Filed 1/17/14 P. v. Jones CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C068625
Plaintiff and Respondent, (Super. Ct. No. SF113186A)
v.
TOMMY EUGENE JONES,
Defendant and Appellant.
A jury found defendant Tommy Eugene Jones guilty of 13 sex offenses against
minors, and the trial court sentenced him to state prison for 57 years 4 months, plus 25
years to life. On appeal, he argues the trial court (1) improperly denied his motion for a
continuance; (2) abused its discretion by denying his motion to withdraw his waiver of
counsel and to reappoint counsel; and (3) erred in striking his testimony in violation of
his right to testify in his own defense.
As none of the contentions has merit, we affirm.
1
FACTS
The first of three victims is defendant’s daughter, S., who lived with defendant and
her stepmother, Felicia. When S. was 14 years old and in eighth grade, she got in trouble
at school. Later, at home, defendant asked if she “wanted a whoopin’ [sic]” or if she
wanted “to play.” S. chose “to play” because she thought that meant something fun.
Defendant proceeded to have sex with her on the living room floor. He continued to have
sex with S. about three times per week or more until she was 18 years old.
The second victim, A., was S.’s best friend from school. When A. was 16 years
old, defendant drove her and S. home from a football game. He dropped S. off at a
friend’s house, and although he was supposed to take A. to her grandmother’s house, he
instead took A. back to his house. Defendant had sex with her there, and then took her
home. When she was 17 years old, defendant had sex with her a second time after he
picked her up from school early and took her back to his house. He pressured A. into
having sex with him.
The third victim, E., was Felicia’s niece, and lived with defendant from age six to
nine. When she was approximately six years old, defendant reached inside her pants and
touched her vagina. On separate occasions, he would attempt to put his penis in her
vagina. This happened every week for three years while she lived with defendant. He
also rubbed his penis on her butt and had her orally copulate him.
PROCEDURE
Defendant was charged in an indictment with four counts of lewd and lascivious
acts on a 14- or 15-year-old child (counts one through four; Pen. Code § 288, subd. (c));1
five counts of forcible rape (counts five through nine; § 261, subd. (a)(2)); two counts of
unlawful sexual intercourse with a minor (counts ten through eleven; § 261.5, subd. (c));
1 All further statutory references are to the Penal Code unless otherwise specified.
2
one count of continuous sexual abuse of a minor under the age of 14 (count twelve; §
288.5, subd. (a)); and one count of committing a sex crime against a child under 10 years
of age (count thirteen; § 288.7, subd. (a)).
Defendant made a Faretta2 motion to represent himself, which the trial court
granted on November 15, 2010.
A jury found him guilty on all counts. The trial court sentenced him to state
prison for an aggregate determinate term of 57 years 4 months on counts one through
twelve, and an indeterminate term of 25 years to life on count thirteen, to be served
consecutively.
DISCUSSION
I
Denial of Motion to Continue
Defendant contends that the trial court abused its discretion when it denied
defendant’s motion to continue the trial after his investigator quit a few weeks before
trial. He claims that it requires reversal per se. We conclude the trial court did not abuse
its discretion.
A. Relevant Procedure
On November 15, 2010, the trial court granted defendant’s Faretta motion to
represent himself. At the Faretta hearing, the trial court appointed a new investigator to
assist defendant since defendant had fired the two previous investigators assigned to his
case. The court specifically discussed the outstanding issue regarding defendant’s need
to examine the cell phone seized from him. For the time being, the court kept the trial
date of January 14, 2011.
2 Faretta v. California (1975) 422 U.S. 806, 835 [45 L.Ed.2d 562, 581-582]
(Faretta).
3
On December 20, 2010, defendant filed a discovery motion to compel discovery
compliance and a motion to continue the trial. At a readiness conference on January 3,
the court granted defendant’s motion to continue, and set a trial setting conference for
January 19, 2011. By court order, the investigator visited with defendant after the
readiness conference on January 3, 2011.
At the trial setting conference on January 19, 2011, after the court discussed
subpoenaed documents, it set a motion hearing date of February 25, 2011, and a trial date
of March 11, 2011.
On February 25, 2011, defendant notified the court that he was unable to play an
audio disc provided by the prosecution. The prosecutor stated that she intended to meet
with the investigator to confirm whether he possessed all discovery materials, and to
remedy the faulty disc, but she was unable to do so, since defendant had not granted the
investigator permission to meet with her outside his presence. Defendant then gave the
investigator permission to meet with the prosecutor outside his presence, and both the
investigator and prosecutor made arrangements to resolve the discovery problems after
the hearing. The court set the next motion hearing date of March 9, 2011, but kept the
trial date of March 11, 2011.
At the motion hearing on March 9, 2011, the prosecutor informed the court that
she had met and reviewed the discovery with defendant’s investigator at the prosecutor’s
office. She stated that defendant had received most of the discovery, with the exception
of a handwriting expert’s report and reports relating to a new witness to be offered under
Evidence Code section 1108. Because the prosecutor notified defendant that she
intended to introduce evidence under Evidence Code section 1108, the court found good
cause to continue the trial. It vacated the trial date, and scheduled a trial setting for
March 25, 2011.
On March 28, 2011, the court set April 26, 2011, as the date for motions in limine
and trial. At this point, defendant expressed concern about representing himself because
4
he still needed to obtain a medical expert and another expert to examine his cell phone.
The court asked him if he wanted to continue representing himself, and defendant replied
that he did not.
The court continued the matter to the next day, March 29, 2011, to determine if an
attorney could be appointed who would be ready for trial at the end of April. On March
29, 2011, the court stated that no attorney was currently available so it continued the
matter to the next day. On March 30, 2011, after consulting with an attorney, defendant
confirmed to the court that he desired to continue representing himself. The court
informed defendant that the trial date would remain set for April 26, 2011.
On April 22, 2011, defendant filed a motion to continue the trial because his
appointed investigator had informed him on March 30 that he would no longer work on
his case due to defendant’s high demands. Defendant stated that, he still needed: (1) to
obtain a medical expert; (2) to have assistance to subpoena witnesses; and (3) to consult
with an expert regarding the cell phone examination.
In denying defendant’s motion to continue, the court stated:
“And for the record, let me recite the schedule, the chronology of what’s going on
here. The Indictment was actually dated October 20th, 2009. Your first court appearance
following that was on October 26th. I’m not sure when [Attorney 1] was aboard and
when [Attorney 2] went back and forth, but according to the court records [Attorney 2]
was appointed on November 3rd, 2009. A Marsden[3] was filed against her on February
1st. It was granted. [Attorney 3] was appointed. [¶] . . . [¶]
“There was a motion to continue the trial on April 28th, 2010, which was granted
and the trial was set for May 21st, 2010. On June 15th, 2010, the trial was again
continued until August 6th, 2010. August 4th, 2010, the motion to continue the trial was
3 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
5
again granted. On September 10th, 2010, a 995 motion was denied. A jury trial was set
for -- on September 27th, a setting was made for a jury trial on January 14th, 2011. On
November 15th of 2010, a Faretta motion was granted. You were allowed to represent
yourself. January 3rd, 2011, another motion to continue the trial was granted. An
investigator was appointed at that time, and the matter’s set for jury trial on March 11th.
On February 25th, 2011, a motion to continue trial was filed. That motion was granted.
The jury trial was set for today. This now -- this latest motion to continue the trial was
filed on April 22nd.
“I’m going to deny the motion to continue the trial, [defendant]. I made it very
clear to you when we were here a couple months ago whether you were or were not
represented by an attorney, this trial is going forward. That is my intent. [¶] . . . [¶]
“I offered you the opportunity to be represented by counsel which you declined.
Apparently that had some influence on your investigator. I’m not sure what his reasoning
was. You now find yourself at the eve of trial, and it’s time to move this case forward.
It’s been pending now for more than a year and a half.
“All of these points that you’ve raised seem to suggest to me you believe there’s
some sort of global conspiracy against you -- a falsification of records, falsification of
transcripts, some sort of conspiracy about the attorneys. I don’t know what it’s about, but
the law does not say you’re entitled to continue your trial until you’ve had the
opportunity to exhaust virtually every question in your mind about whether these were
accurate and true transcripts, about the backgrounds of everybody who’s involved.”
B. Analysis
On appeal defendant contends that the trial court abused its discretion when it
denied defendant’s motion, filed on April 22, 2011, to continue the trial. The court
properly exercised its discretion in denying the continuance.
6
A trial court’s denial of a motion for continuance is within the trial court’s
discretion and will not be disturbed on appeal absent an abuse of discretion. (People v.
Wilkins (1990) 225 Cal.App.3d 299, 304.)
A defendant who represents himself “ ‘is not entitled either to privileges and
indulgences not accorded attorneys or to privileges and indulgences not accorded to
defendants who are represented by counsel.’ [Citation.] But neither is he entitled to less
consideration than such persons. In particular he must be given, if he requires it, as much
time to prepare for trial as an attorney; and if a reasonable continuance is necessary for
this purpose, it must be granted upon timely request.” (People v. Maddox (1967) 67
Cal.2d 647, 653, original italics.)
Defendant received five prior continuances. By that time, the case had been
pending for 18 months, and defendant had been acting in pro per for five of those months.
We do not find an abuse of discretion on a failure to grant a sixth continuance because
defendant had sufficient time to prepare his defense. Although he claims that his
investigator left him abruptly on March 30, 2011, to his detriment, defendant had access
to the investigator’s services for the three previous months.
Defendant knew the trial would begin on April 26, 2011, whether he was
representing himself or represented by counsel. At the hearing on March 30, 2011, after
he insisted that he wanted to remain in pro per, the trial court expressly stated, “Okay.
[Defendant], at this point then all I can do is tell you that the trial that has now been set
[for April 26, 2011, and] will remain as set.” Defendant replied, “Okay.” He did not
object at that time. Under these circumstances, he had adequate time to prepare for trial,
whether he was representing himself or represented by counsel.
The trial court did not abuse its discretion when it denied defendant’s motion to
continue the trial.
7
II
Self-Representation Revocation Motion
Defendant contends that the trial court prejudicially erred in denying his request to
withdraw waiver of counsel and to reappoint counsel. We find no error.
A. Relevant Procedure
At defendant’s arraignment on August 7, 2009, an attorney was appointed to
represent him. Defendant filed a Marsden motion that was denied on September 10,
2009. A second Marsden motion was heard and granted on October 19, 2009, relieving
the first attorney and substituting new counsel. A third Marsden motion was heard and
denied on December 17, 2009. A fourth Marsden motion was heard and granted on
February 1, 2010, relieving the second attorney and substituting new counsel. A fifth
Marsden motion was heard and denied on November 15, 2010. Defendant then filed a
Faretta motion to represent himself, which the court granted on November 15, 2010,
relieving the third attorney.
At the Faretta hearing, in response to the court’s question whether defendant had
any specific knowledge about legal matters, he answered affirmatively and stated that he
had presented to his attorney a self-prepared legal motion regarding an issue in his case.
The court advised him that it was not a good idea for him to represent himself and he
would be at a great disadvantage during the proceedings due to his lack of legal training.
The court warned that, pro per status does not change the rules of evidence nor will the
court be any easier on him. In response, defendant confirmed his desire to represent
himself and that he understood the dynamics of self-representation. The court granted his
Faretta motion.
At the motions in limine hearing on March 28, 2011, defendant expressed his
concern about representing himself. In response, the court advised him that representing
oneself is not a good idea. The court stated, “I usually tell people it takes the same
number of years to train to be a doctor as it would to be a lawyer. Most people wouldn’t
8
think of doing surgery on themselves, but the results are almost always the same, painful
and ineffective. [¶] Are you sure you wanna do this?” Defendant replied, “No, I don’t
wanna do it.”
The court continued the matter to the next day, March 29, 2011, to determine if an
attorney could be appointed who would be ready for trial by the next month. The court
warned defendant, “Now, you’ve already gone through three attorneys. I’m gonna be
really blunt with you here: I will not tolerate any game-playing with regard to dumping
attorneys in order to stop a trial. It won’t happen.” Also on March 29, 2011, the court
stated that no attorney was currently available and continued the matter to the next day.
On March 30, 2011, when the trial court asked a possible attorney from Lawyer
Referral Services if he was available for appointment, the attorney replied to the court,
“Your Honor, in speaking with [defendant] this morning, he indicates that he wishes to
remain pro per.” When the court asked defendant if that was what he wanted to do, he
replied, “Yes, Your Honor. That is what I wanted to do. I had had some considerable
time to do some thinking, and it’s -- it’s been very hard. And it’s just regarding just the
issues that has previously tooken [sic] place. So I’ve decided that I would like to remain
pro per.” After he attempted to discuss other issues, the court stated, “The only thing on
calendar today is for possible appointment of an attorney. And if you don’t want an
attorney, and you’ve already chosen under Faretta to represent yourself, you have that
right to do so.” Defendant answered, “Yes, I do.” The court continued, “It’s against the
recommendation, I think, of everybody involved.” Defendant replied, “Okay.”
Just before the court excused the attorney who may have been appointed to
represent defendant, the court asked, “Okay. I will simply inquire one more time,
[defendant], do you wish to be represented or do you wanna do this yourself?”
Defendant answered, “I [sic] do it myself.” The court stated, “It’s your choice no matter
what.” Defendant replied, “Okay.”
9
On April 26, 2011, during a hearing on in limine motions, and one day before jury
selection was to begin, defendant moved to terminate his self-represented status, and
requested the trial court to reappoint counsel. He stated that, reading all the material and
following up on all the rules was “very difficult” so he was unable to “do trial.”
Defendant informed the court that he felt “forced” to represent himself because he
distrusted his prior attorneys and because his prior attorneys refused to address important
issues he felt needed to be addressed. The court stated that he had already refused the
services of four experienced attorneys in favor of representing himself, and they were
“not going back and forth.” Defendant promised that he would not turn down a newly
appointed attorney.
The court stated: “I will simply tell you that you have demonstrated to me a
number of times that your memory of your recollection is not the same as that reflected in
the file. That may be the source of some of your dissatisfaction with your attorneys. I
have no idea of anything else of this whole thing.
“I can only tell you that you were admonished. You were told that it was not
going to be a ‘I want this attorney. Now I’m going to fire him. We’re going to get
another continuance.’ You have had, by my count, five continuances of this trial. There
won’t be anymore [sic]. Now you must prepare to the best of your ability to represent
yourself in this trial. As I told you back then, you operate under the same rules as any
attorney would. I have to do that by law. I can’t bend the rules of evidence or law for
you, which means that I understand it’s going to be difficult for you to select a jury, to
argue within the bounds of the rulings, but we’re just going to have to do the best we
can.”
The court denied his motion and defendant represented himself throughout trial.
10
B. Analysis
Every defendant has the right to represent himself, as guaranteed by the United
States Constitution. (Faretta, supra, 422 U.S. at p. 835.) When a defendant attempts to
terminate his or her self-represented status, we refer to it as a revocation motion.
The California Supreme Court, in People v. Lawrence (2009) 46 Cal.4th 186,
discussed the factors to consider in reviewing a trial court’s ruling on a revocation
motion:
“In People v. Windham (1977) 19 Cal.3d 121, 128, we explained that while a
timely, unequivocal Faretta motion invoked the nondiscretionary right to self-
representation, a midtrial motion was ‘addressed to the sound discretion of the court.’ In
People v. Elliott (1977) 70 Cal.App.3d 984 (Elliott), the Court of Appeal concluded the
same was true of a midtrial request to revoke in propria persona status and have counsel
appointed. (Id. at p. 993.) Adapting the nonexclusive list of factors to consider
mentioned in Windham, the Elliott court opined that a trial court should consider, along
with any other relevant circumstances, ‘(1) defendant’s prior history in the substitution of
counsel and in the desire to change from self-representation to counsel-representation,
(2) the reasons set forth for the request, (3) the length and stage of the trial proceedings,
(4) disruption or delay which reasonably might be expected to ensue from the granting of
such motion, and (5) the likelihood of defendant’s effectiveness in defending against the
charges if required to continue to act as his own attorney.’ (Elliott, at pp. 993-994.)
“This court cited Elliott's discretion framework favorably in People v. Gallego
[(1990)] 52 Cal.3d [115,] 163-164, adding, however, that ultimately the trial court’s
discretion is to be exercised on the totality of the circumstances, not strictly on the
listed factors. Quoting People v. Smith (1980) 109 Cal.App.3d 476, 484, we explained:
‘ “While the consideration of these criteria [listed in Elliott] is obviously relevant and
helpful to a trial court in resolving the issue, they are not absolutes, and in the final
analysis it is the totality of the facts and circumstances which the trial court must consider
11
in exercising its discretion as to whether or not to permit a defendant to again change his
mind regarding representation in midtrial.” ’ (Gallego, supra, at p. 164.) We found no
abuse of discretion in the trial court’s denial of the Faretta revocation request, in light of
the defendant’s history of counsel change requests, the advanced stage of trial (late in the
guilt phase of a capital trial), and the trial court’s inability to find an attorney who would
take over at that stage without the need to declare a mistrial. [Citations.]” (People v.
Lawrence, supra, 46 Cal.4th at pp. 191-192, original italics, fn. omitted.)
On appeal, defendant uses the Windham factors to argue that the trial court erred
by not granting his revocation motion. He states that the Windham factors support his
contention because: (1) although he had a history of changing counsel, two of his five
Marsden motions were granted; (2) he had valid reasons for requesting counsel; (3) he
made the motion before prospective jurors were impaneled; (4) the prosecution failed to
show that a disruption of trial was reasonably likely; and (5) the likelihood of his
effectiveness if continuing to represent himself weighed in favor of appointing counsel.
We disagree that the trial court erred.
Over an 18-month period, defendant filed five Marsden motions, refused
representation from four prior attorneys, and attempted to revoke his self-represented
status twice. Throughout the process, he received five continuances and received
warnings from the court that the trial would go forward on April 26, 2011, regardless of
his status of representation. His prior history of substituting counsel and “going back and
forth” between pro per and requesting counsel, supported the inference that defendant’s
purpose was to delay the proceedings. Had the trial court appointed counsel the day
before jury selection and granted a sixth continuance, it would have delayed the
proceedings further and disrupted the trial, which had already been pending for 18
months. The procedural history and previous delays in the case support the conclusion
that the trial court acted within its discretion in denying defendant’s revocation motion,
based on the totality of the circumstances.
12
III
Striking Defendant’s Trial Testimony
The trial court struck defendant’s trial testimony because he refused to answer
questions posed during cross-examination. Defendant contends that the trial court erred
in striking his trial testimony because less drastic solutions were feasible. He argues that,
the trial court should have (1) given instructions to the jury to consider defendant’s
answers in evaluating his credibility or (2) appointed counsel for defendant to advise him
against his current course of action. The argument is without merit.
A. Relevant Procedure
Defendant testified in his own defense at trial. During cross-examination, and in
front of the jury, the colloquy was as follows:
“[PROSECUTOR]: You were a father figure to [M.]?
“[DEFENDANT]: Let me ask you: Why are you - why are you trying to put
words in my mouth or lead me?
“[PROSECUTOR]: Objection.
“THE COURT: Sir, if you [sic] you’ll just listen to the questions and answer
them, please.
“[DEFENDANT]: I don’t like that. I mean, let’s -- let’s --
“THE COURT: Sir.
“[DEFENDANT]: -- let’s be truthful about something.
“THE COURT: Sir, you don’t get to volunteer information. You just answer her
questions.
“[DEFENDANT]: Well, I’m just saying she needs to be truthful.
“THE COURT: You need to answer her questions and not make speeches to the
jury.
“[DEFENDANT]: Well, I’m just saying.
“THE COURT: Continue, please.
13
“[PROSECUTOR]: Thank you.
“[DEFENDANT]: We can talk about Juror No. 11 hearing the officer debrief --
“THE COURT: Sir --
“[PROSECUTOR]: Objection.
“THE COURT: Sir, I’m only going to say this one more time: If you’re going to
insist on doing this, you’re going to leave the witness stand.
“[DEFENDANT]: I mean, we just need to be truthful about stuff.
“THE COURT: All right. That’s your warning.
“[DEFENDANT]: Okay. And tell the jury why I’m --
“[PROSECUTOR]: Objection.
“[DEFENDANT]: Tell the jury why I’m representing myself, then.”
The court immediately called a recess and excused the jury. Outside the jury’s
presence, the following occurred:
“THE COURT: We’re now outside the presence of the jury. [Defendant], I’m
going to explain this to you one more time. Once you take the stand to testify, you are
obligated to answer her questions. If you feel her questions are not truthful, you may say
that. You can say that that isn’t true when she asks you about some testimony that was
given earlier. You can disagree with that testimony, but you don’t get to make speeches.
You don’t get to make comments back to her on it. If you insist on continuing that I have
a number of options. The very least of which you will probably not be happy with. This
may include actually sitting in a different room, putting a camera in there and letting you
answer her questions by way of closed circuit television.
“[DEFENDANT]: Okay. Let me ask you --
“THE COURT: No. We’re going to go over this. If you continue to do that, then
I can give instructions to the jury that your refusal to answer based on these questions and
taken to the stand can be given whatever weight they deem it to be appropriate up to and
14
including complete disbelief to everything you testified to. We’re going to do this the
right way.
“[DEFENDANT]: Well, let me say something, Your Honor. There’s a lot that,
you know, in the motions that you filed about my information that was divulged to the
Prosecution. Y’all done changed my transcripts.
“THE COURT: I’m sorry?
“[DEFENDANT]: Y’all done changed my transcripts.
“THE COURT: Changed your transcripts?
“[DEFENDANT]: Yeah, they’ve been altered. Evidence that I had on my cell
phone, the district attorney --
“THE COURT: You think I altered your transcripts?
“[DEFENDANT]: Well, I just said -- I mean, you [sic] part of the judicial system.
“THE COURT: Right.
“[DEFENDANT]: So you guys are one. Okay. So let’s say, y’all trying to give
me three life sentences for this, and she’s not being truthful about this --
“THE COURT: She’s not testifying. You’re the one testifying.
“[DEFENDANT]: Well, I mean, she falsified my evidence.
“THE COURT: Okay.
“[DEFENDANT]: Okay?
“THE COURT: Those are issues you’re going to have to take up after this trial.
“[DEFENDANT]: These matters need to be revealed.
“THE COURT: Okay.
“[DEFENDANT]: Okay.
“THE COURT: You keep going the way you’re going, you are not going to be
pleased with the results.
“[DEFENDANT]: Well, I’m just going to tell the truth. That’s what I --
“THE COURT: You are going to answer her questions?
15
“[DEFENDANT]: Well, I’m going to tell the truth.
“THE COURT: I’ll assume that you’re going to --
“[DEFENDANT]: I’m going to tell the truth.
“THE COURT: -- answer her questions.
“[DEFENDANT]: I’m going to tell the truth to the evidence that I know is the
truth and the prosecutor has not put on all of the --
“THE COURT: She’s not obligated to put on all the evidence.
“[DEFENDANT]: Well, you tell me, it’s okay to alter my phone?
“THE COURT: I’m not telling you anybody is approved to alter evidence.
“[DEFENDANT]: Well, that’s what she does. She never -- she never --
“THE COURT: You may believe that.
“[DEFENDANT]: She was told to give my phone over for a process to take place.
“THE COURT: We’re covering a territory that we’ve covered many times before.
“[DEFENDANT]: I just totally disagree with all of this.
“THE COURT: Are you going to answer her questions without volunteering your
own story?
“[DEFENDANT]: Well, Your Honor, to be honest --
“THE COURT: Are you going to answer --
“[DEFENDANT]: I disagree with the [whole] trial --
“THE COURT: I know you do.
“[DEFENDANT]: -- just for the simple fact that I didn’t want to represent myself,
but you guys forced me [to].
“THE COURT: Sir, you went through three attorneys and declined a fourth.
“[DEFENDANT]: Most definitely I went through three attorneys. Why?
Because I the third one came on and talked about the other two and --
“THE COURT: We’re going over the same territory again.
“[DEFENDANT]: I mean, tell the truth. Tell the truth.
16
After this exchange, the prosecutor continued cross-examining defendant in the
presence of the jury. The following occurred:
“[PROSECUTOR]: [Defendant], did you see yourself as a father figure to [M.]?
“[DEFENDANT]: [Prosecutor], have you withheld evidence on my cell phone?
“[PROSECUTOR]: Objection.
“THE COURT: Okay. Ladies and gentlemen, we’ve been discussing outside your
presence what’s going to happen if [defendant] continues on this particular course of
conduct refusing to answer questions. The jury may choose to give his testimony
whatever weight you think it deserves to this point. I will ask [defendant] at this point on
the record, are you now telling me that you will not answer the questions directly that are
being placed or being put to you?
“[DEFENDANT]: Not when this trial is not fair.
“[THE COURT]: In that case, I will strike [defendant’s] testimony. He does not
get to first take the stand, tell his story and then refuse other questions without sanction.
That sanction is his entire testimony is going to be stricken from the record. That means
there will be no more evidence --
“[DEFENDANT]: With three life --
“THE COURT: -- unless the Plaintiff or the Prosecution wishes to present
otherwise.
“[DEFENDANT]: I mean, you kept back my evidence, all my --
“THE COURT: So we’re going to take another five-minute break. We’re going
to get a few things rearranged and then I’ll see if [the prosecutor] has any further
evidence she wishes to put on.”
During the short recess and outside the presence of the jury, the trial court stated:
“We are now together outside the presence of the jury. I have had the opportunity to do
some reflection and some research. The record should reflect that there have been prior -
- multiple prior admonitions to the defendant to refrain from spontaneous outbursts of
17
inadmissible matter. The defendant has now completed his direct testimony but is
refusing to answer candidly answers on cross-examination and continues to make further
inadmissible statements to the jury as well as making accusations outside the presence of
the jury that -- of misconduct by the Prosecution and the Court.
“The defendant was offered the opportunity to comply with the Court’s direction
and answer the questions without volunteering information but has stated on the record
that he will continue to, quote, tell the truth, unquote, to me or my perception that
indicates that he intends to continue answering, or responding rather, in the same fashion
as previous.
“I have considered possible avenues of dealing with the defendant’s contumacious
conduct. These include, one, revoking his right to self-representation per Faretta. This
does not seem to me to be practical since the defendant, according to his statements, has
already presented his entire case in chief. Forcing the defendant now to be represented
by counsel at the stage of the proceedings would simply result in undue delay and, in my
view, be futile.
“The second option I considered was allowing the defendant’s testimony to stand
instructing the jury to construe any ambiguities in his testimony against him and allowing
his conduct to be used to determine his credibility. To me, after reflection, this seems
inadequate since he has now placed before the jury his own self-serving, exculpatory
testimony and to allow it to stand would seem to reward the misconduct to the jury if they
choose to believe any part of that testimony.
“The third option which I considered, which to me seems to be the most
appropriate seems to be the striking of the defendant’s testimony as I indicated to the jury
before we went on break. I would admonish the jurors to treat this testimony as if they
never heard of it. This appears to me to be the least punitive of the alternatives and
would preserve the core integrity of the trial process. It comports with the guidelines
which are found in cases such as People vs. Reynolds found at 152 Cal.App.3d, Page 42,
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a 1984 case in which the defendant at trial was accused of smuggling drugs into the jail.
He refused to name these people on cross-examination after first taking the stand in his
own behalf. The trial judge granted the motion to strike the defendant’s testimony.
“On appeal the Court affirmed the order and found no abuse of discretion because
the defendant’s Constitutional right to testify in his own behalf also entails submission to
full cross-examination. The defendant’s failure to name the inmates who were
threatening him might be understandable, but it was not protected from fair examination
or cross-exam. The outcome of the case was that the Court affirmed the order striking
the defendant’s testimony because by testifying in his own behalf he exposed himself to
full cross examination and could not selectively refuse to answer questions put to him.
“We’re going to call the jury back in. I will instruct them that the defendant’s
entire testimony is to be stricken. The record is going to reflect that I have considered the
various options that are open to me with regard to remedies for the situation, and that is
the one that I have chosen.”
B. Analysis
We review the trial court’s decision to strike defendant’s testimony for abuse of
discretion, considering the full record made by the court. (People v. Reynolds (1984) 152
Cal.App.3d 42, 47.) “When a defendant refuses to answer questions on cross-
examination . . . , the court is faced with a constitutional dilemma. If the court strikes the
defendant’s testimony, its ruling implicates his ‘ “right to a fair opportunity to defend
against the State’s accusations,” ’ which is a component of due process. [Citations.]
‘Essential to a fair [hearing] is that the accused have the opportunity to exercise his
fundamental, constitutional right to be heard in his own defense by testifying at [the
hearing]. [Citations.]’ [Citation.]
“However, ‘Defendant’s constitutional right to testify in his own behalf must be
considered in light of the principle that “[w]hen a defendant voluntarily testifies in his
own defense the People may ‘fully amplify his testimony by inquiring into the facts and
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circumstances surrounding his assertions, or by introducing evidence through cross-
examination which explains or refutes his statements or the inferences which may
necessarily be drawn from them.’ [Citation.]” ’ [Citation.] ‘Defendant’s refusal to
answer relevant questions [may deprive] the prosecution its right to subject [his] claim[s]
to “the greatest legal engine ever invented for the discovery of truth,” cross-examination.
[Citation.]’ [Citations.]
“In deciding whether to strike a defendant’s . . . testimony based on his or her
refusal to answer one or more questions, the trial court should examine ‘ “the motive of
the witness and the materiality of the answer.” [Citation]’ [Citation] The court should
also consider if less severe remedies are available before employing the ‘drastic solution’
of striking the witness’s entire testimony. [Citation.] These include striking part of the
testimony or allowing the trier of fact to consider the witness’s failure to answer in
evaluating his credibility. [Citations.]” (People v. Seminoff (2008) 159 Cal.App.4th 518,
525-526.)
Under these circumstances, the court did not abuse its discretion. Even after
multiple warnings from the court, defendant continued to be nonresponsive. Rather than
responding to the prosecutor’s questions, defendant made the following inappropriate
statements in front of the jury: (1) “We can talk about Juror No. 11 hearing the officer
debrief”; (2) “Tell the jury why I’m representing myself, then”; (3) “[Prosecutor], have
you withheld my evidence on my cell phone?”; and (3) “Not when this trial is not fair.”
Due to the seriousness of these assertions and defendant’s refusal to be cross-examined,
the trial court acted within its discretion in striking defendant’s entire testimony.
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DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
HULL , J.
DUARTE , J.
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