People v. Price CA2/1

Filed 11/17/15 P. v. Price CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B257138
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA130337)
v.
ASHLEY LUTHER PRICE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Sean D.
Coen, Judge. Affirmed.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, William H. Shin and Wyatt Bloomfield, Deputy
Attorneys General, for Plaintiff and Respondent.
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A jury convicted Ashley Luther Price of attempted kidnapping and carjacking. He
appeals, arguing that the trial court abused its discretion when it revoked his propria
person status before trial and failed to reinstate that status after trial. We affirm.
BACKGROUND
An information charged Price with two counts of attempted kidnapping to commit
rape (Pen. Code,1 §§ 209, subd. (b)(1), 664), one count of unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)), one count of carjacking (§ 215, subd. (a)), and
one count of second degree robbery (§ 211). The information alleged that Price had one
prior conviction of a serious and violent felony, one prior conviction of a serious felony,
and one prior conviction for which a prison term was served.
At the preliminary hearing, Price was represented by the alternate public defender
(hereinafter, counsel). Price stated he had a private lawyer and was not ready. Price’s
counsel explained that a private lawyer had indicated he wanted to substitute in, but the
substitution motion had been denied as had a motion to continue the preliminary hearing.
Counsel had represented Price at the preliminary hearing.
Price pleaded not guilty and denied the allegations at his arraignment on
December 10, 2013. Price’s counsel informed the court that the private defense lawyer
had told counsel that the retainer had not been paid and wanted the arraignment
continued. Price stated he was not ready to move forward with current counsel. The
court conducted a hearing under People v. Marsden (1970) 2 Cal. 3d 118 (Marsden),
denied the Marsden motion, and set a further pretrial date.
At the next pretrial hearing on March 3, 2014, counsel informed the court he had
more investigation to finish and wanted a continuance; the court granted the motion.
Price asked to address the court, stated he had a complaint against counsel, and the court
conducted another Marsden hearing. When the court denied the Marsden motion, Price
stated he wanted to represent himself with cocounsel. The court denied the request to
appoint cocounsel and advised Price that although he had a constitutional right to self-
1 All further statutory references are to the Penal Code unless otherwise indicated.
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representation, the case was complicated and the court recommended he not represent
himself. Price withdrew his request, saying he needed time to think about it.
At a hearing on March 25, 2014, Price repeated that he wanted to invoke his
constitutional right to represent himself under Faretta v. California (1975) 422 U.S. 806
[95 S. Ct. 2525, 45 L. Ed. 2d 562] (Faretta), claiming his counsel was doing no
investigation. The court examined Price regarding his ability to represent himself when
trial began in two weeks. Saying, “I think this is not a good move on your part and it
better not be a delay tactic,” the court granted the Faretta motion and continued trial for
an additional two weeks. Price requested all discovery. The prosecutor agreed to provide
redacted discovery deleting the addresses and telephone numbers of the two 14 and 15
year old female victims of the alleged attempted kidnappings, both of whom would
testify at trial, “given the nature and the age of the victims. And there’s good cause to
believe they may still be in danger to him.” Full discovery would be provided if an
investigator was appointed. The court granted Price’s request with the addresses and
phone numbers of the victims redacted.
At a hearing on April 2, 2014 requested by the prosecutor, the court listened to a
recording of a jail telephone conversation from the afternoon of the day Price was granted
propria person status.2 The prosecutor expressed concern that Price was attempting to
recruit someone with outstanding warrants and who was not on the investigator’s list to
speak to the minor victims. Price responded that he was considering using him “just like
a private investigator,” with no ill will to the victims, but: “I’m innocent, you know what
I’m saying?” Price said it was not a stall tactic, “I was just throwing something out there
to him.” The court reminded Price that he had been advised that “by going pro per, it
should not be a delay tactic.” The court had heard Price on the recording soliciting
someone who was not a licensed investigator to make direct contact with the victims,
which was inappropriate and “very, very troubling,” and “you explicitly said that it was a
stall tactic and you wanted to buy time.” The court revoked Price’s propria person status,
2 The court marked the recording as an exhibit. No transcript is in the record.
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saying Price had abused that status and engaged in misconduct, and reappointed Price’s
counsel. The court stated that Price’s misconduct rose to a level “where I find it’s
necessary and appropriate to terminate the defendant’s pro per status,” found that Price
“intentionally sought to delay the trial proceedings,” and concluded that Price’s recorded
conversation “suggested witness intimidation, which would be a very serious level of out-
of-court misconduct.” The court reinstated Price’s lawyer and set the trial date.
Price filed a third Marsden motion on April 10, 2014, and on May 6, the first day
of trial, the court held a Marsden hearing and denied the motion. Price had also asked
that his propria person status be reinstated. Reminding Price that his self-representation
had been revoked for cause, and that trial was set to begin, the court denied the request.
The court denied two more Marsden motions during trial. The jury found Price
guilty of one count of the lesser included offense of attempted kidnapping and one count
of carjacking. After the verdict, Price stated, “I want to exercise my Faretta rights,” and
filed a written request. The trial court noted that it had previously granted Price’s request
to represent himself and had then revoked it, finding “that [he was] using [his] pro per
status as a stalling tactic as well as . . . [he] used [his] pro per status to intimidate
witnesses.” The court denied the request. Price was sentenced to 24 years and 8 months
in state prison. He filed this timely appeal.
DISCUSSION
The trial court has broad discretion to terminate a defendant’s right to self-
representation, and “the exercise of that discretion ‘will not be disturbed in the absence of
a strong showing of clear abuse.’” (People v. Welch (1999) 20 Cal. 4th 701, 735.) No
such abuse appears in this case.
Once a court has granted the defendant’s request to represent himself,
“[r]egardless of where it occurs, a court may order termination for misconduct that
seriously threatens the core integrity of the trial.” (People v. Carson (2005) 35 Cal. 4th 1,
6 (Carson).) The defendant’s out-of-court behavior during pretrial discovery can serve as
a basis for terminating his self-representation. (Id. at pp. 6–7, 9.) “One form of serious
and obstructionist misconduct is witness intimidation, which by its very nature
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compromises the factfinding process and constitutes a quintessential ‘subversion of the
core concept of a trial.’” “When a defendant exploits or manipulates his in propria
personal status to engage in such acts, wherever they may occur, the trial court does not
abuse its discretion in determining he has forfeited the right of continued self-
representation.” (Id. at p. 9.) Another ground for termination is that “the defendant has
‘intentionally sought to . . . delay his trial.’” (Id. at p. 10; see People v. Rudd (1998) 63
Cal. App. 4th 620, 626.)
Here, the record contains “the precise misconduct on which the trial court based
the decision to terminate.” (Carson, supra, 35 Cal.4th at p. 11.) When the trial court
granted Price’s request to represent himself, the court warned him “it better not be a delay
tactic,” and the prosecutor pointed out that discovery provided to Price would not contain
the addresses and telephone numbers of the two minor female victims (and witnesses),
who he believed might still be in danger; that information would not be provided until an
investigator was appointed. Price therefore had been warned. (Id. at pp. 11–12.) Yet in
a telephone conversation from jail that afternoon, Price solicited someone who was not a
licensed investigator and who had outstanding warrants to make direct contact with the
two minors. In the same conversation Price also explicitly stated that he was employing a
stall tactic to buy time. The court “explain[ed] how the misconduct threatened to impair
the core integrity of the trial” (id. at p. 11), and acted well within its discretion in
terminating Price’s propria person status for witness intimidation and intentional delay.
Price contends that the court should have considered other, lesser sanctions. A
relevant consideration is whether other sanctions were available, and if so, why they were
inadequate. (Carson, supra, 35 Cal.4th at p. 12.) Price suggests the court could have
assigned stand-by counsel who was ready to proceed if Price was not prepared, but does
not explain how that would have prevented Price from continuing to attempt to intimidate
the minor victim witnesses. Price also suggests the court should merely have warned him
not to contact the victims, but he had already been advised that he was not entitled to
have their contact information. In any event, lesser alternative sanctions are only one of
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the circumstances that informs the court’s exercise of its discretion, and “no one
consideration will be dispositive.” (Ibid.)
Price also challenges the trial court’s refusal to reinstate his propria person status
after trial and before sentencing. Price filed an “emergency ex-parte request” stating he
wanted to represent himself and file a new trial motion, asking the court to set a hearing
ten days after it granted his request, and requesting the full trial transcript, the case file, a
defense investigator, and funds for supplies and for the telephone. The trial court denied
the request, reminding Price that it had revoked his propria person status on evidence of
intentional delay and witness intimidation.
As to witness intimidation, at trial the prosecutor introduced recordings of jail
telephone calls and evidence that Price had made over 2050 phone calls to the carjacking
victim, 239 of which went through. Excerpts were played in which Price attempted to
influence her testimony and get her to discourage her mother from testifying. Price also
called another witness 57 times. At the prosecutor’s request, the court gave instructions
that a defendant’s attempts to persuade a witness to give false testimony and to prevent a
witness from testifying could serve as circumstances tending to show a consciousness of
guilt.
In addition, a review of the record shows that Price repeatedly disrupted the trial
proceedings. After the first alleged victim witness testified, the court admonished Price
(outside of the jury’s presence) that he had said something during her testimony loud
enough for the court to hear, and if it happened again, the court would warn Price in front
of the jury. During the second alleged victim’s testimony, the court had to admonish
Price in the presence of the jury. During a sidebar, the court heard a noise that the bailiff
said was Price pushing documents off the table, and warned Price that if he disrupted
court proceedings again, “I will place what was observed on the record and you will be
back in lock-up for the remainder of the trial.” After the beginning of the prosecutor’s
closing argument, Price interjected, “Shut up.” The court admonished him to “knock it
off,” and Price continued, “I couldn’t help it. I’ve been telling—,” at which point the trial
court was compelled to repeat, “Mr. Price, knock it off.”
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Given Price’s efforts to influence witnesses to give false testimony or not to
appear, in combination with his disruptive behavior during trial, the trial court had more
than reasonable grounds to believe Price’s earlier behavior would continue, and granting
his request to reinstate his propria person status would lead to more delay and disruption.
The court acted within its discretion when it denied Price’s request for reinstatement of
propria person status.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
CHANEY, Acting P. J.
LUI, J.
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