People v. Perez

• Decision Date: 17 March 1992
• Docket Number: No. D011990,D011990
• Citation: 4 Cal.App.4th 893,6 Cal.Rptr.2d 141
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Castro PEREZ, Defendant and Appellant.

Page 141

6 Cal.Rptr.2d 141

4 Cal.App.4th 893

The PEOPLE, Plaintiff and Respondent, v. David Castro PEREZ, Defendant and Appellant.

No. D011990.

Court of Appeal, Fourth District, Division 1, California.

March 17, 1992.

Rehearing Denied April 3, 1992.

Review Denied June 11, 1992.

[4 Cal.App.4th 898] Robert E. Boyce, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Robert M. Foster and Nancy L. Palmieri, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

A jury found defendant David Castro Perez, a prisoner, guilty of assault with a deadly weapon (Pen.Code, § 4501) ¹ and possessing a deadly weapon (§ 4502). The jury also found Perez personally used a deadly weapon under section 1192.7, subdivision (c)(23) as to both counts. Perez appeals, contending the evidence was insufficient

to support the judgment and the court erred in denying his motions for self-representation and for new trial based upon jury misconduct. For the reasons set forth below, we remand for the court to conduct a limited inquiry on issues relating to Perez's new trial motion. We affirm the judgment in all other respects.

I. SUFFICIENCY OF THE EVIDENCE

A.

Perez and the victim, Anel Rojas were inmates at the Donovan State Prison in San Diego. On the date of the stabbing, Rojas and Perez were standing outside in the exercise yard. Officer Frank Ardilla stood in a control booth overlooking the yard. Ardilla saw Rojas and Perez engage in a "verbal argument," which "seemed very heated." As Perez and Rojas walked towards the housing unit, Ardilla saw Perez charge at Rojas with his arm uplifted. Rojas attempted to defend himself but was too late, and Perez struck Rojas in the right side of the neck with an object. Ardilla then saw Rojas clench his neck with his left hand and observed blood flowing between Rojas's fingers. Ardilla went to the window and ordered everyone in front of the building to freeze and to get down. Except for Perez everyone complied. Perez kept on walking. When Perez did not stop, Ardilla went to the gun rack and removed a rifle, aiming it at Perez. Perez turned and hit the ground. Ardilla then directed correction officers to search the ground following Perez's path up to the point where he was stopped. Using a metal detector, one officer found a weapon in a puddle along the path Perez had taken. The weapon was an inmate manufactured weapon sharpened to a point and made from metal stock.

During a search conducted two hours after the attack, Officer Grace Johnson found another weapon in a trash can inside the prison. The weapon appeared to be an inmate manufactured weapon that looked like a screwdriver, sharpened to a point. ² The prosecution's evidence showed the second weapon could not have been used in the attack because all prisoners were searched before they went inside the building. ³ Johnson explained prisoners throughout the prison frequently discard their weapons after an attack because they know correction officers will probably conduct a general search.

Immediately after the attack, medical technical assistant Mary Kowinsky treated Rojas. Kowinsky believed Rojas's injury was a puncture wound caused by a sharp instrument to the collarbone.

Perez did not testify. Victim Rojas testified he was "absolutely" positive the prisoner who stabbed him was not Perez. In rebuttal, the prosecution elicited expert testimony establishing the existence of a prison code of silence resulting in few inmates, if any, ever naming their attackers for fear of retribution.

B.

Contending the court erred in denying his section 1118.1 motion, ⁴ Perez says the evidence was insufficient to show he had a weapon available to him which could have caused Rojas's injuries. He relies Even though such expert testimony is relevant on the issue of whether Perez assaulted Rojas, such evidence is not conclusive. Perez emphasizes there was no prosecution expert to establish the homemade knife could have caused the injury. Nonetheless, in spite of this omission the jury was entitled to draw an inference based upon their evaluation of the evidence, including the fact that the wound was not a rounded hole but a slice. A jury is not required to accept the testimony of an expert witnesses even if he or she is the sole expert testifying at trial. (See People v. Coogler (1969) 71 Cal.2d 153, 166, 77 Cal.Rptr. 790, 454 P.2d 686.) Here, for example, the jury could have decided to disregard Dr. Guard's testimony because he failed to examine the victim's scar until 11 months after the injury, legitimately finding his ability to determine the type of instrument used to cause an injury could not be resolved by examining scar tissue several months later.

                exclusively on the testimony of his expert witness, forensic pathologist Homez Guard, who testified the homemade knife found near Perez in the yard could not have [4 Cal.App.4th 900] been the weapon used in the stabbing. 5  Guard based his opinion on his finding Rojas's wound was one and one-half inches deep and the opening was three-eights of an inch in width.  Guard opined if the knife found in the yard had been used to make a stab wound one and one-half inches deep, it would have left a much wider wound.  Guard also concluded the screwdriver-like weapon found inside the prison was consistent with Rojas's wound because of the depth, width, and shape of the wound opening
                

The eyewitness testimony of correction officer Ardilla established Perez struck Rojas in the neck with an object, causing Rojas serious injury. A weapon was found on the path on which Perez retreated after the attack. The jury was shown such weapon and heard testimony describing Rojas's injuries. There was, therefore, sufficient evidence to establish Perez was the individual who caused Rojas's injuries, including that he had the means to do so.

II. FARETTA MOTION

The court initially appointed attorney Evelyn Goldman to represent Perez. At one point early in the representation, Perez became angry at Goldman and spit at her. ⁶ Based upon this incident, the court relieved Goldman and appointed another attorney. Later, Perez successfully moved on two different occasions to substitute his appointed attorneys. (See People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.) ⁷ One day before his trial was scheduled, Perez made another Marsden motion to substitute his fourth attorney, Donald Levine. The court denied the motion.

On the day of trial, defense counsel unsuccessfully moved for a continuance to permit him to obtain additional witnesses and to petition for a writ from the denial of an earlier section 995 motion. After the "The Court: The record should indicate that I have returned to the bench without the jury panel being called in response to a message that I received before the panel could get through the door. What was that message, Mr. Levine?

court denied the continuance and minutes before jury selection was scheduled to begin, the following exchange took place between defense counsel, Perez and the Court:

"Mr. Levine: Message was Mr. Perez indicated to me he wanted to make a motion to go pro per.

"The Court: It is my understanding that there was a Marsden hearing in this matter within the last few days, was there not?

"Mr. Levine: We didn't address the issue of pro per.

"The Court: I understand you did not. When was that Marsden hearing?

"Mr. Levine: I think it was yesterday in front of Judge Revak.

"The Court: That's what I thought. [p] Is Mr. Perez prepared to go to trial this afternoon pro per?

"Mr. Levine: May I ask him?

"The Court: Yes.

"Mr. Levine: Defendant--He indicates he's not.

"The Court: In that case, the motion is untimely. I will not entertain it. [p] The Bailiff is directed to bring in the jury panel.

"Mr. Levine: Judge, Mr. Perez would like to address you.

"The Defendant: Can I address the court, your honor?

"The Court: No, I think not. You--

"The Defendant: If I stipulate for the record--

"The Court: These games have gone on long enough. You didn't make this motion yesterday when you found out that Mr. Levine was not going to be relieved. The necessity would be--and, you know, we have had motions for continuances on every ground, every which way, and that's what this is. I'm not going to continue the case. I'm not going to allow a substitution of counsel, and there's therefore no reason for me to listen to you at this point. [p] We have now come to the moment of truth. There is a jury panel in the hallway, and we are in session.... [p] Get the jury.

"The Defendant: Your honor--

"Mr. Levine: Judge--

"The Court: Get the jury. [p] And remember Mr. Perez, that this is your jury. As soon as they start coming through this doorway--

"Mr. Levine: He wants to proceed by himself, your honor. He's says he's ready to do that.

"The Defendant: I want to speak to the Judge.

"The Court: No, he's not ready to do that. The motion is denied."

Perez contends the court erred in ruling his self-representation motion was untimely and in failing to inquire into his reasons for requesting pro per status.

"A criminal defendant has a right under the Sixth and Fourteenth Amendments to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806, 807 [95 S.Ct. 2525, 2527, 45 L.Ed.2d 562]....) The defendant's right is absolute and unconditional if his motion is timely and if he is deemed competent to waive counsel. (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891 [144 Cal.Rptr. 610, 576 P.2d 93]....)" (People v. Hernandez (1985) 163 Cal.App.3d 645, 650, 209 Cal.Rptr. 809.) A motion is timely if it is asserted " 'within a reasonable time prior to the commencement of trial.' (People v. Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187]....)" (People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal.Rptr. 184, 771 P.2d...