THE PEOPLE v. KELLEN CLARKE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The roadway was fenced on both sides and the gate was at a dead-end.   Binnebose blocked the roadway with his own truck so that appellant could not leave.   He insisted that appellant move the trailer.   No one else was in the area.

Binnebose made three calls to authorities to report that appellant was blocking the gate and that he appeared to be drunk.   He called the highway patrol, which did not have a unit available to respond.   He called the county sheriff, who also did not have a unit available, and he called the county sheriff again after the initial connection was lost.   He said that he needed a unit to respond so that he would not get into a violent confrontation with appellant.

Eventually, two units from the Paso Robles police department responded and arrested appellant for driving under the influence of alcohol.   Appellant physically resisted.   He was on parole at the time.   Appellant's arrest was captured by video cameras in the two patrol cars, as noted on the arrest report.   The 911 call was recorded.

First Deputy Public Defender

Deputy public defender Patricia Ashbaugh initially represented appellant.   Before the preliminary hearing, appellant made two unsuccessful motions to have Ashbaugh replaced because she refused his request to conduct a “photo lineup.”  (People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).)

Self-Representation at Preliminary Hearing

At the preliminary hearing, appellant represented himself.   Before allowing him to do so, the court fully advised him of the risks and disadvantages of self-representation pursuant to Faretta.   He completed a written waiver-of-counsel form in which he acknowledged these risks and disadvantages.   He stipulated that his blood alcohol content was over the legal limit, but he challenged the evidence that he was driving.

At the close of the preliminary hearing, the court stated, “Some advice to you, Mr. Clarke.   Get an attorney․  You are not handling your case very well.   You will handle your case to your disadvantage, and you should get an attorney.   If you can't afford an attorney, an attorney will be appointed to represent you, but you need to have an attorney.”   Appellant told the court that he had asked twice to replace his initial attorney and that “in no way, shape, or form have I ever wanted to do this, but I saw no other choice but to do it just to ask for a photo lineup.   That was the first thing I did with [the prosecutor].”   The court responded, “Well, you need an attorney, and you should ask for that.   When you get arraigned in superior court, ask for another attorney, and if Ms. Ashbaugh can't handle it, then there will be another one to represent you.”   Appellant responded, “Okay.”

Second Deputy Public Defender

At arraignment, deputy public defender Jim Royer was appointed to represent appellant.   Appellant was released on bail about month later, having completed his parole revocation term.   Royer represented him for six months.

The case was set for trial September 17, 2007.   On September 14, appellant appeared with retained counsel Thomas McCormick, whereupon Royer was relieved and trial was continued.

Retained Counsel

McCormick represented appellant for about six months.   Trial was set for April 2, 2008.   About one week before trial, appellant informed the court that he intended to retain substitute counsel because McCormick would not follow his instructions.   McCormick was relieved and the matter was calendared for a new trial setting hearing.   These proceedings were unreported, but they are included in a settled statement.

Resumed Self-Representation for Trial

At the trial setting hearing, appellant appeared without counsel and informed the court that he wished to represent himself.   The court discouraged appellant from doing so but did not conduct a new Faretta hearing.

The proceeding was unreported.   According to the settled statement, “Defendant advised the court that he had been unable to obtain new counsel and would represent himself.   Deputy district attorney Dobroth stated in response that he had no objection to defendant representing himself, based on his (Dobroth's) understanding that defendant had represented himself at his preliminary hearing.  [¶] The court recommended that defendant obtain counsel, but Defendant commenced self-representation.   No new Faretta hearing was held.”

A jury was selected on June 16, and the case was submitted to the jury on June 18, 2008.   The jury deliberated for 10 minutes and returned a guilty verdict.   Appellant was remanded into custody.

Conflict Defense Counsel for Motion for New Trial

Before sentencing, appellant filed a premature notice of appeal.   The court appointed conflict defense counsel Barry Schiavo to represent appellant for a motion for new trial.   Schiavo filed a motion for new trial on the ground that the prosecutor violated Brady by withholding a 911 audiotape.

On the day set for hearing on the motion for new trial, appellant moved to relieve Schiavo on the ground that the motion should request dismissal of the entire case rather than a new trial.   Appellant also wanted discovery of the patrol car videotapes.   Appellant told the court that “Mr. Schiavo has done an outstanding job as far as investigating this issue and provided me with an overwhelming amount of information” but that he wanted to represent himself.   Appellant declined to clarify whether he was moving to replace Schiavo or moving to represent himself.   The court denied the Marsden motion, refused to relieve Schiavo as counsel, and at the next appearance denied any motion for self-representation on the ground that it was not unequivocal and it was calculated to delay the proceedings.

The court denied the motion for new trial after it reviewed the audiotape and the videotapes.   It found that nothing in the tapes was exculpatory or would have made a difference to the outcome of the trial.

DISCUSSION

Faretta Claim

Appellant contends that the trial court committed reversible error when, just before trial, it allowed him to resume self-representation without readvising him of his right to counsel or obtaining a new waiver of that right.   We disagree.

A defendant has the right, under the Sixth Amendment to the United States Constitution, to represent himself.  (Faretta, supra, 422 U.S. 806.)   But before a court permits a defendant to represent himself, it must apprise the defendant of the dangers and disadvantages of self-representation.  (Id. at p. 835.)   Once a defendant has been fully admonished before the preliminary hearing of the risks of self-representation at all stages of the proceedings, and he has nonetheless elected to represent himself, the Sixth Amendment right to assistance of counsel does not require the superior court to subsequently readvise him of those risks or to obtain a new waiver.  (People v. Crayton (2002) 28 Cal.4th 346, 362.)

Here, appellant was fully admonished before the preliminary hearing, and completed a written waiver of his right to counsel at all stages.   The written waiver was not limited in scope to the preliminary hearing.   It included references to trial.   For example, “I understand if I change my mind during trial I will not be able to get a postponement of the case while I obtain an attorney and if I misbehave an attorney may be appointed to handle my case.”   No further admonishment was constitutionally required.

California statutory law does require the court to readvise a defendant of his right to counsel at the time of arraignment (§ 987, subd. (a)), even if he has previously waived counsel (People v. Crayton, supra, 28 Cal.4th at p. 361) but violation of that statute is not constitutional error and is reviewed under the Watson ³ harmless error standard.  (People v. Crayton, supra, at p. 364.)   The court complied with this statutory provision when it offered to, and did, appoint counsel at the time of arraignment.

The record as a whole demonstrates that the court fully admonished appellant of the risks of self-representation before the preliminary hearing, and that he knowingly and voluntarily elected to represent himself at the preliminary hearing and again at trial.   His initial written waiver indicated that he understood the risks at all stages.   The court reminded him of the dangers of self-representation after the preliminary hearing, and cautioned him against resuming self-representation when he sought to do so before trial.   Appellant's request to resume self-representation for trial was unequivocal.   Under these circumstances, defendant was clearly and fully admonished of the risks involved in representing himself at all stages of the proceedings and the court committed no error.

Brady Claim

Appellant contends that the prosecution violated Brady because it did not disclose an audiotape of Binnebose's call to the sheriff's department or the two videotapes from the patrol cars.   We disagree because the information was not exculpatory.

Appellant was not provided with copies of the audiotape and videotapes before trial.   Appellant did not request the videotapes before trial, although they were mentioned in police reports that were provided to him.   The prosecutor mistakenly told appellant that the audiotape had been destroyed due to passage of time.   After trial, the sheriff located the audiotape when appellant asked for it.

The Fourteenth Amendment compels disclosure of material evidence favorable to the defendant.  (Brady, supra, 373 U.S. at p. 87.)   Evidence is favorable if it is exculpatory or if it is impeaching.  (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)   Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  (U.S. v. Bagley (1985) 473 U.S. 667, 682.)   A reasonable probability is one sufficient to undermine confidence in the outcome of the trial.  (Id. at p. 674.)

Here, the audiotape and videotapes are inculpatory, not exculpatory.   The audiotape corroborates Binnebose's testimony that he encountered appellant, drunk, trying to park his truck and leaving a trailer in front of the tow yard.   Binnebose made colorful statements that, if a unit did not respond soon, he might “handle it” himself, or “hurt” appellant, and that he had been “too long overseas,” and was “having little flashbacks,” but those statements were all made in a calm and rational voice and were not inconsistent with his testimony that he had a scuffle with appellant.   In context, Binnebose was clearly determined to get a unit to respond to help appellant move the trailer and to prevent a violent confrontation.

The videotapes are also inculpatory.   They show that when officers arrived, appellant was alone with his truck against the gate at the end of a dead-end roadway surrounded on all sides by a high fence.   He was obviously intoxicated.   No other possible driver was present.   Binnebose was parked at a distance up the roadway, blocking escape.   In later portions of one video, appellant can be seen trying to remove his handcuffs and resisting arrest.

One discrepancy appears on the videos that might have been used for impeachment.   At trial, officers testified that when they arrived appellant was in the driver's seat of his truck.   In the video, one cannot initially see where appellant is because his truck's lights create a glare.   Once the area is lit by a patrol car, appellant can be seen standing by the side of the truck.   The footage might have been used to impeach the officer's testimony, but this discrepancy could not reasonably put the whole case in such a different light as to undermine confidence in the verdict.   The evidence was overwhelming that appellant was the only person who could have driven the truck and that he was intoxicated, and the videotapes and the audiotape only confirm these facts.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Jac A. Crawford, Judge

Dodie A. Harman, Judge

Superior Court County of San Luis Obispo

Greg May, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN3. (People v. Watson (1956) 46 Cal.2d 818, 836-837.).  FN3. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)