Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF135274, Douglas E. Weathers, Judge. Affirmed with directions.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
A jury found defendant and appellant Robert Bobbie Bats, Jr. (hereafter defendant) guilty of first degree burglary in violation of Penal Code section 459 (count 1), extortion in violation of section 518 (count 2), and first degree robbery in violation of section 211 (count 4) but acquitted him of misdemeanor false imprisonment as charged in count 3. In a bifurcated proceeding, the trial court found defendant had one prior serious felony conviction within the meaning of section 667, subdivision (a), and three prior serious felony convictions within the meaning of section 667, subdivisions (c) and (e) (hereafter, the three strikes law). The trial court sentenced defendant to three concurrent terms of 25 years to life as mandated by the three strikes sentencing scheme, and a determinate term of five years on the section 667, subdivision (a) prior felony conviction.
All further statutory references are to the Penal Code unless indicated otherwise.
In this appeal defendant contends (1) it was an abuse of the trial court’s discretion to refuse to reappoint counsel to represent defendant at trial after defendant asserted his right to self-representation; (2) the trial court abused its discretion by denying defendant’s request to continue sentencing so that defendant could prepare a so-called Romero motion,and by refusing to dismiss any of defendant’s prior strikes; (3) the trial court abused its discretion by refusing to appoint counsel to represent defendant at sentencing; (4) the trial court violated section 654 when it imposed concurrent sentences on defendant’s robbery and extortion convictions; and (5) the trial court erred when it failed to calculate defendant’s presentence custody credits.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The Attorney General concedes the trial court erred by imposing consecutive sentences and by failing to calculate presentence custody credit. We conclude the concession is appropriate and that defendant’s remaining claims of error are meritless. Therefore, we will remand the matter to the trial court for the limited purpose of correcting the sentencing error and will affirm the judgment as modified.
FACTS
Our recitation of the facts will be brief because the issues defendant raises on appeal are not dependent on the facts of the underlying crimes for resolution. It is sufficient to note that in the evening on January 3, 2007, defendant went to the home of Joseph Drake to urge Drake to meet and talk with attorneys representing three defendants in a criminal case in which Drake was the victim. Defendant apparently had shared a jail cell with one of the three defendants, and after his release from jail, contacted Drake several times both by phone and in person.
Defendant went to Drake’s home again on the evening of January 3, 2007. After defendant indicated that he wanted to talk to Drake, the two went into Drake’s office where defendant again asked Drake to meet with the attorneys. When Drake again refused, defendant displayed what looked to Drake to be a handgun that defendant had just removed from under his shirt at the back waistband of his pants. Defendant then demanded $10,000. Drake told defendant that he only had about $1,000, but he could get the rest of the money. After he gave defendant the $1,000, Drake and a friend drove off, purportedly to get the rest of the money. Defendant stayed at Drake’s house with Drake’s girlfriend Jessica, her four-year-old daughter, and Jessica’s sister.
From his car Drake called his father and his lawyer both of whom told him to call the police. Drake’s father apparently did call the police. Drake also called Jessica to tell her to get out of the house. After Drake’s phone call, Jessica told defendant that she had to walk the dog. When Jessica opened the door to leave with the dog, she and the girls ran out of the house. Defendant started to run after them, and yelled at them to come back, but when he spotted police officers who had just arrived, defendant ran back inside the house. The police arrested defendant, and another man who is not a party to this appeal, a few minutes later. The police recovered a replica handgun from under a mattress in an upstairs bedroom and $1,000 from the other man.
The other man is defendant’s son who apparently remained outside in a car and did not enter the house until after Drake drove off.
Defendant told the police that he had painted a house for Drake and was at Drake’s home to collect the money Drake owed him.
Additional facts pertinent to the issues defendant raises on appeal will be recounted below.
DISCUSSION
We first address defendant’s claim that the trial court should have reappointed counsel after defendant exercised his right of self-representation.
1.
REQUEST TO REAPPOINT COUNSEL
Defendant exercised his right to represent himself after his trial had been continued several times, and at calendar call on September 17, 2007, his attorney was in trial on another matter. Rather than agree to a two-week continuance, defendant exercised his right to represent himself. Defendant then participated in pretrial preparation and jury selection. After the jury was impaneled and sworn, and opening statements were about to be delivered, defendant asked the trial court to reappoint counsel to represent him because his former attorney had not obtained phone records or talked to witnesses whom defendant believed were central to his defense. The trial court denied defendant’s request. Defendant contends in this appeal that the trial court abused its discretion in denying his request to reappoint counsel. We disagree.
As defendant acknowledges, “When a criminal defendant who has waived his right to counsel and elected to represent himself under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta) seeks, during trial, to revoke that waiver and have counsel appointed, the trial court must exercise its discretion under the totality of the circumstances, considering factors including the defendant’s reasons for seeking to revoke the waiver, and the delay or disruption revocation is likely to cause the court, the jury, and other parties.” (People v. Lawrence (2009) 46 Cal.4th 186, 188 (Lawrence), citing People v. Gallego (1990) 52 Cal.3d 115, 163-164.) In exercising that discretion, the trial court should consider the totality of the circumstances including (1) the defendant’s history of substituting counsel; (2) the reasons defendant gave for requesting the reappointment of counsel; (3) the length and stage of the trial court proceeding; (4) the disruption or delay that might reasonably result from granting the request; and (5) the likelihood the defendant would be effective in defending against the charges if required to proceed as his or her own attorney. (People v. Gallego, supra, 52 Cal.3d at p. 164.) However, the noted factors are “‘not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation midtrial.’” (Ibid., quoting People v. Smith (1980) 109 Cal.App.3d 476, 484.) Or as stated in Lawrence, “The standard is whether the court’s decision was an abuse of its discretion under the totality of the circumstances [citation], not whether the court correctly listed factors or whether any one factor should have been weighed more heavily in the balance.” (Lawrence, at p. 196.)
In Lawrence, the Supreme Court held that the appellate court erred when it reversed the trial court’s denial of the defendant’s request to revoke his Faretta waiver and have counsel reappointed. The circumstances of this case are nearly identical to those in Lawrence and differ only in that the defendant in Lawrence initially expressed “ambivalence” about his decision to represent himself on the same day that he exercised his Faretta rights. Otherwise, like this case, Lawrence involved a joint trial of two defendants, one of whom exercised his Faretta rights on the day the case was called for trial. As in this case, the defendant in Lawrence changed his mind after jury selection and informed the court that he was “‘retiring [his] pro per on the record.’” (Lawrence, supra, 46 Cal.4th at p. 190.) During the first break in trial, the trial court considered the defendant’s request to have counsel reappointed and denied that request after noting that the court had warned the defendant about what he was getting into at the time the defendant expressed his desire to represent himself; the jury had been selected; there was the codefendant to consider; and the defendant had acknowledged, when he initialed the pertinent paragraph on the waiver form, that if he changed his mind and asked to give up his pro. per. status the court could deny the request. (Id. at pp. 4-5.) The Supreme Court, “[a]fter considering the totality of the circumstances surrounding defendant’s revocation request” concluded that “the trial court did not abuse its discretion in denying the request.” (Lawrence, at p. 193.)
In this case, as in Lawrence, before accepting defendant’s Faretta waiver the trial court made the pertinent inquiry and also warned defendant that “this can’t be a situation where you’re ready to go now because you want to hurry up and get your trial done and then you get over to the trial court and you get cold feet and ask for a continuance[.]” Defendant stated that he understood, and that he also understood everything set out in the petition to proceed in propria persona that defendant had signed and submitted to the court.
When defendant later requested that the trial court reappoint counsel, defendant based that request on the fact that he did not have his attorney’s case file at the time he waived his right to an attorney. Once he reviewed that file defendant realized that his attorney had not obtained phone records or contacted witnesses whom defendant believed were critical to his defense and as a result defendant claimed he was not able to present a defense.
The record on appeal suggests that defendant received the attorney’s file no later than September 19.
The trial court apparently construed defendant’s representation as a request for a continuance, which the trial court also denied.
In denying defendant’s request to revoke his Faretta waiver, the trial court in this case considered defendant’s reason for making that request, and also considered the fact that the jury had been selected and opening statements were about to begin. Reappointment of counsel to represent defendant at that stage in the trial would at the very least have required a delay in order for an attorney to adequately prepare. That delay would have inconvenienced not only the jurors but also the codefendant. Presumably to address defendant’s claim that he was not prepared for trial due to the purported inadequate preparation of his former attorney, the trial court appointed an investigator to help defendant prepare and serve subpoenas.
Under the totality of the circumstances presented we simply cannot say the trial court in this case abused its discretion by denying defendant’s request to revoke his Faretta waiver and have counsel reappointed to represent him. The basis for defendant’s request was that he was not prepared for trial because, despite contrary representations, his attorney had not obtained information defendant believed was pertinent to his defense. The essence of defendant’s claim is that he needed more time to prepare for trial. In other words, defendant did not claim that he lacked the necessary ability; instead, he claimed he lacked the necessary evidence and information to proceed to trial. The trial court addressed the preparation issue by appointing an investigator to assist defendant.
Defendant also does not claim that he actually was unable to present a defense at trial and in fact the record reflects defendant called at least one witness of his own, and also called Drake and Drake’s father as defense witnesses. Defendant also questioned Drake on cross-examination regarding the events on the evening in question as well as the circumstances under which defendant and Drake first met. Despite his repeated insistence in the trial court that he needed phone records in order to refute Drake’s trial testimony, defendant effectively conceded that the reputedly crucial phone records were relevant only to impeach Drake’s credibility. For example, defendant claimed that the unspecified phone records would refute Drake’s testimony that in the months that preceded the January 3 incident at issue in this case Drake never called defendant. Assuming the existence of phone records that would actually contradict Drake’s testimony, and thereby impeach his credibility, the phone records would not refute the events that occurred on January 3. The jury also knew that Drake was awaiting trial on charges of possessing marijuana and furnishing marijuana to a minor, evidence that was more likely than the phone records to undermine Drake’s credibility as a witness.
In summary, we conclude the trial court did not abuse its discretion by denying defendant’s request to reappoint counsel to represent defendant at trial. Therefore, we will not address defendant’s prejudice claim.
2.
SENTENCING ISSUES
Defendant’s remaining claims are all directed at the validity and accuracy of his sentence. In that regard defendant first contends that the trial court abused its discretion by denying defendant’s request to continue his sentencing hearing so that defendant could prepare a motion for new trial and a motion to strike one or more prior serious felony convictions, commonly referred to as a Romero motion. Defendant also contends that it was an abuse of the trial court’s discretion to refuse to strike any of defendant’s prior serious felony convictions. Defendant also contends the trial court abused its discretion by denying defendant’s request at sentencing for the appointment of counsel to represent him.
A. Romero Issue and Continuance Request
The pertinent facts are that after the jury returned its guilty verdicts on October 2, 2007, the trial court set defendant’s sentencing hearing for November 9, 2007, but sentencing did not actually take place until February 15, 2008. At the outset of the sentencing hearing, defendant requested a continuance so, among other things, he could prepare and file a Romero motion. The trial court denied defendant’s request for a continuance after noting first that defendant had four months in which to prepare a written motion, and next, that Romero motions are common, and are often made orally at the time of sentencing. Although defendant did not take the trial court’s lead and make an oral motion, the trial court nevertheless considered the Romero issue on its own motion. The trial court considered defendant’s prior criminality, which included convictions in 1986 for two counts of rape by force and fear, in violation of section 261, subdivision (a)(2) and resulted in a state prison sentence of 30 years four months. The trial court also noted that defendant was released from prison and placed on parole in May 2002, “and then this case occurs in a relatively short period of time thereafter, a number of just a few years.” Based on those facts, the trial court declined to strike any of defendant’s prior strike convictions.
In challenging the trial court’s denial of his request for a continuance and the trial court’s refusal to strike any of defendant’s prior serious felony convictions, defendant acknowledges that on appeal we review both rulings for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 225 [“‘The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’”]; People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) Defendant had ample time during the months between the conclusion of his trial and his sentencing hearing to prepare his Romero motion, his contrary claim notwithstanding. More importantly, the trial court addressed the Romero issue, as recounted above, and declined to dismiss any of defendant’s prior strike convictions.
In Romero, the Supreme Court held that a trial court has discretion under section 1385 to dismiss one or more strike priors in the interest of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) The pertinent inquiry is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.) “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) The circumstances must be “extraordinary” for a career criminal to be deemed outside the scheme of the three strikes law. (Id. at p. 378.)
Defendant takes issue in this appeal with the trial court’s characterization of the period between defendant’s release from prison on May 2, 2002, and his commission of the current crime on January 3, 2007, as “a few years.” In defendant’s mind, the intervening period of four and one-half years is “not a relatively short period of time, ‘a number [sic] of just a few years,’ as stated by the trial court.” According to defendant, the trial court’s mischaracterization amounts to reliance on an erroneous fact. We do not share defendant’s view.
The fact at issue is that after release from prison, defendant remained crime free for less than five years. Reasonable minds can differ on whether that is a significant or relatively short period of time to live a crime-free life given defendant’s age and history of incarceration. During three of those years, defendant was on parole from which he was not discharged until May 7, 2005. Thus, the actual time in which defendant was completely free from the criminal justice system was less than two years before he committed another crime.
Defendant also complains that in declining to dismiss any of his prior strike convictions, the trial court did not consider the fact that defendant “had been working and had family support, so his prospects were good.” Defendant argues that these facts, combined with the fact that he had successfully completed three years of parole, “may have changed the trial court’s mind about whether or not to dismiss some or all” of the strike priors. We do not share defendant’s optimism. More significantly, because defendant’s is not the extraordinary case, the trial court would have abused its discretion if it had dismissed one or more of defendant’s prior strike convictions. (See Carmony, supra, 33 Cal.4th at p. 378.) In short, we conclude that the trial court did not abuse its discretion in this case, either in denying defendant’s motion for a continuance of his sentencing hearing or in deciding against dismissing one or more of defendant’s strike convictions.
B. Appointment of Counsel to Represent Defendant at Sentencing
After denying defendant’s request to continue sentencing, and also declining to dismiss any of defendant’s strike convictions, the trial court agreed to postpone sentencing so that defendant’s family could attend the sentencing hearing. At the continued sentencing hearing on February 28, 2008, defendant told the trial court that he had “been advised to terminate [his] pro per status and ask for counsel for sentencing and to file the new trial motion.” After a fairly lengthy discussion in which the trial court explained that defendant did not have grounds for a new trial, the trial court denied defendant’s request. Defendant contends that the trial court erred and that the error had the effect of violating the right to counsel guaranteed to defendant under the Sixth Amendment of the United States Constitution. We disagree.
We recounted the pertinent inquiry in our discussion of defendant’s request to reappoint counsel to represent him at trial—we look at the totality of the circumstances to determine whether the trial court abused its discretion in denying that request. (Lawrence, supra, 46 Cal.4th at p. 193.) The circumstances in this case include the fact that defendant waited until the middle of his sentencing hearing to ask the trial court to appoint counsel, even though defendant had four months between the end of his trial and his sentencing hearing in which to make that request. From the timing of the request, the trial court could reasonably infer defendant’s belated request was made solely to delay the proceeding and thus for an improper purpose. (See People v. Ngaue (1991) 229 Cal.App.3d 1115, 1125.)
The circumstances also include the fact that defendant’s sentence in this case was dictated by the three strikes law which mandated sentences of 25 years to life on each felony conviction. (See § 667, subds. (c) & (e).) In other words, the circumstances in this case include the fact that assistance of an attorney would not have affected the sentence imposed. In arguing otherwise, defendant cites the trial court’s sentencing errors in this case, which the Attorney General concedes and we separately address below. An attorney representing defendant at sentencing might have prevented the trial court from committing the errors but not necessarily. In any event, the possibility of committing sentencing error is not a circumstance the trial court need take into account in exercising its discretion to appoint counsel to represent defendant at a sentencing hearing.
Under the circumstances noted, we conclude the trial court did not abuse its discretion by denying defendant’s request to appoint counsel to represent him at sentencing.
C. Section 654 and Presentence Custody Credit
As previously noted, the Attorney General concedes defendant’s claims of sentencing error. In particular, defendant contends and the Attorney General concedes that because the trial court found defendant committed all three crimes in a single transaction during which he harbored a single objective and intent, section 654 required the trial court to stay execution of two of the three sentences the trial court imposed. Instead, the trial court sentenced defendant to a term of 25 years to life on the burglary conviction (count 1), the extortion conviction (count 2), and the robbery conviction (count 4), the latter two to run concurrent to the term imposed on count 1. The trial court should have stayed execution of the sentences imposed on counts 2 and 4 under section 654, subdivision (a) which provides, in pertinent part, that “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
The trial court also failed to award presentence custody credit to defendant, and instead asked the Department of Corrections and Rehabilitation to make the calculation. The trial court is required to calculate presentence custody credit. (See § 2900.5, subd. (d).) Therefore, we will remand this case to the trial court for that purpose.
DISPOSITION
The matter is remanded to the trial court with directions to stay execution of the sentences imposed on counts 2 and 4, in accordance with section 654, and to calculate defendant’s presentence custody credit in accordance with section 2900.5, subdivision (d). As modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects defendant’s modified sentence and forward the amended abstract to the appropriate governmental agencies.
NOT TO BE PUBLISHED
We concur: Richli J., King J.