IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A117691

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1 Filed 12/19/08 P. v. Galvan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY PAUL GALVAN, Defendant and Appellant. A (Alameda County Super. Ct. No. H32417a) Timothy Paul Galvan (defendant) appeals from a judgment upon a jury verdict finding him guilty of first degree murder (Pen. Code, 1 187), with the special circumstance that he was an active participant in a criminal street gang and that the murder was carried out to further the activities of the gang within the meaning of section 190.2, subdivision (a)(22). The jury also found true the allegations that defendant personally discharged a firearm in violation of section , subdivisions (c) and (d) and that he personally used a firearm (former , subd. (a)(1) [Stats. 1999, ch. 129, 5, No. 5 West s Cal. Legis. Service], , subd. (b)), and that he committed the offense for the benefit of a criminal street gang within the meaning of section , subdivision (b)(1). The jury further found defendant guilty of two counts of attempted murder ( 187, 664) with firearm discharge and use allegations and criminal street gang enhancements. For the first degree murder with special circumstance finding, the trial court sentenced defendant to life imprisonment without the possibility of parole with a 1 Unless otherwise designated, all further statutory references are to the Penal Code. 1

2 consecutive 25-years-to-life term for the enhancement based on defendant s discharge of a firearm causing death. On the attempted murder offense (count 2), the trial court sentenced defendant to life with the possibility of parole with a 20-year consecutive term on the section , subdivision (c) enhancement. On count 3 of attempted murder, the trial court sentenced defendant to the midterm of seven years plus a 20-year consecutive term on the section , subdivision (c) enhancement and a 10-year consecutive term on the section , subdivision (b)(1) gang enhancement. Defendant contends that: (1) The trial court committed reversible Faretta 2 error; (2) there was insufficient evidence to support the special circumstance allegation and criminal street gang enhancements; and (3) the trial court abused its discretion in denying his motion for an Evidence Code section 402 hearing. We reverse the criminal street gang enhancements but otherwise affirm the judgment. I. FACTS On the evening of January 4, 2002, Aldaberto Mendoza was playing billiards in the open garage of his home on Viola Court in Fremont with his brother, Jose, and two friends, Jaime Reyes and Jose Carranza. At approximately 8:40 p.m., Aldaberto saw two cars pull up and park side by side on the street near the entrance to the driveway of his garage. Aldaberto observed a man get out of the car parked closest to the curb and get into the second car. As he was getting into the passenger side of the car, he looked in their direction and said, Fuck you, motherfucker. Jose Mendoza responded, Fuck you. The car drove away, leaving the parked car near Aldaberto s driveway. The men resumed playing pool. About 15 minutes later, defendant came by the garage wearing a red handkerchief covering part of his face. He pointed a shotgun at Jose, said Puro Norte, and shot him. He fired again, aiming at Reyes and Carranza who were standing at the back of the garage. Defendant fled the garage; Aldaberto pursued him. As Aldaberto approached him, defendant turned around and hit Aldaberto with the shotgun. They struggled and 2 Faretta v. California (1975) 422 U.S. 806 (Faretta). 2

3 Aldaberto got a hold of the shotgun; Reyes in turn hit defendant two or three times. Aldaberto pushed defendant to the ground. Reyes kicked defendant in the stomach two or three times and took the gun away. Reyes tied up defendant s hands with rope and Aldaberto held him on the ground until the police arrived. The police and paramedics responded to the scene. Defendant was transported to Eden Medical Center where he was diagnosed with acute alcohol intoxication and a concussion. A blood test showed his blood alcohol level to be Officer Anderson followed the ambulance that transported defendant to the hospital. Defendant told him that he had screwed up and that he shouldn t have gotten off the BART in Fremont. II. DISCUSSION Defendant contends that the trial court erred in denying his Faretta motion. We conclude that defendant waived his Faretta rights because he subsequently abandoned his request. A criminal defendant has a constitutional right to represent himself upon a timely and unequivocal request. (Faretta, supra, 422 U.S. at p. 819; People v. Marshall (1997) 15 Cal.4th 1, (Marshall).) An unequivocal invocation is required to prevent a defendant s right to counsel from being lost due to a temporary whim, unconsidered impulse, impulse of annoyance, flash of anger, or momentary frustration. (Marshall, supra, 15 Cal.4th at p. 23.) A defendant s technical legal knowledge is irrelevant to the question of whether he knowingly and voluntarily exercises the right. (People v. Dunkle (2005) 36 Cal.4th 861, 908 (Dunkle).) The test under Faretta is not whether the defendant is competent to act as his own lawyer but whether he knowingly waives his constitutional right to counsel with a realization of probable risk and consequences. (People v. Brownlee (1977) 74 Cal.App.3d 921, 934.) Here, prior to the preliminary hearing, defendant informed the court that he would like to exercise my right of going pro per. The court inquired if there was a reason defendant did not want to proceed with appointed counsel. When defendant responded that his counsel was not reliable, the court decided to conduct a Marsden 3 hearing. 3 People v. Marsden (1970) 2 Cal.3d

4 Following an in camera hearing, the court determined that substitution of counsel under Marsden was not warranted. The court thereafter considered defendant s Faretta request. The court confirmed that defendant had executed a Record of Faretta Warnings form. The court then proceeded to question defendant extensively about his understanding of the risks and burdens of self-representation. Defendant acknowledged that he understood the responsibilities he would be assuming. The court also inquired whether defendant understood the charges he was facing. Defendant listed his charges for the court but mistakenly said he was charged with possession of a firearm instead of use of a firearm. When the court explained that he was charged with use, defendant responded that he would learn the difference. Defendant also understood that he faced the death penalty and told the court that This is my life. I m fighting for it. And if I m going to lose, I m going to lose my way. The court stated that defendant s answers were forthright but that he wanted to proceed with more questions to insure that defendant understood what he was doing. The court proceeded to question defendant about his understanding of the street terrorism allegation. After defendant satisfied the court that he understood the allegation and knew generally what the prosecutor would be required to prove, the court questioned defendant about his educational background, fluency in English and whether he had ever represented himself on any case. Defendant informed the court that he was 22 years old, was fluent in English and in the process of getting his GED degree, and had never represented himself in a case. He explained that he had been charged once with being under the influence of alcohol and that he had been represented by the public defender. Upon learning that defendant s prior case had been reduced from a misdemeanor to an infraction, the court asked defendant why he thought he could do a better job than the public defender in his prior case. The following colloquy occurred: [Defendant]: I never said I could do a better job. [ ] The Court: Well, if you can t do a better job than your lawyer in that one, I suggest that a capital case may be beyond your reach as a lawyer. [ ] [Defendant]: Well, like I said before, your Honor, he s not reliable. [ ] The 4

5 Court: Who is not reliable? [ ] [Defendant]: Mr. Bloom. [ ] The Court: Who is Mr. Bloom? [ ] [Defendant]: Broome. [ ] The Court: Is that why you re making this motion, because you think Mr. Broome isn t reliable? [ ] [Defendant]: Is not, yes. [ ] The Court: Yes or no? [ ] [Defendant]: Yes. [ ] The Court: That s really the reason why you want to represent yourself? [ ] [Defendant]: Also, so I can find out the things myself, because I feel he s not doing his job thoroughly. [ ] The Court: All right. [ ] [Defendant]: I m also in the process of filling out a 42 U.S.C. form. [ ] The Court: And what would that be? [ ] [Defendant]: That would be basically filing a complaint, and if I was to ever resign from pro per he would not be my lawyer again. [ ] The Court: You re again your complaint of 42 U.S.C., which is United States Code; is that right? [ ] [Defendant]: As far as I know, yes, that s the title of it. [ ] The Court: Is directed towards whether Mr. Broome should represent you or not; is that right? [ ] [Defendant]: Basically yes, basically towards all lawyers. [ ] The Court: All right. But if Mr. Broome wasn t your lawyer you would be much happier; is that right? [ ] [Defendant]: No, if he was doing the job, if he was helping me out, telling me what we really are looking at instead of trying to give me the max, then, you know, we would be on the same road. [ ] The Court: Okay. And then it would be okay for him to represent you? [ ] [Defendant]: Yes. [ ] The Court: Because you would feel better with a lawyer who was working in your behalf than the lawyer that s with you now? [ ] [Defendant]: Correct. The court then ruled, stating that it was satisfied, based upon [its] questioning of Mr. Galvan, that his motion to represent himself is not being brought because he truly wishes to exercise his right to self-representation under Faretta v. California. In that regard, therefore, legally at least, it is neither knowing nor voluntary; it is [the court s] finding that instead the motion is being made in response to the Court s ruling on the Marsden motion which was heard earlier today. As defendant argues, the trial court s ruling on his Faretta motion was wrong. Defendant did not make an equivocal request for self-representation. Rather, he interrupted a hearing on the People s unopposed motion to continue the preliminary 5

6 hearing to state that he wished to exercise his right to self-representation. The court chose to conduct a Marsden hearing before considering defendant s request, but defendant maintained throughout both proceedings that he wished to represent himself. The record reflects defendant s sincere invocation of the right to self-representation and indicates that his request was not made out of a temporary whim or that it was a spur of the moment decision. (See Marshall, supra, 15 Cal.4th at p. 23.) While defendant s request was in part due to his dissatisfaction with his appointed counsel, even if we construe his Faretta motion as made in response to the court s decision to deny a request for substitute counsel, the motion is not equivocal. There is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself. Once the court has decided not to remove counsel, the defendant has the choice of going ahead with existing counsel or representing himself. There is nothing improper in putting the defendant to this choice, so long as the court did not err in refusing to remove counsel. [Citations.] If, under these circumstances, the defendant elects to represent himself, he need not show that he would make the same decision if offered other counsel. (People v. Michaels (2002) 28 Cal.4th 486, 524.) Although defendant timely asserted his Faretta right, he subsequently waived or abandoned his request for self-representation. It is well settled that the Faretta right, once asserted, may be waived or abandoned. (Dunkle, supra, 36 Cal.4th at p. 909; People v. Tena (2007) 156 Cal.App.4th 598, [defendant s conduct following preliminary hearing demonstrated that he abandoned any desire to represent himself].) In Tena, supra, 156 Cal.App.4th at page 605, three weeks prior to the preliminary hearing, the defendant informed the court that he wanted to represent himself; the court summarily denied the request. At the preliminary hearing, defendant renewed his request. The court denied it, finding the request untimely. The defendant subsequently retained counsel to replace the public defender and was represented by counsel at trial. (Id. at p. 606.) The appellate court held that defendant failed to renew his request for self-representation after the preliminary hearing and his conduct demonstrated that he had abandoned any desire to represent himself in favor of proceeding to trial with retained counsel. (Id. at p. 612; 6

7 see also People v. Stanley (2006) 39 Cal.4th 913, 933 [defendant s acceptance of appointed counsel to represent him without renewal of request for self-representation constituted abandonment of Faretta right].) Here, as well, defendant failed to renew his request for self-representation and proceeded through the preliminary hearing and trial without again indicating any desire to invoke his Faretta right. On these facts, we deem defendant to have waived and abandoned his right to self-representation. 4 Defendant also contends that there is insufficient evidence to support the jury s findings on the special circumstance and criminal street gang enhancements. In order to prove the allegations here, the prosecution was required to prove that the crime for which defendant was convicted was committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.... ( , subd. (b)(1).) In addition, the prosecution was required to show a pattern of criminal gang activity defined as participation in two or more statutorily enumerated criminal offenses (the predicate offenses) that are committed within a statutorily defined period and on separate occasions, or by two or more persons. (Id., subd. (e).) [A] pattern can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specified offenses. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003.) A defendant s assault on a victim coupled only with his fellow gang member s aiding and abetting in that offense, however, 4 U.S. v. Arlt (9th Cir. 1994) 41 F.3d 516, cited by defendant in his reply brief, is distinguishable. There, the defendant repeatedly expressed his desire to represent himself at trial, but the court summarily denied the requests finding the defendant incompetent to represent himself. (Id. at p. 517.) The record indicated that the court on four separate occasions in two pretrial hearings had stated that it would not allow the defendant to proceed pro se. (Id. at p. 518.) Here, by contrast, defendant invoked his right to selfrepresentation on only one occasion and the record reflects that he did not renew the request and acquiesced throughout the preliminary hearing and trial in representation by appointed counsel. (See People v. Weeks (2008) 165 Cal.App.4th 882, [declining to follow Arlt to the extent it holds that Faretta error is not waived when a defendant proceeds to trial with retained counsel without further objection].) 7

8 is insufficient, because the combined activity constitutes a single offense for purposes of section (People v. Zermeno (1999) 21 Cal.4th 927, (Zermeno).) The prosecution here relied on evidence that four members of defendant s gang, the Fremont Mexican Territory (FMT), committed an assault against two victims on July 22, In particular, Agent Schatzinger, a gang expert, testified that defendant was a member of FMT, a street gang in Fremont that is associated with Nuestra Familia, a formal prison gang. Schatzinger opined that the FMT s primary activities included assault with a deadly weapon and murder. He based his opinion on his personal investigations, reports he read and an incident involving FMT members on July 22, 1998, in which Michael Tennis and Paul Stine were robbed by four FMT gang members who were heard yelling, Norte. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324 [gang expert may provide evidence of a gang s primary activities].) The court admitted prior conviction documents from the criminal case in that matter, including a reporter s transcript of the plea proceeding that indicated four individuals were convicted of an assault with a deadly weapon with a criminal street gang enhancement and placed on probation on conditions including that they [n]ot threaten, annoy, or molest Paul Stine and Michael Tennis. The documents, however, did not include a criminal complaint or information, and there was no indication as to whether both Stine and Tennis were assaulted during the incident, whether each of the four gang members were direct perpetrators or whether one or more were culpable as aiders and abettors. Moreover, the transcript of the plea hearing did not include a factual basis for the plea. The evidence before the jury was therefore insufficient to support a finding on the predicate offense. While Schatzinger s testimony provided background information on the offense, his testimony was to a large degree based on hearsay evidence since he was not at the scene of the incident. 5 (See People v. Gardeley (1996) 14 Cal.4th 605, 619 [ a witness s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into independent proof of any fact ].) Given the 5 It is unclear from Schatzinger s testimony whether he subsequently investigated the incident or simply read reports about it. 8

9 evidence before it, the jury did not have sufficient information to determine whether one or more participants committed the assault or whether there was simply one direct perpetrator with the other participants acting as aiders and abettors. Nor was there sufficient evidence to show that there were two victims resulting in two separate offenses, particularly in light of the fact that the evidence shows a single assault charge and conviction. (See Zermeno, supra, 21 Cal.4th at pp ) In short, the prosecution failed to establish a pattern of criminal street gang activity. Accordingly, we must reverse the section and section gang enhancements. Finally, defendant argues that the trial court erred in denying his request for an Evidence Code section 402 hearing on the admissibility of the proposed testimony of the gang expert. We discern no error. Prior to trial, defendant moved to exclude Schatzinger from testifying as a gang expert or, in the alternative, assuming the testimony would be relevant, to bifurcate trial of the gang enhancements. The court denied the motion, finding that Schatzinger had testified at the preliminary hearing, had qualified there as an expert in the case, and that an additional hearing on the same issue would have little or no value and would be an undue consumption of time. The court also denied the motion to bifurcate, finding that the gang evidence was relevant given the charged enhancements and that the evidence was nonetheless admissible on the issues of motive and intent. [I]t is within the court s discretion whether or not to decide admissibility questions under Evidence Code section 402, subdivision (b) within the jury s presence. (People v. Williams (1997) 16 Cal.4th 153, 196.) Defendant s argument that the court should have limited the gang evidence here is mistaken. The evidence was relevant not only on the issue of the predicate offense but also on the questions of motive and intent. While the prosecution ultimately failed to prove the predicate offense, the court did not abuse its discretion in permitting Schatzinger s testimony. III. DISPOSITION The judgment is reversed on the criminal street gang enhancements imposed pursuant to section 190.2, subdivision (a)(22) and section , subdivision (b)(1). In 9

10 all other respects, the judgment is affirmed. The matter is remanded to the trial court for resentencing. RIVERA, J. We concur: REARDON, Acting P. J. SEPULVEDA, J. 10