COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA

E019322

(Super.Ct.No. RCR-22218)

OPINION

THE PEOPLE,
Plaintiff and Respondent,

v.

COTTON JOE JONES,
Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Robert E. Law (Retired Judge of the Municipal Court for the Central Orange County Judicial District, assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) and Jacob H. Jager (Judge of the Municipal Court, assigned by the Chief Justice pursuant to art. VI,  6, of the Cal. Const.), Judges.1 Affirmed.

John L. Dodd, by appointment of the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, Megan J. Beale and Crystal L. Bradley, Deputy Attorneys General, for Plaintiff and Respondent.

After defendant Cotton Joe Jones (defendant) was convicted of murder, we granted his petition for writ of habeas corpus on the ground that the trial court had erroneously denied his request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].

Defendant was not returned to court until 11 days before the 60-day statutory deadline for retrial. (Pen. Code,  1382.) He was thereupon allowed to represent himself. Nevertheless, after a second trial, he was convicted of murder again.

In the published portion of our opinion, we consider defendant's contention that the testimony of certain witnesses from his first trial was inadmissible under the former testimony exception to the hearsay rule because, having been denied his right to represent himself at his first trial, he never had the opportunity to cross-examine these witnesses personally. We will hold defendant's opportunity to cross-examine, albeit through his appointed counsel, at the first trial was sufficient to satisfy the requirements of both the former testimony exception and the federal and state confrontation clauses. We will also hold the violation of defendant's right to represent himself does not require the exclusion of the former testimony as a remedy.

In the unpublished portion of our opinion, we consider defendant's additional contentions that (1) he was unable to prepare adequately for trial, because he was not transported promptly to court and because, once he was transported, he was not allowed adequate facilities for legal research and trial preparation; and (2) he was improperly forced to choose between his right to a speedy trial and his right to prepare adequately for trial.

I

FACTUAL BACKGROUND

The evidence of defendant's guilt is not particularly relevant to this appeal; it suffices to note the following. Around 8:30 p.m. on September 27, 1992, defendant flagged down several drivers in a somewhat remote area. He told them, "Somebody shot my wife. Go call the cops." The dead body of defendant's wife was found lying next to her orange Volkswagen. Two blasts from a .12-gauge shotgun had struck her in the back. A gunshot residue (GSR) test indicated defendant had recently fired a gun.

Defendant gave numerous inconsistent accounts of how his wife had died. Defendant worked as an exotic dancer. He told police he and his wife had driven to the area so he could perform a private dance for her. He had walked perhaps a hundred yards away to make sure they were alone; when he returned, he found she had been shot. He told police he did not hear a gunshot (although he had told one of drivers he stopped he did hear a gunshot). Later, defendant told police he had begun dancing for his wife when he heard a gunshot. There was a man with a gun standing next to the car; in the darkness, he could not see the man's face. Still later, defendant told police three men from whom he had stolen drugs had shot his wife. Finally, he told police "he had some problems with 5 people and . . . he shot and killed 2 of these people and the 3 remaining people were friends or relatives of the 2 people that he had killed, and the people that killed [his wife] . . . were the relatives of the 2 people he killed."

In July 1992, defendant had separated from his wife and moved in with a new girlfriend. Recently, he had borrowed (but not returned) a .12-gauge shotgun. He owed various creditors, including his wife, about $45,000; he was the beneficiary of a $150,000 insurance policy on his wife's life. After defendant was arrested, he asked his girlfriend to look for the life insurance policy and "get rid of it." Defendant's brother told friends the police could not find the murder weapon "because I took it to some friends of mine and had it ground into 1000 little pieces."

II

PROCEDURAL BACKGROUND

A. The First Trial.

On December 29, 1992, an information was filed charging defendant with one count of murder (Pen. Code,  187, subd. (a)) and alleging for enhancement purposes that defendant personally used a firearm (Pen. Code,  12022.5, subd. (a)(1)). After defendant was convicted, he filed his first appeal (Case No. E013127), but we affirmed the judgment.

On July 26, 1995, defendant filed a petition for writ of habeas corpus with this court (Case No. E016658). On January 12, 1996, we issued our opinion granting defendant's habeas petition. We held the trial court had erred by denying defendant's request to represent himself. We further held defendant's appellate counsel had rendered constitutionally ineffective assistance by failing to raise this as an issue in his appeal.

On March 13, 1996, we issued our remittitur. (Cal. Rules of Court, rule 25(a).) On March 14, 1996, the trial court received and filed the remittitur, together with our opinion. Accordingly, the case was subject to dismissal unless brought to trial by May 13, 1996. (Pen. Code,  1382, subd. (a)(2).)

B. The Second Trial.

On March 19, 1996, the People moved to have defendant brought to court for trial. (Pen. Code,  1567, 2620.) The trial court granted the motion. However, because its order contained a typographical error as to defendant's California Department of Corrections (CDC) number, defendant was not transported.

Defendant has consistently claimed that on March 19, 1996, he filed a motion asserting his right to a speedy trial; and on March 21, 1996, he filed his own motion to be brought to court. Neither of these motions, however, is in the trial court file.2 Moreover, the prosecution never filed any opposition or other response to any such motions.

On April 22, 1996, the People filed a new motion to have defendant brought to court for trial, this time with defendant's correct CDC number, and the trial court granted the motion.

On Thursday, May 2, 1996, at a trial-setting conference, defendant made a Faretta motion. The trial court set a hearing on the motion for May 6, 1996, and set trial for May 13, 1996. Meanwhile, it granted defendant's motion for "weekend status in [the] library." It also ordered the People to provide discovery to defendant.

Over the weekend, despite the court's order, defendant was not allowed to use the jail law library. Apparently the jail officials would not allow him to do so until the trial court had actually granted a Faretta motion.

On Monday, May 6, 1996, the trial court granted defendant's Faretta motion. The prosecutor gave defendant the transcript of the first trial. The prosecutor also agreed to give defendant transcripts of tape recordings introduced into evidence at the first trial and, if defendant could not get them from his former public defender, the tapes themselves.

The trial court inquired, "I'm interested in knowing whether [defendant] actually wants to start next Monday. If that will give him sufficient time, or if he would like to put it over a week or two." This discussion followed:

"THE COURT: . . . I don't know how they treat you in the jail in terms of allowing you books, pencils, pens."

"MR. JONES: In the words of the deputy of the jail as far as your court order, 'We don't give a damn.'

"THE COURT: Yeah, I know.

"MR. JONES: That's how your court order went over Friday and Saturday and Sunday.

"THE COURT: You were to have library access and you didn't get it then?

"MR. JONES: Exactly."

The trial court ordered that defendant be brought to the courthouse every day, and that one of the holding cells be turned into a "study room" for him: "[O]nly then can I see that you have access to pens and things to write with and so on. And to the extent I can find someone to get books from the library, we'll find some sort of reasonable way we're going to do it." "You know where the cells are. You pick one. . . . [A]t least it will be yours to get research done uninterrupted. I know there's no phone, but you can send requests right up the elevator to me. It makes it easier." Defendant responded, "There is a phone in the hall, as well." The trial court continued, "[A]ny requests you have with regards to whatever you need, for purposes of getting ready for trial, you write it down. . . . [] 'Here's what I need for me to . . . get ready and so on.'"

Defendant indicated he was allowed to have the case file in his jail cell; he had all the paper he wanted and a pencil, but no pencil sharpener, and no pen. He claimed any writ petition filed with the Court of Appeal, if not typewritten, had to be in black ink. He had not yet been able to determine whether he could have a tape recorder. The trial court summoned a lieutenant from the Marshal's Office and told him defendant was to be given "a cell, his choice," a pen, pencils, paper and a tape recorder.

Also on May 6, 1996, defendant filed a motion to dismiss on the ground that the delay in having him transported to court violated his right to a speedy trial and/or his right to prepare adequately for trial.

On May 7, 1996, the trial court denied defendant's motion to dismiss. Defendant's former appointed counsel turned over his files to defendant. The trial court arranged for defendant to review the exhibits from the first trial. At defendant's request, it appointed advisory counsel. It also ordered that defendant be given a legal runner.

On Friday, May 10, 1996, at a pretrial conference, defendant said he was not ready for trial: ". . . I am still waiting for some transcripts to be made so . . . I believe it is going to be at least one week." However, he refused to waive his right to a speedy trial. Accordingly, the trial court declined to continue the trial.

On Tuesday, May 13, 1996, jury selection began, and the jury was sworn. On May 14, 1996, the presentation of evidence began. On May 15, 1996, the trial court appointed an investigator for defendant. On June 5, 1996, the jury found defendant guilty of first degree murder; it found the personal arming allegation true.

C. Defendant's Motion to Set Aside the Jury Verdict.

On July 26, 1996, defendant filed a motion to set aside the jury verdict, essentially arguing the prosecution and the jail authorities had prevented him from preparing adequately for trial.

On July 31, 1996, the trial court held a hearing on defendant's motion to set aside the jury verdict. To the extent the motion was based on defendant's belated transportation to court, the trial court stated it had already decided the matter in ruling on defendant's motion to dismiss. To the extent it was based on defendant's lack of access to a law library and other difficulties after he was transported, the trial court held an evidentiary hearing. The evidence at the hearing showed that:

The jail law library was open Monday and Tuesday, from 8:30 to 10:30 a.m.; Wednesday, from 8:30 a.m. to 4:30 p.m.; and Thursday and Friday, from 12:30 to 2:30 p.m. An inmate could use it twice a week, for a maximum of two hours each time. Books could not be taken out of the library.

On May 6, the jail received a court order granting defendant pro per privileges. Until it received such an order, defendant could not use the law library.

According to the law library logs, defendant used the law library for two hours on May 8; two hours on May 9; two hours on May 15; two hours on May 17; one and a half hours on May 23; two hours on May 24; two hours on May 27; and two hours on June 6. On May 31, he refused to use the law library. The law librarian testified that several times she let defendant use the library for an extra 15 to 30 minutes; she did not record this additional time in the logs.

According to the law librarian, once an inmate was found guilty, absent a new court order, he or she could no longer use the law library. According to the Sheriff's written policy, however, an inmate could use the law library until sentencing. From June 5, when defendant was found guilty, through July 26, when he was sentenced, he was allowed to use the law library nine times.

The telephone in the law library allowed collect calls only. This conflicted with the Sheriff's written policy, which provided, "All phone calls are at inmate's expense." Defendant testified this prevented him from calling the court, the district attorney's office, and potential witnesses for the defense. He wanted to locate and consult with a GSR test expert but was unable to do so.

Inmates had access to typewriters, a copying machine, paper, pencils, and erasers. Absent a court order, they had to pay for the paper, pencils, and erasers. Inmates were not supposed to have pens. However, one deputy testified he let defendant use a pen. The law librarian testified she gave defendant all the "motion paper" (ruled and numbered typing paper) he wanted. Defendant denied this but admitted he was able to prepare motions using paper he had brought from prison.

On or about May 7, the prosecution gave defendant pencils, file folders, post-it notes, rubber bands, and other office supplies. Defendant testified that, when he returned to jail, all these supplies (other than the file folders) were confiscated.

An inmate's cell could be searched whether the inmate was present or not. Such a search could extend to files marked "legal material." Any contraband would be seized. Slides were considered contraband. Defendant testified that on or about May 8, when he returned from court, he found his cell had been searched, and slides showing the crime scene and the victim were missing.

Defendant was allowed to use a conference room in jail so he would have "a quiet area, [a] secure area where he would not be bothered so that he could work on his motions."

Whenever defendant was at court, he was given a room to work in, including a tape recorder. He testified he was able to use this room for a total of about 20 hours.

According to defendant, the jail had "an unwritten policy" that inmates could not have tapes or use tape players. As a result, he was unable to listen to about 20 tapes which the prosecution had given him. He admitted he could "prepare and listen to the tapes" at court, but testified he did not have time to listen to all the tapes.

Defendant admitted that, as long as he was in state prison, he was fully able to do legal research. An inmate could use the prison law library up to seven hours a day, from Tuesday through Saturday.

The trial court denied defendant's motion to vacate the jury verdict. It thereupon sentenced defendant to 29 years to life in prison.

III

DEFENDANT'S ABILITY TO PREPARE FOR TRIAL

Defendant contends he was erroneously forced to choose between his right to a speedy trial and his right to prepare adequately for trial. He further contends that, because he insisted on his right to a speedy trial, his right to prepare adequately for trial was violated.

A. Forced Election Between the Right to a Speedy Trial and the Right to Prepare Adequately for Trial.

"[P]risoners have a constitutional right of access to the courts." (Bounds v. Smith (1977) 430 U.S. 817, 821 [97 S.Ct. 1491, 52 L.Ed.2d 72].) This "fundamental constitutional right . . . requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." (Id., at p. 828, fn. omitted.)

A right of access to a law library and other necessary materials also arises from the Sixth Amendment right of self-representation. (Wilson v. Superior Court (1978) 21 Cal.3d 816, 822-823.) "A self-represented or 'pro per' defendant must be given adequate time and opportunity to prepare for trial. [Citations.]" (People v. Sherrod (1997) 59 Cal.App.4th 1168, 1175.) "[A] prisoner awaiting trial who wishes to represent himself should . . . , at a minimum, be allowed reasonable access to such legal materials as are available at the facility in which he is confined. Having thus stated the minimum requirements, we leave to the sound discretion of the trial judge the implementation of the rule, noting only that in many felony cases the minimum may not be sufficient." (People v. Carter (1967) 66 Cal.2d 666, 671-672, fn. omitted.) Finally, a right to prepare adequately for trial also arises from the right to due process. (See People v. Kirkland (1994) 24 Cal.App.4th 891, 916, and cases cited; People v. Schulz (1992) 5 Cal.App.4th 563, 573-574.)

Defendant cites various cases for the general proposition that he cannot be required to elect between two constitutional rights. (E.g., Shapiro v. Thompson (1969) 394 U.S. 618 [89 S.Ct. 1322, 22 L.Ed.2d 600]; United States v. Jackson (1968) 390 U.S. 570 [88 S.Ct. 1209, 20 L.Ed.2d 138]; Aptheker v. Secretary of State (1964) 378 U.S. 500 [84 S.Ct. 1659, 12 L.Ed.2d 992].) While this appeal was pending, however, the California Supreme Court decided a case closely in point, People v. Frye (1998) 18 Cal.4th 894. There, after the defendant's original counsel withdrew, the defendant repeatedly waived his right to a speedy trial to allow new counsel to be appointed and available to represent him. On appeal, he argued he had been improperly forced to choose between his right to a speedy trial and his right to the effective assistance of counsel. (Id. at p. ___ [72 Cal.Rptr.2d 25, 44].) The Supreme Court held: "[T]he inherent tension between the right to a speedy trial and the right to competent, adequately prepared counsel is not, in itself, an impermissible infringement on the rights of the accused, including the right to a fair trial." (Id. at p. ___ [72 Cal.Rptr.2d at p. 45].) "Some rights are mutually exclusive. For example, a criminal defendant has a right to remain silent and a right to testify on his own behalf. He cannot do both, and hard choices are not unconstitutional." (Id. at p. ___ [72 Cal.Rptr.2d at p. 45].) Here, we believe the same is true of the right to a speedy trial and the right to prepare adequately to represent oneself at trial.

Defendant may try to distinguish Frye by arguing that there, the need for a continuance was not precipitated by the People, but rather by the withdrawal of the defendant's original appointed counsel, whereas here, it was precipitated by the People's failure to have him transported promptly to court. The point would be that the People should not be allowed to impose a "hard choice" on him that would not otherwise exist.

In reality, however, the need for a continuance was in no way due to the prosecution's failure to have defendant transported to court. It arose entirely from defendant's own inaction. Defendant does not claim that, while in prison, he lacked access to a law library or any other necessities of trial preparation. To the contrary, he admitted being in state prison was "not a hinderance [sic] in legal research . . . ." In light of the claimed shortcomings of the county jail, the failure to transport defendant may have left him, if anything, better off.

On January 12, 1996, we issued our opinion granting defendant's habeas petition. From the moment defendant received it, he was on notice to begin preparing for trial. At a minimum, he could have written to his own previously appointed counsel to request the case files. Then, after March 14, 1996, when the trial court received and filed the remittitur, defendant could have filed a written Faretta motion. As soon as such a motion was granted and perhaps even before he could have moved to retain investigators, legal runners, and experts; he could have requested discovery from the prosecution.

Defendant could even have filed his own motion to be transported to court. Indeed, he claims he did file such a motion, although he also claims the trial court erroneously failed to act on it; however, no such motion is in the record. Moreover, the prosecution never filed any opposition to any such motion, strongly suggesting one was never properly filed.

Defendant cites no authority for the proposition it was the prosecution's duty to have him transported to court. Of course, in a criminal case, there are many hearings at which the defendant's personal presence in court is required. (See Cal. Const., art. I,  15; Pen. Code,  977, subd. (b), 1043, 1043.5, 1148, 1193.) If the prosecution fails to have the defendant transported for such a hearing, it runs the risk the hearing simply cannot take place. However, we know of no authority requiring the prosecution to have the defendant transported to court to assist the defendant in his or her trial preparation.

The case that comes closest to supporting defendant's position in this respect is People v. Malone (1987) 192 Cal.App.3d 1096. There, the defendant's conviction had been reversed on appeal. He was transported to court just 10 days before the 60-day time limit for retrial was due to run. His previously appointed attorney indicated he could not be ready for trial within the 60 days. However, the defendant refused to waive time. The trial court therefore set the case for trial within the 60 days. When the case was called for trial, the defendant, claiming his attorney was unprepared, demanded a different attorney. He also challenged the judge for cause. However, he continued to demand a trial within the 60 days. (Id., at pp. 1100-1101.) Ultimately, a different attorney was appointed, and the case was reset for trial outside the 60 days. (Id., at p. 1102.)

On appeal, the defendant argued he had been forced to choose between his right to a speedy trial and his right to effective counsel. The appellate court responded, in part: "Acceptance of appellant's arguments regarding the 50-day delay between the filing of the remittitur and his first appearance in court, has no legal support and could establish some very dangerous precedents. Arguably, we can agree that 50 days is an unreasonably long period of time to get appellant back into court. However, there is no designated statutory period within which a defendant must be returned from the state prison to the county for retrial. Generally, a defendant will not be brought back for retrial until a remittitur is filed. Necessarily, there will be delays for administrative reasons. It would be difficult, if not impossible, for this court to determine what a proper period would be." (People v. Malone, supra, 192 Cal.App.3d at p. 1104.)

The court, however, continued: "Although there is some allure to the notion that because the authorities were to blame for failing to return appellant . . . for 50 days, and that as a result appellant is prejudiced because no attorney can prepare adequately for trial in 10 days, forcing him to forfeit one right for another, the circumstances of this case justify a rejection of the argument. Both attorneys associated with appellant's case noted it would take them longer than three months to prepare adequately for trial. Consequently, even if appellant had been returned to Merced County soon after the filing of the remittitur, it is likely a waiver of the 60-day period would have been necessary." (People v. Malone, supra, 192 Cal.App.3d at p. 1104.)

The People understandably rely on the first portion of Malone, which suggested there is no particular time by which a defendant must be returned to court. Defendant, equally understandably, relies on the second portion of Malone, which found "some allure" in the proposition that the defendant should have been transported to court sooner but concluded his attorneys would have been unprepared in any event. We believe neither of these alternative holdings can be dismissed as dictum. (Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3.) However, Malone never held the People did have an obligation to have the defendant transported so as to assist him in his trial preparation. At most, it assumed this for the sake of argument. Thus, the first portion, rejecting a duty to return the defendant to court by any particular deadline, is most on point here.

At any rate, in Malone having the defendant transported to court did, in fact, assist his trial preparation. There, the defendant was not representing himself. New counsel had to be appointed for him (or his previously appointed counsel had to be reappointed) before the defense could begin preparing for trial. This would not ordinarily happen until the defendant was transported to court. Here, by contrast, we had already held defendant had the right to represent himself; defendant intended to represent himself. Accordingly, there was nothing to prevent him from preparing for trial even before he was transported.

Of course, defendant also complains that between May 2 and May 13, when jury selection began, he was unable to prepare adequately for trial due to the county jail's failure to provide sufficient access to the law library, pens, pencils, etc. Defendant has never claimed, however, that, even aside from the failure to transport him promptly to court, the deficiencies of the county jail's pro per system, standing alone, would have prevented him from preparing adequately. In fact, at trial he claimed he could have been ready for trial if he only had one more week in which to review unspecified transcripts.

We conclude defendant could be required to choose between a trial within the statutory 60-day period and the ability to prepare adequately for trial. Any rational defendant who was legitimately seeking to be acquitted, and not just to sow error, would have chosen a continuance. By refusing a continuance and insisting on a trial within the 60-day period instead, defendant brought any inability to prepare for trial upon himself.

B. Violation of the Right to Prepare Adequately for Trial.

As we held in part III.A, ante, the question of whether defendant was denied an adequate opportunity to prepare for trial because he was not transported promptly to court is a red herring. The question of whether defendant was denied an adequate opportunity to prepare for trial after he was transported is somewhat more difficult.

The jail's pro per policies on their face do not appear adequate to safeguard self-represented inmates' rights. Inmates were allowed only four hours a week in the law library. If an inmate has already been convicted, so that he or she is merely concerned with preparing a petition for writ of habeas corpus or other post-conviction relief, this might be enough. (See Zatko v. Rowland (N.D. Cal. 1993) 835 F.Supp. 1174, 1177-1178; but see Cepulonis v. Fair (1st Cir. 1984) 732 F.2d 1, 4 [three hours a month "invite[s] scrutiny"]; Cruz v. Hauck (5th Cir. 1980) 627 F.2d 710, 720 [two or three hours a week; "We have some reservations about whether this amount of time is adequate to do meaningful legal research"]; Williams v. Leeke (4th Cir. 1978) 584 F.2d 1336, 1340 [three 45-minute sessions a week constitutionally inadequate], cert. den. (1979) 442 U.S. 911 [99 S.Ct. 2825, 61 L.Ed.2d 276].) However, if an inmate is preparing for trial, or is in trial, we find it hard to believe four hours a week would be sufficient. (See Johnson-El v. Schoemehl (8th Cir. 1989) 878 F.2d 1043, 1052-1053 [for pretrial detainees, two hours a week "is obviously inadequate to research most legal claims"].)

Also, we are surprised to find that inmates are allowed to make only collect calls. In re Grimes (1989) 208 Cal.App.3d 1175 held a collect-only telephone system was inadequate to secure pretrial detainees' right of access to the courts. (Id., at p. 1182.) Admittedly, in Grimes, the vice of the collect-only telephone system was that it made it difficult for inmates to call their attorneys. Where an inmate is self-represented, however, it would seem that making it equally difficult to call the court, opposing counsel, and witnesses is an equivalent violation. Moreover, here, the collect-only rule was not part of the Sheriff's written pro per policy, which merely provided, "All phone calls are at inmate's expense." Thus, there is no evidence of any considered penological justification for the collect-only rule.

Nevertheless, defendant waived the asserted violation of his rights by failing to raise it in a timely manner below. Until the trial was over, defendant never complained about the fact that the jail law library was open only four hours a week. It is true that, on May 6, he objected strenuously that the jail had not honored the trial court's order purporting to grant him law library privileges. He also objected that he was not allowed a pen or a pencil sharpener in jail. At that very hearing, however, the trial court granted defendant's Faretta motion. This gave him access to the jail law library, including a typewriter. The trial court also ordered that defendant be given a "study room" with pens and pencils. Defendant never suggested to the trial court these remedies were in any way inadequate.3

Similarly, until the trial was over, defendant never complained about the jail's collect-only telephone policy. To the contrary, he affirmatively assured the trial court he could make telephone calls from a phone in the hall at the courthouse.

Defendant now claims that, on May 7, the jail authorities confiscated the office supplies the prosecutor had given him. He also claims that, on May 8, they confiscated certain slides. Once again, however, defendant did not bring these claims to the attention of the trial court in time for it to remedy them. And finally, defendant made no timely claim that he was not able to listen to the tape recordings.

By failing to raise these claims promptly below, defendant waived them. "'Generally speaking, the rationale underlying the rule requiring objection below as a prerequisite to complaint on appeal regarding some error by the trial court is predicated on the premise that, in its absence, the People would be deprived of the opportunity to cure the defect in the trial court and the defendant would be allowed to gamble on a favorable result secure in the knowledge that if he did not prevail there, he would be able to prevail on appeal. [Citation.]' [Citation.]" (People v. Newlun (1991) 227 Cal.App.3d 1590, 1604, cert. den. 502 U.S. 927 [112 S.Ct. 345, 116 L.Ed.2d 284], quoting People v. Jones (1980) 111 Cal.App.3d 597, 605.) "As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (People v. Scott (1994) 9 Cal.4th 331, 353.)

Defendant raised these claims for the first time in the form of a motion to vacate the jury verdict. Although there is no statutory authority for such a motion, "[a] motion to vacate the judgment is recognized as equivalent to a petition for a writ of error coram nobis. [Citation.] Generally, three requirements must be met before a coram nobis writ is issued: '(1) [T]he petitioner has shown that some fact existed which, without fault of his own, was not presented to the court at trial on the merits, and which if presented would have prevented the rendition of judgment; (2) the petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) the petitioner has shown that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.' [Citation.]" (People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312-1313, fn. omitted, quoting People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618-1619.) Clearly defendant could not do so.

Alternatively, even if defendant's motion to vacate is viewed as a motion for new trial, his claims were untimely. (See People v. Mayorga (1985) 171 Cal.App.3d 929, 936-941 [Hitch claim that prosecution failed to preserve favorable evidence could not be raised for the first time in motion for new trial], cert. den. (1986) 476 U.S. 1172 [106 S.Ct. 2898, 90 L.Ed.2d 984].)

The trial court expressly invited defendant to ask it for anything he might need. It had the power to cure all the disabilities under which defendant now claims he was laboring. We are forced to suspect defendant simply did not want to prepare for trial. The prosecution had an extremely strong case. Defendant had already been through one trial in which, even though he was represented by well-prepared and competent counsel, a jury found him guilty. Defendant soon perceived the jail was a terrible place in which to prepare for trial, but the trial court was eager to rescue him from it. He decided his best bet was to suffer in silence. Alas for him, the possibility of this scenario demands that we apply the objection and waiver rule.

We also reject defendant's contention for a second, alternative reason. A self-represented defendant who claims a denial of the right to prepare adequately for trial must show actual prejudice. (People v. Stansbury (1993) 4 Cal.4th 1017, 1046-1047 [self-represented defendant claiming cell searches interfered with his trial preparation failed to show prejudice], revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293]; People v. Smith (1985) 38 Cal.3d 945, 952-953 [self-represented defendant claiming he was denied access to CALJIC failed to show prejudice]; see also Lewis v. Casey (1996) 518 U.S. 343, 351 [116 S.Ct. 2174, 135 L.Ed.2d 606] [in civil rights action, prisoner claiming inadequate access to law library must "demonstrate that the alleged shortcomings . . . hindered his efforts to pursue a legal claim."].) Otherwise, while the defendant may not have been able to prepare as much as he or she would like, there has been no violation of the right to prepare adequately.

After all, the self-represented defendant, by definition, is in charge of the defense. He or she may fail, intentionally or negligently, to demand the necessary resources or to take full advantage of the resources potentially available. But a defendant who has not exercised due diligence cannot complain a lack of time to prepare for trial violated due process. (People v. Grant (1988) 45 Cal.3d 829, 844, cert. den. (1989) 488 U.S. 1050 [109 S.Ct. 883, 102 L.Ed.2d 1006].) And "a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.'" (Faretta v. California, supra, 422 U.S. at p. 834.)

Defendant has never demonstrated additional legal research would have revealed authority that would have helped his case. He has never shown that the ability to make non-collect calls would have helped him develop favorable evidence. Defendant did testify the collect-only rule prevented him from contacting an expert on the GSR test. The prosecution's GSR evidence, however, was compelling; there is no reason to suppose defendant could have located an expert who would have found fault with it. In any event, defendant presumably could have contacted expert witnesses, and anyone else he wanted, through his advisory counsel and/or his legal runner.4 Finally, defendant has not shown that viewing the slides or listening to the tape recordings would have made any difference to his ability to defend himself.

We conclude that, even assuming defendant was unable to prepare adequately for trial, he has not shown he preserved the claimed error by objecting timely at trial; and he has not shown any actual prejudice. Any error therefore is not reversible.

IV

THE ADMISSIBILITY OF TESTIMONY FROM THE FIRST TRIAL,
AT WHICH DEFENDANT WAS DENIED THE RIGHT TO REPRESENT HIMSELF,
UNDER THE FORMER TESTIMONY EXCEPTION

Defendant contends that, because he was denied his constitutional right of self-representation at his first trial, the testimony of witnesses who had since become unavailable was not admissible under the former testimony exception to the hearsay rule. Although this appears to be a question of first impression, analogous authority leads us to reject defendant's contention.

A. Factual Background.

The prosecution moved in limine to introduce the testimony of witnesses Angela Cantu, Francis Glascoe, and Lisa Watson from defendant's first trial under the former testimony exception to the hearsay rule. (Evid. Code,  1291.)5

Defendant objected: "My contention here is strictly based on the first trial, [appointed counsel] did the cross-examination. He did the cross-examination after I was denied the opportunity to self-representation. [] In doing that, I don't have the opportunity to confront the witnesses. They weren't confronted in the manner that I would have done, that I would have chosen nor I would have liked. So just by reading their testimony will still continue to deprive me of the opportunity to cross-examine those witnesses, to build something that would be better for my defense versus what is originally in the transcript." The trial court overruled this objection.

The next day, defendant renewed his objection. He argued his appointed counsel had refused to ask Glascoe, in particular, certain questions defendant had wanted him to ask. The trial court declined to change its ruling. Thereafter, the former testimony of Cantu, Glascoe, and Watson was read into the record.

B. Analysis.

There are three possible grounds for exclusion of the former testimony: (1) the Evidence Code, (2) the confrontation clause, and (3) the Sixth Amendment right of self-representation. Defendant's objection at trial adequately asserted all three grounds. The first two are interrelated; we will discuss them first. The third, however, requires separate discussion.

1. The Evidence Code and the Confrontation Clause.

The evidence was admissible under the former testimony exception if defendant "had the right and opportunity to cross-examine" the witnesses at the first hearing. (Evid. Code,  1291, subd. (a)(2).) Assuming the evidence was admissible under the former testimony exception, its admission did not violate defendant's state or federal confrontation rights. (People v. Ramos (1997) 15 Cal.4th 1133, 1164, cert. den. (1998) ___ U.S. ___ [118 S.Ct. 1315, 140 L.Ed.2d 478].) When the defendant's right to effective cross-examination is balanced against the public's interest in effective prosecution, a prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial. (People v. Zapien (1993) 4 Cal.4th 929, 975, cert. den. 510 U.S. 919 [114 S.Ct. 315, 126 L.Ed.2d 262].)

What is crucial for purposes of both the former testimony exception and the confrontation clause is whether the previous opportunity for cross-examination was effective. Thus, if the trial court had refused to appoint counsel for defendant and had forced him to represent himself at the first trial, the testimony of witnesses who subsequently became unavailable would not have been admissible at the second trial. (Pointer v. Texas (1965) 380 U.S. 400, 406-408 [85 S.Ct. 1065, 13 L.Ed.2d 923].) This is not because defendant's right to counsel would have been violated (id., at pp. 402-403), but because the assistance of counsel tends to promote effective cross-examination. (Id., at p. 407.)

Even ineffective assistance of counsel at the first trial need not render former testimony inadmissible, unless the ineffective assistance actually affected the cross-examination. In Mancusi v. Stubbs (1972) 408 U.S. 204 [92 S.Ct. 2308, 33 L.Ed.2d 293], the defendant kidnapped a husband and wife, then shot each of them in the head; the wife died, but the husband survived. Largely as a result of the husband's testimony, the defendant was convicted of murder, assault with intent to commit murder, and two counts of kidnapping. (Id., at pp. 207-208.) Nine years later, a federal court granted his petition for writ of habeas corpus on the ground that his former attorney, who had been appointed four days before the first trial began, rendered ineffective assistance. By the time of the second trial, the husband had become unavailable. Over the defendant's objection, the husband's testimony at the first trial was admitted into evidence. The defendant was again convicted. (Id., at p. 209.)

The defendant argued that cross-examination by an attorney who was later found to have rendered ineffective assistance was inadequate to satisfy the confrontation clause. (Mancusi v. Stubbs, supra, 408 U.S. at p. 214.) The Supreme Court disagreed. It reasoned, first, the habeas ruling was not res judicata because it was based on a "per se rule" (later overruled) that ineffective assistance "was conclusively presumed from the short interval between the time of counsel's appointment and the date of the trial"; and second, the defendant had failed to show there was "any new and significantly material line of cross-examination that was not at least touched upon in the first trial." (Id., at pp. 214-215.)

The court therefore held: "Since there was an adequate opportunity to cross-examine [the witness] at the first trial, and counsel . . . availed himself of that opportunity, the transcript of [the witness's] testimony in the first trial bore sufficient 'indicia of reliability' and afforded 'the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' [citation]." (Mancusi v. Stubbs, supra, 408 U.S. at p. 216, quoting Dutton v. Evans (1970) 400 U.S. 74, 89 [91 S.Ct. 210, 27 L.Ed.2d 213].)

Similarly, in People v. Ceja (1994) 26 Cal.App.4th 78, the defendant claimed the trial court erred by admitting the testimony of a preliminary hearing witness without holding a hearing on whether the defendant's attorney had rendered ineffective assistance at the preliminary hearing. The appellate court affirmed. It noted that, according to the record of the preliminary hearing, the cross-examination had been effective. Also, "[i]n arguing that he should be allowed a hearing to determine the effectiveness of the preliminary hearing counsel, trial counsel could not say what questions should have been asked on cross-examination at the preliminary hearing or that he in fact would have asked those questions. On this record, appellant has failed to establish that he was denied effective assistance of counsel for purposes of cross-examining [the] witness . . . at the preliminary hearing." (Id., at p. 88, fn. omitted.)

Defendant relies on Stevenson v. Superior Court (1979) 91 Cal.App.3d 925. There, after a preliminary hearing at which the victim testified, the defendant was held to answer. Thereafter, the defendant was found incompetent to stand trial. He later became competent and was returned to court for a new preliminary hearing. Meanwhile, the victim had become unavailable; his testimony at the first preliminary hearing was introduced at the second preliminary hearing under the former testimony exception. The defendant was held to answer again. (Id., at pp. 927-928.)

The defendant sought a writ of prohibition. (Stevenson v. Superior Court, supra, 91 Cal.App.3d at p. 927.) He argued that, because he was incompetent, even though he had appointed counsel, he did not have an adequate opportunity to cross-examine the victim at the first preliminary hearing. (Id., at p. 929.) The court of appeal agreed: "'A defendant is entitled to effective assistance of counsel at a preliminary hearing, and counsel cannot effectively represent a client who does not understand the nature of the charges . . . or who is unable to cooperate in [the] defense.' [Citation.] Absent such confrontation and effective representation at the first preliminary hearing, defendant has been denied his substantial rights, and a commitment based on the evidence adduced at that hearing is unlawful. [Citation.]" (Id., at p. 930, quoting Chambers v. Municipal Court (1974) 43 Cal.App.3d 809, 813.)

"The People argue that absent a showing to the contrary by petitioner, it may be presumed that his attorney's cross-examination . . . at the first preliminary hearing was 'meaningful' and that petitioner's incompetence at that time does not necessarily indicate that he was deprived of his confrontation rights. But the argument depends on speculation. A preliminary hearing that takes place when the defendant is incompetent is conclusively violative of due process, regardless of the extent of cross-examination by counsel or of any other facts in the case. [Citations.]" (Stevenson v. Superior Court, supra, 91 Cal.App.3d at p. 930.)

Stevenson is not controlling here. In Stevenson, the constitutional defect was directly related to the effectiveness of the cross-examination. The Stevenson court concluded the defendant's attorney could not cross-examine competently without the assistance of his client. In light of Mancusi, we may question the Stevenson court's conclusion that the defendant did not have to demonstrate precisely how his assistance would have improved the cross-examination; but this is beside the point. Here, the constitutional defect was not directly related to the effectiveness of the cross-examination. Appointed counsel presumably can conduct a more effective cross-examination than a self-represented defendant can.

We conclude that, to demonstrate that admission of the former testimony violated either the Evidence Code or the confrontation clause, it is not enough to show some violation of some constitutional right at the first trial; it must be shown the violation actually interfered with an effective cross-examination.6 Here, defendant did not do so. He never pointed to any particular deficiency in the cross-examination. Although he claimed he would have cross-examined differently, he never explained precisely what he would have done differently. Therefore, he never showed his cross-examination would have been any more effective. "[A]lthough the Constitution preserves to a defendant the opportunity for cross-examination by competent counsel, it does not require that it be by currently retained counsel." (People v. Williams (1968) 265 Cal.App.2d 888, 897.) It follows that the evidence was admissible under the former testimony exception, and its admission did not violate defendant's confrontation rights.

2. The Right of Self-Representation.

It could also be argued, however, defendant was entitled to exclusion of the evidence as a remedy for the violation of his right of self-representation. Under the "fruit of the poisonous tree" doctrine (see Nardone v. United States (1939) 308 U.S. 338, 341 [60 S.Ct. 266, 84 L.Ed. 307]), if a defendant is "impelled" to testify at one trial by the admission of an illegally obtained confession, his or her testimony is inadmissible at a second trial. (Harrison v. United States (1968) 392 U.S. 219, 222-224 [88 S.Ct. 2008, 20 L.Ed.2d 1047].) This is because "the 'essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' [Citation.]" (Id., at p. 222, fn. omitted, quoting Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392 [40 S.Ct. 182, 64 L.Ed. 319].) But we see no reason to extend the "fruit of the poisonous tree" doctrine to testimony obtained in violation of the right of self-representation.

The Sixth Amendment right of self-representation is not "a provision forbidding the acquisition of evidence in a certain way." Its thrust is not evidentiary at all. In Faretta, the Supreme Court declared: "It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' [Citation.]" (Faretta v. California, supra, 422 U.S. at p. 834, fn. omitted, quoting Illinois v. Allen (1970) 397 U.S. 337, 350-351 [90 S.Ct. 1057, 25 L.Ed.2d 353] [Brennan, J., concurring].)

Thus, the right of self-representation exists to uphold the defendant's dignity. It is not a right that exists to further some other interest of the defendant or of society; indeed, in most cases, it will militate against such other interests. For this very reason, if a defendant is convicted after being denied the right of self-representation, the error is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [104 S.Ct. 944, 79 L.Ed.2d 122]; People v. Joseph (1983) 34 Cal.3d 936, 945-948.) "Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis." (McKaskle v. Wiggins, supra, at p. 177, fn. 8.) "Any rule which purported to assess the quality of a would-be Faretta accused's representation by the harmless error standard would inevitably erode the pro se right itself." (People v. Joseph, supra, at p. 946.)

We do not believe the defendant's dignitary interest in self-representation demands the additional remedy of suppressing testimony obtained in violation of the right of self-representation. The exclusionary rule is intended to deter police misconduct. (Arizona v. Evans (1995) 514 U.S. 1, 10-11 [115 S.Ct. 1185, 131 L.Ed.2d 34].) No such rule is necessary to deter a denial of the right of self-representation. The reversal of the initial conviction is a sufficient deterrent.

Defendant argues that, because the witnesses had become unavailable, he was deprived of his right to cross-examine them personally. Although we recognize the force of this argument, various hearsay statements by unavailable declarants may come in under other hearsay exceptions. (Evid. Code,  1230 [declarations against interest], 1260 [statements concerning declarant's will], 1310, 1311 [family history], 1323 [statements concerning boundaries], 1350 [declarant kidnapped or killed].) In each such instance, a self-represented defendant never gets to cross-examine the declarant personally; yet this is not considered a denial of the right of self-representation. The issue reduces to whether the statements have sufficient indicia of reliability to be admissible under the Evidence Code and the confrontation clause. We have already dealt with this above.

The first trial was not a nullity. It happened. The witnesses said what they said. Defendant, via his appointed counsel, had the right and opportunity to cross-examine them. Accordingly, even though defendant was denied the right of self-representation at the first trial and never had the opportunity to cross-examine the witnesses personally, their testimony was admissible under the former testimony exception.

V

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

Richli

 

J.

We concur:

McKinster

Acting P.J.

Gaut

J.


FOOTNOTES

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, II and III.

1 Judge Law, who presided over the hearings on May 2 and May 6, 1996, granted defendant's motion to represent himself, gave defendant a "study room" in the courthouse, and set the trial date.

On May 6, 1996, the case was assigned to Judge Jager. Thus, it was Judge Jager who denied defendant's pretrial motion to dismiss, determined not to continue the trial, and denied defendant's posttrial motion to set aside the jury verdict.

2 On April 12, 1996, defendant filed a petition for writ of prohibition with this court; a copy of the petition was lodged in the trial court. Attached to the petition were copies of what purported to be defendant's speedy trial motion and his motion to be brought to court. Also attached were copies of return receipts indicating defendant did mail the motions to the trial court. Neither motion, however, was file-stamped. We can imagine reasons why the superior court clerk might not have accepted the motions for filing; but we would only be speculating. The bottom line is that defendant has not shown he ever actually filed the motions.

3 On May 14, after jury selection and after the trial court made a tentative ruling on the prosecution's motion in limine to admit the former testimony of witness Francis Glascoe and others (see part IV, post), defendant said: "I haven't had the opportunity to use the legal facilities since last Wednesday, but I will have that opportunity tomorrow evening. I am not sure when the district attorney intends on bringing Glascoe's testimony in, but I would like to have the opportunity to get to some actual books so that I would be able to research this a little better."

The trial court responded: "I've already given you the privileges of the pro per is entitled to, and I assume you'll exercise those privileges, but as for now, we can start this trial with opening statements. [] The bottom line is I have not made a final ruling . . . as to Ms. Glascoe."

We cannot descry in defendant's remarks any claim he was not being allowed adequate law library access. All he asked the trial court to do was to let him renew his objection to the admission of Glascoe's former testimony if, after further research, he found more authority. The trial court agreed he could do so. Defendant can hardly argue this ruling was error.

On May 21, one week later, the prosecution introduced Glascoe's former testimony. Defendant did not renew his objection; in fact, he agreed Glascoe was unavailable. Thus, the trial court had every reason to believe defendant had been able to conduct sufficient legal research on the admissibility of Glascoe's testimony.

4 At trial, defendant's legal runner testified she had helped defendant communicate "with witnesses, investigators, and police departments." She participated in a three-way phone call with defendant and at least one witness.

5 Evidence Code section 1291 provides, as pertinent here:

"(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."

6 At least one other state court, after reading Mancusi, has come to the same conclusion. (People v. Gardner (1982) 122 Mich.App. 20, 22-25 [329 N.W.2d 518].)