People v. Brown, E041770 (Cal. App. 8/25/2008), E041770

CourtCalifornia Court of Appeals
Writing for the CourtMcKinster
Decision Date25 August 2008
PartiesTHE PEOPLE, Plaintiff and Respondent, v. DAVID LASHAY BROWN, Defendant and Appellant.
Docket NumberE041770

Page 1

THE PEOPLE, Plaintiff and Respondent,
DAVID LASHAY BROWN, Defendant and Appellant.
Court of Appeals of California, Fourth Appellate District, Division Two
August 25, 2008
Not to be Published

Appeal from the Superior Court of San Bernardino County, No. FVI022096, Jon D. Ferguson, Judge. Affirmed in part and reversed in part with directions.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, Scott C. Taylor and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.



Defendant David Lashay Brown appeals from his conviction on multiple counts. We reject the majority of his contentions, but agree that the court erred in imposing unstayed sentences on two counts of resisting or obstructing an officer. Accordingly, we affirm the judgment but will remand with directions to the trial court to modify the sentence.


Defendant was convicted of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); counts 1 and 2); possession of marijuana for sale (Health & Saf. Code, § 11359; count 3); resisting an officer by force or violence (Pen. Code, § 69; count 4); and resisting an officer with firearm removal (Pen. Code, § 148, subd. (c); count 5). Two counts of receiving stolen property (Pen. Code, § 496, subd. (a))1 were dismissed at the prosecutor's election after the court granted a motion for disclosure of the identity of a confidential informant who was a material witness with respect to those counts.2

In a bifurcated proceeding, the court found the allegation that defendant had suffered a prior strike conviction true and found that defendant had served one prior prison term. (§§ 667, subd. (b), 1170.12, subds. (a)-(d), 667.5, subd. (b).)

The court sentenced defendant to a total term of 12 years four months in state prison. Defendant filed a timely notice of appeal.


On July 21, 2005, San Bernardino County Sheriff's deputies obtained a warrant to search defendant's home as part of an investigation into several vehicle burglaries. Sergeant Robert Hughes kept the home under surveillance while detectives finalized plans to execute the warrant. Around 10:00 a.m., a man resembling defendant left the house and drove away in a gray Chevy Tahoe SUV. Hughes radioed detectives and began to follow the SUV. Detective Greg Myler began to follow Hughes and the SUV. Other detectives continued to defendant's house to execute the warrant.

Hughes activated his red emergency light and siren and had defendant pull over. Myler pulled up beside Hughes's car. Hughes approached the SUV and asked defendant if he was David Brown. Defendant stated that he was and acknowledged that he lived at the address which was the subject of the search warrant. As Hughes returned to his car to radio in a report, Myler asked defendant to step out of his vehicle. Myler told defendant that he was being stopped pursuant to a search warrant. Defendant elbowed Myler in the chest, then began hitting Myler. Defendant struggled with both Myler and Hughes, hitting and striking Myler and grabbing at his waist area in the vicinity of his holster and handcuffs. When defendant was subdued, Myler rolled defendant onto his stomach and placed him in a choke hold while lying on top of him. Myler then discovered that both his handcuffs and his pistol were missing. Hughes found the handcuffs in a bush and handcuffed defendant. When Myler got up, he discovered his pistol lying on defendant's back. Defendant had $130 on his person.

The search of defendant's home pursuant to the warrant revealed a substantial amount of marijuana in the master bedroom and a small amount of marijuana in the pocket of a man's jacket in a downstairs closet. The marijuana in the master bedroom was packaged in several larger and smaller plastic bags. There were also several empty smaller bags and two scales. The detectives also found two loaded handguns and a photograph of defendant holding a pistol similar to one of the two found in the bedroom. There was $170 in cash on the dresser.

When he was questioned after his arrest, defendant said that the marijuana was his but that he did not sell it. He said the guns were his and that he liked to collect guns. He also stated that he had been unemployed for the last six months.


On the day trial was set to begin, defendant asked to be allowed to represent himself. After a lengthy colloquy with the court, defendant stated that the court had convinced him that self-representation was not in his best interest and withdrew his request. The following day, immediately before jury selection was to begin, defendant renewed his request to represent himself. He stated that he was ready to proceed. After further colloquy, the court denied the motion, on two grounds: that the motion was untimely because trial had already commenced, and that defendant's disruptive behavior during the two hearings on his motions for self-representation gave the court a reasonable basis for believing that defendant would be disruptive if he were allowed to represent himself.3

Defendant now contends that the denial of the motion was reversible error. He asserts that the motion was timely, and that the trial court abused its discretion, under People v. Windham (1977) 19 Cal.3d 121 (Windham).4

In Windham, the California Supreme Court held that although a defendant has a constitutional right to represent himself, that right is absolute only if it is asserted "within a reasonable time prior to the commencement of trial." (Windham, supra, 19 Cal.3d at p. 128 & fn. 5.) If the defendant waits until the trial has commenced to assert his right to self-representation, it is within the sound discretion of the trial court to determine whether the defendant may dismiss his attorney and represent himself. (Id. at p. 124.) If the motion is not made within a reasonable time prior to the commencement of the trial, the defendant has the burden of justifying the delay. (People v. Valdez (2004) 32 Cal.4th 73, 102 (Valdez).) A factor to be considered is whether granting the request will delay the trial. (Windham, at p. 128; Valdez, at p. 103.)

Here, defendant's motion was made on the date jury selection was to begin. This is not a reasonable time prior to the commencement of trial. However, because defendant did not request a continuance but stated that he was ready to proceed, the lateness of the request does not in itself justify denying his motion. (See Valdez, supra, 32 Cal.4th at p. 103.)

The court's ruling did not rely solely on timeliness grounds, however. An equal factor in the court's determination was its conclusion that defendant would be disruptive at trial if he were allowed to represent himself. This is a legitimate ground for denying even a timely motion for self-representation. The constitutional right to self-representation depends upon a showing that the defendant is able and willing to abide by rules of procedure and courtroom protocol, and if the trial court determines that the defendant "is[,] and will remain[,] . . . disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words," the trial court has the discretion to deny even a timely motion for self-representation. (People v. Welch (1999) 20 Cal.4th 701, 734-735.) The trial court's denial of a motion for self-representation based upon the determination that a defendant is likely to be disruptive if allowed to represent himself "`will not be disturbed in the absence of a strong showing of clear abuse.' [Citations.]" (Id. at p. 735.)

Here, the trial court reasonably concluded that there was a risk that defendant would disrupt the proceedings if he were allowed to represent himself. During the lengthy colloquy concerning his original motion, defendant was argumentative. He accused both the court and counsel of not telling the truth and not playing by the rules. He frequently interrupted the court and stated that he did not believe what the court was telling him about prior rulings on his motions and that he did not believe the court's statements concerning the applicable law. For example, he insisted that certain police witnesses had been excused from the trial and would not be permitted to testify. He said he did not believe the judge when he told him that the witnesses had not been "excused," but had merely been excluded from the courtroom during the preliminary hearing. He also insisted that his motion to traverse the search warrant had never been heard, and adamantly refused to accept the court's statement that the motion had been submitted without testimony and had been ruled upon. All of this amply supports the court's conclusion that defendant would be disruptive if he were permitted to represent himself. Accordingly, there was no abuse of discretion.


Before the preliminary hearing, defendant filed a motion to traverse and/or quash the search warrant and to suppress evidence seized pursuant to the warrant. The affidavit in support of the warrant was based on information provided by a confidential informant, and the affidavit was sealed. Defendant asked the court to conduct an in camera hearing to determine whether the affidavit contained any material misrepresentations and whether it set forth sufficient competent evidence to support the finding of probable cause. The court conducted the in camera hearing as requested. It...

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