding specific details of the crime. We cannot therefore find counsel *21 in was unreasonable his tactical choices.
4. Failure to Challenge Jury Selection Method
Finally, defendant argues was in unreasonable failing that.counsel to the method of challenge selecting jury a venire from voter registration lists. Defendant argue does not that he a deprived jury was of representative on this point, but asserts that simply counsel’s failure to move to quash jury venire is another indication of inadequate He performance. relies 36, our decision in v. People Harris (1984) Cal.3d 45-59 Cal.Rptr. [201 782, 433], 679 P.2d in which we decided that the defendant had made “a 8Counsel just informed the court: “There are some inconsistencies Mr. Moore mentioned argue. . [Avery] that I do not intend to . . I argue lying do not intend to that about some body taking rings somebody argue somebody off else. I not do intend to victim stabbed a in thought the chest when she argue was the back vice I or versa. don’t intend to those my things. argument I intend restrict to whether not [U] or the defendant was there place bring testimony first out [Avery’s] intend the inconsistencies in to show that that, lying my she’s about not about some of details that went down. of That’s method do ing things.” from a jury a drawn a of his of violation showing facie prima that such community” (id., 59) cross-section representative that Harris se. Defendant stresses per (Ibid.) prejudicial violation [was] defendant, and years as was (three earlier) was tried in the same courthouse Harris trial the record an consult obligation asserts counsel had that the failure chal case. He claims for trial of defendant’s preparation representation that his “trial demonstrates lenge jury process selection constitutionally defective.” was no in the record that defendant
We There is indication agree. cannot challenge or that counsel’s failure jury of a representative either deprived of either meaning Pope, supra, unreasonable within the jury venire was Fosselman, 423-425, 583- at pages Cal.3d supra, 23 Cal.3d at pages merit. claim is without Accordingly, 584. defendant’s Jury a Representative B. Denial of v. Fields our decision in People
Defendant asks us to reconsider 803, 329, 680], P.2d in which 342-352 (1983) Cal.Rptr. 35 Cal.3d [197 automatically to the for cause of persons opposed we held that exclusion defendant deprive the trial does guilt phase death from penalty He notes that cross-section. jury representative to a drawn from cause under the principles were removed for prospective jurors two 776, 1770], 88 S.Ct. v. U.S. 510 L.Ed.2d (1967) Illinois Witherspoon [20 vote for the they under no circumstances could they because stated that jurors of these argues prospective death Defendant that exclusion penalty.9 Sixth Amendment to fair requirement violated the cross-section Fields, no our decision We see reason to reconsider federal Constitution. Supreme that the United States particular 35 Cal.3d and note under With similarly prospective jurors has that exclusion of Court found v. (Lockhart jury. of a deprive representative does not erspoon see 1758]; U.S. 162 L.Ed.2d 106 S.Ct. (1986) McGree 1127].) 744 P.2d Miranda 44 Cal.3d 79 [241 *22 C. Instructions Accomplice testimony and the jury regarding accomplice
The court instructed a matter of Avery was an accomplice the need for corroboration because 9 jurors because actually argues prospective were removed for cause Defendant that four they automatically penalty. characterization of they against the death His stated would vote potential jurors although of the record reveals that two the record in error. Our review jurors were ex Witherspoon grounds, prospective other excused for cause on the two were would, any they they cir under challenge because stated cused on counsel’s for cause defense cumstances, penalty guilty of the Crumb murders. if defendant were found vote death
87 3.11, in the the court CALJIC No. Specifically, gave law Crumb murders.10 1111 and corroboration of accom- requires which is restatement section 823, (1985) Cal.Rptr. v. Chavez 39 Cal.3d 829 plice testimony. (People [218 49, 705 P.2d Defendant claims that the instruction was 372].) foregoing undermined, confused, and the because the further instructed jury court under the CALJIC instruction “Testi- language of No. 2.27. That provides: mony you by which believe one is sufficient for the given proof witness However, any any fact. before fact to be established finding [required witness, solely by testimony to be of such a prosecution] proved single you carefully testimony should all the upon review which the of such proof fact depends.”
Defendant points out that use note to CALJIC No. 2.27 was (which derived from (1975) our decision in Rincon-Pineda 14 864 People Cal. 3d 247, Cal.Rptr. 538 P.2d 845]) provides A.L.R.3d that the court [123 should not if “give instruction corroboration is required, such as [the] Penal Code (testimony accomplice).” Accordingly, de [section] argues fendant that the combination of the (Nos. two instructions 2.27 and 3.11) amounted to error in that the prejudicial jury literally “could flip coin decide which standard apply” erroneously and potentially convict him on Avery’s testimony alone considering without evi corroborating dence.
We do not believe a juror reasonable would have been so misled. In addressing the merits defendant’s argument, “we must look to the entire charge, rather merely than one part, determine whether error occurred.” (Chavez, 830; supra, Cal.3d v. Stewart People Cal.App.3d 799]; v. Hunter (1956) 146 Cal.App.2d [193 instructions, P.2d 356].) In so doing, we note that the viewed as a whole, defendant, actually were beneficial only defense witness testify trial. 2.27, only
Not were CALJIC Nos. 3.11 and 3.16 but given, jury was also instructed that the evidence of corroboration must itself connect de- fendant with the commission of the crime (No. 3.12), and that the panel must view testimony with accomplice (No. distrust 3.18). The em- phasis on the need placed for corroboration and the caution with which the jury should consider accomplice testimony amply that the demonstrates jury instructed adequately Avery’s testimony. on how to evaluate addition, both the prosecution emphasized defense that Av- ery’s testimony required corroboration in order for it to be considered *23 murder, jury 10The was instructed under CALJIC No. 3.16 “If burglary that: the crimes of robbery by anyone, Terry and were Avery committed the witness accomplice Elaine was an testimony subject of as matter law and her requiring is to the rule corroboration.” Avery stated that because the jury. closing argument, prosecutor In law, corroboration. testimony required her a matter of accomplice an as was jury: the cross- testimony for the corroborating He then highlighted rob the it his idea to of the defendant that was testimony examination fact that and the weapons; the murder Crumbs;11 receipts; the Kona Hotel owned jewelry of most valuable items of in possession defendant was the Crumbs. all the have to view evidence
Similarly, defense “You argued, you have to testify, and then take the stand and though she didn’t case does connect that tends to connect—that find some evidence [defendant] all the normal rules that—you do can you apply crime. Once with the evidence, if there isn’t you that find that you but then once do evaluating If at all. flj] and not consider it you reject testimony her any then have to then, If testimony. you her you of course consider you do find corroboration The be aware of. you one other must testimony thing there is consider her Avery. The Terry you you tell in effect that can’t trust going is to court her you you to view ought is to tell going are going words be—[the court] the court is going the law. That’s what testimony distrust. That’s with testimony.” that is distrust all her you tell record, a would have juror that on this reasonable Finally, we believe only testimony sup after found duty Avery’s its consider understood Chavez, 823, 830, the In 39 Cal. 3d evidence. port corroborating circumstance of murder with the jury special found the defendant guilty testimony of on the large part The conviction was based robbery. 2.27 and jury under CALJIC Nos. The court instructed the codefendant. 2.27 and 3.11 was that the “net effect of Nos. argued 3.11 and defendant codefen solely testimony jury to convict based permit [the (Ibid.) dant].” affirmed, was not instructions
We that the effect the combined holding, defense and the prosecution that holding, error. so we stated “[b]oth The prosecutor was needed. on the that corroboration premise proceeded testimony could accept never that it argued jury codefendant’s] [the Rather, his closing argument he took care during corroboration. without Avery law “Terry and as a matter of prosecutor Elaine this courtroom 11The stated: fact, that hide it other accomplice No effort has been made to shield to these crimes. an [Avery] in the ab impact would be of it. What does that mean? It means avoid the wise participated in knowl charges them with the same as Mr. Moore because she stract liable for reality for these of that that she would be liable edge going of what was on. Because [][] testimony immunity, you special with one being granted consider her other than must crimes is, solely testimony upon unless you Mr. Moore based her provision. That cannot convict any proves par testimony independently other evidence which until her corroborated telling . . . that she’s the truth.” ticular
89 result, out statements of other As a point [corroborating jury witnesses]. was not misled as to for and no resulted. the need corroboration prejudice and emphasis placed The on the corroboration on the other requirement, instructions, instructed accomplice jury demonstrates that was properly (Chavez, on the standard of testimony.” proper evaluating [codefendant’s] Stewart, also, 831; 145 at supra, p. Cal.3d at see supra, Cal.App.3d 975.) analysis, Based on our review the we p. foregoing record and instructions, also conclude that the as given, jury. did not mislead the Right D. Trial Speedy he statutory
Defendant asserts was misadvised rights under 1382, section (b),12 subdivision and was denied his trial speedy because trial counsel failed to advise him his to be tried within days following 60-day period after arraignment. Although defendant occurred, he was not concedes prejudiced any may error that have he asserts the contention to demonstrate “trial counsel’s attitude toward this case.” Defendant relies on Owens v. Court Superior Cal.3d 466, 617 P.2d 1098], to further bolster his argument. earlier,
As stated our review of the record indicates that counsel was diligent preparing defendant’s case for trial. The record shows that de- fendant consented all continuances and advised the court that he under- stood his rights relating statutory speedy trial provision. Because onwas trial for other crimes the Norwood (including murder) Colorado, Kansas and the information pertaining to the Crumb murders 22, was not July 1382, filed 1983. under Accordingly, until section subdivi- (b), Defendant, sion grace 60-day period expired on September 1983. however, July waived time on a trial requested date of November 15 year. times, of that The case was continued three more with defendant’s waiver, consent (express or implied) Jury time to March 1984. began selection March within the 10-day on time of the period (§ statute. subd. (b).) Owens,
Furthermore, There, Cal.3d 238 is inapposite. the court continued the robbery defendant’s trial over his objection and even specific tually denied his motion dismiss after it found cause good to continue the reversed, case. (Id., at p. 243.) We holding “there was no trial within either 60-day 10-day or periods provided (Id., section 1382.” at We provides, part, pertinent 12Section “(b) that the court must dismiss an action: brought superior is days finding When defendant to trial in a court within 60 after the filing of the or ; . . except indictment information . that an action shall not be dis missed under beyond this subdivision if it 60-day period set trial a date the re consent, quest of the express implied. defendant or with the defendant’s ...” *25 its to locate witnesses meager attempts “the prosecution’s that also found delay the trial good cause did not establish statutory period within (Id., at p. dismissal.” and avoid by any was not prejudiced find that defendant foregoing, on the we
Based 26 Cal.3d (1980) v. Johnson 1382. (People under section delay perceived 431, 738, 1255].) 557, 606 P.2d 16 A.L.R.4th Cal.Rptr. 574-575 [162 Special IV. Circumstances Contentions Robbery-murder Special Burglary-murder and A. Overlapping Circumstances Harris, 65-66, 36, v. 36 Cal.3d relies on People
Defendant trial, found, circumstances erroneously guilt/special jury assert the robbery-murder) and as to (burglary-murder circumstances two special con victim, of criminal from a indivisible course single, which arose each this rejected recently We have considered intent. single duct with Cal.Rptr. 44 Cal.3d 765-769 (1988) Melton People contention [244 here. to reconsider the issue and find no 741], grounds 750 P.2d Findings Multiple-murder Special-circumstance B. in charging erred correctly prosecution contends
Defendant the basis of the two circumstances on special separate multiple-murder two v. Allen Cal.3d As we held in homicides. only circumstance should 115], 729 P.2d one such special Accordingly, individual murder counts. relating to both charged
have been be vacated. finding must one multiple-murder special-circumstance Penalty V. Phase Issues Mitigating Instructions Inadequate A. ‘Sympathy” was instructed guilt phase, jury pursu conclusion of the At the sentiment, 1.00, by mere swayed it “must not be ant to CALJIC No. that feeling.” public opinion public conjecture, sympathy, passion, prejudice, former CALJIC No. instructed under jury At the was penalty phase, “any other circumstance sentencing 8.84.1 consider as a factor could 190.3, factor (Former (j).) crime.” which extenuates the gravity § to the given that because the instruction argues guilt phase Defendant jury was misled days began, jury only penalty phase five before factors it could whether regarding mitigating determining consider death was the sentence. appropriate
We recently rejected in v. Gates 43 argument People (1987) similar 1168, 666, Cal. 3d 1209 743 P.2d in which 301], we found Cal.Rptr. [240 carryover “no prejudicial phase effect from the instruc guilt no-sympathy (Id., tion.” 1209.) We reached the same v. conclusion Ghent 739, 82, 43 (1987) Cal.3d 777 Cal.Rptr. 1250], 739 P.2d [239 Ghent, however, also recognized we that the United States Supreme Court, upon decision in v. reviewing our Brown (1987) 479 U.S. California 538, 546 L.Ed.2d 842], 107 S.Ct. necessity “stressed the [93 of analyzing the record each case to determine whether the jury instruc- tions, whole, taken aas and in conjunction read with the prosecutor’s arguments, jury adequately informed the of its responsibility to consider all evidence in the mitigating (Ghent, case.” 43 supra, Cal.3d at p. 777.) record, After undertaking such of review the we jury conclude the would not have been misled regarding the of its scope discretion. sentencing
The record discloses the prosecutor specifically jury informed the that it was to consider sympathy as well as defendant’s background and character evidence its reaching sentencing determination. The prosecutor told the jury that “in considering the possibility of the of mercy correctness versus death, judgment you must take into humanity account the of the individ- ual himself and the nature conduct and his life as it meaning has . . . you . Consider that he has now professed the finding savior; [fi] of his late, consider yourselves and ask whether that is too little and by far too [fl] Consider he had a bad childhood and apparently his father did not treat that, him well or kindly at all taught and him to steal. Consider Consid- [fl] er he came from poverty and extreme . poverty. . .” Similarly, defense counsel specifically jury told the to conside “compassion, sympathy, pas- sion, mercy.” [and]
After whole, viewing the record as a we are satisfied that a reasonable juror would have understood that it was to consider defendant’s childhood background as well as feelings mercy by such engendered testimony in determining penalty. We therefore find no error. Argument
B. in Violation Davenport
During closing argument, the prosecutor told the jury that the absence of various statutory factors relevant to mitigation should be consid- held As we jury’s sentencing deliberations.13 ered factors aggravating 247, 41 Cal.3d (1985) v. People Davenport in the plurality opinion 861], this argument improper. 710 P.2d Cal.Rptr. [221 consid contrary we argument Davenport, Although prosecutor’s First, prosecutor’s admonition could have cured the timely er it harmless. Green statutory factors. (People mischaracterization Second, jury was instruct 468].) P.2d Cal.3d (Ghent, mitigating factors. only “applicable” aggravating ed consider 3d at p. 775.) Cal. *27 Third, spe- the beginning closing argument, prosecutor in the of his its should be considered in only the that factors cifically jury applicable told “Now, they are aggra- then stated: whether prosecutor deliberations. The neutral, we or in no-man’s we will call and the land that vating, mitigating, minute, collectively individually decide and you to that in a is get will Rodriguez v. 42 Cal.3d (See People also your in function.” judgment Therefore, 667, jury 726 because 113].) P.2d the facts, in of the light prosecutor’s and underlying was well aware ag- of the admitted overwhelming properly nature statement opening evidence, of the unlikely it that the mischaracterization gravating highly jury’s substantially in this influenced the circumstances case aggravating decision. addition,
In fact that the court’s argument defense counsel’s stressed the leeway” amount of in deter jury instructions allowed the “a tremendous relevant Counsel or nature of the factors. mining aggravating mitigating You a factor factor? have mitigating aggravating stated: each factor or “[I]s . you it . . one of you it once are to hear again. heard but going [E]ach factors, a mitigating whether it is your own has to decide each one those itself, . . . factor is sufficient any mitigating factor one aggravating 190.3, (extreme disturbance), (c) to former factor mental or emotional As section any you prosecutor jury: find not true that there was mental or emotional told it was “[I]f disturbance, think, be, (victim (d) logically aggravation.” As factor I a factor in it must act), you weigh they if prosecutor argued, “How do were total consented homicidal (e) meaning.” ly suggest aggravation or it has no As to factor victims? it must be factor (moral justification), jury, justification no moral of this crime he told the can see belief in “[I] believed, Therefore, justification you must find that there was no moral or these crimes. true, (extreme aggravation.” (f) or sub As to factor duress whether fact it is factor person), you “If act domination of another he stated: find that the defendant was not stantial another, you ing must then de duress and was not under substantial domination under Next, (i) mitigation.” discussing aggravation or factor cide whether that’s a factor of when mover, you . (defendant accomplice), jury, “if . . find he is the main a minor he told brainchild, primary person conducting he himself in the vio these crimes are his and was the conviction, you aggravation.” ways find lent lead should that factor only this man’s life. You need no other. You spare light need one.” considerations, above we are unobjected-to confident that the prosecutor’s mischaracterization of the factors was aggravating prejudicial to de reliable, sentencing fendant and that the decision is jury’s constitutionally (Ghent, 775-776.) 43 Cal.3d at supra, pp.
C. Excessive Multiple-murder Findings Special-circumstance above,
As noted erred in prosecution charging two separate one, multiple-murder special circumstances instead of on the basis of cannot, however, two murders. We deem the error When we prejudicial. considered a similar claim in Rodriguez, supra, Cal.3d we held the error harmless because the “jury knew the actual number mur convicted, ders of which had been and it permitted [defendant] consider the fact of (Id., murder as an multiple aggravating circumstance.” Allen, at p. see also supra, Cal.3d at p. 1273.) Similarly, in the case, present we imagine cannot that the jury thought both Crumb murders were “more heinous because two multiple-murder special circumstances had been charged.” (Rodriguez, Cal.3d at p. omitted.) italics
D. Proportionality Review
Defendant makes familiar arguments
regarding
constitutionality
the 1977 law that have been
rejected
considered and
by us in recent opin
Ghent,
ions. (See, e.g.,
supra,
778;
Cal.3d at
Rodriguez,
supra, 42
Cal.3d at pp. 777-779.)
He also contends his sentence was constitu
tionally disproportionate under
441,
v.
(1983)
Dillon
34 Cal.3d
477-
390,
Cal.Rptr.
410,
We disagree. Defendant and Harris were tried separately. Defendant admitted at trial that he Moreover, alone had planned robbery. the Crumb the aggravating circumstances showed defendant was convicted of the Nor- wood in facts, murder light Kansas. In of these defendant cannot assert that the punishment imposed was disproportionate to his culpability. individual Miranda, (Allen, 1222, supra, 42 1285-1286; Cal.3d Cal.3d at p. 118.)
VI. Habeas Corpus Defendant in propria persona has previously filed separate peti tions for writ of habeas corpus. He contends he was denied the right to a 1382, motions his various were pretrial section and that trial under speedy We consolidated 25087 & (Crim. denied. Nos. erroneously arguments as 25087 raises the identical No. with the Number appeal. it denied No. 25921 because did 24849. On December we does No. After review- considering in any appeal. not raise issue that we were not claims, fails make a facie case prima we find he ing each of defendant’s in corpus for a writ of habeas deny we Accordingly, petitions relief. 25087. Crim. Nos. 24849 and
VII. Conclusion guilt at either the prejudicial find that no error occurred Because we trial, of five finding judgment guilt, defendant’s penalty phase of circumstances, affirmed. and the of death are judgment special J.,* Mosk, Panelli, Kaufman, J., J., J., W.), and Low concurred. (Harry BROUSSARD, majority affirming the judg- concur opinion J.—I findings affirming circumstance special ment five1 guilt my to this court’s register objection write penalty judgment. separately counsel foresee the future. requiring defense practice trial, penalty capital we established that phase into an absence of evidence of a factor does transform mitigating 41 Cal.3d 289-290 factor. aggravating (People Davenport later tried before 861].) 710 P.2d We noted that cases decided, mistaken prosecutor’s “we do not describe the Davenport *29 reason, For the same we could not treat a defense argument as misconduct. or Lucero counsel’s as waiver.” v. object incompetence (People failure 1031, 185, 1006, 1342].) fn. 15 750 P.2d (1988) Cal.Rptr. Cal.3d [245 Nonetheless, majority reject Davenport the has claims under begun have cured the mis- timely prosecutor’s because “a admonition could part statutory (1980) v. Green 27 Cal.3d (People characterization of the factors. * Justice, District, Five, by Presiding Appellate assigned Chairperson of First Division the Judicial Council. circumstances, robbery-murder findings: special special 1There six circumstance two were circumstances, burglary-murder special special multiple-murder two and two circumstances. (The majority multiple-murder special under duplicative of the circumstances vacate one 1222, 849, 115].) authority (1986) Cal.Rptr. 729 P.2d I People v. Allen 42 Cal.3d 1273 [232 concur, felony robbery burglary, special but as to the circumstances of murder based involved, required jury an course conduct were would have a instruction that if indivisible (See People aggravating v. Harris could each be distinct factor. these considered 433].) majority reject Cal.Rptr. this view. 36 Cal.3d 65-66 679 P.2d The [201 Though disagree, I see no reversible error. ante, (See, P.2d 468].)” 92.)2The citation to p. v. Green claim
People majority indicates that the consider the as involving object misconduct. We said in Green that trial counsel must prosecutorial misconduct in order to prosecutorial issue unless a preserve appeal, timely admonition would not have cured the harm. counsel
Defense cannot be to a expected object prosecutor’s argument on the basis of before that case was decided. Before Davenport Davenport decided, no jury admonition to the would have been even forthcoming objected. if counsel had It is self-evident that the majority’s reference to the case, totally waiver rule of v. Green is Yet in this and in misplaced. others, the majority evidently have confidence that defense counsel can foresee our This is opinions. asking too much. majority
The reject also defendant’s that there was argument Davenport error on the ground that the court instructed the to consider jury only “applicable” aggravating factors. I Such an in- mitigating disagree. struction does rectify nothing confusion caused a prosecutor’s argument jury that the should consider the absence of in mitiga- evidence tion as evidence aggravation. “The vice of Davenport error is that it tells jury that factors are applicable when as a matter of law they are not and that factors are when as a aggravating they matter of law are neutral or mitigating. Nothing the judge’s instructions would such dispel erroneous Bonin, impressions.” (People (cone. Cal.3d opn. Broussard, J.)
Nonetheless, I with agree majority error in Davenport this case was not prejudicial. The prosecutor candidly told the jury that it was to them up to decide whether evidence should be considered as aggravating, mitigating, neutral under the scheme. statutory The prosecutor’s argu- ment was temperate and accurate except for error. Davenport The prose- law, cutor thus gave fair presentation and did not much place reliance argument on the that lack of evidence of circumstance in mitiga- tion should be used aggravation. I conclude that it is not reasonably that, possible error, in the absence of the jury would have returned a *30 different verdict. (Clinton W.), J.,*
WHITE
Dissenting.
I wouldreverse
My
the judgments.
assessment of the
(Faretta
record reveals clear Faretta
v.
(1975)
California
562,
Beyond any under question, justifiably trial that he awaiting jail Moore’s confinement during defendant Judge. Master Calendar he of an with the concluded was in need audience 1984, 10, court, (See this fact. establishes letter to the dated March Moore’s 74, his letter thus: noting that Moore ended 2.) fn. It bears maj. opn., p. US.,” CALIF, may that Moore V. 422 the notion suggesting “FARETT se “weeks before trial” Faretta made his motion pro have understood that 582]) L.Ed.2d at and conse- (Faretta p. at 835 California, v. [45 trial, motion, would that his also made before believed quently justifiably i.e., late, nor would it be right not lost or forfeited his be too that he had not event, Friday, March any it is understandable that on deemed waived.1 exchange considerable verbal generated defendant Moore’s letter ap- Moore. court Apparently and defendant judge between the calendar with Moore’s choice. personal defense counsel’s interests conflicted pointed motions pretrial including not Moore’s several support Defense counsel did go his choice to personal to be to exercise request permitted his ultimate death, be, rel. (United his States ex if need under own banner. jail or suffer 12, Further, calendar 1965) v. Cir. 348 F.2d (2d Maldonado Denno much, any, if to Moore’s give personal did not setting judge’s promise view under the law to make sure choice: “It’s to me to. have responsibility up suicide, suicide, by trying represent you go legal don’t out and commit say you go for him whether yourself. pro per It’s not [defense counsel] not.” Obvi- court is intended and none should be inferred.
No criticism the Faretta, court, ously simply speaking the calendar accord with course, Of disadvantages self-representation. context of out the pointing did, Moore, became even more adamant and unequivocal when he it Moore’s duty protecting court’s and reverse direction required stop efficiency easy being an maneuver. Cost right, fundamental se pro orderly courts exist to move cases adminis- premium, master calendar Moreover, delay. untoward while the fundamen- justice avoiding tration of 8, (1977) People v. noting It that in Windham Cal.3d bears [137 court, briefly analysis, engaged holding in 1187], page in waiver effect P.2d at request the uncondi pretrial Faretta amounted to a waiver of Windham’s failure make Given, then, pretrial self-representation. defendant Moore’s Faretta tional trial, or for proximity his be found that Moore waived made close to the date of cannot lawyer justifying the la at trial if cause feited constitutional to be his own reasonable case, (Windham, p. 128.) As request appears supra, fn. at I see this teness of his of record. then, analysis, thought indulge un if but waiver the court the Master Calendar Court had duty doubtedly protecting request, have its to Moore’s afforded Johnson would extended pages 464-465 U.S. 458 58 S.Ct. A.L.R. at Zerbst L.Ed. 357] [82 1466-1467], rights self-representation pages L.Ed. 1461 Sixth Amendment Moore’s coin, rights. cherished fundamental and to the assistance of counsel are sides the same both *31 decisionmaking, Having during court would have re in on its the calendar focused waiver right a record. presume waiver of a fundamental from silent called that this court would not right
tal Faretta is a cherished the motion truth is not favor in right, courts, Understandably, our courts. of our state’s shared predisposition court, unanimously, without is that the criminal presume, dissent this defendant’s due to a fair trial and the inter- process right state’s correlative est in truth are both better served in an assisted trial. finding by counsel Particularly is this our in criminal predisposition cases implicating But, course, death the Faretta penalty. court that appreciated help know, lawyer essential to assure a criminal defendant a fair trial. As we however, the court’s high majority may held nonetheless that a state constitutionally compel criminal defendant truly choosing proceed pro se to v. accept (See California, assistance counsel. Faretta U.S. 832-834 L.Ed.2d at pp. 579-581], pp.
Earlier, Friday’s during colloquy, reported Moore is the Reporter’s Transcript follows: “The Defendant: Okay. Under the federal law I have a represent right myself; is that correct? You have “The Court: a right yourself if represent you you are—if make a and intelli- knowing your gent counsel; waiver of that’s true. “The Defendant: Okay. And I informed, too, was . . . .” record,
On this we do not know when the defendant was first informed of pro constitutional se right, for certain Moore not so was informed at his arraignment. however, On March the intent of his undergo- letter ing the court’s inquiring scrutiny, defendant Moore amade showing reveal- to the ing Master Calendar Court the circumstances giving rise to his decision to invoke pretrial his constitutional lawyer. act as his own letter, Moore’s reproduced in footnote 2 majority in the opinion, page vividly portrayed circumstances, to the court those including the fact that it was Moore’s counsel assigned who sowed in Moore’s mind the seed of going Moreover, pro se. those circumstances were never challenged disputed defense counsel during then, the Faretta hearing. Unquestionably, show- ing made before the calendar judge that but for the fact that defendant on Moore March 5 and March 9 remained in a holding cell while his absence, trial date was continued in his Moore would have asserted his trial, Faretta right course, weeks safely assuming, of a denial of his before motion to “go follow, cocounsel.” Consequently, for reasons that I disagree with the majority’s belief that the Master Calendar Court was correct in denying Moore’s Faretta motion as untimely. made being
“Faretta held that a defendant in a state criminal trial has a constitutional proceed without counsel voluntarily when he and intelligently elects so, to do and that the state may lawyer not force a a defendant upon who properly asserts that right.” (Chapman United States (5th 1977) Cir. F.2d defendant, a federal Chapman, criminal day on the of his *32 court, trial, directly address the twice opportunity but at the earliest his jury right of the proceed before unequivocally empanelment requested he proceeded Chapman’s requests se. The district trial court denied pro an unsuc- Following his will. against the of counsel to trial with assistance verdict, jury’s guilty Chap- entered the judgment upon of the appeal cessful On by denied the lower court. appeal, to vacate judgment man’s motion sum, remanded, “In holding: Chapman Chapman court reversed the himself on right represent his not have been denied constitutional should the untimely. right He asserted the before that his assertion was ground the delay sought is no that he jury suggestion had and there been empaneled, at p. 895.) the trial.” (Chapman, supra, or disrupt Faretta, finality accorded right self-representation The constitutional of course, must, 1978) Kizer States v. Cir. timely (United (9th of be asserted. 1626].) S.Ct. F.2d cert. 435 U S. 976 L.Ed.2d den. [56 However, timely of a erroneous denial asserted pretrial we know the not se; prejudice. is reversible the defendant need show per Faretta motion se harmless “The to defend renders the traditional pro nature States, supra, United peculiarly inapposite.” (Chapman error doctrine 891; 553 F.2d v. Ruiz Cal.App.3d at see also p. 249].) law,” Moore, defendant the federal Ninth quoting “Under the federal Faretta motions determines timeliness of constitutional pretrial Circuit Fifth court in the Chapman standard the employed identical 1982) Fritz was (9th In the Fritz v. Cir. 682 F.2d Spalding Circuit. case criminal his on who invoked Faretta right a State of Washington The court of to start in the afternoon. trial morning his trial scheduled he Faretta that was grounds denied Fritz the exercise of his on held act his On the court of appeals own counsel. competent appeal, of Faretta motion Fritz but affirmed the trial court’s denial competent, delay part that the motion was a tactic on Fritz’s ground orderly The State justice. trial and obstruct the process scheduled Washington statutory petition Court denied review. Fritz’s Supreme evidentiary sought of habeas the federal district court an corpus writ The unnecessary. federal denied as federal hearing magistrate which the it untimely because ruled Fritz’s motion the before trial magistrate morning delay magistrate’s have in a of trial. Adopting report, would resulted Fritz court denied relief. On appeal, federal district court’s order writ Faretta right “Fritz asserted his holding: vacated the district court’s order trial, had any an afternoon before trial morning proceedings on the law, It as matter unless was made for timely was therefore begun. (Fritz, remanded, court delay.” The Fritz then purpose constitutional only “We hold that the facts material to Fritz’s holding: *33 claim were not that Fritz developed state court and is thus adequately an evidentiary hearing entitled to federal district court to determine delay whether his motion to se was made proceed pro tactic to the start (Fritz, of trial.” at supra, p. review,
Based on the record under there is no or showing suggesting hinting defendant unequivocal Moore’s to exercise the constitution- request ally mandated unconditional of right self-representation was made for the of or purpose delaying orderly his scheduled trial to obstruct the administra- Indeed, tion of I justice. do not read the majority opinion court’s as con- Likewise, tending holding contrary. to the the record demon- amply Moore, by strates that after being thoroughly made aware the calendar se, of judge of disadvantages proceeding voluntarily and pro intelligent- so, ly eyes elected do with his open, wide so to speak. Obviously, Fritz and Chapman demonstrate that the federal timeliness standard implements exercise of the Faretta right, “Delay not limits it. se is not a per sufficient for ground denying a defendant’s constitutional Any motion self-representation. proceed se that pro is made the morning likely of trial is to cause delay; may nonetheless time, have bona fide reasons man, asserting for not until that see Chap- 888-889, 553 F.2d at and he pp. may not be deprived of that right absent an affirmative showing ofpurpose delay.” secure v. (Fritz Spalding, supra, 682 at F.2d italics added.)
One will recall that the majority treat Faretta defendant’s motion as having been Friday, made on March 1984. (See maj. opn. 78-79.) pp. Moore, on Monday, March was assigned to a trial department motions, hearing denied, of pretrial if and when empanelment jury i.e., Trial, was to commence. jury, selection of the commenced on March 26, 1987.
In a case decided after
decided,
Faretta had been argued but
before was
the Honorable Judge Wachtler in
McIntyre
v.
(1974) N.Y.2d
N.Y.S.2d
324 N.E.2d
made a
cogent observation regarding
322]
criminal
Fritz,
defendants
typified
likes
Chapman,
Ruiz and
Moore herein. He correctly observed:
se
“Frequently,
pro
defendant is
motivated
dissatisfaction with the trial
strategy
defense counsel or a
lack of confidence in his attorney
Disagreement over trial strate-
[citations].
gy is particularly frustrating to a
light
defendant in
holdings
indorsing
counsel’s view when a
of opinion
difference
arises
v.
(People
[citation].”
McIntyre, supra,
Even if we must say that Moore is presumed to know that procedurally the timeliness of his Faretta would be determined on the basis of trial” stan- before a reasonable time commencement
California’s “within Windham, no 127-128), at pp. 19 Cal.3d (see People dard exists, believe, in the court’s decision and none stated reason sound Faretta of Fritz requests the constitutional today, why explaining *34 law in federal court than Moore’s constitutional better at Chapman fared is that the under standard. It manifest today fares Windham’s entitlement not or significantly meaningfully each case are bottoming facts essential the fundamental nature of for the Given disparity. different so to account believe, that Moore’s fairness compels, the Faretta fundamental right,2 by either timeliness stan- honored whether right implemented Faretta be dard, dissent; is my its premise Thus stems whether federal or California.3 firm, I to determine. proceed know, Monday, March before
The as we setting judge, trial “Under enumerating ruled: meticulously express findings, and after Ruiz, 142 3d this motion is de of versus Cal. authority People Ap. Ruiz, of 142 780 is a Cal.App.3d leading progeny nied.” v. People supra, Windham, Cal. 121. v. 3d People supra, case, Justice Hanson reviewed (P. D.) the Ruiz the Honorable trial. days Faretta motion made six before Conse- denial of a constitutional holding, court was called to consider Windham’s upon the Ruiz quently, i.e., “. mandated uncondi- constitutionally . . that in order to invoke the trial of a defendant a criminal should right tional self-representation of a reasonable time unequivocal right prior make an assertion that within trial,” out in the commencement of and Windham’s footnote set to Windham, 127-128, 128.) v. fn. 5 at 19 Cal.3d margin.4 (See People supra, p. i.e., personal, personally be to de right 2The to is the criminal defendant must free defend advantage particular Respect for the counsel is to his in a case. cide whether assistance of law, choice, acknowledged that right free to be the lifeblood of the mandates individual’s of California, (Faretta supra, p. at right v. 422 U.S. at L.Ed.2d the Faretta be honored. [45 581].) p. right that “A in his hour of trial. The denial of defendant has the moral to stand alone practical posi right through prior that the is not to be redeemed estimate of someone else another, subsequent through representation of the will be enhanced or tion defendant disadvantaged.” (United v. position States practical conclusion that defendant’s has been 1972) Dougherty (D.C. 473 F.2d Cir. Windham, imposition of ‘reason supra, 5 of v. reads as “Our a Footnote follows: and, indeed, limiting a a of requirement should not be must not be used as means able time’ only a self-representation. We intend defendant’s constitutional delay unjustifiably to a should not be allowed to misuse the Faretta mandate as means justice. orderly example, For a defendant scheduled trial or to obstruct the administration of day represent permitted preceding trial he should not be to wait until the before moves showing rea requests some prepare himself and a continuance in order to for trial without self-representation for request. In such case the motion sonable cause the lateness relevant factors sound the trial court which should consider is addressed discretion of ready is not for trial and such as or not defense counsel has himself indicated that he whether know, the court’s holding, question: as we answered Windham’s “[P]rior criminal must constitutional during pending proceedings what point Mr. be asserted if be exercised?” Justice self-representation Blackmun, essentially question, in Faretta had asked the same dissenting “How soon in the criminal must defendant decide be- proceeding wit: Blackmun, J., seT’ (Dis. tween counsel proceeding pro opn. California, 592].) 422 U.S. at The Faretta Denno, L.Ed.2d supra, p. court had foreshadowed the answer to Justice Black- logical clearly mun’s when substance that because Maldonado question holding sought himself after his case had been called on the represent calendar chosen, the jury but before had been he had an to have his unqualified right granted. The sensibly Denno court reasoned that at the time of Maldonado’s there request, was no trial danger disrupting proceedings *35 Denno, already United States v. progress. (See ex rel. Maldonado supra, then, 348 F.2d at Fritz and are p. 16.) Chapman, federal circuit cases where- in the constitutional Faretta right was on the basis of the implemented “ right’s dimensions delineated in Denno as of right follows: ‘The a defend- ant a criminal case act his lawyer to own is if unqualified prior invoked to the start of the trial. Once the trial has the begun with [Citations.] counsel, however, represented right his thereafter to discharge his lawyer and to represent himself is There a sharply curtailed. must be that the the showing prejudice legitimate to of interests the defendant over- balances the potential of disruption proceedings already with progress, considerable being the weight given to trial of judge’s assessment this bal- ” (Denno, ance. supra, 15; 348 F.2d at p. see also [Citations.]’ Windham, supra, 19 at p. 126.) Cal.3d
Herein trial had not counsel begun, was of record but Moore on Moore, defendant, own. Fundamental fairness that a compels criminal have made known to him his last clear to chance assert his constitutional right. “Rubicon,” The Denno court fixed the to borrow Judge Goldberg’s usage, beyond which the defendant forfeits the unqualified (unconditional) right to preparation. why needs further time for Thus if the a request reason defendant makes a for self-representation under such simply circumstances because the motion is made in close proximity to disagrees trial is because he appointed with his counsel’s desire for a continu- ance, delay may necessary some granted. be whether the defendant’s motion is In such very underlying request case the reason self-representation supplies the for a reasonable justification Furthermore, delayed for the motion. as defense counsel himself seeks a continu- purpose preparation illogical ance for the of deny further trial be would a motion for self-representation under simply such circumstances because the motion is made in close proximity may to trial. There be other request self-representation situations in which a for proximity justified. close to trial request can be When the of lateness the and even the necessi- ty justified When, reasonably continuance can be request granted. should be on the hand, merely delay orderly other justice, the defendant processes seeks to a trial court required grant request any ability is not self-representation for request without to test the by a reasonable standard.” of trial meaningful proceedings, commencement defend se as pro being i.e., Goldberg of Judge The Honorable empanelment jury. Circuit, subject delineating procedural on the court’s writing Fifth “In observed: asserting right self-representation, for requirements must the fundamental na- courts consider delineating those requirements, of the trial integrity concern for the legitimate ture of the only they insofar as are justified can be requirements Particular process. v. United (Chapman interests.” functionally reconciling related to those States, 553 F.2d at functions, think, to reconcile requirement
Windham’s reasonable time interests,” only strictly if trial adhere to Windham’s “those but courts review, under 5. be in defendant Moore’s case specific, footnote To is law that it true under federal reply confirming Master Calendar Judge’s himself, have, in had a constitutional should represent Moore today “if I find there is footnote concluded thus: light of Windham’s [your] justifying some of reasonable cause the lateness showing counsel who informs this appointed se without the assistance of proceed pro Moore, why Monday? you, he So I ask Mr. ready proceed court that now, trial, make your have waited until the date scheduled you *36 record, have Faretta based on the Moore would motion?” Unquestionably, my in I make mind “Okay, right up my answered: it’s all there letter. didn’t 5, lawyer I did me to you my to ask until March when learned not want him, I was in the my co-counsel with but case was continued while go I if my lawyer I ask even knew would you, though cell. So couldn’t holding thing not the co-counsel. When the same you give right go did me 9, a next on you day on March I wrote and mailed letter the happened 10, on, you March is the best I do under telling what was that could going 16, is first all Today, losing the circumstances. March the time since I my in I have had a chance to tell face to face that lawyer you confidence my myself.” (See, want to exercise under federal law represent infra, fn. course, I a
The of seek to make aside from that record point, illustrating made, 5, for review should be is that under Windham’s footnote Moore’s in date Faretta motion made close the scheduled pretrial proximity first judge’s his trial did not instance address the calendar sound instance, In first after that Moore’s determining request discretion.5 5 course, analysis Currently, contrary prevails a of footnote 5 hold of there Windham and 125, ing People (1978) Cal.App.3d Cal.Rptr. 628], 131 a page as in v. Hall 87 at that [150 day proximity Faretta motion made the before trial or in close forthwith addresses the discre judge request tion of the trial not made within a reasonable time because defendant's was (Id., p. 132.) before the commencement of trial. at Notable is the fact that the Hall court did 5, i.e., lurking discuss factual issue in footnote whether or not there was some show-
103
with Faretta's
under Windham’s
requirements,
judge, again
complied
standard,
was
to make
factual determination as
an order to
required
i.e.,
or did not constitute
proof
cause
that the
at hand did
hearing,
show
of
of
“some
reasonable cause” for the lateness of Moore’s assertion
showing
record, if
judge
Faretta
On this
the calendar
pretrial
right.
his constitutional
any
had
found that there was not
of reasonable cause
expressly
showing
surely
the lateness of Moore’s Faretta
would
hold that
justifying
request,
contrary
such a factual
to the substantial
made.
finding
totally
showing
Further,
I hold that because the
uncontradicted that Moore’s
showing
Faretta motion was made at
first
him
practical
afforded
opportunity
court,
timely,
face the
at
his motion was bona fide and
room
leaving
law
no
thereafter
for the exercise of the calendar
than
judge’s discretion other
allotting Moore
reasonable time to
for his defense.
v.
prepare
(People
167,
Herrera
104
3d
174
v.
(1980)
Cal.App
Cal.Rptr. 435];6 People
[163
308,
Cruz
324-325
Cal.App.3d
Cal.Rptr. 740].)
[147
Moreover,
ing
justifying
request.
of reasonable cause
the lateness of the defendant’s
when
himself,
holding in effect
Hall
represent
that
had waived or forfeited his
absolute
court,
page
acknowledged being
Hall
guided
part
at
in People
“dictum"
v. Potter
Potter,
(1978) Cal.App.3d
In
the court concluded that the de-
379].
pretrial request
morning
day
fendant’s
unequivocal.
set for trial was not
Instead
court,
resting
dictum,
proper
its decision on the basis of no
request,
Faretta
the Hall
deprivation
held there
nowas
Sixth Amendment
because the claimed constitutional Faretta
right was not
prior
made within Windham’s
time
reasonable
to the commencement
trial.
court,
Consequently,
discretion,
page
the Hall
at
reviewed
trial court’s exercise of
which it
proper,
found to be
under Denno standard and
adoption,
that Windham
a stan-
dard
expressly
that both Denno and
application
Windham
limited its
to instances of Faretta
Windham,
requests
(See
made after commencement
trial
supra,
or midtrial.
pp. 126,128.)
Cal.3d
Ruiz,
Cal.App.3d
page
the court at
held
constitutional Faret-
days
ta
made three
before start of trial was within Windham’s footnote 5’s “close
*37
proximity
untimely
trial”
showing
any
and
of
at law because
no
of
reasonable cause excus-
Ruiz,
court,
ing
lateness;
the
consequently,
supra,
motion’s
the
pages
approved,
at
791-792
in
Hall,
accord with Potter
initially designated
and
for
appli-
standards
trial court discretion
for
cation to
requests.
after-start-of-trial or midtrial Faretta
court,
Interestingly,
Hall
Cal.App.3d
page
the
at
language
referred
the
in Wind-
being
ham's footnote 5
appears
as
“dictum.” It
then
denying
that trial courts are
the constitu-
right
self-representation
tional
requested
of
when
a
within week or less of the date set
trial
however,
Discretion,
in the exercise of discretion.
that is in the
ap-
main based on courts of
But,
peal
course,
interpreting
dictum
law;
Windham's dictum.
of
in time dictum can become
issue,
presently,
as I see
upon
is whether dictum
dictum has in effect rendered meanin-
gless
defendants,
Moore,
the constitutional Faretta
of criminal
like
who show a bona
making
fide
request
reason for
a
proximity
late
within close
to trial.
Herrera, supra,
6In
Cal.App.3d
timely
167 the court
request
found
a Faretta
made in
proximity
close
request
to trial but
a
prepare.
page
without
for a
quote
continuance to
I
at
reasoning:
174 the court’s
“One further factor to be
is
considered
the cause for the
lateness
request
request
immediately
Here Herrera’s
came
[citation].
the heels of the trial
[^]
request
court’s denial of
plea
guilty by
insanity,
his
to enter an additional
of not
reason of
a
motion that
April
April
was made first on
request
and continued until
16 at the
attorney.
the district
self-representation
by
To hold a motion for
made
at
[]]]
his
opportunity
untimely
earliest
is
opportunity’ appears
shortly
when that ‘earliest
to be
before
Ruiz,
as heretofore
calendar
in Moore’s case
judge
upon
relied
Ruiz,
Moore,
noted,
his
Factually,
like defendant
made
is
case in point.
his Marsden motion to relieve
being
motion after
denied
Faretta
pretrial
in
judge
the calendar
addition denied
counsel. In Moore’s instance
requests,
and Moore’s constitutional
cocounsel. Both Ruiz’s
go
motion
trials,
then,
in
to the date
to their
proximity
made late
close
scheduled
were
i.e.,
one’s assessment
upon
six
in Ruiz’s trial
days
depending
three or
before
noted,
And,
record,
as
heretofore
days
three
Moore’s instance.
se
of would-be
defendants
examples
pro
both Ruiz and Moore are classic
McIntyre.
Wachtler in
by Judge
described hereinabove
783-787, it
that the trial
clearly appears
Ruiz at
reading
pages
Upon
an
that Ruiz’s Faretta motion was
express finding
did not make
judge
have been made much
untimely made because the motion could and should
earlier,
citing in
several
notwithstanding
argument,
support
the prosecutor’s
Windham,
(Ruiz,
should so find.
including
cases
that
court
Because,
think,
unmindful
I
he
or did not
785.)
at
was either
Cal.App.3d
p.
of footnote
decision-wise
fully
pivotal significance
upon
comprehend
time”
the trial
treated Ruiz’s
requirement,
judge
Windham’s "reasonable
Faretta
if it addressed
the first and last instance
exercise
motion as
from Ruiz the trial judge’s findings:
the court’s sound discretion. I quote
“
been,
. . the Court finds that there has
has been demonstrat-
nothing
delay
Ruiz
case
these
requests,
ed to this Court that Mr.
trying
cited,
you
but
have
the cases
have
and based
upon,
based
reviewed
case,
the fact
that and the statements
difficulties
upon
regarding
conjunction
also in
with mat-
serving
of the difficulties of
this witness and
as
some of these
hearing
ters
taken
in the in camera
related to
up
that were
mentioned,
.
you
your
. .
to have Counsel relieved
request
matters
have
”
yourself
(Ruiz,
and to
is denied.’
proceed representing
However,
light
under Windham’s “reasonable time” requirement
criminal
Faretta motion is
pretrial
footnote
defendant’s constitutional
trial,
effectively
proceed
propria persona
would
thwart defendant’s constitutional
[citation, fn.
in Faretta v.
The court found that under total circumstances known motion, trial judge after his full Ruiz’s inquiry, Faretta made days three trial, before date of was at untimely. law Consequently, under Wind- ham ’s footnote Ruiz’s exercise of of self-representation was a entirely reason, matter left unto the trial court’s sound discretion. The however, Ruiz’s pretrial pro se was untimely: motion “Appellant’s was by any of unaccompanied reasonable its showing cause for lateness.” (Ruiz, Cal.App.3d p. 791.)
At page after noting Ruiz’s Faretta motion followed on the heels of a counsel, denial of his motion substitute early Ruiz court hinted its ultimate “The holding, quote: Faretta motion also was founded on appellant’s that his perception attorney was not investigating adequately appellant’s defense theory and on disagreements their over tactics. The record allows the inference that this a new thought upon part but appellant, appellant offered no excuse for failing bring the motion But, course, earlier.” an inference reasonably must be drawn from a fact supported by then, substantial evidence and not speculation. mere Quoting, again: Ruiz “The requirement timeliness is to avoid unjustifiable delay Here, disruption orderly court proceedings. even though the trial judge expressly found there was no evidence that had the mo- appellant brought tion for the purpose delay, the manner in which the motion was brought and the reasons for making disagreements it show that had be- developed tween appellant attorney and his over investigative efforts and trial tactics. and, been in Appellant jail had the local for three and one-half months *39 attorney his did of the defense tactics chosen obviously, disapproval (Ruiz, days trial.” at just six before not arise However, not correctly my decided or not is present Ruiz was whether teaching 5’s is footnote analysis determining concern. The Ruiz court’s court’s determination that the record sound. Given Ruiz indisputably cause the lateness of Ruiz’s justifying some of reasonable showing lacked motion, Faretta so be it. however, Ruiz find that the Ruiz court informed at
I do it provocative, 3 as follows: “Federal cases such as page at footnote Cal.App.3d 1982) Chapman Cir. 682 F.2d v. United Spalding (9th Fritz v. 886, 894-895, a Faretta motion Cir. 553 F.2d hold that is (5th 1977) States trial, trial court finds the as a of if made before unless the timely matter law cases in delay. We decline to follow these motion was made purposes light of the of Windham.” language it, I application As see in one sense Ruiz court’s meaningful ” in the Ruiz Fritz and following of Windham did result court
“language noted, have Ruiz at that which As we court concluded law Chapman. fact, i.e., find Ruiz’s Faretta motion was the trial court as a that neglected justified by any showing its untimely made because lateness not sum, Ruiz’s motion have and should have been reasonable cause. could date, However, by the the Fritz prosecution. made at an earlier as contended 784-785, at 612 F.2d at set out instructions for trial courts’ use pages court is a to secure determining delay: when whether Faretta tactic motion, court must also examine the event’s to deter- preceding “The Faretta they good mine whether are with a faith assertion of the consistent be reasonably could to have made expected whether motion an time.” at earlier think, then, no I that the lower surprise, develops, To one’s would standard, standard, both imple- court’s federal and Windham’s footnote are, Faretta menting right, properly applied, federal constitutional when from the same reflecting sides the same coin a different flip perspective concern, i.e., the Faretta be faith and legitimate good that asserted concern; delay, is Fritz’s and to disallow not for which purpose unjustifiably delay “misuse the Faretta mandate as a means to sched- [of] orderly justice,” uled trial or to obstruct the administration of which 5. concern Windham’s footnote expressed a judg- In defendant Moore’s case bench under automatic review of execution, be reasonably ment of death think it cannot disputed factually did deter- Judge initially the Master Calendar undertake *40 Faretta was or request the of Moore’s constitutional mine whether lateness by the and sufficient cause. This fact is evidenced justified by good not was finding without judge’s express that the calendar are silent an findings fact And, course, of this can- untimely Moore’s assertion made. court that was im- the judge this instance find from silent record that calendar not record, made. it untimely found Moore’s motion to be From silent pliedly would, effect, lost, is that this court find that Moore forfeited unthinkable it right exercise of his fundamental of because self-representation waived not asserted. The of is timely right self-representation was fundamental the coextensive with the Sixth Amendment assistance of counsel right court, believe, it every against of the I that requiring indulge presumption Zerbst, (Johnson waiver of both fundamental at rights. U.S. L.Ed.2d p. 1466].) at p. know,
As we the record is not silent as regards Moore’s to waive attempts record, right the of the assistance counsel. On once thrice this not but knowingly, Moore and intelligently unequivocally to no avail to attempted i.e., counsel, waive his right Friday, the assistance of on March Monday, March in the and trial before of department commencement trial on March in accord with Faretta. As the regards timeliness of assertion, however, Moore’s Faretta the judge calendar noted previously made no inquiry directed determining whether reasonable cause did or did exist of justifying the lateness the Notwithstanding assertion.7 ante, light majority’s (see maj. 81), In opn., view I pretrial have rereviewed the made in Respectfully, vehemently, disagree, record the Master Calendar Court. but no less I finding majority’s no soundly reasonable basis for the assertion that the trial court reasoned granting self-representation that Moore his implemented of in a continuance would orderly justice with prejudice prosecution. my terfere administration of of view the finding showing record therein a substantial reasonable cause the lateness of (Windham’s 5), erroneously fn. it follows that Master Calendar Court denied Moore’s timely court, then, made request. expressed at law Faretta The reasons are es calendar sentially dissent, assuming But arguendo analysis, (see 5), irrelevant. even Hall court fn. Manifestly, find would the trial court’s invoking reasons infirm. Moore’s motion his Faretta right and a reasonable danger disrupting pre continuance came at time when was there no already proceedings progress. delay trial trial The reasonable incident to re Moore’s however, quests orderly justice; would not have served to obstruct the administration of it justice by would have honoring assured fair administration of Moore’s fundamental Moreover, personal surely department choice. opened during trial have rea would delay. sonable trial expressly “grant” The court did not prejudice prosecution. find that would record, sure, implied on this an finding deputy Based To be not warranted. district at- torney represented solely indispensable three out-of-state law enforcement witnesses but pretrial experience for Moore’s hardship” reconciling motions would “extreme relative However, competing their vacation schedules. the trial court was advised that the witnesses ready day’s actually were “on call to come in within a notice of we the time are sent out to tri- Moreover, clearly al.” appears prosecutor’s “might record that concern that he again again be so fortunate together to marshal them in the distant future.” But [not] *41 not “some” but substantial just the contains oversight, court’s record re- Faretta cause the lateness of Moore’s justifying of reasonable showing 23, January of the Clerk’s reveals that on Transcript Examination quest. 5, 1984, 1984, to March at was called for trial but continued Moore’s cause reason for continu- as he stated: “The the defense counsel’s because request case, ready try the just and I’m to simply is it’s a death penalty ance the documents that are needed both today. case There are some state, State of Kansas and Colorado. myself from out both the states, certain those and I’m believe I’ve most of documents from gotten I don’t have all of it.” the court’s continuance of trial agreed
The and Moore to prosecution 5, already the court “You have explained: date to March when to Moore 40th If to this further today, today day. you agree is the waived time defense, March 5th also be your for Mr. Slick to will prepare continuance we have days bring you us same 20 to trial as day; giving the 40th this, Do sir?” today. you understand “yes,” understood and his counsel told the
Eventually, replied Moore he ready next The Clerk’s that he believed he would be time. judge calendar however, 5, reveals, assigned that on March Transcript prosecutor ready” and Moore’s counsel’s try Moore’s case was “unable to announce 9, 1984, however, Friday, one was “fine.” On March response word in a murder trial and that was still developed prosecutor engaged out on this John Carroll case.” Conse- go Moore’s counsel was “about to case, “51 60” days, Moore’s and contin- judge aged the calendar quently, 16, 1984, Friday’s It bears brings hearing. ued it until March which us Calendar Monday, at March the Master point this noting Moore, “Mr. are here to continue Judge stating: we opened proceedings Friday. Which now to a request the matter that we started last is reduced have filled out the you persona, four-page You proceed propria [fl] Persona’ which the Court will Propria form entitled ‘Petition to Proceed filed.” order future,” course, he entitled to seeking a continuance “in the distant nor was Moore was not one. Fritz, is Finally, strikingly pretrial conduct opposite to facts defendant Moore’s faultless, way delays granted at causing prior be in no or continuances shown of record to announcing they ready prosecution were not of the and Moore’s counsel when trial,” And, course, “ready assigned he for proceed. when defense did state was counsel witness, Jones, investigation neither justifiably disagreed. pretrial Counsel’s Moore ante, 75, 3; (See p. compare ABA adequate complete. maj. opn., nor fn. with 1 Standards 225-228, Moreover, Justice, 4-4.1; pp. one can Approved std. Draft Criminal see already ways say realistically “ready” parted if hardly a defendant has that the defense States, 895; appointed (Chapman see also
with his v. United 553 F.2d counsel. 891-895.) pp. course, in a courtroom the calendar Friday’s judge, During hearing, length discussed at Moore’s and the spectators prosecutor, cleared of all in footnote typed dated March reproduced letter to the court 74. majority opinion, page then, judge during Friday’s hearing, made to
The the calendar showing *42 hearing. Ultimately, Faretta Monday’s before the calendar court during Faretta the calen- all time came agree, during hearing requiring will the the Indulging every dar the Moore’s assertion. judge to decide timeliness of only the reasonable in- rights, waiver of fundamental presumption against at hand is that ference to be the calendar from the record judge drawn Moore, 9, 5 the in if would have on March and court engaged present, 19, that of essentially ultimately discourse no different than March and know, remained, However, invoking right. his Faretta as we Moore through own, 9, no fault on any analysis of his cell March and under holding as an to engaged parties accommodation otherwise counsel for both to the If, however, lawsuit. Moore had been afforded his reasonable to expectation court, be him present enabling to address the his Faretta would have been timely clearly under Windham’s standard. Footnote 5 instructed the calendar that if it judge defense counsel seeks a continuance would be illogical deny to Moore’s motion self-representation simply because the 5, noted, motion is in close trial. made On March have proximity we continuance, was the that moved for the but Windham’s prosecutor logic would be applicable no less on March as it would be to defense counsel’s 9, motion him a affording on March continuance 1984.
Moreover, record, this showing on the made on 16 to the March calendar judge is that March 5 is the earliest date that Moore that if decided he was status, granted cocounsel he would invoke his Faretta unequivocally record, right. On this the is that it showing would not be reasonable to or the expect judge calendar to reason or find that could Moore have and January should have asserted his Faretta on or right before 5, anytime thereafter until March certainly 1984. Moore’s letter is some substantial, 23, 5, showing, January believe that before until and March Moore’s personal choice was limited to as with proceeding cocounsel consent of appointed attorney. his At no time did during hearing ap- 5, pointed counsel refute that for months to March he held prior Moore at then, bay thought Reasonably, while he about it. Moore would not assert 5, his Faretta before March because he had no to so reason do. There is no attorney of record that his counseled Moore showing with between January 23 March and 1984. Moore’s written his describing word state of mind during period of time before March 5 must be as viewed credible January undisputed. Consequently, during period through March “disagreement the actual over trial strategy” Judge Wachtler the calendar showing judge as The before yet about had not occurred. wrote his counsel was January competently as far Moore knew that on Moore at end of an defense. preparing adequate his case investigating strategy counsel the defense’s only share with his equally time wanted words, during investigation. other consequence decisions as not released on properly Moore uncounseled period investigation, dark, no but to and therefore had choice bail was left so speak, it came to the fundamental the assistance counsel. How cherish be, however, to the the trust and confidence requisite that March its attorney-client irreparable breaking point reached relationship instance, Moore during colloquy the calendar court learned with Moore’s in Ruiz’s his Unlike the record explaining plight. and from letter reading case, then, finding of a showing made the calendar court admits when, shows, as the as of March letter per. thought was new going pro. him if Moreover on attorney go pro. per. asked he wanted Moore’s *43 Ruiz’s, Faretta unlike Moore’s constitutional re- again March and reasonable showing was an affirmative substantial quest accompanied its in close to trial. proximity cause for lateness (see maj. the Master Calendar Consequently, Judge’s express findings them, I his an old case 78), as assess reflect concern that opn., p. simply finally ready, go calendar-wise should out to trial because counsel are show- At little for Moore’s constitutional to se. times ing regard right proceed pro record, my judge from is that the calendar have reading the sense would if Moore not right prepare. Moore his Faretta had needed time to granted 5, however, timely Windham’s footnote Moore’s was assert- request Under law, then, ed. at have granted Moore should been reason- Unquestionably, fairness notion that rejects able time defend. Fundamental prepare his Faretta turns his willingness prepare Moore’s exercise of right his v. (People Morgan own defense. 527-529 Cal.App.3d 664]; (9th 1985) Armant Cir. 772 F.2d Marquez would, I I judgments; I would reverse the and because Respectfully, from defendant Moore’s contentions on remaining ap- abstain discussing record, On this denies defendant Moore peal. majority’s holding right Rights. said to be his the Framers of the Bill of thought implicitly record, As I Windham court had defendant case in see Moore’s time” mind when in footnote the court instructed that the “reasonable requirement limiting must not be used a means of a defendant’s constitu- The Windham that right self-representation. tional court understood rule insure criminal justice designed is offended when a that procedural reasonably is used to right defendants exercise their of self-representation is exercising particularly showing them from when the prevent right, practical made that the at the earliest right requested opportunity directly right. address the court after exercise of the deciding event, law, i.e., I individ- any believe that the lifeblood of the for the respect ual, court, before majority, of this court’s if not federal requires executed, defendant Moore be informed of the date before judgment i.e., Faretta not have untimely, which his would been held forfeited I, course, concluded, record, have in light deemed waived law. that defendant Moore forfeit or to act did not waive his constitutional i.e., lawyer as his own at trial because he asserted his timely right, substantially record shows reasonable cause close justifying lateness Further, to trial of his the Master Calendar abused proximity Judge request. Moore, consideration, discretion when denying without due a reasonable Therefore, time to prepare choice of defense strategy. judgments, hold, should be reversed.
Appellant’s petition rehearing January was denied and the J., opinion was modified as printed to read above. Arguelles, Eagleson, J., did not therein. participate