THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO C. TORRES, Defendant and Appellant.
2d Crim. No. B292551
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 4/20/20
CERTIFIED FOR PUBLICATION; (Super. Ct. No. VA144478) (Los Angeles County)
Appellant was convicted by jury, of two counts of battery on an ex-girlfriend (
Facts
In April 2017, appellant tried to reconcile with his ex-girlfriend, J.M., calling her more than 20 times. J.M. agreed to meet with appellant on a street corner in Huntington Park. Appellant was angry that J.M. was dating, punched her in the face, choked her, cracked a beer bottle over her head, and took her cell phone. A bystander saw appellant hit J.M. on the head and knock her to the ground. Appellant pulled J.M. up and led her to an alley where he pushed J.M against a wall and hit her in the chest. Appellant then forced J.M. to walk down the street, hitting her as they walked.
The bystander called 911 and followed in his car. When the police arrived, appellant dropped a pair of brass knuckles and a small baseball bat to the ground. J.M. had injuries to her head, face, mouth, and neck. Appellant was arrested.
Two days later, appellant called his mother from jail. She chastised him for beating the victim. Appellant‘s taped phone conversation with his mother was played to the jury. Mother said: “[S]he [the victim] should fucking put charges on your ass. I swear to God.” Appellant admitted beating the victim and that witnesses saw the assault, and said: “I know I‘m fucking up really bad, and I never even kn[e]w that, like, I was capable of doing this.” Mother replied, “[W]hat is wrong with you? . . . Fucking beating her in the fucking street. What is wrong with you?” Appellant answered, “I know. It‘s terrible. [¶]
After the preliminary hearing appellant requested and was granted leave to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). The superior court also issued a protective order precluding any contact with the victim. In a comprehensive four page “advisement and waiver of rights to counsel,” appellant was expressly advised of the Faretta rules and how his pro per status could be revoked. (Super. Ct. L.A. County, Local Rules, rule 8.42, (a), (g).) The written waiver of the right to counsel and election to represent himself recited that this pro per status could be revoked if he attempted to “obstruct the conduct and progress of the trial.” One month later, appellant attempted to intimidate the victim with the goal of having her not cooperate with the prosecutor. This was in violation of (1) the Faretta oral and written agreements; (2) the Los Angeles Superior Court rules; (3) the Protective order, and (4)
Revocation of Appellant‘s Pro Per Status
Appellant contends that the trial court abused its discretion in revoking his pro per status after appellant asked his sister to contact the victim and have her say that she was coerced by the police detective to “press charges.” The prosecutor advised the trial court that appellant called his sister from jail “asking her to speak to the victim, locate the victim and have her write a statement indicating that she was coerced in[to] making the statements.” The trial court factually found that appellant violated a criminal protective order, attempted to dissuade the victim from testifying, and tried to have a third person contact the victim. It revoked appellant‘s pro per status and reappointed
People v. Carson General Guidelines
As indicated by the California Supreme Court: “One form of serious and obstructionist misconduct is witness intimidation, which by its very nature compromises the factfinding process and constitutes a quintessential ‘subversion of the core concept of a trial.’ [Citation.] ‘A defendant acting as his own attorney has no greater privileges than any member of the bar. He may not disrupt proceedings or intimidate witnesses. [Citations.] . . . The trial court can stop harassment and abuse of a witness by a threatening defendant and can terminate self-representation by a defendant who engages in serious misconduct. [Citations.]’ [Citation.] Threatening or intimidating acts are not limited to the courtroom. [Citation.] When a defendant exploits or manipulates his in propria persona status to engage in such acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation.” (People v. Carson (2005) 35 Cal.4th 1, 9 (Carson); see also People v. Becerra (2016) 63 Cal.4th 511 (Becerra).)
Abuse of Discretion on Appeal
We review the trial court‘s ruling for abuse of discretion. (Carson, supra, 35 Cal.4th at p. 12.) “The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an
No Abuse of Discretion as a Matter of Law
As indicated, it is well established that the trial court may terminate a defendant‘s Faretta status where the defendant engages in serious and obstructionist misconduct or conduct that threatens the core integrity of the trial. (Faretta, supra, 422 U.S. at p. 834, fn. 46; Carson, supra, at p. 6.) Witness intimidation in a domestic violence case is just that. (Id. at p. 9.) Such conduct is more than an attempt to “obstruct the conduct and progress of the trial.” (Ante, p. 3.) It is an attempt to stop the trial.
While representing himself, appellant‘s actions, including the telephone attempt to intimidate a witness, are
It does not matter whether the telephone used in the “witness intimidation” attempt was dedicated to pro per use in the jail library or whether it is some other telephone that can be used by a jail inmate. The Carson “guidelines” do not require that a dedicated pro per telephone be used to support termination of pro per status. If this were the rule, a pro per could retain such status while attempting to intimidate a witness on a non-dedicated telephone. It does not matter whether the witness intimidation is in person, on the telephone, by text message, email, by legal or ordinary mail, or by carrier pigeon. Attempted witness intimidation may show that the pro per defendant has no intention of following other trial court rules. A pro per defendant must be “able and willing to abide by rules of procedure . . . .” (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.) As long as the conduct is reasonably related to pro per status, witness intimidation may serve as the factual predicate for revocation. In addition to the numerous violations previously articulated (see
Appellant argues that it is “troubling” that the prosecutor asked the trial court to terminate his pro per status. The prosecutor, as an officer of the court, advised the trial court about what transpired. She asked that the trial court to consider the protective order, his phone privileges, and the use of the sister as a legal runner. The prosecutor did not advocate a particular result or overstep her role. (Carson, supra, 35 Cal.4th at p. 11, fn. 1.) An attorney has a duty to report misconduct to the trial court when it involves witness intimidation in a pending case. (Cal. Rules of Prof. Conduct, rule 3.3(b).)
Simply stated, a criminal defendant has no constitutional right to intimidate or dissuade a witness. Nothing in Becerra, supra, 63 Cal.4th 511 requires reversal. There, pro per status in a death penalty case was revoked because the trial court found that the defendant was “dilatory,” “stalling.” (Id. at p. 516.) This conduct had nothing to do with the truth-seeking process. And there, the trial court did not make an adequate record for intelligent appellant review. Here, by contrast, the trial court held two adversary hearings, allowed appellant to be heard, and made an express factual finding that appellant violated the salient rules and “attempted to dissuade a witness from testifying.”
Dueñas — Present Ability to Pay Fines and Fees
Appellant argues that the trial court erred in imposing a court operations assessment (
Disposition
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
I concur:
GILBERT, P. J.
The right of self-representation is guaranteed by the Sixth Amendment. (Faretta v. California (1975) 422 U.S. 806, 819.) Accordingly, termination of that right “is a severe sanction and [it] must not be imposed lightly.” (People v. Carson (2005) 35 Cal.4th 1, 7 (Carson).) Forfeiture should be found “only in those rare cases of extremely serious misconduct . . . where it is apparent that any lesser measures will be patently inadequate.” (King v. Superior Court (2003) 107 Cal.App.4th 929, 944 (King) [analogous issue of forfeiture of right to counsel].) The “principle of applying the least burdensome measure that will provide the necessary security should be applied when a defendant‘s fundamental right to counsel is at stake.” (Id. at p. 943.)
There has been no showing here that termination of Torres‘s constitutional right of self-representation was “the least burdensome measure” necessary to prevent compromising the trial. The trial court applied the most severe sanction available based on a phone call Torres made from jail, in which he asked his sister to contact the victim and have her state that the police coerced her into making statements against him. The court concluded that this sanction was proper because Torres attempted to dissuade the victim and violated his no-contact restraining order. On that basis, it terminated his Sixth Amendment right.
The record does not support the court‘s conclusion that Torres‘s conduct constituted dissuading (or attempting to dissuade) a witness or victim.
The restraining order did, however, prohibit Torres from contacting the victim. Although the record discloses that his effort was unsuccessful, he clearly attempted to violate the order. The issue presented here is whether that attempt justified the revocation of his constitutional right to represent himself. I conclude that on this record it does not, for two reasons.
First, Carson, supra, 35 Cal.4th 1, 6, holds that a court may revoke a defendant‘s right of self-representation based on out-of-court misconduct under certain circumstances, but those circumstances have not been established here. The misconduct involved in Carson was that the defendant “had taken advantage of the fact” that an inexperienced investigator had given him an unredacted copy of discovery. (Id. at pp. 12-13.) Possible intimidation of a witness was only tangentially discussed. The prosecutor in that case “argued that [the] defendant‘s improper acquisition of discovery, when considered in light of antecedent attempts to suborn perjury, fabricate an alibi, and possibly intimidate a prosecution witness, warranted termination of his Faretta rights.” (Id. at p. 13, fn. omitted.) In response, Carson states, “One form of serious and obstructionist misconduct is witness intimidation, which by its very nature compromises the factfinding process and constitutes a quintessential ‘subversion of the core concept of a trial.’ [Citation.]” (Id. at p. 9.)
The record below contains no showing or finding that Torres “exploit[ed] or manipulate[d] his propria persona status” when he asked his sister (who was not yet serving as his legal runner) to contact the victim about her statements to police. Any defendant with access to a telephone or other means of communication could do the same thing, whether represented by counsel or not. Carson cautions that some connection between a defendant‘s in propria persona status and the misconduct must be established, but that essential ingredient is missing here.
Second, even when a defendant has exploited their in propria persona status to engage in out-of-court witness intimidation, termination of the constitutional right of self-representation can be too severe a remedy. In Carson, for example, because the record was unclear on whether lesser sanctions would suffice based on the discovery the defendant actually accessed, our Supreme Court conditionally reversed the conviction and remanded the matter for a hearing on whether the termination of Faretta rights was the proper remedy. (Carson, supra, 35 Cal.4th at p. 13.)
In remanding, the Carson court listed factors that the trial court should consider before terminating a defendant‘s Faretta rights. (Carson, supra, 35 Cal.4th at p. 10.) One factor is the availability and suitability of alternative sanctions. (Ibid.)
No such record exists here. Alternative sanctions were not considered on the record, and the court had already removed Torres‘s sister as his legal runner as a consequence of the phone call. There was no explanation why that was not an adequate remedy, or whether some other sanction short of termination of Torres‘s right of self-representation would suffice.
For these reasons, and on this record, no showing has been made that this is one of “those rare cases of extremely serious misconduct . . . where it is apparent that any lesser measures will be patently inadequate.” (King, supra, 107 Cal.App.4th at p. 944.) I would therefore conditionally reverse the conviction and remand for a hearing on whether termination of Torres‘s right of self-representation was appropriate based on the factors set forth in Carson, supra, 35 Cal.4th 1.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
Lillian Vega Jacobs, Judge
Superior Court County of Los Angeles
Lillian Hamrick, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Snr. Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Analee J. Brodie, William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.