People v. Becker, D049585 (Cal. App. 10/23/2008)
| Decision Date | 23 October 2008 |
| Docket Number | D049585 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PAUL BECKER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of San Diego County, No. SCD186280, Howard H. Shore, Judge. Affirmed in part; reversed in part with directions.
Joseph Becker appeals from a judgment convicting him of one count of stalking and of numerous counts of making a false bomb report, making and attempting to make a criminal threat, and attempting to dissuade a witness from testifying. The convictions arose from Becker's conduct of making threatening phone calls to several individuals and disseminating witnesses' personal information to jail inmates. Becker represented himself at trial. He argues the judgment should be reversed for the following reasons: (1) the court did not properly advise him of his rights when he elected self-representation; (2) the court erred in denying his requests to address his concern that witnesses would recognize his voice at trial (including his requests for a pretrial voice lineup, a ruling excluding testimony by witnesses that they recognized his voice at trial, and appointment of advisory counsel to cross-examine witnesses who heard his voice during the offenses); (3) there was a discrepancy between the false bomb report charges in the information and the jury instructions for these charges; (4) there was insufficient evidence to support the jury's verdicts pertaining to the counts based on his dissemination of witnesses' personal information; (5) the court erred in denying his request to change to represented status for purposes of a new trial motion and sentencing; and (6) the court erred in imposing consecutive sentences for the counts based on his dissemination of witnesses' personal information.
We find no reversible error as to the judgment of guilt. However, we conclude the trial court abused its discretion in denying Becker's timely request for reinstatement of counsel at the new trial/sentencing hearings. We find the error harmless beyond a reasonable doubt as to the new trial motion, but reverse and remand for resentencing.
The charges in this case arose after Becker shoplifted merchandise from the Sam Goody Musicland (Sam Goody) store at University Towne Center mall on January 16, 2004, and the Target store on Balboa Avenue on February 29, 2004. Based on this conduct, Becker was charged with petty theft with a prior and burglary (the shoplifting case). He elected to represent himself in the shoplifting case, and was given phone privileges in jail to facilitate his self-representation. In July and August 2004, while Becker was in jail waiting to be tried in the shoplifting case, numerous threatening phone calls were received by entities or persons associated with the shoplifting case. In October 2004, charges were filed against Becker based on this threatening conduct (the threats case). In November 2004, after the initial charges were filed in the threats case, witnesses involved in the threats case were targeted for additional threatening or intimidating conduct. In December 2004, the charges in the threats case were amended to add allegations against Becker based on this conduct occurring in November 2004. Further, in March 2005 the charges were amended to add a stalking charge based on Becker's conduct of repeatedly contacting a particular witness. The threats case is currently before us for review.
At trial, a primary issue in dispute was the identity of the person who made the threatening phone calls. According to the prosecutor, most of the witnesses were not in a position to identify Becker as the person who made the threatening phone calls by listening to his voice, and except for one witness, the prosecutor did not offer witness testimony tying the caller's voice to Becker's voice. Instead, the prosecutor presented evidence showing that Becker had access to jail phones used to call victims' phone numbers during relevant time periods; Becker had a motive to target the entities or persons who received the calls; and Becker made statements to the police showing consciousness of guilt.
Two jury trials were held to adjudicate the threats case. Walker represented himself at both trials. The first jury acquitted Becker of one criminal threat charge, and was unable to reach a verdict on the remaining charges. The second jury convicted Becker on most of the charges.1 Becker's sentence for the threats case was combined with his sentence for the shoplifting case; he received a total of 20 years, four months for both cases.
We shall briefly summarize the facts, and present more facts as necessary during our discussion of Becker's various challenges to the judgment.
On July 20, 2004, approximately seven months after the theft at Sam Goody, Becker made two phone calls to the University Towne Center mall making threatening statements directed at the Sam Goody store. The first call was received by Joaquin Barrera, the security supervisor for the mall. Becker stated he was going to "shoot up" the Sam Goody store and that he had problems with his daughter buying drugs from a Sam Goody's manager named Erich. Using the caller ID feature on the security office phone, the authorities ascertained that the call had been made from the county jail. Barrera reviewed his logs and determined that Becker was the only person whom he had arrested at the Sam Goody store that year. Barrera, who had detained Becker during the Sam Goody shoplifting incident in January 2004, recognized the caller's voice as Becker's. Sam Goody's manager, Erich Mroz, had caught Becker shoplifting and had testified against him at his May 2004 preliminary hearing in the shoplifting case.
The second call on July 20 was made to the Red Robin restaurant in the mall. In this call, Becker stated that something bad was going to happen at the Sam Goody store and warned that some of the restaurant employees might get hurt if they came to work.
On July 28, 2004, Becker again called the Red Robin restaurant; in this call he stated that Sam Goody's manager, Erich, and his employees, were dealing drugs at the restaurant. Becker also called the mall's security office and stated that he and a friend were about to go to the Sam Goody store to "shoot it up" and that Sam Goody's manager Erich was selling drugs. The caller ID feature on the security office phone showed the call came from the same jail phone number as the July 20 call received by Barrera.
Sam Goody manager Mroz was informed about the threatening calls, but he perceived them as "ridiculous" and not as legitimate threats.
For this conduct, Becker was convicted of three counts of attempted criminal threat with Mroz as the victim (i.e., two counts occurring on July 20 and one count occurring on July 28).2
Beginning on August 12, 2004, Becker made a series of phone calls to various businesses, stating there was a bomb or an explosive device in the building or parking lot. On August 12, 2004, he made false bomb report calls to the Target store on Balboa Avenue and to the San Diego County Public Defender's office (which had assisted him with complaints about his treatment at the jail). On August 13, 2004, he made false bomb report calls to the Sears store in the University Towne Center mall; to the Target store on Balboa Avenue; to six other Target stores at locations throughout San Diego county; and to a Mervyn's store (which was owned by the same company as Target). On August 20, 2004, Becker made two more false bomb report calls to the Target store on Balboa Avenue.
For this conduct, Becker was convicted of 15 counts of making a false bomb report, 14 counts of making a criminal threat, and one count of attempted criminal threat.
On November 4, 2004, after Becker was charged with making false bomb reports, he received discovery that disclosed the addresses, phone numbers, date of birth, and other personal information of witnesses who had provided information to the police about the false bomb reports. Becker copied the names, ages, addresses, and phone numbers of six female witnesses on two pieces of paper. On the top of one paper he wrote: "Here are some chicks' addresses from a chat line I got." On the top of the other paper he wrote: "All girls want pen pals and will visit." These two papers then came into the possession of two other jail inmates, Cyrus Brooks and Diego LaMadrid.
Three of the female witnesses listed on the papers received phone calls at their homes from other inmates. On November 6, and 10, 2004, Shawn Abbott received numerous messages or calls on her home phone stating she had a collect call from a detention facility from a man named Cyrus Brooks. On November 18, 2004, Nicole Bratman received a call at home from an inmate, who told her he was in Donovan State Prison and had gotten her name, number, and address from a church community group to be a pen pal. On November 18, 2004, Cheryl Melucci received a message on her home answering machine from Diego at the county jail who stated he was looking for her and he would mail her a letter.
Based on his dissemination of the female witnesses' personal information, Becker was convicted of committing (on November 5, 2004) six counts of attempting to dissuade a witness from testifying. The six women specified on the lists were identified as the victims.3
Abbott was the receptionist at the San Diego County Public Defender's office who received the August 12, 2004 false bomb report call from Becker. Abbott testified that she later began receiving numerous threatening calls, and that she knew the caller was the same person who made the August 12 call. On November 12, 2004, Abbott...
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