THE PEOPLE v. CHARLES TONY CORDOVA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Charles Tony Cordova (appellant) was convicted by a jury of first degree burglary while a person was present in the home.  (Pen.Code, §§ 459, 667.5, subd. (c).) ¹  He then admitted that he had suffered a prior serious felony conviction within the meaning of section 1170.12 subdivisions (a) through (d) and section 667, subdivisions (a) and (b) through (i) and two convictions for which he had served prison sentences within the meaning of section 667.5, subdivision (b).  He was sentenced to 17 years in state prison.   He appeals, contending that the trial court erred in denying his motion to represent himself and that the jury was not properly instructed on the intent necessary to commit burglary.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 17, 2009, April Nicholson was working on her computer at her home.   She looked out the window and saw a man she did not recognize walking up her driveway.   She called 911 and continued to observe the man through her kitchen window.   The man came up to the stoop outside her back door, picked up a newspaper, sat down, and started reading.   The back door had a louvered window on the top half and a doggie door with a thin piece of wood nailed over it.   Nicholson heard a thump and told the 911 operator that she was going to check on the doggie door.   She saw the silhouette of appellant putting his fingers on the panes of the louvered window and heard popping noises.   She saw the silhouette drop to the ground and looked out the window to see appellant lying on his back and kicking in the doggie door.   The wood panel on the doggie door hit her legs.   Appellant reached in and grabbed her right ankle.   She pulled away and he let go.   He reached in again and brushed her shin.   Nicholson, who was still on the phone with the 911 operator, backed away and shouted to appellant that she had a gun, although she did not.   As she backed off, she saw the top of appellant's head and both of his arms come through the doggie door.   She ran out the front door and stood screaming on her lawn until a neighbor came up to get her.   Nicholson did not see appellant leave her house and assumed he was still inside.   The 911 operator called Nicholson back as she was standing outside and she gave the operator a physical description of the intruder.

Torrance Police Officer Richard Gabel responded to a radio call concerning a suspect wearing dark jeans and a dark shirt with a black and white jacket in the vicinity of Van Ness and Redondo Beach Boulevard in Torrance.   He saw someone who matched that description running through some apartment buildings.   The man saw Officer Gabel, then turned around, and ran back through the apartment complex.   Torrance Police Officer Jennifer Wesgarth also responded to the radio broadcast and saw a person matching that description running in a nearby alley.

At approximately 3:15 p.m., William Lin was sitting at his desk in his home on West 160th Street when he heard the sound of his gate being dragged across the concrete walkway.   He looked out a glass door and saw appellant about three feet away, looking dirty and disheveled.   Lin locked the door and called 911.

Officer Gabel came to West 160th Street and saw appellant running.   Officer Gabel pursued him into a back yard and several other officers were able to take appellant into custody.

Charges were filed against appellant for the first degree burglaries of Nicholson and Lin, but the count involving Lin was dismissed prior to trial.

DISCUSSION

1. Appellant Was Not Denied the Right to Represent Himself

On October 13, 2009, prior to jury selection, appellant was represented by Deputy Public Defender Patsy Ward. Another deputy in that office, Cris Mercurio, had been previously assigned to handle appellant's case.   On the 13th, appellant indicated that he wanted to represent himself.   Judge James Brandlin explained to him the dangers of representing himself, especially since the case had the potential for significant prison time.   Appellant still insisted he wanted to represent himself and said that he needed a continuance because it was “[g]oing to take [him] some time to look over everything, find out what I'm going to argue.”   He requested a 60–day continuance.   The court asked the bailiff to provide appellant with a waiver form.   Appellant said he did not feel comfortable with either Ward or Mercurio.   The judge said both counsel were very capable of representing him and told appellant to think about his desire to represent himself during a recess.   After appellant reviewed and initialed the forms, the court again advised appellant about the perils of representing himself.   Appellant asked for some time to think about whether he wanted to represent himself and the court encouraged him to do so, saying that he could resubmit the forms at a later time.   The court found that appellant was not making an unequivocal request to represent himself and the case was set for trial on October 27, 2009.

On October 27, appellant appeared in court, and the matter was trailed until November 4, 2009, as day 7 of 10.   On November 4, the parties announced ready for trial, the matter was trailed until the following day, and a jury panel was ordered.

On November 5, 2009, appellant filed a motion to disqualify Judge Brandlin pursuant to Code of Civil Procedure section 170.6.   The matter was transferred to another judge and defense counsel filed another motion to disqualify that judge.   Appellant's case was transferred to Judge Sandra Thompson.

On November 9, 2009, on the final day that the case could proceed to trial under section 1382, appellant was still represented by Deputy Public Defender Ward. He moved to relieve her as his counsel.   Appellant claimed Ward was not investigating his case properly, she had not told him how many trials she had won, and she was trying to influence him to take a plea deal.   He also asked why he did not have a state-appointed attorney and said if he could not “fire” Ward, he wanted to “go pro per.”   The court explained that Ward was from the public defender's office, which was the same office that employed his prior attorney, Mercurio.   Ward told the court that appellant's claim stemmed from a request he had made to locate a friend who might be a witness;  however, appellant had not provided her any information other than the friend's name.   Ward also explained that she had been practicing law since 1990 and had handled a number of types of criminal cases.   She stated that she had told appellant that if convicted, he would receive a state prison sentence and not rehabilitation as he had requested because of the type of crime alleged, and that she could explain to appellant the reason he could not get a state-appointed attorney.   Appellant then said he did not feel comfortable with Ward and that he felt “stressed out” when he met her.   The court then ruled:  “Your motion to proceed in pro per is denied.   We are ready for trial.   We're going to call the panel up momentarily, and we have to proceed today.   I cannot grant you pro per status when I don't really believe, based on your presentation, that you're prepared to handle your defense in a case of this magnitude.”   The court explained that even if it relieved Ward, there was no guarantee that appellant would have anyone from the public defender's office who would make him more comfortable.   Ward informed the court that on October 13, 2009, appellant had filled out a pro. per. waiver form, but he decided not to proceed with a request to represent himself.

On November 19, 2009, during the presentation of the prosecution's case, appellant again moved to relieve Ward as his attorney.   He told the court that Ward was not representing him to the best of her ability because she did not ask a question about how he could have grabbed Nicholson's ankle.   Thereafter, a discussion ensued about Ward's choice of trial tactics when cross-examining Nicholson and the court explained to appellant possible reasons for those tactics.   Appellant claimed that Ward did not follow up with evidence about the lack of fingerprints.   Finally, he complained that he wanted to testify and Ward did not want him to.   Ward then explained the reasons for her trial tactics.   The court then asked appellant if he understood, appellant said he did and trial resumed.

Appellant contends that the court erred when it denied appellant's second motion to represent himself on November 9, 2009.

In Faretta v. California (1975) 422 U.S. 806 (Faretta ), the United States Supreme Court held that a defendant in a criminal case “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.”  (Id. at p. 807, italics omitted.)   Under Faretta, “[a] trial court must grant a defendant's request for self-representation if three conditions are met.   First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation.  [Citations.]  Second, he must make his request unequivocally.  [Citations.]  Third, he must make his request within a reasonable time before trial.  [Citations.]”  (People v. Welch (1999) 20 Cal.4th 701, 729, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 90;  People v. Lynch (2010) 50 Cal.4th 693, 721, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.)

There appears to be no dispute between the parties that appellant made his request for new counsel knowingly and intelligently.   We therefore turn to the second and third prongs of the test, whether the request was unequivocal and whether it was made a reasonable time before trial.

“The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words.   Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion.”  (People v. Marshall (1997) 15 Cal.4th 1, 23.)   A reviewing court, in determining whether a motion for self-representation is unequivocal, is not bound by the trial court's apparent understanding that the defendant was making a motion for self-representation.  (Ibid.) “Some courts have held that vacillation between requests for counsel and for self-representation amounts to equivocation or to waiver or forfeiture of the right of self-representation.  [Citations.]”  (Id. at p. 22.)   A motion for self-representation made only in response to a denial of a Marsden ² motion for substitute counsel does not constitute an unequivocal request.  (People v. Michaels (2002) 28 Cal.4th 486, 524;  People v. Barnett (1998) 17 Cal.4th 1044, 1087–1088.) ³

At the November 9 hearing, appellant stated his dissatisfaction with Ward. He requested a state-appointed attorney.   He explained that everyone who faced a serious prison sentence had “state appointed attorneys.”   Appellant said, “I don't understand why I don't.   Why, how do I get a state appointed, because if I can't get her fired I want to go pro per.”   He then expressed dissatisfaction with Ward's trial strategy.

We conclude that appellant did not make an unequivocal request to represent himself despite the court's characterization of the motion as a “motion to proceed in pro per.”  (People v. Barnett, supra, 17 Cal.4th at p. 1087 [a reviewing court “is not bound by the trial court's apparent understanding that the defendant was making a motion for self-representation”].)   The main thrust of his request was his lack of comfort with Ward. The withdrawal of his request to represent himself made at an earlier hearing is evidence that appellant was not making an articulate and unmistakable demand for self-representation at the November 9th hearing, as it demonstrates his tendency to vacillate.   In addition, appellant requested a state-appointed attorney and his demand to represent himself was contingent on the denial of his Marsden motion.   Significantly, even though appellant clearly knew how to request to represent himself, he did not renew the request after the court refused to relieve his counsel.   These facts lend additional support to our determination that his self-representation request was not unequivocal.

II. The Jury Instructions Were Not Deficient

“One may b[e] liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed.   [Citations.]”  (People v. Montoya (1994) 7 Cal.4th 1027, 1041–1042.)  “[T]he jury need not unanimously decide, or even be certain, which felony defendant intended as long as it finds beyond a reasonable doubt that he intended some felony.  [Citations.]”  (People v. Hughes (2002) 27 Cal.4th 287, 351.)

After the People presented their case, defense counsel moved for dismissal pursuant to section 1118.1 on the grounds that the prosecution had not proved that appellant's breaking and entering was for the purpose of committing a larceny or other felony.   The court denied the motion.   In closing, the prosecutor argued that appellant could have intended to commit theft, assault, or false imprisonment, informing them that it did not have to agree on one theory of intent.⁴

“In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure.  [Citations.]”  (People v. Rathert (2000) 24 Cal.4th 200, 204.)

Appellant complains that the assault instruction did not have a title and it was unclear as to how the instruction related to the burglary instruction, and the false imprisonment instruction was read out of order at the end of the charge to the jury.   Thus, he contends that “the entire presentation of the instructions was not linked together in a way which explained to the jury exactly what they had to find in order to sustain a burglary conviction.”

The record reflects that during the discussion concerning the instructions, defense counsel reiterated her argument that there was insufficient evidence of the crimes of false imprisonment, assault, or larceny, but otherwise did not object to the instructions.   The court instructed the jury that to be guilty of burglary appellant had to enter a building with the felonious intent to commit theft, false imprisonment, or assault.⁵  It also gave the jury the definition of those three target crimes.   Appellant did not object to any of these instructions, nor did he ask for clarification.

If a defendant does not request a clarifying instruction, he cannot argue on appeal that an instruction correct in law was too general or incomplete.   (People v. Guerra (2006) 37 Cal.4th 1067, 1134;  People v. Hart (1999) 20 Cal.4th 546, 622.)

In any event, although appellant claims the court's manner of reading the instructions caused confusion, printed instructions were given to the jury.   Those instructions clearly stated the elements of each of the target crimes, including the crime of assault by means likely to produce great bodily injury, and the jury is presumed to follow the instructions given.  (People v. Gray (2005) 37 Cal.4th 168, 217.)   Appellant's claim that “the entire presentation of the instructions was not linked together in a way which explained to the jury exactly what they had to find in order to sustain a burglary conviction” is based on speculation.

It was clear from the prosecutor's closing argument that the jury was told it had to find intent to commit either theft, assault by means likely to produce great bodily injury, or false imprisonment.   As we noted, the instructions set forth the elements of each of those crimes.   Appellant does not contend that certain elements were omitted or that the instructions given were legally incorrect.

Viewed as a whole, there is no reasonable likelihood the jury misconstrued or misapplied the instructions.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. People v. Marsden (1970) 2 Cal.3d 118..  FN2. People v. Marsden (1970) 2 Cal.3d 118.

FN3. Appellant's reliance on People v. Dent (2003) 30 Cal.4th 213 is misplaced.   He argues the court found the defendant had made an unambiguous request for self-representation under circumstances similar to the present case.   Contrary to his claim, the Dent court expressly declined to consider whether the defendant's request to represent himself was unequivocal.  (Id. at pp. 218–219.).  FN3. Appellant's reliance on People v. Dent (2003) 30 Cal.4th 213 is misplaced.   He argues the court found the defendant had made an unambiguous request for self-representation under circumstances similar to the present case.   Contrary to his claim, the Dent court expressly declined to consider whether the defendant's request to represent himself was unequivocal.  (Id. at pp. 218–219.)

FN4. The prosecutor stated, inter alia, “You don't have to agree on one theory of intent.   As long as each of you believes at least one of the proposed theories, the element is satisfied.   I've proven it beyond a reasonable doubt.   As long as [appellant] intended to commit theft, assault by means likely to produce great bodily injury or false imprisonment by violence or menace, then the element is satisfied.   Those are the three theories that I'm proposing to you.”.  FN4. The prosecutor stated, inter alia, “You don't have to agree on one theory of intent.   As long as each of you believes at least one of the proposed theories, the element is satisfied.   I've proven it beyond a reasonable doubt.   As long as [appellant] intended to commit theft, assault by means likely to produce great bodily injury or false imprisonment by violence or menace, then the element is satisfied.   Those are the three theories that I'm proposing to you.”

FN5. “To prove the defendant guilty of [burglary], the People must prove that the defendant entered a room within a building;  and when he entered the room within the building, he intended to commit a theft or assault or false imprisonment.   To decide whether the defendant intended to commit theft, assault or false imprisonment, please refer to the separate instructions that I will give you on those crimes.”.  FN5. “To prove the defendant guilty of [burglary], the People must prove that the defendant entered a room within a building;  and when he entered the room within the building, he intended to commit a theft or assault or false imprisonment.   To decide whether the defendant intended to commit theft, assault or false imprisonment, please refer to the separate instructions that I will give you on those crimes.”

EPSTEIN, P. J. WILLHITE, J.