PEOPLE v. MILLER (1983)

PROCEDURAL HISTORY

By information defendant was charged in count I with robbery, in violation of Penal Code section 211, and in count II with kidnapping in violation of Penal Code section 207.   It was alleged that the defendant used a handgun in the commission of the above offenses within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).   In addition, a prior felony conviction of grand theft auto, within the meaning of Penal Code section 667.5, subdivision (b), was alleged.

Defendant entered a plea of not guilty to both counts and denied the use and prior felony conviction allegations.   The defendant's motion to proceed in propria persona was granted.   Defendant's motion pursuant to Penal Code section 995 was denied.

Trial was by jury.   Defendant was found guilty of kidnapping, as charged in count II of the information.   Also found to be true were the prior conviction and use allegations.   The jury could not reach a verdict on the robbery charged in count I so a mistrial was declared as to that charge.

The defendant's motions for a new trial, stay of execution, and arrest of judgment were denied and he was sentenced to the state prison for the middle term of five years for the kidnapping.   An additional 2-year sentence was imposed for the use enhancement, and one year for the prior conviction.   The robbery count was dismissed.

Defendant appeals from the judgment.

STATEMENT OF FACTS

Tyrone Justin left the ABC market on the corner of San Pedro and Manchester in Los Angeles at approximately 3:15 p.m. on July 22, 1982.   Justin was employed in the meat department of the market.   He crossed the street and got into his car, a Corvette, which was parked in a vacant lot immediately across from the store.   While Justin was waiting for traffic to clear, the defendant approached him from the driver's side and asked Justin if he had a light.   Justin turned to reach his lighter;  when he turned back, the defendant was sticking a .38 caliber revolver in Justin's face.   The defendant asked Justin where he was going, and Justin replied, “Anywhere you want me to go.”   The defendant walked around the front of the idling Corvette and got in on the passenger side.   Justin then made a left turn onto Manchester.

The defendant said that he was going to kill Justin because Justin had beaten, drugged, and killed the defendant's brother.   Justin told the defendant that he had the wrong person.   Justin kept driving, passed a policeman, then turned left on Hooper pursuant to the defendant's instructions.   The defendant told Justin that Justin would be killed in an alleyway.   Justin put the car in neutral, opened the door, jumped out, and ran back to Manchester where he contacted the police.   As Justin ran for his life, he saw the defendant drive away in the Corvette.   Justin had left his credit card, wallet and money in the car.

Two days later, the defendant was detained in the ABC market by the manager when he refused to pay for a pair of tennis shoes.   Justin saw the incident and told the manager that the defendant was the man who stole his car.   The defendant was taken to the backroom by store security until the police arrived.   The defendant told the store employees that he had taken the car and where it could be found.

Justin saw his car again on July 30, 1982, at the impound yard.   The radio was gone, the console was dismantled, the distributor and wires were pulled out, and the engine and T-top were missing.

ISSUES ON APPEAL

Defendant contends that:  (1) The trial court did not effectively warn defendant of the pitfalls of representing himself;  (2) There was insufficient asportation of the victim to support a conviction of kidnapping;  (3) Defendant should have received a bifurcated trial as to the truth of the allegation that he had suffered a prior conviction;  (4) The trial court committed constitutional error when, in the presence of the jury, the judge asked defendant if he was going to testify.

DISCUSSION

I. Warnings Concerning Self-representation

Defendant chose to defend himself.   On appeal, defendant contends that the trial judge did not sufficiently warn him of the pitfalls attendant on this choice;  that the warning given him by the trial court was inadequate as a matter of law.   Specifically, defendant contends the following constituted an inadequate warning:

“THE DEFENDANT:  Pursuant to Faretta versus California, I would like to represent myself.

“THE COURT:  You would like to represent yourself?

“THE DEFENDANT:  Yes.

“THE COURT:  You feel you're qualified to represent yourself?

“THE DEFENDANT:  Yes.

“THE COURT:  You get no special privileges.

“THE DEFENDANT:  I know that too.

“THE COURT:  All right.   The defendant—arraign the defendant.”

There is now considerable case law exploring the question of what is required of a trial court judge when presented with a defendant's demand for self-representation.  Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 held that the Sixth Amendment to the United States Constitution affords the basis for entitling a criminal defendant in a state court to represent himself;  in other words, no attorney can be forced upon him.   Faretta did not specifically require a state trial court to adopt any fixed method for dealing with a self-representation request.   In People v. Lopez (1977) 71 Cal.App.3d 568, 138 Cal.Rptr. 36, it was held that a trial court must (1) point out the disadvantages of self-representation;  (2) inquire into defendant's intellectual capacity and (3) point out that defendant would not be able to claim later that he denied himself effective assistance of counsel.   In People v. Cervantes (1978) 87 Cal.App.3d 281, 150 Cal.Rptr. 819, this court held that a bare warning given defendant, similar to the one given in the case at bench was inadequate, but termed the error harmless, applying the standard set forth in Chapman v. California (1967) 386 U.S. 18, 22–24, 87 S.Ct. 824, 827–828, 17 L.Ed.2d 705.

 Recent decisional law has rejected the notion that a trial judge must give specific warnings to defendants who choose self-representation.  (See e.g., People v. Paradise (1980) 108 Cal.App.3d 364, 166 Cal.Rptr. 484;  Zimmerman v. Municipal Court (1980) 111 Cal.App.3d 174, 168 Cal.Rptr. 434;  People v. Longwith (1981) 125 Cal.App.3d 400, 178 Cal.Rptr. 136.)   As was explained in People v. Barlow (1980) 103 Cal.App.3d 351, 370, 163 Cal.Rptr. 664, “The judicial task of the trial court ․ is not some mindless mouthing of a rote incantation but instead is a pragmatic search within the unique framework of the given case for that point where it clearly appears ․ that the defendant ․ made a knowing and intelligent election.”

Adopting the Barlow approach, we note that in the case at bench defendant, while representing himself, requested an investigator, disqualified a judge and conducted trial examination.   When the trial judge stated to defendant that it was foolish for him to represent himself, defendant replied by stating, “And also they say he who drives a train without a license is crazy.”

 The record herein, assessed in accordance with the recent decisional law on this point, supports the view that the trial court's warning to the defendant was adequate and that this defendant made a knowing and intelligent election to represent himself.   We find no error.

II. Sufficiency of Asportation

Penal Code section 207, subdivision (a) provides that “Every person who forcibly steals, takes or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”   The question presented here is whether movement by the defendant of the victim approximately three blocks in Los Angeles was sufficient asportation to support defendant's conviction of the kidnapping charged in count II.   We hold that it was.

 The movement involved must be substantial, rather than trivial, and is determined by the particular facts of the case.   Ninety feet was considered substantial in People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468;  one block, in People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267;  and two hundred feet, in People v. Stender (1975) 47 Cal.App.3d 413, 121 Cal.Rptr. 334.   The Stender court was reviewing a case where defendant walked with his female victim from her house to a pier on the beach, a distance of 200 feet, where he raped her.   By leaving the house the girl was removed from the protection of her mother, the walk along the beach passed a number of houses and resulted in the victim's being underneath a pier at night.   The removal from safety to a place of increased danger was the element that rendered the movement substantial.

 So, too, in the case at bench.   The victim was moved three blocks in an automobile at gunpoint.   The movement brought the victim closer to an alley, which is where defendant told the victim he would be killed.   We deem the movement substantial;  the evidence in support of this element of the kidnapping conviction was sufficient.

III. The Bifurcation Issue

In the case at bench, jury selection was completed on October 13, 1982, and the prosecutor made his opening statement to the jury.   Among other things, he stated:  “In addition to this, ladies and gentlemen, we anticipate evidence that in fact the defendant has in fact served a prior term in the State Facility as a result of a conviction for having taken a vehicle, grand theft auto.   That conviction having occurred on April 27, 1978.”

Defendant contends that he should have had a bifurcated trial, so that evidence of his prior felony conviction would not have been presented to the jury before the jury determined his guilt on the kidnapping charge.   Defendant thereby attacks the so-called unitary procedure employed at his trial, which allowed the People to present proof of the prior conviction during their case in chief.  (See Pen.Code, § 1159.)   Defendant relies on People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191, which determined that the “unitary” procedure set forth in Penal Code section 1158 was violative of due process.  Bracamonte discussed at length the premise that presenting a jury with proof of priors during the case in chief also provides an insurmountable invitation to the jury to take into consideration a defendant's past criminal history, to determine the cause before them bearing in mind general criminal propensity.

In People v. Owens (1980) 112 Cal.App.3d 441, 169 Cal.Rptr. 359, however, the court had rejected this argument, choosing to follow a long line of California decisions upholding the practice of presenting proof of priors during the case in chief.   The rationale for this procedure was perceived as one affording judicial economy, and it was observed that ordinarily such proof is presented in a totally non-inflammatory manner.

We note that both the offense charged and the trial in the case at bench took place after the voters had enacted the amendments to the California Constitution, Article I, commonly known as “Proposition 8.”   Section 3 of Proposition 8 added section 28, subdivision (f) to the California Constitution, and states in pertinent part:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.  [Emphasis added.]  [¶]  When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

 Respondent Attorney General argues here that application of this section to the case at bench renders any argument that defendant was entitled to bifurcation meaningless.   We are aware that diversity exists in interpreting section 28, among the Courts of Appeal.   We find nothing ambiguous about section 28's language with respect to the use of prior convictions in criminal prosecutions such as the one before us.  Article I, section 28, subdivision (f) has swept away the issue of the purportedly prejudicial nature of prior convictions in a criminal trial in California.

 We hold, therefore, that defendant, in the case at bench, was not entitled to bifurcation of his trial.

IV. Purported Griffin error

 As criminal defendants have the right not to incriminate themselves, they may not be forced to testify on their own behalf at trial;  any comment upon a defendant's failure to testify is constitutionally precluded, and can constitute reversible error.  (Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.)

 As has been explained in People v. Vargas (1973) 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 509 P.2d 959, the Griffin rule does not apply to comments (1) on the state of the evidence;  (2) on the failure of the defense to introduce material evidence;  or (3) on the failure to call logical witnesses.  Griffin does require that no direct or specific comment be made drawing attention to a defendant's failure to testify in a way that suggests that the jury or factfinder is entitled to draw therefrom any inference of guilt.

 In the case at bench, defendant complains that the trial judge asked him in front of the jury whether he planned to testify.   The record reveals that the trial court had been attempting to deal with the problems which arise when a defendant chooses to represent himself;  the court had asked defendant several times outside the presence of the jury whether he planned to testify, and got no answer;  finally, when it became necessary for the court to estimate the future length of the trial, he again asked defendant in front of the jury what his plan was, regarding testimony.

It was stated in People v. Jackson (1980) 28 Cal.3d 264, 305, 168 Cal.Rptr. 603, 618 P.2d 149, that “[t]he controlling fact is ․ that such indirect, brief and mild references to the defendant's failure to testify, without any suggestion whatever that an inference of guilt should be drawn therefrom, are uniformly held to constitute harmless error.”   That is the situation here.   No Griffin error was committed.

The judgment is affirmed.

L. THAXTON HANSON, Associate Justice.

SPENCER, P.J., and HUBBELL, J.*, concur.