Filed 9/10/15 P. v. Prasad CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                B254606

         Plaintiff and Respondent,                                         (Los Angeles County
                                                                           Super. Ct. No. NA097073)
         v.

DHARMENDRA PRASAD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
James B. Pierce, Judge. Affirmed.
         Carey D. Gordon, 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, and William H. Shin, Deputy Attorney General,
for Plaintiff and Respondent.


                            _______________________________________
                                   INTRODUCTION
       Appellant Prasad asserts a number of claimed errors in his criminal trial and
sentencing. Appellant claims that he did not knowingly and intelligently waive his right
to counsel. He asserts a violation of the confrontation clause and an abuse of discretion
because the trial judge limited his cross-examination regarding Wal-Mart’s procedures
and policies for detaining shoplifters. The appellant objects that the trial judge was not
fair and impartial. And, he objects to an impermissible dual use of his prior convictions.
We find these arguments to be without merit. Accordingly, the judgment of conviction
is affirmed.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Appellant entered a Wal-Mart store. As observed both by store security and
video cameras located throughout the store, appellant took a Gateway computer box and
placed it in his cart. He removed the anti-theft “spider wrap” from the computer box.
Appellant then went to the appliance section and pulled a boxed George Foreman grill
off the shelf. Appellant took the grill out of the Foreman box and put it on a lower shelf.
Appellant then removed the computer tower from the Gateway box and put it into the
empty Foreman grill box. He abandoned the computer box, went around the store a few
more times, and then checked out. At the checkout, appellant paid for a Foreman grill
and a few other items and left the store.
       Appellant was stopped by Wal-Mart security and the grill box was taken back
inside the store. When that box was opened, it contained a Gateway computer tower.
When questioned by the police, appellant admitted that he had gone to Wal-Mart to
purchase a computer but, when he didn’t have enough money to purchase the one he
wanted, he decided to steal it.
       In an amended information, appellant was charged with petty theft with a prior
theft-related conviction and a prior strike conviction. Penal Code section 666,




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subdivision (b).1 It was further alleged that defendant had suffered prior convictions for
grand theft, vehicle theft and criminal threats. The information also alleged the criminal
threats conviction as a strike and a one year prison prior.
       Appellant was arraigned and pled not guilty. Appellant requested that he be
allowed to represent himself. Even though there was no room in the county jail’s
pro per module, petitioner expressed a desire to represent himself. At his preliminary
hearing, petitioner reiterated that he wanted to represent himself. He was told that he
might not be placed into the pro per module and stated that he understood that limitation
and still wanted to be his own attorney.
       At his arraignment in Superior Court, appellant initialed and signed an
Advisement and Waiver of Right to Counsel (Faretta waiver). On that form, he stated
that he had attended the Fiji Institute of Technology and had taken classes in paralegal
services. Also, on that form, appellant was advised of the many dangers and
disadvantages of self-representation. He acknowledged each of these by initialing
a box. He was advised that the court recommended that he not act as his own attorney
and that he accept a court-appointed attorney. The trial judge reiterated that
recommendation and admonished appellant to reconsider his decision. Appellant
certified that he was freely and voluntarily giving up his right to counsel.
       On the first day of trial, the trial court ensured that appellant still wished to
represent himself and required appellant to complete a second Faretta waiver form. As
part of that form, appellant represented that he was a college graduate. The same
dangers of self-representation were identified and appellant acknowledged each of them
by placing his initials next to them. At the conclusion of that form, appellant certified
that he was -- once again -- freely and voluntarily giving up his right to counsel. This
was not the first time appellant had represented himself. He had been his own attorney
in a criminal proceeding in Riverside County. Before appellant completed the Faretta


1
       All further statutory references are to the Penal Code unless stated otherwise
indicated.

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waiver form, the court instructed appellant to read the form carefully before completing
it and cautioned appellant against the dangers and consequences of self-representation.
       Although appellant represented himself, he did so vigorously. He prepared and
submitted a number of motions and made several requests of the court. Appellant filed
a demurrer and a motion to strike his prior conviction. He requested an investigator and
that request was granted. Appellant filed a motion to set aside the information, a plea of
acquittal, a motion to suppress evidence, a motion to dismiss the action, a discovery
motion and an untimely peremptory challenge. Before trial, appellant submitted
proposed jury instructions.
       Trial was by jury. The jury found appellant guilty as charged and found the prior
theft offense, the strike offense and the prison prior to be true. The court imposed
a sentence of seven years in state prison -- the high term of three years on the
section 666, subdivision (b), doubled due to the strike, plus one year for the prison prior.
The court based its selection of high term on appellant’s long criminal history and his
overall inability to conform his conduct to the law.
                                      DISCUSSION
       Appellant asserts different arguments in support of his appeal. We find those
contentions without merit.
       1.     Appellant Knowingly and Intelligently Waived His Right to Counsel

       Appellant asserts that his waiver of counsel was not knowing and intelligent.
       On appeal, we “independently examine the entire record to determine whether
the defendant knowingly and intelligently waived the right to counsel.” (People v.
Burgener (2009) 46 Cal.4th 231, 241.) In this inquiry, appellant bears the burden of
demonstrating that he did not knowingly waive his right to counsel. (People v. Weber
(2003) 217 Cal.App.4th 1041, 1058-1059.)
       Appellant fails to meet his burden in this case. Appellant was repeatedly advised
-- in writing and orally -- of the problems and dangers of self-representation. He was
warned, in fact, that his pro per status did not guarantee that he would be housed in the



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pro per module, thus limiting further his access to legal materials. He completed fully
two Faretta waiver forms, in which he was advised of the limitations and dangers of
self-representation and acknowledged them. In the face of these warnings and
acknowledgments, it cannot be said that he did not understand the disadvantages of his
decision. (See People v. Weber, supra, 217 Cal.App.4th at pp. 1058-1059 (If the
warnings communicate powerfully to the defendant the disadvantages of proceeding
pro se, that is all Faretta requires).)
       Appellant’s full and complete understanding of the limitations and dangers of
self-representation is evinced by the sophistication of his pre-trial and trial practice. He
submitted statutory and constitutional challenges to the prosecution, a discovery motion,
an untimely peremptory challenge against the trial judge and proposed jury instructions.
Appellant cannot meet his burden of demonstrating that he did not understand his right
to counsel and knowingly waive that right.
       2.      The Trial Court Did Not Err In Limiting Appellant’s Cross-Examination
       Appellant asserts that the trial court violated the Confrontation Clause and
abused its discretion by limiting the cross-examination of Peter Mankarious, the
Wal-Mart loss prevention employee who witnessed him swapping out of the computer
tower and who detained him outside the store. We disagree.
               a.     The Trial Court’s Limitation on Appellant’s Cross-Examination
                      Did Not Violate the Confrontation Clause

       The rules of evidence ordinarily do not infringe on a defendant’s right to present
a defense. In certain limited settings, however, a court’s limitation on evidence may
rise to a constitutional violation. For example, a constitutional violation may occur
where a defendant can show that he was “prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of bias on the part
of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.’ ” (Delaware v.
Van Arsdall (1986) 475 U.S. 673, 680; People v. Frye (1998) 18 Cal.4th 894, 946,
disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)


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       In this case, appellant does not establish that the court’s limitation on the scope
of his cross-examination of Mankarious violated the Confrontation Clause. In fact,
appellant was given substantial leeway in cross-examining Mankarious on the issue of
bias and credibility. Appellant asked a number of questions to establish Mankarious’
bias and lack of candor. Appellant confronted Mankarious with surveillance video that
disputed the security guard’s claim that appellant had balled up his fist when accosted
outside of the store. Appellant also showed that same tape to refute Mankarious’
testimony that appellant had pushed his shopping cart into him. Appellant established
that Mankarious pinned him against the wall outside of the store, even though appellant
had not presented a threat. Appellant got Mankarious to admit that the surveillance
video failed to capture appellant pulling a Foreman grill box off the shelf and failed to
capture the switching of the grill for the computer tower. These facts arguably support
a reasonable inference that Mankarious was fabricating the events at issue. Appellant
also asked questions that explored Mankarious’ bias when he inquired whether he’d
been profiled by the loss prevention officer. Appellant asked why Mankarious was
originally suspicious of him and, when Mankarious said it was because appellant was
“carrying a bag,” he inquired as to how many Wal-Mart customers enter the store
carrying a bag.
       In this case, the trial court permitted appellant to cross-examine Mankarious on
a number of different challenges to his credibility and provided appellant latitude to
explore whether the witness was biased. Given this record, it cannot be said that
appellant was denied an adequate opportunity for cross-examination. (Cf. Delaware v.
Van Arsdall, supra, 475 U.S. at pp. 678-679 (trial court barred testimony on agreement
between informant and the state).)
              b.      The Trial Court’s Limitation on Appellant’s Cross-examination
                      Was Not an Abuse of Discretion

       The trial court has broad discretion to determine the relevance of evidence and
we will not disturb the court’s exercise of that discretion unless it acted in an arbitrary,
capricious or patently absurd manner. (People v. Jones (2013) 57 Cal.4th 899, 947.)


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       In this case, it was neither arbitrary nor capricious for the court to limit
appellant’s inquiry on the issue of whether the force used to detain him was consistent
with Wal-Mart’s loss prevention policies and procedures. Appellant had already
established that Mankarious’ decision to pin him against the wall was arguably
excessive given the absence of any videotape evidence that appellant had balled his fist
or hit Mankarious with a shopping cart. Whether the security guard’s response
comported with Wal-Mart policy was cumulative on the issue of bias. The limited
probative value of whether Mankarious was within Wal-Mart’s guidelines on detaining
shoplifters was substantially outweighed by the possibility that such an inquiry would
have confused the issues and resulted in the undue consumption of time. Accordingly,
the court properly exercised its discretion to exclude it.
       3.     Appellant’s Due Process Was Not Deprived Due to Judicial Misconduct
       Appellant asserts that he was denied due process because the trial judge in his
case was not fair and impartial. Specifically, appellant complains that the trial judge
disparaged him in front of the jury and allied himself with the prosecution when he
disallowed appellant’s questions about Wal-Mart’s loss prevention procedures.
Appellant asserts, “[I]nterrupting appellant was argumentative and improper and
undermined his credibility.”
       Appellant has forfeited his claim of judicial misconduct by failing to assert
a timely objection at trial. As a general rule, a claim of judicial misconduct is not
preserved for appellate review if no objections were made on those grounds at trial.
(People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v. Boyette (2002) 29 Cal.4th
381, 458-459.) Appellant did not object or assert judicial misconduct in light of the
court’s exclusion of the testimony regarding Wal-Mart’s loss prevention policies. In
fact, he conceded that testimony regarding Wal-Mart’s procedures did not help his case.
Asserting such an objection would not have been futile. The court could have easily
interjected an admonition to the jury that his rulings were not intended to and did not
convey any opinion regarding the case - which is exactly the instruction he gave to the



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jury at the conclusion of the case. Therefore, appellant has forfeited his claim of
judicial misconduct on appeal.
        Even if such a claim had been preserved, appellant’s claim of judicial
misconduct fails on the merits. A review of the entire record reveals that appellant was
discourteous and defiant throughout his trial. Out of the presence of the jury, the judge
admonished appellant that he would be held to the same standards as an attorney, that he
could not yell out or interrupt, he could not argue with the court and he needed to
comply with court rulings. Further, on a number of occasions, the trial judge intervened
to assist appellant’s presentation of his case. In more than one instance, the court
restated appellant’s question in an unobjectionable form or instructed him on how to
refresh a witnesses’ recollection. When the appellant struggled to impeach the witness
with the surveillance video, the judge played the tape in its entirety three times for the
jury, after which he allowed appellant to conduct additional cross-examination. In
short, the record fails to support appellant’s contention that the trial judge was
disparaging or favorable toward the prosecution as to give such an impression to the
jury.
        4.     The Court Properly Imposed High Term
        Appellant asserts that the court erred by using the same prior convictions
supporting his conviction for felony theft as aggravating factors to impose the upper
term for that offense. We disagree.
        In this case, the trial court relied upon an undifferentiated restatement of
appellant’s long and extensive criminal history in deciding to impose the upper term. In
so doing, the trial court necessarily included appellants’ prior theft conviction and strike
conviction used to elevate his petty theft to a felony and to double that term and add one
year as a prison prior. Accepting appellant’s contention that the use of these prior
convictions to enhance his sentence as well as a factor in aggravation was erroneous,
that error is harmless beyond a reasonable doubt. (See People v. Sengpadychith (2001)
26 Cal.4th 316, 326-327.)



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       Appellant’s criminal history was longer and more far-ranging than just his prior
theft and strike convictions. Appellant suffered convictions dating back to 1996 and
had been convicted on a number of different offenses that were not used to enhance his
petty theft. Appellant was convicted of a drug-related felony in 2005, battery in 1995,
1996 and 2007 and contempt of court in 1992. Looking at the trial court’s comments, it
is plain that the court would have imposed the upper term even if the convictions
available for its consideration were limited to these non-theft, non-strike convictions.
Appellant’s non-theft, non-strike convictions amply establish his recidivism. This
single aggravating factor is sufficient to support imposition of the upper term. (See
People v. Cruz (1995) 38 Cal.App.4th 427, 433.) As a result, any error would be
harmless.
                                     DISPOSITION
       The judgment and sentence are affirmed.



       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                       JONES, J.*

WE CONCUR:




       EDMON, P. J.                               ALDRICH, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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