Trial court did not err in denying Caperton motion for judicial disqualification where defendant failed to show an unconstitutional level of actual bias. Peyton was charged with two counts of receiving stolen property and one count of identity theft. After opting to represent himself, he proceeded to delay his trial over three years by repeatedly litigating side issues. His principle diversionary tactic was attacking the trial judge, but he also launched personal attacks against the integrity and honesty of other judges, the prosecutor, and law enforcement personnel. He filed many motions arguing that the trial judge should be recused. Following a jury trial, he was convicted. On appeal, he raised numerous issues, including that the denial of his Caperton v. A.T. Massey Coal Co., Inc. (2009) 556 U.S. 868 motion to disqualify the trial judge violated his due process right to a fair trial. Held: Affirmed. In Caperton, the U.S. Supreme Court held that judicial disqualification was compelled by due process based on extreme facts that showed a high probability of actual bias. Under Caperton, the due process clause operates more narrowly than Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), which provides for disqualification of a judge based on the appearance of bias. Here, Peyton’s Caperton motion repeated false accusations of judicial misconduct that he had previously raised in section 170.1 motions, and he failed to seek writ review when these motions were denied (see Code Civ. Proc., § 170.3). His Caperton motion was filed in bad faith and failed to make the heightened showing of a probability of actual bias. Summary denial of the motion was not a due process violation and the trial court did not err in not transferring the motion to another judge for an evidentiary hearing.
Trial courts are reminded that they have the discretionary power to terminate a defendant’s pro per status where the defendant deliberately engages in serious and obstructionist misconduct that threatens to subvert the core concept of a trial. Praising the trial court for its patience with Peyton, the appellate court also suggested, with the benefit of hindsight, that there is limit to which a defendant may frustrate the orderly administration of justice under the umbrella of the right of self-representation. Trial courts have the discretionary power to terminate a defendant’s self-representation under certain circumstances. (Faretta v. California (1975) 422 U.S. 806, 834-835, fn. 46; People v. Carson (2005) 35 Cal.4th 1, 10.) Although the right to self-representation cannot be terminated for forceful advocacy, it can be terminated for repetitious personal attacks on the integrity of the trial court and other personnel. Had the trial court terminated Peyton’s self-representation and made an adequate record, the appellate court would have upheld it. Peyton “attempt[ed] to abuse the dignity of the courtroom and impugn the integrity of just about everyone involved in the case. This should not be tolerated.”
Trial court did not abuse its discretion in admitting ATM photos as a business record. A Wells Fargo ATM system videotaped Peyton withdrawing $300 from an ATM using a stolen card. At trial, a Wells Fargo financial fraud investigator, Ressler, testified that the system purged the video after it extracted and saved still photos. At a detective’s request, Ressler copied the photos and forwarded them to law enforcement. Peyton claimed that the ATM photos were hearsay and improperly received as a business record. The trial court disagreed. A “writing” made in the regular course of business is not inadmissible hearsay if certain criteria is met. (Evid. Code, § 1271.) Photos and videos with imprinted data are writings. (Evid. Code, § 250.) The ATM photos here qualified as a business record. Ressler possessed sufficient knowledge to explain how Wells Fargo’s ATM system functioned and how the ATM photos were created and used in the regular course of business. The evidentiary presumptions in Evidence Code sections 1152, subdivision (a) and 1553, subdivision (a) support the finding that the ATM photos are an accurate representation of the ATM transaction. There was no confrontation clause violation because the ATM photos were not testimonial, as they were automatically generated by a machine. (People v. Goldsmith (2014) 59 Cal.4th 258, 274.)
CALCRIM No. 371 (inference of guilt based on refusal to be photographed) does not lessen the prosecution’s burden of proof. After his arrest, Peyton was ordered to submit to photographs of his face and head for comparison with ATM photos. He refused to be photographed and the jury was instructed with CALCRIM No. 371. Peyton argued that the instruction violated his right to due process by lessening the prosecution’s burden of proof. The appellate court disagreed. It is well settled that the violation of a court order can support an inference of consciousness of guilt; it does not make a difference that Peyton believed he had a right to refuse a court order. It would be reasonable to infer that Peyton refused to be photographed to hide evidence. The CALCRIM No. 371 instruction cautioned that certain types of deceptive or evasive behavior could indicate consciousness of guilt but was not in itself sufficient to prove Peyton’s guilt. It is not unconstitutional.
Trial court did not err in admitting evidence of defendant’s other theft-related offenses even though the other crimes involved stolen property similar to the current offenses. The trial court admitted evidence of Peyton’s other theft-related offenses to show identity, intent, common scheme, or motive. It was stipulated that Peyton knowingly possessed stolen property on two prior occasions. On appeal, Peyton claimed that the other crimes evidence was inflammatory because it involved the same type of property stolen in this casean ATM card and a CD case. The trial court did not abuse its discretion in concluding that the probative value of the evidence outweighed the potential prejudice because these items are commonly stolen and probative that Peyton possessed the ATM card and CD case with the knowledge that they were stolen. The other crimes evidence was not merely propensity evidence, and the jury was instructed that it could only be considered to show identity, intent, common plan, or motive. (CALCRIM No. 375.) Any alleged error was harmless.