THE PEOPLE v. EDDIE ASHLEY

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. EDDIE ASHLEY, Defendant and Appellant.

B228295

Decided: October 26, 2011

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Eddie Ashley appeals from the judgment entered following his no contest plea to attempted murder and assault with a semiautomatic firearm.   Defendant contends the trial court abused its discretion by denying his motion for a substitution of counsel and violated his federal constitutional rights by denying his motion for self-representation.   We affirm but direct the trial court to correct its minutes and issue an amended abstract of judgment to reflect correctly the nature of defendant's conviction.

BACKGROUND

At the preliminary hearing, Detective Robert Gillis testified that on November 11, 2006, he interviewed Andrew Hayes, who had been shot and was in a hospital.   At that time, Hayes told Gillis he had been shot during a fight near Avenue Q–5 and 5th Street East in Palmdale.   Hayes subsequently told Gillis that he had gotten into a fight with Raymond Thompson and was winning.   Defendant then handed Thompson a gun, and Thompson shot Hayes once, causing wounds in Hayes's hand, arm, and chest.

Hayes's girlfriend, Alexa Mila, testified that on the night of December 8, 2006, she was driving her van near Avenue Q–6 and 5th Street East in Palmdale, with Hayes as her passenger.   Defendant stepped out into the street in front of her van.   She swerved to the right to avoid defendant and saw that he was pointing a gun at her.   Defendant fired once, shattering the driver's side window on the van.   Mila ducked and was not injured.   She was familiar with defendant and knew he was called “Boo.” Hayes also told Gillis that defendant, whom Hayes knew as “PK–Boo,” was the shooter in the December 8 shooting.

Gillis testified that defendant and Thompson were members of the Palmer Bloc Crips, which was primarily based in Compton but had about ten members in the Antelope Valley.   Defendant's moniker was “PK–Boo.”

Defendant was charged with three counts of attempted murder, each of which was alleged to have been willful, deliberate, and premeditated, and a single count of shooting at an occupied vehicle.   The information also alleged personal and principal firearm-use and discharge enhancements under Penal Code section 12022.53, subdivisions (b) through (e), and that the November 11, 2006 attempted murder was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members.

On the third day of his jury trial, defendant entered into a plea agreement under which he pleaded no contest to the November 11, 2006 attempted murder, admitted gang and personal infliction of great bodily injury enhancement allegations as to the attempted murder, and pleaded no contest to a newly added charge of assault with a semiautomatic firearm.   The prosecutor dismissed an allegation that the attempted murder was willful, deliberate, and premeditated.   In accordance with the plea agreement, the trial court sentenced defendant to 24 years in prison.

Defendant sought and obtained a certificate of probable cause.

DISCUSSION

1. Marsden motion

Bar panel attorney Larry Baker represented defendant at the preliminary hearing and throughout the proceedings in this case.   At a pretrial conference on May 29, 2009, defendant asked the trial court to appoint a new attorney to represent him, stating that Baker “thinks I'm guilty.”   After confirming that defendant was making a motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden ), the court conducted an ex parte hearing at which defendant explained the grounds for his request.   The court denied the motion.   Defendant contends this was an abuse of discretion.

Although defendant obtained a certificate of probable cause following entry of his no contest plea, Penal Code section 1237.5, subdivision (a) still limits the issues cognizable in this appeal to those that raise “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”   Irregularities that could have been cured, or that would not have precluded subsequent proceedings to establish guilt, were waived when he pleaded no contest.  (People v. Turner (1985) 171 Cal.App.3d 116, 126.)   This includes denial of defendant's Marsden motion.  “Defendant makes no contention here that his guilty plea was not intelligently and voluntarily made.   Nor does defendant urge that the advice he received from counsel was inappropriate concerning his plea resulting in the plea not being intelligently and voluntarily made.   The claimed Marsden error does not go to the legality of the proceedings resulting in the plea.”  (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.)   The certificate of probable cause is irrelevant because it does not expand the scope of cognizable issues.  (People v. Lovings (2004) 118 Cal.App.4th 1305, 1311.)   Accordingly, defendant may not raise his claim of Marsden error on appeal.

2. Faretta motion

On January 25, 2010, which was day zero of 10 for trial, defendant moved to discharge his attorney and represent himself under Faretta v. California (1975) 422 U.S. 806, 821 [95 S.Ct. 2525] (Faretta ).   The court asked, “Are you ready to proceed to trial representing yourself in the next ten days?”   Defendant said he was not.   The court reminded defendant that it had declared at the last hearing that there would be no further continuances and had ordered Baker to adjust his trial calendar to be ready to try defendant's cases, which were “both very old.”  (Also pending against defendant were a separate case charging possession of cocaine base for sale and three probation violations.)   The court asked Baker whether he was ready to proceed to trial “within the period?”   Baker said, “As ready as I can get.”   The court told defendant it had a “strong suspicion that the reason that you're asking is for purposes of delay because I can see no other reason on charges like this for you at this stage in the game to request to go pro per․”

After defendant filled out a “pro per form” pertaining to the attempted murder and narcotics cases, the court conducted a lengthy hearing addressing defendant's motion.   Defendant confirmed that he would ask for a continuance if the court granted his motion.   The court again asked defendant, “Is there any way that you would be ready on either case to go to trial within the next ten days?”   Defendant said he would not.   The court deemed the motion untimely and thus a matter within its discretion.   The court then addressed a number of factors pertinent to the exercise of that discretion, including the dates of the crimes, which were November and December of 2006 for the shootings and December 2008 for the narcotics.   The court noted that the case was one of the oldest on its docket.   It further noted that in October of 2009 it had said there would be no further continuances.   The court also reviewed its file and noted defendant's prior Marsden motion.

The court asked defendant to explain why he was asking to represent himself at such a late stage of the proceedings.   Defendant explained, “[W]e had a talk in the back before I came out here and he told me that he has no defense.”   Baker asked that the inquiry be conducted outside the presence of the prosecutor.   The court then conducted an ex parte hearing in which defendant complained that Baker had not tracked down a witness, neither Baker nor his investigator answered defendant's phone calls, defendant did not have the funds to make all the phone calls he wanted, Baker did not have a theory of defense, and every time defendant came up with “something,” Baker “turned [him] down.”   Defendant also explained that he would put more time into his own case than he believed counsel had.   Baker explained his investigator's efforts to locate the witness defendant had mentioned and the limited utility of that witness, and recounted his explanations to defendant of the strength of the prosecution's case, the lack of a viable defense, and the heavy sentence defendant faced if convicted.

The court concluded the ex parte hearing and explained its ruling in open court:  “In terms of the [People v.] Windham [ (1977) 19 Cal.3d 121 (Windham ) ] factor[s], I find that ultimately the reason for the request on the eve of trial appears to me to be twofold.   One is it's for reasons of delay.   I made it very, very clear that this case is going to trial in the next ten days, and now this is the first time that there's been a request to go pro per.   The stated reasons by the defendant seem to be that he doesn't want to hear what his attorney has to tell him with regard to the strength of his case, and that simply isn't a very good reason to give up a constitutional right to the assistance of an attorney.  [¶] In addition, I find the quality of counsel's representation up until now has been exemplary.   Mr. Baker has been on these cases now for over a year.   Just in the proffer that he gave me in our ex parte now, I can see that he is doing all the investigation that is necessary into this case.   He has a very thorough understanding of all of the issues presented and of all of the case factors, and I do find that the disruption that might ensue in me granting this untimely request is just immeasurable.   I can't imagine how much time the defendant would need in order to actually go to trial on this case given the nature of the charges and given his unwillingness to accept the realities even in terms of his only limitations as a pro per attorney as well as the limitations in, for example, finding witnesses and things like that.”   The court further noted that the attempted murders occurred three years earlier, “[a]nd in the meantime, you have witnesses who, with the passage of time, are going to be forgetting things.   There's the potential that they won't be around any longer, so it's imperative that the People's right to a speedy trial also be considered at this point.   So looking at all the Windham factors, they just support my decision that I must deny this Faretta motion which has been made on the eve of trial on the grounds that a continuance will be necessary if I grant it․”

Defendant contends that his motion was timely and the trial court erred by denying it, resulting in a violation of his Sixth Amendment rights.

Notwithstanding defendant's no contest plea, this issue is cognizable with a certificate of probable cause.  (People v. Robinson (1997) 56 Cal.App.4th 363, 370.)

An accused's right to counsel also includes a right of self-representation.   (Faretta, supra, 422 U.S. at p. 821.)  “A trial court must grant a defendant's request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently.”  (People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch ), overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.)   A Faretta motion that is untimely or is made for purpose of delay may be denied.  (Lynch, 50 Cal.4th at pp.   721–722.)

“[T]imeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made.”   (Lynch, supra, 50 Cal.4th at p. 724.)  “[A] trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation.”  (Id. at p. 726.)   In evaluating the timeliness of a Faretta motion, a trial court may also properly consider the delay that would be required if the motion were granted and the uncertainty caused by such delay.  (Lynch, at p. 728.)   The purpose of the timeliness requirement is to prevent a defendant from misusing the motion to delay unjustifiably the trial or obstruct the orderly administration of justice.  (Id. at p. 722.)   If the motion is untimely, the defendant has the burden of justifying the delay.   (People v. Horton (1995) 11 Cal.4th 1068, 1110.)

Faretta motions that are not made a reasonable time before trial are addressed to the trial court's discretion.  (People v. Doolin (2009) 45 Cal.4th 390, 453.)   In assessing an untimely Faretta motion, the trial court should consider the quality of counsel's representation, the defendant's prior efforts to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay reasonably likely to result from granting the motion.  (People v. Mayfield (1997) 14 Cal.4th 668, 810 (Mayfield );  Windham, supra, 19 Cal.3d at p. 128.)   If the court abuses its discretion, the error is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836.  (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.)

Citing a Ninth Circuit case, defendant argues that his Faretta motion was timely because it “was made more than 10 days” before trial.   This is not the law in California.  (People v. Jackson (2009) 45 Cal.4th 662, 690.)   Defendant also miscalculates, as his motion was made on day zero of 10, 10 days before the last day to start the trial, not “more than 10 days.”   Also, the case was sent out for trial on February 1, 2010, and jury selection commenced on February 2, 2010—eight days after the Faretta motion.

In determining that defendant's motion was untimely, the trial court considered not only the time remaining before the last day for trial, but also that Baker was ready to proceed to trial, the age of the case—not only how long proceedings had been pending, but also the date of the commission of the crimes, the necessity of an indefinite delay to permit defendant an opportunity to prepare for trial, the potential impact of such a delay upon witnesses, and that defendant had had a lengthy period during which he could have asserted his right of self-representation.   We also note that defendant wanted to represent himself because he was unhappy with Baker's representation—an issue that surfaced approximately eight months earlier when defendant made his Marsden motion.   Defendant's explanation of his particular grounds for dissatisfaction revealed that all were based on matters that had been ongoing for some time, rather than something that had just arisen.   Thus, the trial court did not err by concluding that defendant's Faretta motion was untimely, and its grant or denial was a discretionary matter.

In determining how to exercise its discretion, the trial court expressly considered each of the factors set forth in Windham and Mayfield:  the quality of Baker's representation, the reasons for defendant's request to represent himself, his prior effort to substitute counsel, the length and stage of the proceedings, and the disruption or delay reasonably likely to result from granting the motion.   It also concluded, given defendant's inability to otherwise justify the delay in making his untimely motion, that the motion was made for purposes of delay.   The court's denial of the motion was not an abuse of discretion.

3. Correction of abstract of judgment

Although the information alleged that each of the three attempted murders was willful, deliberate, and premeditated, the prosecutor struck that allegation and defendant did not admit it.   The clerk's February 4, 2010 minute order erroneously reflects that the court found defendant's attempted murder conviction “to be in the first degree.”   Similarly, the abstract of judgment states the nature of the conviction as “attempt murder–1st degree.”   These descriptions are both factually and legally inaccurate.   Attempted murder is not divided into degrees, and a finding that an attempted murder was willful, deliberate, and premeditated does not make the crime first degree attempted murder.  (People v. Bright (1996) 12 Cal.4th 652, 668–669, overruled on a different ground in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Accordingly, we direct the trial court to correct its minutes and to issue an amended abstract of judgment by deleting all references to “first degree” and “1st degree.”

DISPOSITION

The judgment is affirmed.   Unless it has already done so, the trial court is directed to correct its minutes for February 4, 2010, and to issue an amended abstract of judgment by deleting all references to “first degree” and “1st degree.”

NOT TO BE PUBLISHED.

We concur:

ROTHSCHILD, J. CHANEY, J.