THE PEOPLE, Plaintiff and Respondent, v. MOALA NGAUE, Defendant and Appellant.
No. A045610
First Dist., Div. Two.
Apr. 4, 1991.
1115
[Opinion certified for partial publication.*]
Moala Ngaue, in pro. per., and Linda Robertson for Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, and Sharon Birenbaum, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
KLINE, P. J.—Moala Ngaue appeals from convictions of two counts of attempted voluntary manslaughter and two counts of robbery. He contends the trial court erred in denying his repeated motions for substitution of his appointed counsel, denying his request for a continuance after granting his motion to represent himself at trial, denying his request for appointment of counsel to represent him in a motion for new trial, and compelling him to rest without enabling him to recall one of the victims as a witness. He further claims the trial court erred in imposing consecutive sentences on the robbery and attempted voluntary manslaughter counts, imposing consecutive sentence enhancements for gun use, imposing a three-year enhancement for infliction of great bodily injury in connection with the subordinate term sentence on a robbery count, and giving an inadequate and confusing statement of reasons for its sentence choices.
STATEMENT OF THE CASE
On April 22, 1988, an information was filed in the San Mateo County Superior Court charging appellant with the attempted murders (
Appellant made a total of five motions for substitution of his attorney, which were denied by two different judges. The last two of these were combined with requests that appellant be allowed to represent himself if the motions for substitution of counsel were not granted. These motions were also denied. A final motion for self-representation was granted by the judge to whom the case had been assigned for trial on January 30, 1989, the first day of trial.
After a one-week continuance, jury trial began on February 6. On February 14, the jury reached verdicts of not guilty on the counts of attempted murder but guilty on two counts of the lesser included offense of attempted voluntary manslaughter and two counts of robbery; it further found the firearm use, infliction of great bodily injury and prior prison term allegations true. The jury was then presented with evidence of the charged prior convictions and prison terms and found them true.
Appellant requested a new trial and appointment of an attorney to assist him in a new trial motion and at sentencing; ruling on this request was deferred and appellant‘s motion for a new trial was later denied at the sentencing hearing. Appellant was sentenced to a total prison term of 17 years and 2 months. He filed a timely notice of appeal on April 10, 1989.
STATEMENT OF FACTS
Abed Elsalam Rabah owned the Hi and Bye Market on University Avenue in East Palo Alto. On the night of November 27, 1987, Rabah and Ali Negem were working in the store. Both recalled that appellant came into the store three or four times that night, the first somewhere between 8 and 10 p.m., and each time bought a bottle of wine or a bottle of wine and a bottle of beer. Negem waited on appellant each time. Until appellant‘s last visit to the store, Negem was behind the counter and Rabah was circulating around the store.
The last time appellant came into the store, about 12:30 or 12:35 a.m., both Negem and Rabah were behind the counter; Rabah was preparing paperwork and had his back to the counter. Appellant brought a small orange wine cooler to the counter and Negem put it in a small bag, rang up the purchase, and asked for a dollar. Appellant reached behind his back as though to get a wallet from his pocket but instead pulled out a small silver gun, pointed it at Negem and told Negem to open the cash register and give
After taking the bag, appellant told Rabah “You guys must have a gun. Give me the gun you have.” Rabah said they did not have a gun, and appellant immediately shot Rabah twice in the right shoulder and once in his left hand. Appellant turned to Negem, who grabbed appellant‘s hand; Negem was shot through the bottom of his stomach and his left leg then turned appellant‘s hand away so that a second shot hit the counter. Rabah pulled out a .357 magnum and fired six shots at appellant, at which time Negem let go of appellant‘s hand and fell to the ground behind the counter. Rabah thought he hit appellant but could not remember. When Negem fell, he saw appellant fall and thought he saw some blood on appellant‘s back, then saw appellant get up and run away. As Negem and appellant were struggling, everything on the counter, including the cash register drawers and wine and beer, fell on the floor; when Rabah shot appellant, the bag with the money and the wine fell on the floor.
Rabah followed appellant out of the store with a shotgun kept behind the counter, chased him for two blocks and saw him go behind a small pick-up truck. Rabah told him not to move, saw him start loading his pistol and asked if appellant was going to shoot him again. Appellant started to run down the street and Rabah fired the shotgun, which “reared back” and hit him in the face.
The police arrived and Rabah gave them a description of appellant, including a tattoo on the left side of his neck which Rabah identified on appellant at trial. Rabah was taken to the hospital; he had surgery to remove one bullet and another remained in his body. Back at the store, someone called the police and Negem told them what had happened. Negem also recalled the tattoo on appellant‘s neck and identified it at trial. Negem was taken to the hospital and had surgery to remove a bullet from his leg.
Police officer Renaldo Rhodes received a call about a possible robbery at the Hi and Bye Market at about 12:43 on the morning of November 28,
Detective Rod Lamour took photographs of bullet holes in the Hi and Bye Market on December 11, 1987. Three holes—one in the window behind the counter at chest level, one on the deli case next to the counter which appeared to be a ricochet, and one toward the rear of the store about eight to nine feet off the ground—were from a .25-caliber gun. Several others, mostly in the area of a cooler, were from a .38-caliber weapon.
On March 28, 1988, Redwood City Police Sergeant Michael Manry went to the Mayfair Hotel looking for appellant. When he found appellant, identified himself and told appellant not to move, appellant asked “is this for the robbery?” Nothing had been said about a robbery before this comment.
Defense case
Appellant called a number of witnesses who described aggressiveness on the part of the store owner and workers. Several customers testified that they had been beaten or chased from the store at gunpoint by the store owner and employees, or had seen others subjected to such treatment. The owner of the business next door additionally described having seen Rabah “sic” a dog on people, having been personally threatened by him and having complained about him to city officials and the police.
Recalled to the stand by appellant, Rabah testified that the whole shooting incident took about three seconds and he did not remember whether Negem had been shot before Rabah pulled his gun; he denied the above
Appellant testified that he had sold drugs in the past and had a prior felony for sale of cocaine. During Thanksgiving week of 1987 he had come from Los Angeles for a church “camp” in San Carlos with his sister and brother-in-law, who wanted to take him away from the drugs and street life. On Friday, November 27, appellant and one of his cousins from Hayward went to a bar in East Palo Alto. Appellant had never been to East Palo Alto before.
During the evening, appellant went to Rabah‘s store three or four times to buy drinks for “Tongan kids” outside the bar. He eventually gave a .25-caliber automatic gun he was carrying to a “Tongan kid” at the bar who had been pestering him for it. The kid later told appellant he had sold the gun to people at the store where appellant had been buying beer.
Appellant, upset, went to the store, but the two men there said no one had sold them a gun; after checking that he had the right store, appellant returned, told Rabah he had his gun and offered to return the $20. The two began to argue, then Negem came up from behind appellant and pointed appellant‘s gun in his face, repeating “you want gun? You want gun?” and jabbing appellant in the face. Appellant hit the gun out of his face and it went off, temporarily blurring appellant‘s vision. Appellant grabbed Negem‘s hand and the two struggled, during which time the gun went off three or four times. Appellant flipped Negem to the side of the counter, where Negem fell and got shot. Rabah and a third person appellant claimed was behind the counter pointed guns at appellant; appellant was shot in the shoulder and fell, then ran for the door, felt something hit him in the head and heard gunshots from behind the counter. Appellant ran from the store, stopping because of dizziness from the blow to his head; Rabah followed and shot at him with a .357. Appellant passed out and when he awoke managed to walk slowly to a street where a Tongan kid picked him up and told him someone had died at the store. Scared to go to a hospital in the area because he did not want to be held responsible for the death, appellant eventually had relatives call his family in Los Angeles and a sister flew in and took him to a hospital in Monterey where he used a false name.
Appellant found out a month and a half later that no one had died. When he was arrested, he asked whether it was for the robbery because he had been told the police had been looking for a Tongan named Moala with a
DISCUSSION
I.*
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E. Appointment of Counsel for New Trial Motion
At the conclusion of his trial, appellant asked the court to waive time for sentencing so he could prepare an appeal and to appoint a lawyer to file a “retrial” motion for him. Judge DeLarios explained that appellant could not appeal until after sentencing and asked appellant to file his motions in writing, providing some authority which would be considered either by the trial judge or the criminal presiding judge. With respect to the request for counsel, the judge told appellant he had had the help of a lawyer for 10 months and deferred ruling, again telling appellant to submit memoranda on the issue.10 Appellant filed no memoranda.
On March 20, appellant‘s case came on for sentencing before Judge DeLarios. Appellant wanted to question Keyes about his pro per status but the court told him his motion for self-representation had been granted and was not going to be reconsidered. Appellant made a lengthy statement regarding his dissatisfaction with Keyes and not having wanted to represent himself, then asked for a 60-day continuance and a court-appointed attorney to advise him on sentencing procedure and assist him in the preparation of a new trial motion, promising to work with any lawyer other than Keyes.11 Appellant further stated that he did not have access to a law
* See footnote, ante, page 1115.
Appellant‘s contention that the trial court erred in denying his request for appointment of counsel to make a motion for a new trial is based on Menefield v. Borg (9th Cir. 1989) 881 F.2d 696. In that case, a defendant who had represented himself at trial later requested appointment of counsel to assist in the preparation of a new trial motion; the request was denied and the defendant obtained habeas corpus relief from the Ninth Circuit Court of Appeals. The court first determined that under California law a motion for a new trial is a critical stage of the prosecution at which a defendant has a right to counsel under the
Menefield in effect holds that a defendant should be allowed to withdraw a Faretta waiver in circumstances substantially identical to those presented here. Though decisions of the federal courts are entitled to great weight, we hesitate to follow Menefield because in a related context our state Supreme Court has allowed trial courts greater discretion than have the federal courts. In People v. Burton (1989) 48 Cal.3d 843, 852 [258 Cal.Rptr. 184, 771 P.2d 1270] the court considered the issue of timeliness of a Faretta motion, holding that since the right to self-representation is unconditional only if asserted “within a reasonable time prior to the commencement of trial,” a Faretta motion made after both counsel had answered ready and the case had been transferred for trial was directed to the trial court‘s discretion. Burton declined to follow the federal rule that a motion for self-representation is timely as a matter of law if made before the jury is impaneled and must be granted unless shown to have been made for the purpose of delay. (Id., at pp. 853-854.) The court noted that the federal rule was in practice similar to the California one, as it would allow denial of a Faretta motion before the jury was impaneled if the motion was made for the purpose of delay and the need for a continuance could be evidence of dilatory intent. The federal rule differed, however, in that California put the burden on the defendant to explain the delay when making a late motion. (Id., at p. 854.) The court concluded, “To the extent that there is a difference between the federal rule and the California rule, we find the federal rule too rigid in circumscribing the discretion of the trial court and adhere to the California rule.” (Id., at p. 854.) Though it is not precisely on point, Burton thus suggests the Menefield principle that counsel must be appointed to assist in a new trial motion unless the prosecution can prove an improper motive for the request would not be accepted by our state Supreme Court, which would vest greater discretion in the trial court.
While no California case has addressed the specific question of withdrawal of a Faretta waiver after trial, such a withdrawal during trial is a matter for trial court discretion. (People v. Hill [1983] 148 Cal.App.3d [744] at pp. 760-761; People v. Cruz [1978] 83 Cal.App.3d [308] at p. 319; People v. Elliott (1977) 70 Cal.App.3d 984, 991-994 [139 Cal.Rptr. 205].) Under California authority, a judge confronted with a defendant‘s request to withdraw a Faretta waiver during trial should consider, among other factors,
Elliott, Cruz and Hill found abuses of discretion in trial courts’ denials of requests to reinstate counsel during trial—in Elliott, after jury selection, in Cruz on the date set for trial, in Hill immediately before jury selection. These cases noted that the requests came at early stages of the trial and would not have required lengthy continuances or prejudiced the prosecution, and found improper the trial courts’ denial of the motions on the basis that continuances would be necessary. (Hill, supra, 148 Cal.App.3d at p. 761; Cruz, supra, 83 Cal.App.3d at pp. 320-321; Elliott, supra, 70 Cal.App.3d at pp. 996-998.) Cruz and Elliott specifically noted that the defendants’ reasons for requesting counsel—recognition that they could not compete with the prosecutors—were valid and that the defendants were not likely to be as effective in defending themselves as an attorney would be. (Cruz, supra, 83 Cal.App.3d at p. 320; Elliott, supra, 70 Cal.App.3d at p. 996.)13
Application of these principles to the present case suggests counsel should have been appointed unless appellant was seeking representation for an improper purpose such as delay: Since he had already been convicted, granting appellant‘s request would cause less disruption than that considered acceptable in Hill, Cruz and Elliott (see Menefield v. Borg, supra, 881 F.2d at p. 701); the fact that appellant had made numerous requests for substitution before trial would not necessarily indicate that his request after “the unsettling experience of trial” (Menefield v. Borg, supra, 881 F.2d at p. 701) was for an improper motive, and appellant clearly could not effectively represent himself at this stage of the proceeding.
Indeed, as a practical matter, consideration of the factors identified in Hill, Cruz, and Elliott in the posttrial context yields a result very similar to
In the present case, the trial court never ruled on appellant‘s posttrial request for counsel; it simply denied his motion for a new trial on the merits. The court‘s statement that appellant‘s pretrial motion had previously been denied by Judge Kemp simply did not address the motion for appointment of counsel to assist with a motion for new trial. This was error.
Appellant urges that an erroneous denial of his request for appointment of counsel requires automatic reversal of the tainted proceeding. In Menefield, the Ninth Circuit applied the rule that Sixth Amendment violations pervading trial require automatic reversal to the situation before it, where erroneous denial of the request for counsel on a new trial motion pervaded a postconviction hearing. (881 F.2d at p. 701, fn. 7.) By contrast, several California Courts of Appeal have employed a harmless error analysis in determining whether a trial court‘s denial of a request to retract a Faretta waiver was prejudicial. (People v. Sampson (1987) 191 Cal.App.3d 1409, 1418 [237 Cal. Rptr. 100]; People v. Hill, supra, 148 Cal.App.3d at p. 762; People v. Elliott, supra, 70 Cal.App.3d at p. 998.) As explained by the court in Elliott, “[s]ince defendant has exercised his constitutional right of self-representation, an abuse-of-discretion error in not
The trial court‘s erroneous refusal to rule on appellant‘s posttrial motion for assistance of counsel must be viewed as harmless. Appellant claims the record indicates the possible existence of grounds for a new trial motion in that the court‘s forcing appellant to rest without recalling Negem to the stand and refusing to grant appellant a continuance could have been raised as errors in the decision of a question of law arising during the trial (
More persuasive is appellant‘s contention that, entirely apart from the new trial motion, counsel would have been able to assist at sentencing either by arguing for a lesser sentence or by raising the claims of error addressed in later portions of this opinion. As discussed in unpublished portions of this opinion, appellant‘s claims that he should not have been sentenced separately on the robbery and attempted manslaughter counts or given two weapon-use enhancements present questions on which reasonable minds can differ. Clearly, the trial judge could properly have imposed the different sentence appellant now claims should have been given. Counsel might have made a difference. Accordingly, it is necessary to remand for a ruling on appellant‘s motion for appointment of counsel. If the motion is granted, the court shall hold a new sentencing hearing; if it is denied, the judgment shall be reinstated (Menefield v. Borg, supra, 881 F.2d at p. 701, fn. 7; People v. Winbush (1988) 205 Cal.App.3d 987, 992 [252 Cal.Rptr. 722]), subject to
II.*
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CONCLUSION
The matter is remanded to the trial court for a hearing on appellant‘s request for appointment of an attorney to assist him at sentencing and, if this request is granted, a new sentencing hearing in accordance with the views expressed herein. If the request for counsel is denied, the judgment shall be reinstated subject to modifications that one enhancement under
Smith, J., concurred.
BENSON, J., Concurring and Dissenting.—I dissent only to that portion of the majority opinion which remands to the trial court for the purpose of conducting a hearing on appellant‘s motion for appointment of counsel to assist in sentencing. In my judgment the motion was heard by the trial court, considered, and judicial discretion properly exercised in denying appellant‘s request.
While I might be more sympathetic to a convicted in propria persona criminal defendant who unconditionally seeks the guidance of counsel in the complicated area of posttrial sentencing, that is not the situation before this court. Here request for assistance was conditioned on the court appointment of any lawyer other than Richard Keyes.1 In effect appellant is asserting a veto over the court‘s discretionary power to appoint counsel, an incursion which cannot be condoned.
The record provides no basis, in law or fact, justifying appellant‘s arbitrary, whimsical rejection of attorney Keyes as counsel to assist on posttrial sentencing issues. On five separate occasions appellant‘s Marsden challenges
* See footnote, ante, page 1115.
Keyes’ knowledge of the case, acquired during his trial preparation over a 10-month span would have provided valuable insight on the sentencing issues to appellant‘s benefit. On the other hand, appointment of new counsel would substantially increase the time and cost required to fully educate a lawyer unfamiliar with the proceeding. I see no good reason why the taxpayers should be required to subsidize a proceeding occasioned by appellant‘s fanciful intransigence.
Appellant‘s petition for review by the Supreme Court was denied June 27, 1991. Kennard, J., was of the opinion that the petition should be granted.