People v. Vigil CA2/2 ( 2021 )

Filed 4/14/21 P. v. Vigil CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B294098
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA468730)
v.
ALBERT VIGIL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Henry J. Hall, Judge. Affirmed.
Alison Minet Adams, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
Albert Vigil (defendant) appeals his conviction by jury of
four felonies: count one – criminal threats in violation of Penal
Code section 422,1 subdivision (a); count two – stalking in
violation of section 646.9, subdivision (a); count three –
vandalism in violation of section 594, subdivision (a); and count
four – robbery in violation of section 211. The jury also found
true defendant’s prior convictions: kidnapping in violation of
section 207 and assault with a firearm in violation of section 245,
subdivision (a)(2). Defendant represented himself throughout
most of trial.
CONTENTIONS
Defendant contends on appeal that there was insufficient
evidence to support his convictions for criminal threats, stalking,
and second degree robbery. He further contends his due process
rights were violated in several ways. First, defendant challenges
the trial court’s admission of propensity evidence and refusal to
bifurcate defendant’s prior convictions. Defendant also asserts
judicial bias, claiming, among other things, that he was denied
the right to a fair trial on the issue of his prior convictions, due to
a comment made by the court. Further, defendant asserts
violations of his constitutional right to present a defense due to
his investigator’s failure to subpoena 22 witnesses and the court’s
failure to sua sponte appoint advisory counsel. Finally,
defendant asserts that he was entitled to mental health diversion
pursuant to section 1001.36.
PROCEDURAL HISTORY
On September 6, 2018, defendant was convicted after a jury
trial of making criminal threats (§ 422, subd. (a)); stalking
____________________________________________________________
1 All further statutory references are to the Penal Code
unless otherwise stated.
2
(§ 646.9, subd. (a)); vandalism (§ 594, subd. (a)); and second
degree robbery (§ 211). The jury also found the prior allegations
true. The prior allegations included simple kidnapping (§ 207)
and assault with a firearm (§ 245, subd. (a)(2)).
On October 1, 2018, defendant was sentenced to 70 years to
life plus seven years four months.
On November 21, 2018, defendant filed a notice of appeal.
STATEMENT OF FACTS
Prosecution evidence – case in chief
Lijuan
Lijuan came to the United States in 2013 and met
defendant in 2017, while she was working in a mall. Defendant,
who is six feet five inches tall, approached Lijuan and spoke to
her. He subsequently returned to her workplace many times.
Eventually Lijuan gave defendant her phone number and they
began dating in September 2017.
Lijuan never brought defendant to her home. However,
once, defendant grabbed Lijuan’s driver’s license and wrote down
her home address. Later, defendant accurately and in detail,
described to Lijuan the inside of her bedroom. Lijuan never
brought defendant to her college campus, yet after a day in
October, when she had walked to her car with her professor who
had a beard, defendant later asked Lijuan, “Are you going
somewhere with a guy with a big beard?”
By November Lijuan wanted to break up with defendant.
When she told him this, defendant hit Lijuan with his fist on her
face and her left ear a number of times. He also strangled her to
the point that she was unable to breathe and lost consciousness
for a few seconds. When she regained consciousness, defendant
cut her hair and vandalized her car. While he was cutting her
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hair, defendant told her he wanted her to look ugly. Defendant
said if she broke up with him, he would cut off all her hair.
Defendant vandalized Lijuan’s car with a tool that he used to
scratch the front windshield, the side mirrors, the speedometer,
and the leather interior, causing more than $6,000 in damage.
During this incident, defendant told Lijuan that he would
hurt her if she broke up with him. Defendant told Lijuan all the
things he had done to his ex-girlfriends who tried to break up
with him, including having thrown his former ex-girlfriend out a
third floor window to the ground, causing her permanent injury.
Lijuan understood this to mean that he would do the same thing
to her if she tried to break up with him. Lijuan was “very
terrified” when defendant told her this story.
Because she was afraid defendant would hurt her again,
Lijuan did not immediately go to the police after the November
2017 incident. Still defendant returned to Lijuan’s work every
week, more than five times per week. In order to avoid
defendant, Lijuan changed her daily routine, including the routes
she took to work and the time she would leave. Because Lijuan
would not answer his phone calls, defendant went to Lijuan’s
workplace at the end of December. When defendant saw a photo
of a man on her phone, he became upset and snatched Lijuan’s
phone out of her hand. Lijuan was scared. Defendant never
returned her phone.
At the end of December 2017, Lijuan went to the police.
From a new phone, Lijuan retrieved her messages from that day
and played them for the police. Defendant had called her 45
times in two hours. Defendant’s messages included warnings
such as “You know you shouldn’t be doing what you’re doing”; “I
think you’re doing something you shouldn’t be doing”; “don’t be a
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bad girl”; and “I don’t know what the hell you’re doing, but I don’t
like it.” The messages made Lijuan “very, very scared.” Lijuan
informed the police that defendant had pushed a pill into her
mouth and forced her to have sex.
Propensity evidence
Evelyn
Evelyn moved to the United States from the Philippines in
1989 and began dating defendant in 1990. Defendant was over a
foot taller than Evelyn, who was five feet. Soon after they began
dating, defendant became jealous of Evelyn’s friends and became
violent. On one occasion, defendant went to Evelyn’s workplace,
punched her car, breaking the windshield, and punched Evelyn in
the face. After that incident, defendant drove Evelyn to and from
work and was always with her when she was not at work.
Defendant hit Evelyn on three or four occasions. Evelyn
wanted to break up with defendant, but she was afraid of him.
She called the police and reported that he punched her. When
she told defendant there was a hearing that they had to attend,
defendant picked her up from work and forced her to have sex
with him while he videotaped it. He refused to “pull out” in order
to teach her a lesson, which resulted in her getting pregnant.
Evelyn left defendant and moved in with her parents in
San Diego. Evelyn returned to defendant’s apartment the next
month to get some of her belongings and tell him she was
pregnant. Evelyn called her friend from defendant’s apartment
while defendant listened in on the line. Evelyn’s friend said,
“What are you doing there? I thought you were with Nathan?”
Upon hearing a man’s name, defendant became violent. He
punched Evelyn in the face with closed fists 15 to 20 times.
When she asked why he was punching her, defendant stated that
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it was because of what her friend said. Defendant took all of
Evelyn’s clothes so that she could not leave. Defendant aimed a
gun at Evelyn and told her he was going to kill her. Evelyn
believed he was serious and she was scared.
Defendant kept Evelyn trapped in the bedroom for two to
three days. One evening defendant tried to kill Evelyn by putting
a pillow over her face and holding it down with all his weight.
After some time, defendant said, “It’s taking too long for you to
die. Tomorrow I’ll drown you in the bathtub.” Defendant told
Evelyn he had killed someone and buried him in his backyard.
Evelyn decided to jump out of defendant’s second story
window to escape. She waited until defendant fell asleep, then
stood in the second story window to attempt to get people walking
by below to help her. Defendant woke up, asked her what she
was doing, and started to get up. Fearing defendant, Evelyn
jumped out the window. Evelyn was in pain and could not feel
her legs. Defendant ran downstairs, picked her up, brought her
back into his apartment, and put her on the couch. Defendant
refused Evelyn’s pleas to call 9-1-1. Defendant called his father,
who told him to call 9-1-1, and defendant finally complied.
Defendant told Evelyn not to tell anything to the police or he
would kill her. Defendant left the premises and was gone when
the ambulance arrived.
Evelyn spent three to four weeks in the hospital and had
two back surgeries. Her leg was broken and her heel was
crushed, which caused a permanent limp. While she was in the
hospital she told the police what happened. Evelyn spent a
month in rehabilitation.
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Lynne
Lynne met defendant when she was working in the mall.
They began dating. Defendant had a “black belt” and was much
bigger than Lynne. After a month of dating, defendant became
violent. When Lynne tried to stop defendant from going through
the contents of her purse, he threw her on the ground and
straddled her chest by her neck to pin her down with his legs.
Lynne tried to scream and defendant covered her nose and mouth
with his hands to smother her. She was unable to breathe.
Defendant continued to go through the contents of Lynne’s
purse and was upset when he found two condoms. Defendant
claimed that condoms came in packs of three. Lynne grabbed her
belongings and left, telling defendant she never wanted to see
him again.
As soon as Lynne got home, defendant called her.
Defendant began calling Lynne at home and at work between 20
to 30 times a day. After many calls, Lynne finally answered.
When defendant apologized, Lynne agreed to give him another
chance. Defendant did not have a car, so Lynne drove to his
house to pick him up. When she arrived, defendant was asleep.
She told him that if he was tired they could go on a date another
day. He screamed, “No,” grabbed her, held her on the ground,
and sexually assaulted her. Lynne was scared and tried to keep
him calm while she got out the door as fast as she could.
Defendant called her and said he was going to come after
her. When previously going through her purse, defendant had
found Lynne’s address on her driver’s license. She never told him
where she lived. Defendant came to her house and hid in the
bushes. When she came home that night, defendant came out of
the bushes and told her, “Now I know where you live.” Lynne’s
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father chased defendant with a gun, and defendant called the
police, who arrested Lynne and her father for weapon possession.
The charges were dropped the next day when Lynne told the
police that defendant was stalking her.
Lynne got a restraining order against defendant.
Defendant continued to call her for a few months, then stopped
calling.
Defense evidence
Detective Goodreau testified to an error in a police report.
Defendant did not testify.
DISCUSSION
I. Substantial evidence supported the verdict on counts
one, two and four
Defendant challenges the sufficiency of the evidence to
support his convictions for criminal threats (count one); stalking
(count two); and second degree robbery (count four).
In reviewing these challenges to defendant’s convictions,
we examine the entire record in the light most favorable to the
prosecution. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Our
role is to determine whether the record contains evidence that is
reasonable, credible, and of solid value such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. (Id. at pp. 576-577.)
A. Count one – criminal threats, section 422
Section 422 provides, in pertinent part:
“Any person who willfully threatens to commit a crime
which will result in death or great bodily injury to another
person, with the specific intent that the statement, made
verbally, in writing, or by means of an electronic communication
device, is to be taken as a threat, even if there is no intent of
8
actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety . . . ,
shall be punished by imprisonment in the county jail not to
exceed one year, or by imprisonment in the state prison.”
Defendant argues that the evidence did not show any clear
or immediate statement, or verbal threat, as required by section
422. Defendant argues that while the evidence shows that he hit
and choked Lijuan, and told her scary stories of his earlier
crimes, there was no evidence of a verbal threat against her other
than a threat that he would cut her hair, which is not a threat to
do serious bodily injury.
Defendant points to the following testimony in the record:
“Q: What did he say exactly?
“A: He told me all the things he did to his ex-girlfriends
who tried to break up with him. He said he hurt their personal
safety. He also hurt – also damaged their properties.
“Q: Did you take that to mean that he would do the same
to you if you tried to break up with him?
“A: Yes.
“Q: And did he ever specifically tell you if he would hurt
you if you broke up with him?
“A: He did not say that specifically, but his behavior, his
behavior, he actually did it.”
Defendant asserts that he cannot be guilty of criminal
threats on this evidence because a criminal threat is a crime of
communication, not of conduct. Defendant cites People v. Felix
9
(2001) 92 Cal.App.4th 905, 914, for the proposition that “ ‘mere
angry utterances or ranting soliloquies, however violent,’ ” do
not, by themselves, constitute criminal threats. Thus, defendant
argues, Lijuan’s testimony was insufficient to provide proof
beyond a reasonable doubt of a criminal threat in violation of
section 422.
In People v. Toledo (2001) 26 Cal.4th 221, the Supreme
Court enumerated the factors that the prosecution must establish
in order to prove a violation of section 422: “(1) that the
defendant ‘willfully threaten[ed] to commit a crime which will
result in death or great bodily injury to another person,’ (2) that
the defendant made the threat ‘with the specific intent that the
statement . . . is to be taken as a threat, even if there is no intent
of actually carrying it out,’ (3) that the threat – which may be
‘made verbally, in writing, or by means of an electronic
communication device’ – was ‘on its face and under the
circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat,’ (4) that the threat actually caused the
person threatened ‘to be in sustained fear for his or her own
safety or for his or her immediate family’s safety,’ and (5) that the
threatened person’s fear was ‘reasonabl[e]’ under the
circumstances.” (Toledo, at pp. 227-228.)
The high court clarified that the requirement that the
threat be “ ‘so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened a gravity of purpose
and an immediate prospect of execution of the threat,’ ” meant
that “ ‘ “unequivocality, unconditionality, immediacy and
specificity are not absolutely mandated, but must be sufficiently
10
present in the threat and surrounding circumstances.” ’ ” (In re
George T. (2004) 33 Cal.4th 620, 635.) In other words, “[a]
communication that is ambiguous on its face may nonetheless be
found to be a criminal threat if the surrounding circumstances
clarify the communication’s meaning. [Citation.]” (Id. at p. 635.)
The communication need not “ ‘communicate a time or precise
manner of execution.’ ” (People v. Butler (2000) 85 Cal.App.4th
745, 752.) Instead, “the meaning of the threat by defendant must
be gleaned from the words and all of the surrounding
circumstances.” (People v. Martinez (1997) 53 Cal.App.4th 1212,
1218.) A person violating section 422 must intend “that the
victim receive and understand the threat, and the threat must be
such that would cause a reasonable person to fear” for her safety.
(People v. Thornton (1992) 3 Cal.App.4th 419, 424.) Nonverbal
conduct, such as making a gesture with a hand, falls outside of
the scope of section 422. (People v. Gonzalez (2017) 2 Cal.5th
1138, 1147.)
Convictions under section 422 have been upheld where the
verbal threat at issue is nonspecific. For example, in People v.
Mendoza (1997) 59 Cal.App.4th 1333, the defendant told an
individual that she had “ ‘fucked up his brother’s testimony,’ ”
and that “ ‘[h]e was going to talk to some guys from Happy Town
[criminal street gang].’ ” (Id. at p. 1337.) Although the
defendant’s words did not convey a specific crime resulting in
death or serious injury, the Mendoza court found that the
surrounding circumstances, along with the words, supported the
jury’s determination that a criminal threat had been made. (Id.
at pp. 1341-1342; see also People v. Butler, supra, 85 Cal.App.4th
at pp. 753-755 [upholding criminal threat where defendant told
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victim she needed to mind her own business or she was “ ‘going to
get hurt’ ”].)
Here, reviewing the record in the light most favorable to
the prosecution, as we must (People v. Johnson, supra, 26 Cal.3d
at p. 576), the words that defendant spoke to Lijuan, in
combination with the surrounding circumstances, were sufficient
to convey a criminal threat. First, we consider the circumstances
under which defendant conveyed the threat. Lijuan was
attempting to break up with defendant. At trial, while Lijuan
explained the incident to the jury, the following exchange took
place:
“Q: Did he ever say he was going to hurt you or do
anything to you if you broke up with him?
“A: Yes, he did.
“Q: Was this in the car during this incident?
“A: Yes.
“Q: What did he say exactly?
“A: He told me all the things he did to his ex-girlfriends
who tried to break up with him. He said he hurt their personal
safety. He also hurt – damaged their properties.
“Q: Did you take that to mean that he would do the same
to you if you tried to break up with him?
“A: Yes.”
This exchange took place immediately preceding the
exchange on which defendant relies, quoted above, in which
Lijuan then stated that defendant did not specifically say that he
would hurt her. Thus, it appears that there was conflicting
testimony on this issue, and the jury was entitled to believe
Lijuan’s initial statement that defendant said he would hurt her.
Further, the jury was entitled to find that defendant’s description
12
of what he had done to his ex-girlfriends when they broke up with
him signified his intention that Lijuan “receive and understand
the threat,” and reasonably be in fear that defendant would take
such action against her. (People v. Thornton, supra, 3
Cal.App.4th at p. 424.)
Although Lijuan later stated that defendant did not
specifically tell her that he would hurt her if she broke up with
him, it was not necessary that defendant say these exact words in
order to communicate the threat. The surrounding
circumstances, in combination with defendant’s description of his
past violent acts against women who tried to break up with him,
provided an “ ‘unequivocal, unconditional, immediate, and
specific . . . prospect of execution of the threat.’ ” (People v.
Toledo, supra, 26 Cal.4th at p. 227.) Lijuan was attempting to
break up with defendant. At that time, defendant not only
physically beat her and vandalized her car, he described the
violent acts he had committed against prior girlfriends when they
tried to break up with him. Defendant’s verbal communication of
how he behaved when women broke up with him, reasonably
instilled in Lijuan a fear that she was facing a threat of the same
kind of physical harm.
In enacting section 422, the Legislature expressed an
intent that every person “ ‘ “be secure and protected from fear,
intimidation, and physical harm caused by the activities of
violent groups and individuals.” ’ ” (People v. Martinez, supra, 53
Cal.App.4th at p. 1217.) Lijuan was justified in feeling fear at
defendant’s words under the circumstances of this case.
Sufficient evidence supported the jury’s verdict finding that the
prosecution proved the elements of this crime.
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B. Count two – stalking, section 646.9
Section 646.9, subdivision (a), provides:
“Any person who willfully, maliciously, and repeatedly
follows or willfully and maliciously harasses another person and
who makes a credible threat with the intent to place that person
in reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable by
imprisonment in a county jail for not more than one year, or by a
fine of not more than one thousand dollars ($1,000), or by both
that fine and imprisonment, or by imprisonment in the state
prison.”
Defendant argues that there was insufficient evidence to
support a conviction of count two because the evidence of a
credible threat was missing. The statute defines a “credible
threat” as:
“[A] verbal or written threat, including that performed
through the use of an electronic device, or a threat implied by a
pattern of conduct or a combination of verbal, written, or
electronically communicated statements and conduct, made with
the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her
family, and made with the apparent ability to carry out the
threat so as to cause the person who is the target of the threat to
reasonably fear for his or her safety or the safety of his or her
family. It is not necessary to prove that the defendant had the
intent to actually carry out the threat.” (§ 646.9, subd. (g).)
Thus, “the ‘credible threat’ required for conviction under
section 646.9 may be implied from a course of conduct.” (People v.
Lopez (2015) 240 Cal.App.4th 436, 449 (Lopez).) A course of
conduct may constitute a credible threat where such conduct
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“reveal[s] an obsession that a reasonable person would
understand as threatening.” (Id. at p. 453.)
The threat evidence for count two consisted of defendant’s
conduct during his relationship with Lijuan. Although Lijuan
never gave defendant her address, defendant took her driver’s
license and wrote down her address, later describing to Lijuan
her bedroom and its contents. Although Lijuan never took
defendant to her college campus, defendant observed her walking
with a bearded man on campus. When Lijuan attempted to break
up with defendant, he became violent and told her of the violence
he had inflicted on previous girlfriends when they tried to break
up with him. He told Lijuan he would hurt her if she broke up
with him. Lijuan was terrified, and believed he was threatening
her life. After his attack on Lijuan, defendant came to her work
five times a week and called her 30 times a day. Because
defendant was following her, Lijuan changed her routines in
order to avoid him. When Lijuan did not answer his telephone
calls, defendant came to her work and took her cell phone. After
defendant left Lijuan 45 disturbing messages in two hours,
Lijuan went to the police to report defendant’s conduct. The voice
messages included warnings that Lijuan “shouldn’t be doing what
[she was] doing” and accusing her of being a “dirty girl.”
Defendant points out that Detective Goodreau provided his
opinion that these messages did not count as criminal threats but
were perhaps better described as “annoying” or “harassing.”
Nevertheless, the jury presumably considered the phone
messages in the context of defendant’s course of conduct towards
Lijuan. (Lopez, supra, 240 Cal.App.4th at p. 449.) Overt threats
are not necessary to establish a credible threat within the
meaning of section 646.9 when the defendant’s pattern of conduct
15
is such that the target of the threats reasonably fears for her
safety. (Lopez, supra, at p. 453.) In Lopez, for example, the
defendant persistently sent his victim messages, letters and
packages over the course of many years. Although these
communications lacked any overt threat, they “reveal[ed] an
obsession that a reasonable person would understand as
threatening.” (Ibid.) Similarly, in People v. Falck (1997) 52
Cal.App.4th 287, the defendant’s communications revealed an
“obsessive desire to engage in sexual acts with the victim” and
“an obsessive desire to marry her and be with her.” (Id. at
p. 298.) These communications reasonably caused the victim to
fear the defendant and thus conveyed a credible threat. (Ibid.)
Although his communications were not consistently overtly
threatening, defendant’s course of conduct here was such that a
reasonable person would understand it as threatening. Under
the circumstances, the evidence supported the jury’s conviction
for stalking.
C. Count four – robbery, section 211
Robbery is the taking of property from the person of
another, “and against his will, accomplished by means of force or
fear.” (§ 211.) Defendant argues that there was no evidence that
defendant used force or fear to take Lijuan’s phone, as even she
described the incident as “he snatched my cell phone . . . from my
hand.” Because Lijuan did not say that defendant used force or
fear to take the phone, defendant argues, the robbery conviction
must be reversed for insufficient evidence.
The words “force” and “fear” as used in the statute “have no
technical meaning peculiar to the law and must be presumed to
be within the understanding of jurors.” (People v. Mungia (1991)
234 Cal.App.3d 1703, 1708.) However, “ ‘[f]orce’ is a relative
16
concept.” (Id. at p. 1709.) In determining whether force has been
applied in a particular situation, “the defendant’s physical
characteristics in comparison to those of the victim may . . . be
particularly relevant.” (Ibid.) Further, “any force sufficient to
overcome a victim’s resistance will necessarily be more force than
required to seize the property.” (People v. Hudson (2017) 11
Cal.App.5th 831, 839.)
There was sufficient evidence in the record to support the
jury’s finding that defendant’s act of “snatching” Lijuan’s phone
was carried out by means of force or fear. Lijuan testified that
defendant was six feet five inches. She also testified at various
points that she was scared or terrified of defendant. At the time
that he took her phone, defendant had already punched her,
strangled her, and threatened to do more physical violence to her.
When he came to the store where Lijuan worked, Lijuan was
aware that he was there because she had previously not
answered his calls. Defendant grabbed Lijuan’s cell phone from
her hand. Lijuan was asked, “When he came into your store and
took your phone were you scared?” Lijuan answered, “Yes.”
The jury was entitled to conclude from this evidence that
defendant used force or fear during his theft of Lijuan’s cell
phone. He was a large man, and he had assaulted Lijuan in the
past. Lijuan testified that she was scared when he came to her
place of work and grabbed her phone from her hand. The
evidence supported the jury’s conviction for robbery.
II. Propensity evidence properly admitted
Evidence Code section 1109 provides that “in a criminal
action in which the defendant is accused of an offense involving
domestic violence, evidence of the defendant’s commission of
other domestic violence is not made inadmissible by [Evidence
17
Code] Section 1101 if the evidence is not inadmissible pursuant to
[Evidence Code] Section 352.” “The rationale underlying [section
1109] is that by admitting evidence of a defendant’s other acts of
domestic violence to show a disposition to commit acts of
domestic violence, the statute eliminates any presumption that
‘the charged offense was an isolated incident, an accident, or a
mere fabrication.’ ” (People v. Wang (2020) 46 Cal.App.5th 1055,
1075 (Wang).)
Defendant argues that the trial court wrongfully admitted
the propensity testimony because he was not accused of an
offense involving domestic violence. Instead, defendant was
accused of stalking, robbery, and vandalism. Defendant argues
that in carrying out the Evidence Code section 1109 analysis, the
court neglected to make the threshold finding that either this
case, or the prior case, involved domestic violence.
First, the record shows that defendant has forfeited this
claim by failing to raise it in the trial court. (People v. Ogle
(2010) 185 Cal.App.4th 1138, 1141-1142 [defendant forfeited
argument that prior offense was inadmissible because it was not
an act of domestic violence].) Defendant argues that it was not
forfeited because an objection at trial would have been futile.
(Citing People v. Boyette (2002) 29 Cal.4th 381, 432.) Defendant
suggests that facts indicated an objection to this judge would
have been futile, but he fails to specify the facts which would
indicate that the court would have admitted the evidence
regardless of defendant’s objection. An objection at trial would
have given the trial court an opportunity to consider defendant’s
argument that neither crime involved domestic violence. Because
defendant did not provide the court an opportunity to address his
objection, it is forfeited on appeal.
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Further, even if considered, the trial court’s admission of
the propensity evidence under Evidence Code section 1109 was
permissible. Evidence admissible under this section is not
limited to actual charges of domestic violence. “[T]he plain
language of Evidence Code section 1109, subdivision (a), . . .
expressly ‘allows the introduction of prior domestic crimes
evidence “in a criminal action in which the defendant is accused
of an offense involving domestic violence.” ’ [Citation.]” (Wang,
supra, 46 Cal.App.5th at p. 1077.) “To ‘involve’ commonly means
‘ “to include, contain, or comprehend within itself or its scope.” ’
[Citation.] Thus, being ‘ “accused of an offense involving domestic
violence” ’ encompasses a broader range of conduct than the
domestic violence defined as abuse committed against one of
certain specified individuals under Penal Code section 13700.”
(Ibid.)
“[Evidence Code] [s]ection 1109 does not contain an
enumerated list of offenses which are defined as those ‘involving’
domestic violence.” (People v. Brown (2011) 192 Cal.App.4th
1222, 1234.) However, the term “domestic violence” “has the
meaning set forth in Section 13700 of the Penal Code.” (Ibid.)
That section defines “domestic violence” as “abuse committed
against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect
has had a child or is having or has had a dating or engagement
relationship.” (§ 13700, italics added.) Thus, we need not
consider the specific charges when deciding whether propensity
evidence is admissible under Evidence Code section 1109, if any
of the charges against the defendant involve some form of
domestic violence, including abuse of an individual with whom
the defendant has a dating relationship.
19
Here, defendant had a dating relationship with Lijuan.
There is no requirement that their relationship be a “‘serious
courtship,’ an ‘increasingly exclusive interest,’ [a] ‘shared
expectation of growth,’ or that the relationship endures for a
length of time.” (People v. Rucker (2005) 126 Cal.App.4th 1107,
1116.) Nor does the definition of a dating relationship “preclude
a relatively new dating relationship.” (Ibid.) Instead, the
Legislature intended that “the domestic violence statutes should
apply to a range of dating relationships.” (Ibid.) The evidence
before the court showed that the relationship between Lijuan and
defendant was a dating relationship, and that the case
“involve[ed] domestic violence.” (Evid. Code, § 1109.)
Defendant further argues that Evelyn’s testimony should
have been excluded pursuant to Evidence Code section 1109,
subdivision (e), which provides that “[e]vidence of acts occurring
more than 10 years before the charged offense is inadmissible
under this section, unless the court determines that the
admission of this evidence is in the interest of justice.”
Defendant argues that Evelyn testified more than 10 years after
the events in question, and the court never made a finding that
the interests of justice required the admission of her testimony.
However, this court may imply a finding that the interests
of justice required admission of Evelyn’s testimony. An appellate
court implies “ ‘all findings necessary to support the judgment,
and [its] review is limited to whether there is substantial
evidence in the record to support these implied findings.’ ”
(People v. Francis (2002) 98 Cal.App.4th 873, 878.) Because
Evelyn’s testimony involved similar acts on the part of defendant
against a woman with whom he had a dating relationship, it was
admissible and the trial court did not err by implicitly
20
determining that its admission served the interests of justice
under the circumstances of this case.
III. No error in declining to bifurcate prior convictions
Before trial, defendant made a request to bifurcate of the
trial of his prior convictions. The court denied the request,
stating:
“There’s been a request for bifurcation of the trial on the
priors. I don’t think that would be appropriate in this case
anyway.
“There’s a motion to put on or we’re all aware that the
People intend to put on evidence pursuant to Evidence Code
section 1109 of past actions.
“I have heard [defendant] discussing that with his
investigator earlier this morning, but bifurcation would not be
appropriate in this case because the jury’s going to hear this
information anyway.
“Secondly, there’s been no objection to the [Evidence Code
section] 1109 evidence, but I do want the record to reflect that
I’ve gone through the file in the SA case and, while any of this
information obviously is prejudicial to the defendant, after having
weighed it I do think that its probative value outweighs its
prejudice.
“There’s a huge issue in this case regarding intent and I
think that evidence is highly probative to the intent issue. Even
though there’s no objection I would hav[e] admitted it over
objection having reviewed it.”
A redacted minute order was admitted showing defendant
had been convicted after he pled guilty in 2009 of section 207,
subdivision (a) (kidnapping) and section 245, subdivision (a)(2)
(assault with a firearm) for crimes committed in 1990, and that
21
he was paroled in 2012. The jury found true that defendant had
been convicted in 2009 of sections 207 and 245.
A trial court has the authority to bifurcate trial issues
under section 1044, which gives the trial judge “broad discretion
to control the conduct of a criminal trial.” (People v. Calderon
(1994) 9 Cal.4th 69, 74-75). Thus, the standard of review for the
denial of a motion to bifurcate is abuse of discretion. (Id. at
p. 78.) The denial of a defendant’s request to bifurcate may be an
abuse of discretion “where admitting, for purposes of sentence
enhancement, evidence of an alleged prior conviction during the
trial of the currently charged offense would pose a substantial
risk of undue prejudice to the defendant.” (Ibid.) However,
bifurcation is not required in every instance. “Perhaps the most
common situation in which bifurcation of the determination of
the truth of a prior conviction allegation is not required arises
when, even if bifurcation were ordered, the jury still would learn
of the existence of the prior conviction before returning a verdict
of guilty.” (Ibid.)
Here, the trial court’s denial of defendant’s request to
bifurcate was based on the very reason approved in People v.
Calderon, supra, 9 Cal.4th at page 78. A bifurcation would have
been of minimal value because the jurors would inevitably have
learned of the prior conduct due to the admissible propensity
evidence. We therefore find no abuse of the trial court’s
discretion.
Defendant cites People v. Partida (2005) 37 Cal.4th 428 as
support for his position that the trial court’s decision not to
bifurcate his priors was a due process violation. In Partida, the
high court held that a defendant who objects to the admission of
evidence at trial may argue on appeal that the admission of that
22
evidence violated his due process rights. However, a defendant
may only make a “very narrow due process argument on appeal.
He may argue that the asserted error in admitting the evidence
over his . . . objection had the additional legal consequence of
violating due process.” (Id. at p. 435.) The admission of evidence
“violates due process only if it makes the trial fundamentally
unfair.” (Id. at p. 436.)
The trial court’s failure to bifurcate the priors in this case
did not render the trial fundamentally unfair. As set forth above,
the propensity evidence was presented without objection. Thus,
the jury was going to learn of the underlying conduct leading to
those prior convictions in any event. Further, as set forth above,
the jury was properly instructed as to how it was permitted to
consider the prior convictions. No error occurred.
IV. No due process violation of right to an impartial judge
A. The trial judge’s purportedly biased actions
Defendant argues that the trial judge was biased against
him based on his prior record. Defendant sets out the purported
“growing bias” of the trial judge throughout the trial based on
several incidents.
First, at a pretrial conference, the trial court stated:
“In reviewing the file in this case, and particularly the prior
conviction, I was concerned with whether the prior conviction
involved issues that would fall under the Vargas case in terms of
whether it actually constituted two strikes or whether it
constituted one.
“I was also concerned about whether there was going to be
an issue under Evidence Code section 1109.
“Because of that . . . I have reviewed that file and I’m going
to say something that I have never said in my entire judicial
23
career and that is I’m not going to entertain a settlement offer in
this case.
“Having reviewed that particular file I don’t think that any
settlement that involves anything less than a life sentence would
be appropriate.
“So as far as I’m concerned this case should be considered
as a case that’s going to trial . . . the underlying circumstances of
that SA case are such that I don’t think a settlement in this case
would be appropriate.”
Next defendant points to the trial court’s denial of his
request to bifurcate defendant’s prior convictions. Before jury
selection, the court addressed several issues which had not been
raised, in an effort for the “record to be clear on these” issues.
One of the issues was defendant’s request for bifurcation of trial
on the priors. As set forth in detail above, the trial court did not
think that bifurcation was appropriate in this case. The court
reasoned that the jury was going to hear the evidence anyway
through the prosecution’s use of Evidence Code section 1109. The
court proceeded to explain its position that the probative value of
such evidence outweighed the prejudice.
Defendant next references several “disagreements” between
defendant and the court that ultimately led to defendant’s
removal from the courtroom during the trial. When defendant
asked the court about his witnesses, the court stated, “Actually I
don’t know anything about your witnesses. That’s between you
and your investigator.” Defendant then complained that he never
saw his investigator and the investigator did not communicate
with him well. The court stated:
“I warned you several times about the dangers of
representing yourself. And you chose to do that anyway and
24
that’s fine. Managing your investigator and managing your
investigator’s pursuit of witnesses is on you.”
The court reminded defendant that he had “announced
ready for trial” and indicated he was not going to waive time.
The court then stated: “it’s not up to me nor is it up to anybody
other than you to ensure your witnesses are here.”
After the jury had been sworn and given preliminary
instructions, defendant asked to address the court and was
permitted to do so at sidebar. Defendant complained that he had
not received certain witness transcripts. After confirming with
the prosecutor that the defendant had previously been given the
material in question, the court admonished defendant, outside of
the presence of the jury, as follows:
“If you don’t stop talking over me you are done being pro
per. I’ve just about gotten to the end of my patience with this.
“I cut you a bunch of slack during voir dire when you were
doing inappropriate things. I cut you slack when you were
excusing witnesses [sic] based on their racial background. I have
done everything to try to facilitate your representing yourself.
“I didn’t say anything when you were attempting to
improperly influence the jury by talking about the stakes in this
case for you.
“I didn’t stop you when you have been consistently talking
about the fact this is the first time you’ve ever done this. All of
that is improper. If you want to continue to represent yourself,
which I assume you do – from here on out you’re going to comply
with the rules.
“This material was turned over to you and your defense
team. You didn’t say one – put your hand down.
25
“You didn’t say one word about not having any of this
material before this trial started. You announced ready. You
said that you weren’t willing to waive time.
“Again, I have warned you probably a dozen times about
the dangers of representing yourself.”
Later, during the cross-examination of a prosecution
witness, the court announced that the midafternoon recess would
begin a few minutes early because the court had “some things to
talk about with the litigants.” After the witness and the jurors
had left the courtroom, the court asked defendant for an offer of
proof because defendant had been “cross-examining this witness
for two hours now roughly and [had] not asked her a single
question about anything that she testified to on direct.” The
court reminded defendant: “I have an obligation to both see to it
you have an opportunity to cross-examine her, which you’ve done,
but I also have an obligation to be sure that this trial moves
forward and in some kind of sensible manner.” The court
admonished defendant: “I’m going to give you 10 minutes when
we come back to get to something that has some relevance to this
case. Otherwise, I’m going to cut you off.”
When the witness returned to the stand, the court
interrupted defendant’s cross-examination, stating, “I’m going to
give you one more minute. You’ve been at this for 12 minutes
already.” Shortly thereafter, the court indicated, “I’ll sustain my
own objection. That was your last question.” Outside of the
presence of the jury, the court again admonished the defendant,
“this witness was one of the two or three civilian witnesses in this
case. You had her on cross-examination for over three hours. I
would say of that three hours maybe 15 minutes of it had
26
anything to do with the case whatsoever. I’m not going to
tolerate it again.”
Defendant asserts that the court permitted the prosecution
to ask extremely leading questions, but prevented him from
asking questions. When a witness’s answers were evasive, the
court would interfere with defendant’s continued questioning,
stating, “this is the answer you are going to get.”
During a recess the court informed defendant he had only
15 minutes more with the witness. The court explained: “You’re
saying statements about what she’s done here in court and it’s
essentially an undue consumption of time which I am not only
allowed to do but duty bound to avoid. You have 15 minutes with
this witness when we get back. Otherwise, I’m cutting you off.”
Thereafter, the court told defendant, “you’ve used the time
I’ve given you.” The court then informed defendant that he was
out of time. The court sustained its own objection, that a
question had been asked and answered many times.
Defendant states that the court further showed its
prejudice by overruling defendant’s objection to the prosecution’s
requested redaction of a statement that defendant gave to
investigators in a previous case. He informed the court that the
redacted version omitted essential portions of the case:
“They put me through hell in that case. My attorney
waived time with my objection, like five times and a whole bunch
of stuff. And he basically threatened me to make a plea bargain.
That’s why he doesn’t want them to see that.”
The court responded that it was the conduct, not the
conviction in the prior case that was important, and reserved
ruling on defendant’s objection.
27
During defendant’s cross-examination of an officer,
defendant attempted to ask that officer about the charges in
defendant’s prior case. The court informed defendant: “He was
not the investigating officer. The jury will see what the
disposition of that case was and what you were convicted and
what was dismissed pursuant to a plea bargain.” The court then
asked that the prior charges be removed from the jury’s sight.
The court repeated to defendant that the officer on the stand was
not involved in the prior case. Defendant proceeded to inquire:
“Were you -- have you talked to anybody in the -- did you have
any detective -- I mean some deputies go into my cell and beat me
and say ‘take the deal and get the hell out of here?’ ” At that
point the court stopped defendant’s questioning and asked the
parties to approach the bench for a sidebar. Outside of the
presence of the jury, the court stated:
“Okay, Mr. Vigil. You just walked over the line. I’m going
to instruct this jury that there was never a deal offered in this
case and that I stated on the record based on your past history I
would not accept a deal. There was never a deal on the table
ever, ever. Not once.”
Defendant responded: “okay.”
When the jury returned, the court provided the following
instruction:
“Okay, ladies and gentlemen. I’m going to take judicial
notice of the actions of this court, which I’m allowed to do, and
I’m instructing you that, A, there was never a plea bargain
offered in this case. B, all of the parties were informed early on
that based on [defendant’s] past history that I would not accept
any kind of a settlement offer in this case. So that I’m taking
28
judicial notice of. It’s on the record of the case and those are the
facts.”
Finally, during defendant’s examination of Detective
Goodreau, defendant began asking the detective whether the
detective was involved in various conspiracies, including a
conspiracy to have defendant murdered. This line of questioning
led to the following exchange between the defendant and the
court:
“Q: Are you involved in any sheriff deputies coming into
my cell beating me and saying, ‘take the deal and get out of here?’
“The court: I’m going to sustain the same objection. I’m
not going to readvise the jury what I advised them yesterday, but
we went down this road. It’s cumulative. It’s improper. It’s not
true.
“Q: By the defendant. Okay. Were you aware that the
judge told me that he’s going to give me a life sentence[] in this
case?
“The court: Okay. That’s improper.
“The defendant: 170.6 motion. Motion to fire the judge.
You threatened to send me to prison for the rest of my life.
“The court: Okay. We’re done.
“The defendant: 170.6 motion. Motion to fire the judge.
You’re fired, Your Honor.
“The court: It’s untimely, Mr. Vigil. It has to be filed 10
days before or within 10 days of the case being assigned here and
it’s been assigned here for a long time. So we’re done with that.
“The defendant: You paid out the jury, Your Honor.
They’re going to send me to the – you’re going to send me to
prison for the rest of my life, Your Honor.
29
“The court: Ladies and gentlemen, I’ll send you back into
the jury room please. Ignore Mr. Vigil’s comments.
“The defendant: So they’re going to send me for the rest of
my life. Mistrial. Everyone here is prejudiced against me.
You’ve been biased this whole time.”
After the jurors left the courtroom, the court instructed
defendant that he was no longer representing himself pro. per.
The court asked an attorney present to take the chair at counsel
table. When the jury returned, the court informed the jury that
defendant had been relieved of his ability to represent himself
based on his behavior. The court admonished the jurors that
they may not decide the case based on this or allow it to interfere
with their judgment in any way.
After the lunch recess, defendant was not present in court.
The court indicated: “The record should reflect Mr. Vigil’s not
present. He refuses to come out.” The parties proceeded to
review the jury instructions.
Defendant argues that these actions on the part of the
court demonstrated the court’s bias against him due to his
decision to represent himself and his prior convictions involving
domestic violence. Defendant asserts violations of his Sixth
Amendment right to represent himself as well as his Fourteenth
Amendment and Article 1 rights to a fair trial.
B. Applicable law
“A fair trial in a fair tribunal is a basic requirement of due
process.” (In re Murchison (1955) 349 U.S. 133, 136.) “The due
process clause of the Fourteenth Amendment requires a fair trial
in a fair tribunal before a judge with no actual bias against the
defendant.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111,
disapproved on other grounds in People v. Rundle (2008) 43
30
Cal.4th 76, 151.) Due process is violated when the probability of
bias on the part of a judge is so great as to become
“constitutionally intolerable.” (Caperton v. A.T. Massey Coal Co.
(2009) 556 U.S. 868, 881.) On appeal, the court must assess
whether any judicial misconduct or bias was so prejudicial that it
deprived defendant of a “ ‘ “fair, as opposed to a perfect,
trial.” ’ ” (People v. Guerra, supra, at p. 1112.)
C. Application to this case
Defendant first raises the court’s decision to take judicial
notice of its own actions in refusing to accept a settlement offer in
this matter. As set forth above, the trial court informed the jury
that “there was never a plea bargain offered in this case” and
“based on [defendant’s past history]” the court refused to accept a
settlement of any kind. Defendant argues that the court’s actions
removed key issues regarding defendant’s priors from the jury
and opened the door for the jury to speculate about defendant’s
possible punishment. Defendant describes the court’s conduct as
causing the jury to become immediately biased.
Preliminarily, defendant failed to object when the court
informed him that it intended to instruct the jury “that there was
never a deal offered in this case” and that “I would not accept a
deal in this case based on your past criminal history.” Instead of
objecting, defendant responded, “okay.” Defendant thus failed to
preserve any objection to the court’s act of informing the jury of
this information. (People v. Monterroso (2004) 34 Cal.4th 743,
780 (Monterroso) [defendant failed to interpose a timely objection
to the court’s comments, therefore failed to preserve the issue for
review].)
Further, the trial court is permitted under article VI,
section 10 of the California Constitution to “ ‘make any comment
31
on the evidence and the testimony and credibility of any witness
as in its opinion is necessary for the proper determination of the
cause.’ ” (Monterroso, supra, 34 Cal.4th at p. 780.) This provision
has been interpreted to require that the court “ ‘ “be accurate,
temperate, nonargumentative, and scrupulously fair.” ’ ” (Ibid.)
The trial court may not “ ‘ “withdraw material evidence from the
jury’s consideration, distort the record, expressly or impliedly
direct a verdict, or otherwise usurp the jury’s ultimate fact-
finding power.” ’ ” (Ibid.)
The record reveals that the judge felt its commentary was
necessary for the proper determination of the matter.
Defendant’s actions suggested to the jury that there was a plea
that the police were attempting to force defendant to take. The
court was concerned that the jury would believe this false
information. Thus, the court felt compelled to set the record
straight by explaining that there was never a plea offered in this
matter.
The court’s comment did not take from the jury the issue of
the truth of defendant’s priors. In fact, the court later instructed
the jury with CALCRIM No. 3550, which states: “It is not my
role to tell you what your verdict should be. Do not take anything
I said or did during the trial as an indication of what I think
about the facts, the witnesses, or what your verdict should be.”
We must assume that the jury followed this instruction. “Where
the trial court instructs the jury that they can wholly disregard
any comment by him, that they are the exclusive judges of the
credibility of witnesses and of all questions of fact submitted to
them, and that his comments were for the purpose of aiding the
jury in reaching a verdict but not to compel one, there is no
32
reversible error in connection with the court’s comments on the
evidence.” (People v. Jones (1970) 7 Cal.App.3d 48, 54-55.)
Defendant further argues, without citation to authority,
that it was the judge’s comments that opened the door to
defendant’s discussion of his possible punishment. This
argument is pure speculation and lacks merit. Defendant had
previously been admonished for referencing his possible
punishment, so there is no indication that the judge incited this
behavior. The trial court’s comments were accurate and did not
overstep its broad authority to comment on the evidence in the
interests of making sure the jury was not under a misimpression
regarding possible plea offers in the case.
Defendant argues that the court’s other comments in the
case amounted to a demonstration of bias against defendant in
front of the jury. Defendant argues that the court continuously
scolded him in front of the jury, misled the jury, mislabeled the
case domestic violence, suggested defendant had the tendency to
commit the crimes, and ultimately removed him as his own
attorney after defendant asked the court to recuse himself.
Defendant argues that the court “should not himself give
vent to personal spleen or respond to a personal grievance”
because “justice must satisfy the appearance of justice.” (Offutt v.
United States (1954) 348 U.S. 11, 14.) In Offutt, “instead of
representing the impersonal authority of law, the trial judge
permitted himself to become personally embroiled with the
petitioner. There was an intermittently continuous wrangle on
an unedifying level between the two.” (Id. at p. 17.) Here, in
contrast, the trial court acted with patience towards defendant,
giving him warnings before being forced to take steps to rein in
defendant’s misconduct. There is no suggestion in the record that
33
the court became personally embroiled with defendant or
engaged in a continuous wrangle with defendant. In short,
nothing that the court did deprived defendant of a “ ‘ “fair, as
opposed to a perfect, trial.” ’ ” (People v. Guerra, supra, 37
Cal.4th at p. 1112.)
V. Defendant’s right to compulsory process was not
violated
Defendant argues that it was ultimately the court’s duty to
ensure that defendant’s witnesses were subpoenaed to appear in
court. In support of this argument, defendant cites Washington
v. Texas (1967) 388 U.S. 14, 18, which held that “[j]ust as an
accused has the right to confront the prosecution’s witnesses for
the purpose of challenging their testimony, he has the right to
present his own witnesses to establish a defense.” (Ibid.)
A. Relevant trial proceedings
Defendant’s initial request to represent himself is not
included in the record. However, the court provided defendant
with 10 hours of investigative services with the investigator of his
choice. The trial court also appointed standby counsel. On
August 28, 2018, defendant represented that he was ready for
trial.
On August 29, 2018, when the court inquired whether
defendant had any witnesses to list to the potential jurors,
defendant told the court that he had 22 witnesses, and that he
gave “descriptions” of these witnesses to his investigator.
Defendant was “worried” because his witnesses “were supposed
to be subpoenaed” over a month earlier.
Toward the end of the prosecution’s case, the court asked
defendant whether he intended to testify. Defendant inquired
about his witnesses, saying, “Am I getting all these witnesses
34
here?” When the court inquired whether defendant had
subpoenaed them, defendant responded, “Well, I don’t know
where my private investigator is. He was supposed to subpoena
over 20 witnesses. I don’t know what happened.” The court
informed defendant that it was his responsibility to subpoena
them.
B. Applicable law
A criminal defendant also has “ ‘a right to the process of the
court to compel the attendance of witnesses [by subpoena].’ ”
(Smith v. Superior Court (2020) 52 Cal.App.5th 57, 76-77.) This
is true even if the defendant does not have the resources to pay
for such process. (Ibid.) However, subpoenas must be initiated
by a party to the litigation. (People v. Superior Court (Barrett)
(2000) 80 Cal.App.4th 1305, 1318.) “A defendant’s constitutional
right to compulsory process is violated when the government
interferes with the exercise of his right to present witnesses on
his own behalf. [Citations.]” (In re Martin (1987) 44 Cal.3d 1,
30.) In order to prove that his right to compulsory process has
been violated, the defendant must show that there is “a causal
link between the misconduct [of the court] and [the defendant’s]
inability to present witnesses on his own behalf.” (Id. at p. 31.)
In addition, the defendant must make a plausible showing that
the “ ‘testimony [of the witness] would have been both material
and favorable to his defense.’ [Citation.]” (Id. at p. 32.)
C. Application to this case
Defendant has failed to show a violation of his
constitutional right to compulsory process in this case.
Defendant has failed to provide a list of the names of his critical
witnesses. He has failed to articulate the ways in which his
witnesses would be material to his case. Further, in the absence
35
of a list of the names of the witnesses, defendant has failed to
show how the court could have subpoenaed them.
Even if defendant had articulated identifiable witnesses
and prejudice, he would have to show that the court interfered
with his right to present these witnesses. To do so, he would
have to show a causal connection between the court’s purported
error and defendant’s inability to present his witnesses.
Defendant cites Roviaro v. United States (1957) 353 U.S. 53for the proposition that in certain circumstances, it is incumbent
upon the prosecution to assist the defendant in procuring a
witness. In Roviaro, the witness was a government informant
who was only identified as John Doe. Thus, it was solely within
the government’s power to provide this witness to the defendant.
Under the circumstances of that case, “the trial court committed
prejudicial error in permitting the Government to withhold the
identity of its undercover employee in the face of repeated
demands by the accused for his disclosure.” (Id. at p. 65.) In this
case, the prosecution did not conceal any witness from defendant,
therefore the case is inapplicable.
Defendant attempts to make a broader claim that he did
not have reasonable access to ancillary services. He argues that
the trial court had a sua sponte duty to provide him with
advisory counsel, instead of just standby counsel. However,
defendant fails to point to a citation to the record where he asked
the court for advisory counsel. Because the record does not
reflect a request by defendant to obtain advisory counsel, his
appeal on this ground fails. (People v. Garcia (2000) 78
Cal.App.4th 1422, 1431 [“a defendant who has competently
elected to represent himself should not be heard to complain that
he was denied the assistance of advisory or stand-by counsel”].)
36
Even if he had requested advisory counsel at trial, “a defendant
who elects to represent himself or herself has no constitutional
right to advisory or stand-by counsel or any other form of ‘hybrid’
representation. [Citations.]” (Id. at p. 1430.)
Defendant has failed to make the required showings for a
violation of his right to compulsory process, thus he has failed to
show reversible error.
VI. No error in denying defendant’s mistrial motion
Defendant argues that a mistrial for bias was his only
option at the time the judge removed him from acting as his own
attorney. Defendant states that he did not know how to make a
proper motion for mistrial, and that the court responded even
more harshly when defendant made the motion. Defendant
argues that it was improper for the court to fail to rule on his
motion for mistrial, as defendant was still representing himself
at the time of the motion. The court did not remove defendant as
pro. per. counsel until after the jury left to return to the jury
room. Defendant contends that it was as a direct result of his
motion for mistrial that the court removed defendant as counsel.
This court may infer that the motion for mistrial was
denied. In reviewing the denial, we may imply “ ‘all findings
necessary to support the judgment, and [its] review is limited to
whether there is substantial evidence in the record to support
these implied findings.’ ” (People v. Francis, supra, 98
Cal.App.4th at p. 878.)
The trial court’s implicit denial of the motion for mistrial is
reviewed under the deferential abuse of discretion standard.
(People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.) A mistrial is
properly granted when “ ‘ “a party’s chances of receiving a fair
trial have been irreparably damaged.” ’ ” (Ibid.) For example, a
37
mistrial is properly granted where the prosecution commits
misconduct. (People v. Batts (2003) 30 Cal.4th 660, 665.) The
ultimate inquiry is whether some event occurred that irreparably
damaged the moving party’s chance for a fair trial. (People v.
Dunn, supra, at p. 1094.)
The record shows no abuse of the trial court’s discretion in
denying defendant’s mistrial motion. Defendant’s motion
followed his improper line of questioning directed to Detective
Goodreau. During this questioning, defendant attempted to
bring in irrelevant and misleading information regarding a
purported effort to get him to take a plea deal. The court had
previously warned defendant regarding the impropriety of this
line of questioning, and defendant persisted in spite of that
warning. Defendant then attempted to bring an untimely motion
to remove the judge, and made two improper statements to bring
to the jury’s attention the possible punishment in the case. Any
prejudice caused by this exchange was initiated by defendant, not
the court.
“ ‘A defendant should not be permitted to disrupt courtroom
proceedings without justification [citation] and then urge that
same disruption as grounds for a mistrial.’ [Citation.]” (People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1030.) This rule stems
from the general policy that “ ‘a defendant is not permitted to
profit from his own misconduct.’ ” (Ibid.) The trial court properly
adhered to this view in implicitly denying defendant’s motion for
mistrial. The trial court did not abuse its discretion in declining
to allow defendant to complain of the effect on the jury of his own
misdeeds.
38
VII. Defendant forfeited his claim for mental health
diversion
Finally, defendant argues that this court should consider
remand for mental health counseling and treatment pursuant to
section 1001.36. Defendant points out that mental health
counseling and domestic violence counseling were recommended
several times in the preconviction report that was provided to the
court before trial.
Section 1001.36 became effective June 27, 2018. Pursuant
to the statute, a criminal defendant may request diversion “[a]t
any stage of the proceedings.” (§ 1001.36, subd. (b)(3).) At the
time of any such request, the court may conduct an informal
hearing to determine whether the defendant “will meet the
minimum requirements of eligibility for diversion and that the
defendant and the offense are suitable for diversion.” (§ 1001.36,
subd. (b)(3).) If a prima facie case for mental health diversion is
not made, the court may summarily deny the request for
diversion. (§ 1001.36, subd. (b)(3).)
Defendant fails to point to a citation to the record where he
requested mental health diversion or where he presented
evidence that he met the qualifications for mental health
diversion. By failing to make any request for pretrial diversion,
defendant has forfeited this issue. (People v. Carmony (2004) 33
Cal.4th 367, 375-376.) Therefore, we decline to discuss it further.
39
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
CHAVEZ
We concur:
________________________, P. J.
LUI
________________________, J.
ASHMANN-GERST
40