Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court No. BAF003938 of Riverside County. Roger A. Luebs, Judge.
Richard J. Moller, 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, Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P.J.
A jury convicted defendant Donovan Conner of two counts of second degree robbery (Pen. Code, § 211), during which he used a firearm (§ 12022.53, subd. (b)), a principle used a firearm and violated sections 186.22 and 12022.53, subdivisions (b) & (e) and which were committed for the benefit of a gang (§ 186.22, subd. (b)). He was further convicted of two counts of assault with a firearm (§ 245, subd. (a)(2)) and one count of false imprisonment (§ 236), during all of which he used a handgun (§ 12022.5, subd. (a)) and which were committed for the benefit of a gang, possession of a firearm by an ex-felon (§ 12022, subd. (a)(1)), which was committed for the benefit of a gang, and actively participating in a gang (§ 186.22, subd. (a)). In bifurcated proceedings, the trial court found true allegations that defendant had suffered a serious prior conviction (§ 667, subd (a)) and a strike prior (§ 667, subds. (c) & (e)). Defendant was sentenced to prison for 35 years and appeals, claiming his rights to represent himself and to a speedy trial were denied and there was insufficient evidence to prove his strike prior. We reject his contentions and affirm, while directing the court to amend the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts concerning this case are irrelevant to the issues raised.
Issues and Discussion
1. Denial of Defendant’s Rights to Represent Himself and to a Speedy Trial
Defendant was arraigned on the Information on June 16, 2005. Between his next court appearance on July 1, 2005, and March 10, 2006, proceedings were suspended until it was determined that defendant was competent to stand trial, which occurred on the latter date. At the readiness conference on March 15, 2006, defense counsel moved for a continuance to postpone trial. On March 17, 2006, trial was set for April 20, was reset the following month and in May, it was vacated, the readiness conference was continued at defendant’s request and defendant waived time for trial until June 20, 2006, plus 30 days. In June and July, both counsel stipulated to continuances. In August, the readiness conference was continued at defendant’s request until September 18, with trial set for September 21. A stipulated continuance followed, then five continuances of the readiness conference requested by defendant to March 13, 2007, with defendant waiving time for trial until March 12, 2007, plus 30 days. On March 13, 2007, a readiness conference was set for April 11, 2007 and defendant waived time for trial until that day, plus 30 days. On April 11, 2007, the readiness conference was continued at defendant’s request to May 15, 2007 and defendant waived time for trial to that day, plus 30 days. Trial was set in May, June and July, each for the following months. In July, the court found good cause to continue because defense counsel was unavailable for trial. Trial trailed or was reset in August, September, October and November 2007. In November 2007, defendant moved for a continuance because counsel was unavailable for trial. Trial was set for the following day, but it then trailed to November 16, 2007, when defense counsel was unavailable, a condition which still existed on February 1, 2008. It was noted on that date that defense counsel had filed continuances on all his cases, as he was on medical leave until February 13, 2008. The following colloquy occurred between defendant and the court:
On February 1, 2008, defense counsel had filed a motion for a continuation until February 13, or another date.
“DEFENDANT:... I want to go pro per. If that’s the only way I can get to trial, I want to go pro per.
“THE COURT: There’s a big risk there. You can say it, but when you go down the tubes, you can’t say you had a bad attorney. You’re dreaming if you think you’re going to have the same access to resources as somebody who’s got an attorney; that’s not reality. If you’re willing to put up with all that stuff and take your chances, we’ll have a Faretta hearing a little bit later on.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
“DEFENDANT: I’ll take my chances.”
The trial court told the attorney who was appearing for defense counsel that a Faretta motion would be done later.
After a recess, the court noted that defendant wanted to be his own attorney because he was “tired of waiting for” his appointed attorney and the court asked for the form for defendant to fill out to represent himself. However, defendant was no longer in the courtroom and the court said he would have to be brought back on February 5, 2008.
On February 5, the court asked that appointed defense counsel be contacted, but substitute defense counsel said that appointed counsel was at the doctor’s office and could be present the following day, but defendant had “said [that] he no longer wants to go in pro per.” Trial was trailed until the following day.
In his opening brief, defendant asserts that he was absent when the prosecutor made this statement, however, the court minutes state that defendant was present during the proceedings on this date.
There is no reporter’s transcript for February 6, 2008, in the record before this court, however the clerk’s transcript shows that on that day, the defendant was in the courtroom and the same substitute counsel who had previously appeared was representing him. It was noted that defense counsel was unavailable for trial and trial was set for February 14, 2008. No mention is made in the record before this court of defendant wanting to represent himself.
From February 14 until the 27th, defense counsel was unavailable for trial and motions for continuances were granted. On March 27, defense counsel announced that he was ready and the People’s motion to trail was granted on a finding of good cause and trial was set for April 7. During this period, specifically, on April 2, 2008, a codefendant, who had originally been charged with defendant, but was in jail in Los Angeles County and was then arrested on this case, was re-appointed the public defender to represent him. Although the public defender had originally represented the codefendant in this case, about a year previously, the public defender had been relieved and had closed the codefendant’s file. On April 7, defendant’s motion for a continuance was granted. Defense counsel was unavailable until April 23, although on April 21, substitute counsel for defendant announced, once again, that defense counsel was ready for trial. On April 23, counsel for the codefendant moved for a continuance. Counsel for the codefendant stated that he had “just got reassigned to this very serious case. Complete file []review of a voluminous file needs to occur. [The codefendant] needs to be re-interviewed. Once these initial tasks are complete, further work-ups will need to occur.” Counsel for defendant later noted that counsel for the codefendant “essentially had to begin anew and there was some additional discovery.” Counsel for the codefendant added that he had a pre-paid vacation scheduled for June 5-12 and had 21 jury trials scheduled. However, defendant again announced that he was ready for trial and would not agree to a continuance. The prosecutor stated, “[T]hese two [defendants] need to be lined back up. They were together set for trial before [the codefendant] absconded, now they need to come back together. They were integrally entwined. I wouldn’t want them to be severed....” The court said it would not be inclined to sever trials of the two defendants “unless somebody files an official motion, then I’ll rule on it based on [the] merits.” The court granted a continuance until May 19, 2008.
On May 9, 2008, counsel for defendant filed a motion for a continuance due to his unavailability, to be heard on May 19. On May 19, defense counsel was unavailable and trial was set for the following day. On May 20, defendant announced that he was ready for trial. However, the codefendant had requested a continuance because he wanted to interview what the court called a “key” witness that could not be produced for three or four weeks. Defense counsel said he had spoken to defendant and it was counsel’s opinion that the witness was vital and he could not go forward without interviewing the witness and defendant was alright with that. Defendant said that was correct. Therefore, defendant waived trial until June 27, 2008.
A copy of this motion for a continuance by the codefendants is not part of the record before this court. The statement in the text about this motion is based on what the court said during proceedings on May 20.
On June 27, defendant announced that he was ready for trial, but the prosecutor was in trial and requested a continuance, over defendant’s objection. The court trailed trial to July 7, noting that if the prosecutor was not available that day, she would have to give the case to another prosecutor.
On July 7, the codefendant was granted a continuance, which was opposed by defendant. Trial was set for August 12, although counsel for defendant noted that counsel for the codefendant may not be ready by then because he had to begin anew from his reappointment in April.
By August 12, defense counsel had been appointed to the bench and new counsel had been appointed to represent defendant. On that day, the court told newly appointed counsel for defendant that “[defendant woul]d rather be his own attorney, which I’ve advised him that that creates a big delay, but that’s not impossible....” Counsel for the codefendant said he still had things to do to get ready for trial and would not be opposed to allowing newly appointed counsel for defendant to have more time to prepare. The court said, “[T]his is an unfortunate circumstance... if [defendant] wants to shoot himself in the foot, you know I prefer for [him] not to shoot himself in the foot by being his own attorney; it’s a complex case. And in this situation, the one thing he has going for him is [newly appointed counsel]. I know [newly appointed counsel] is going to do a good job because [newly appointed counsel] know[s his] stuff because [defendant ] won’t know what to do.” The court pointed out how defendant representing himself would substantially delay trial. The court added, “So [defendant] wants to be his own attorney, but [newly appointed counsel has] been assigned to the case.... I want to bring [newly appointed counsel] back on September 26th, and I’ll personally see to it that you’re given discovery.” The court told newly appointed counsel for defendant to look at the discovery and return to court on September 26 and tell the court how long it would take to get ready for trial. Counsel for the codefendant said his in-custody witness was in trial and would not be available until late September. He said that this witness was relevant also to defendant. Defendant said he did not want this witness testifying for him, then he added, “I want to go per pro. [sic]” He said he understood that his newly appointed attorney was highly qualified and his former attorney had been appointed to the bench, “but I would really like to move on with this case, anything more than 10 days to me, I’d object. I want to go pro per... if I could get all the discovery [by]... tomorrow or... [August] 15th, I could be ready by the 26th; 10 days is all I need.” The court told defendant “[t]hat’s not going to happen.” Defendant said he would not ask for any more than 10 days, and he had represented himself before. The court responded, “I’ve heard that before.... [M]aybe you’re the one that’s sincere, but I’ve heard that before, and it’s just the opposite once they get into it.” Counsel for the codefendant said he would need at least another three weeks to prepare. The court set a trial readiness conference for August 26 and directed newly appointed counsel for defendant to “have reviewed all the discovery, and if you can’t get ready... very quickly, then it will be a condition where he could be his own attorney.... [¶]... [I]f [newly appointed counsel for defendant] review[s] everything by [August 26th] and if he could be ready by September 9th, then both will be fine, we’ll go that way; and if he can’t, then I’ll take your issue of pro per up, and we’ll make a final decision.... [W]e don’t have [discovery] right now, so there’s nothing to give [defendant] right now.” The court asked defendant if this was all right. After defendant and his attorney consulted, the latter announced that defendant had agreed to come back on August 26. Despite this, the court stated that it was granting the motion for a continuance over defendant’s objection. Trial was continued until September 9, with a trial readiness conference on August 26.
Defendant omitted this from his recitation of the facts.
At the beginning of the hearing, the substitute prosecutor said that the prosecutor was requesting that trial trail because she was out of town. Counsel for the codefendant did not object to this. The court minutes state that the motion for a continuance was requested by the defense and the People did not oppose it.
On August 26, newly appointed counsel for defendant was not ready because a second codefendant needed to be transported and interviewed. The court granted a continuance for good cause shown by the defense until September 12.
On September 12, newly appointed counsel for defendant was in trial, so the court continued trial until September 26. Substitute counsel for defendant said that defendant “wants it on the record that he... does not wish to waive time.” The court responded, “Yeah, he’s been objecting all along, trying-[.]” Defendant interrupted the court by saying, “No, I want to go pro per.” The court said that defendant had “a semi-guarantee” that this would be the second trial newly appointed counsel for defendant would do after the one he was then trying. Proceedings were then adjourned for the day.
The minutes state that a defense motion to continue was granted and good cause was shown.
On September 16, newly appointed counsel for defendant was still in trial, but substitute counsel said, “I know [defendant] wanted to go in pro per today so I’m going to put that on the record.” Newly appointed counsel for defendant appeared with his client later that day and said that defendant objected to the September 26 trial date, “but due to my unavailability, he agrees.”
In his opening brief, defendant mistakenly states that counsel for the codefendant made this statement.
On September 19, it appears as though newly appointed counsel for defendant was still in trial, so the court set trial for September 30, to be trailed day to day thereafter until counsel was finished with the case he was then trying. Counsel said he needed to interview the second codefendant, who was then present in the courtroom. The minutes state that defendant’s motion for a continuance was granted that day for good cause.
The court said that newly appointed counsel for defendant would do this trial right after the “Smith trial” which, we presume counsel was doing then.
The clerk’s transcript states that on September 30, “defense [was] unavailable for trial” and a defense motion for a continuance to October 10 was granted for good cause.
This is the only record we have for this day.
On October 10, it was noted that counsel for the codefendant had just finished another trial, was ready to go to trial in this case and was objecting to further delays. However, newly appointed counsel for defendant said he was not ready, as he had just finished back-to-back trials and needed to interview three witnesses, including a codefendant, who had not yet been transported from prison. Also, the prosecutor was in trial, was not ready and asked that trial be trailed. The trial court ordered trial to begin on October 15. The minutes state that on the court’s own motion, trial was trailed due to courtroom unavailability and the court granted a continuance finding good cause.
Proceedings on October 15 were before a different judge than had presided over most of the relevant proceedings up to that point. Counsel for the codefendant had filed a motion for a continuance, due to missing and incomplete discovery. He also said he had been approved for a leave of absence between October 17 and November 10. The court asked newly appointed counsel for defendant how defendant felt about a delay. Counsel said that defendant was not willing to waive time, but counsel was not prepared because of the lack of discovery and “there’s been no investigations done” and he had only had the case for two months. He said he could be ready the first week of November. Defendant said he strongly objected. The court said defendant may have a claim under People v. Johnson but the need for counsel to be prepared and present an effective defense trumped defendant’s right to a speedy trial. The court granted a continuance until November 10. Defendant said, “... I had to waive time probably eight months now just since the last time... I waived time[, ] before that[, ] a whole year.... I can represent myself if that will bring the date sooner than that right there. [¶] I have no disrespect for [newly appointed counsel for defendant]. I have no type of disunderstanding [sic] with him other than I’m ready to get this case tried and I’m ready to stand in front of a jury.... [I]f going pro per would get me there two, three weeks, a day sooner, I would go pro per... and announce ready today. And I can defend myself.” The court asked the substitute prosecutor whether it should let defendant represent himself and send the case to trial the next day. The substitute prosecutor said his office primarily objected to severing the trials of defendant and the codefendant. The court said it would probably sever the trials and it asked defendant if he would be representing himself. Defendant said he would, but he needed all the discovery that day in order to go to trial the next. The court said it could give defendant whatever discovery his newly appointed attorney had, which was not all of it. The court asked defendant how he felt about that. Defendant repeated that if he could get all the discovery that afternoon, he would be ready the next day. The court directed newly appointed counsel for defendant to tell defendant what discovery was still missing. The court said that defendant was “quite articulate.... I’m getting the sense that he’s going to have no problem getting past the Faretta requirements. And so if he wants to represent himself, assuming [the prosecutor] can’t come out with compelling reasons” it would set the case out for trial the next day. The court asked newly appointed counsel for defendant to tell defendant what discovery was missing and take “one last chance to persuade him not to do it.” There was an off-the-record discussion between the court and defendant. The court said, “[O]ur discussions would probably qualify under Faretta to [allow defendant] to represent himself.... [H]e’s looking at 56 years in state prison, and it would be I think a huge mistake for him to try to represent himself.” The court gave an example of how trial would go better if defendant was represented by counsel and added, “I think [defendant] understood that.” The court went on, “[I think defendant] is concerned... that with the holiday season... coming up [i]t’s not going to take much longer beyond the 10th of November to get to January and to February. And he has legitimate concerns since he’s been protesting these matters being continued for so long. [¶] Obviously, there’s still a discovery issue, and we don’t know what’s missing.... [¶]... [¶]... [Defendant] said that this is discovery that’s been requested for a long time. [W]e can discuss [it] with [the prosecutor] and identify [it] and it can be given a due date with the understanding if discovery’s not provided on that date, I would enter an order that I believe the trial judge would honor that that evidence would not be admissible.” The court suggested that proceedings reconvene the following day after newly appointed counsel for defendant and the prosecutor meet to discuss the discovery problems and potential for separate trials and counsel speak further with defendant.
In his opening brief, defendant asserts that he was willing to represent himself and go the trial the next day, even if the discovery was incomplete, an assertion he repeats in his reply brief. The record belies this claim. When the court said it would probably be severing the trials of defendant and the codefendant and then asked defendant if he would be representing himself, defendant responded, “Yes.... The only major problem, however, with that is if all the discovery could be turnt [sic] over to me today I’ll be ready tomorrow.” When the trial court asked defendant how he felt about proceeding with just the discovery newly appointed counsel for defendant had, which was not all the discovery, defendant said, “... I know the truth about this case so the discovery... doesn’t matter because that is what paperwork that is presented to the judge and the jury. But, ... like I said, if I can get all the discovery by this afternoon, I’ll be ready to go tomorrow first thing.” The court then told newly appointed counsel for defendant to tell defendant what discovery was missing. The court then had an off-the-record discussion with defendant, after which it noted that it was still unknown what discovery was missing. It was at that point that the court ordered the parties to return the next day and the prosecutor and newly appointed counsel for defendant get together and determine what discovery the latter was missing. Although defendant’s last statement about the discovery was subject to interpretation, the far more reasonable interpretation was that he still wanted all the discovery before proceeding to trial, otherwise he would have told the court that there was no point to returning the next day and being told what was missing. The fact that the following day, when he was told what discovery was missing and that he could not get it any sooner to go to trial representing himself than his attorney could, he chose to continue to be represented by counsel reinforces this interpretation, as does defendant’s statement that despite continuing to be represented by counsel, he still wanted the missing discovery himself so he would be more prepared than he was then, in case at some point down the line he wanted to represent himself. (See fn. 10, ante, p. 10, infra)
The next day, the prosecutor told defendant what was missing from the defense’s discovery. The court told defendant that his newly appointed counsel believed that he could be ready for trial when counsel for the codefendant returned from his vacation on November 10. The court added to defendant, “If you wish to represent yourself, I will go through a Faretta waiver with you, but you will not have [what was missing from the defense’s discovery] because [the prosecutor] already provided it once and will have to go back and make arrangements to have things copied. [¶] So if we go to trial, I do have a courtroom I could send you out [to] today [and], I think, you will have to go it alone without complete discovery.... [T]he one thing you’ve made clear... is that on the 10th we should take that as a very serious trial date. [¶]... [I]t’s up to you.... If you do want to represent yourself, then I’ll discuss it with counsel whether or not the case should be severed... and we should move ahead with your case.” Defendant said he could not understand why the discovery, which was requested more than a year ago, had not been provided. The court said, “... I think it was because [your former attorney] was too busy and didn’t follow through. Had he made a discovery motion and then the date set, the [prosecutor] would have had to provide that discovery or potentially face sanctions or discovery issues at trial. [¶]... [The prosecutor] says she thinks she can [provide all that information] by the 31st, which would then give your attorney a full ten days to prepare it. Maybe she can get some of that done before that.” The prosecutor pointed out that there were signed documents that it had been turned over to the defense, but “somewhere in the shuffle I think it didn’t get to [newly appointed counsel for defendant].” The court ordered that it be provided by the 29th. Defense counsel said he also needed to interview the second codefendant who had already pled guilty and turn the information from the interview over to the prosecutor so this codefendant could testify for defendant. The court ordered that it be done by the 23rd. The court asked defendant how he felt about a November 10 trial date. Defendant said he objected to it. The court said, “The real question is do you want to go pro per.” The court said the only way it could send defendant out to trial then was if defendant represented himself and it told defendant he had to make a choice now. Defendant responded, “I understand that you said you can send me out [to trial] today, but I have not had the discovery, and it could be used against me. So the only problem I have is how soon can I get the discovery... ?” The court said it would be at least a week. The court added, “[I]f you represent yourself, we can have the matter go to trial. If you... don’t have the discovery and can’t go to trial now, then the matter will be continued anyway until the date the discovery will be provided.... [¶] You need to decide today whether you want to represent yourself or be represented by counsel.” Defendant said, “I would much rather be represented by counsel.” The court continued the case to November 20.
Despite the clear significance of this statement, defendant chose to omit it from his statement of facts and from his argument.
A defense motion to continue for good cause was granted on November 10, 2008. On November 13, defendant’s motion to sever his case from his codefendant’s was granted. On November 18 and December 1, the People’s motions for continuances for good cause (the absence of a prosecution witness who was sent out of state for military training) were granted over defendant’s objections. Trial began on December 4, 2008.
a. Self-Representation
Defendant here claims the court denied him his Sixth Amendment right to represent himself when it repeatedly ignored his requests to represent himself without inquiring into his reasons or taking Faretta waivers. “The right to self-representation is waived unless the defendant makes an... unmistakable demand to proceed pro se. [Citations.] A Faretta request must be unequivocal. [Citation.] ‘This rule “is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation.”’ [Citations.] In determining whether the request is unequivocal, ‘“the [trial] court’s duty goes beyond determining that some of [the] defendant’s words amount to a motion for self-representation. The court should evaluate all of a defendant’s words and conduct to decide whether he... truly wishes to give up the right to counsel and represent himself... and unequivocally has made that clear.”’ [Citations.] [¶] ‘“In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo.”’ [Citations.]” (People v. Weeks (2008) 165 Cal.App.4th 882, 886, 887) “Even when the trial court has failed to conduct a full and complete inquiry, [we] examine the entire record” “including proceedings after the purported invocation....” (Marshall, at p. 24.) “A reviewing court, in determining whether a motion for self-representation is unequivocal, is not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation.” (People v. Barnett (1998) 17 Cal.4th 1044, 1087) “[C]ourts must draw every inference against supposing that the defendant wishes to waive the right to counsel.” (Marshall, supra, 15 Cal.4th at p. 23.) “Defendant’s use of the conditional ‘if’ shows that his statement was ambivalent and equivocal.” (People v. Valdez (2004) 32 Cal.4th 73, 99 (Valdez).) “A motion made out of... frustration... is not unequivocal-even if the defendant has said he... seeks self-representation.” (Marshall, at p. 21.) “[T]he fact that defendant made only a single reference to the right to self-representation... supports the conclusion that defendant did not make an unequivocal Faretta motion. (Valdez, at p. 99.) With the foregoing in mind, we examine each of the five (one, over a two-day period) instances in which defendant requested to represent himself.
In People v. Stanley (2006) 39 Cal.4th 913 (Stanley), the California Supreme Court cited People v. Marshall (1997) 15 Cal.4th 1 (Marshall) statements that “[i]n determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo.” (Stanley, at p. 932) However, Marshall had applied that standard only to the question whether the invocation was knowing and voluntary. (Marshall, at pp. 23-24) Additionally, Marshall had cited its and another court’s prior holdings concerning equivocal invocations of the right of self-representation (ibid), yet concluded that defendant did not knowingly and intelligently waive his right to counsel (Stanley, at p. 933), a matter Marshall clearly stated was a separate issue from whether the assertion of the right was knowing and voluntary and one for which Marshall declined to declare a standard of review. (Marshall, at pp. 24-25) Rather, authority for use of the de novo standard in determining whether defendant’s invocation was unequivocal actually rests on People v. Danks (2004) 32 Cal.4th 269, 295, 296 (Danks), in which the California Supreme Court cited the de novo standard articulated in Marshall for determining whether the invocation was knowing and voluntary, and held that the defendant’s invocation was not unequivocal.
Defendant asserts, “[A]t least one of appellant’s requests to represent himself, if not more, was unequivocal.” However, he fails to identify which one(s) it/they are. He remains unable or unwilling to do so in his reply brief.
The first was on February 1, 2008, when defendant said, after his attorney had filed for continuances in all his cases due to his being on medical leave, that if going pro per was the only way he could go to trial, he wanted to represent himself. Later the court summarized defendant’s request as wanting to represent himself merely because he was tired of waiting for his appointed counsel. The court attempted to have defendant fill out a waiver form, but defendant was no longer in the courtroom. When defendant appeared in court again, this time on February 5, his attorney told the court that defendant no longer wanted to proceed in pro per. Defendant said nothing and did not again mention representing himself until six months later when the court, not defendant, told newly appointed counsel for defendant that defendant wanted to represent himself.
In Danks, supra, 32 Cal.4th at pp. 269, 292, the defendant brought a Marsden motion complaining about the number of continuances his attorney requested and the fact that defense counsel had initiated proceedings under section 1368. In explaining the source of his dissatisfaction with his attorney to the court, he said he wanted to represent himself “in the first place.” (Danks, at p. 293.) He repeated his request later during a rambling statement about his case. (Id. at p. 295.) The trial court denied defendant’s Marsden motion, but made no comment about his requests to represent himself. (Danks, at p. 295.) The California Supreme Court held, “[D]efendant’s references to self-representation were equivocal, born primarily of frustration regarding the granting of [defense] counsel’s requests for continuances and his desire to avoid further psychiatric examination.... [¶]... [¶] His fleeting statements about defending himself, embedded in diatribes regarding his opposition to further psychiatric examination and prison conditions, were insufficient to constitute an articulate and unmistakable invocation of the right to self-representation.” (Id. at pp. 296-297.)
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In People v. Hines (1997) 15 Cal.4th 997, 1027, the defendant said that if he could not get his Marsden motion granted, he wanted to represent himself, if possible. The trial court told defendant to think about it. (Hines, at p. 1027.) The next day, when defense counsel asked about the status of defendant’s Faretta motion, the court said there was no such motion pending. (Hines, at pp. 1027-1028.) The trial court asked defendant if he would seriously be making a Faretta motion “to have [his] attorneys fired[.]” (Hines, at p. 1028.) Defendant said the thought was deeply in his mind. (Ibid.) The court repeated that it did not consider that it had a Faretta motion before it and defendant was silent. (Ibid.) The California Supreme Court held, “[D]efendant never made” “an unequivocal assertion of th[e] right [to act as his own attorney.]” “[D]efendant made his request for self-representation at the Marsden hearing, stating that ‘if ’ the court was going to deny his Marsden motion, he would act as his own attorney ‘if possible[.]’ The next day, when the issue of self-representation was again discussed, defendant told the court that he had the ‘thought’ of self-representation ‘deeply in mind, ’ indicating that having been warned by the trial court the previous day of the perils of self-representation and told to give the matter serious thought, he was still considering the matter. Defendant’s comments do not represent an unequivocal request to act as his own attorney.” (Hines, at p. 1028.)
In Marshall, supra, 15 Cal.4th 1, 17, defense counsel made an ex parte motion for an order that the defendant provide blood, saliva, hair and fingernail samples because the defendant had repeatedly refused to do so. Upon being told about this, the defendant informed his attorney that he wanted to represent himself. (Ibid.) When the trial court ordered the defendant to provide the samples, the defendant said he wanted to fire his attorney and represent himself because “‘his right [was] being violated....’” (Id. at p. 18.) The trial court asked the defendant to explain why he wanted to fire his lawyer and represent himself, defendant made a statement that was incoherent except that he reasserted his desire to represent himself. (Id. at pp. 18-19.) The California Supreme Court held, “The statements of defendant... do not constitute an unequivocal invocation of the right of self-representation.... [¶] [They] indicate... [that] he was upset over the court’s order that he supply blood and other samples of bodily tissue, and over his counsel’s role in securing the order.... [I]t appears that his request for self-representation was advanced simply as a means to avoid being required to supply the samples, rather than out of a sincere desire to forego counsel and represent himself.... [¶] The... statement offered by defendant... was rambling.... It does not convey an unmistakable desire to forego counsel....” (Id. at pp. 25-26.)
Defendant’s February 1 request was conditional and it was abandoned. Under the above cited authorities, it was not unequivocal.
The second request occurred on August 12, 2008. As we have already stated, it was started by the court telling newly appointed counsel for defendant numerous times that defendant wanted to represent himself. If he was not already, defendant was made aware, by remarks of counsel for the codefendant, that his newly appointed attorney would need time to prepare for trial and the court stated that the case was complex, suggesting that a lengthy delay was about to happen. When counsel for the codefendant said that there was a witness who was relevant to both his client and defendant, but that witness would not be available for another six weeks, defendant said he did not want this witness testifying for him and immediately said he wanted to represent himself. In explaining his reason for the request, he reiterated that he wanted to get the case to trial, and any delay beyond 10 days was unsatisfactory. He reiterated his request to represent himself, but, this time, conditioned it on receiving discovery within three days, which the court told him was impossible. The court essentially postponed the hearing on defendant’s request until August 26 when newly appointed counsel for defendant would be able to review the discovery and tell the court if he would be able to go to trial by September 9, otherwise the court would entertain defendant’s request. Defendant consented to this. Under the above-cited authorities, defendant’s requests were not unequivocal and he consented to the postponement of a hearing on them. As before, the overarching concern for defendant was the timeliness of trial, not that he represent himself. On August 26, newly appointed counsel was not ready to give the court its estimate of when it would be ready to go to trial because another codefendant needed to be transported and interviewed. Despite the arrival of this “deadline, ” defendant did not mention his request to represent himself.
Defendant’s third request to represent himself occurred on September 12, 2008, the day to which the court had continued proceedings on August 26. Newly appointed counsel for defendant was in trial and substitute counsel and the trial court acknowledged that defendant did not want to waive time and had been objecting to delays for some time. At that point, defendant said he wanted to represent himself. After the trial court gave defendant a “semi-guarantee” that this trial would be the next one newly appointed counsel for defendant would try, defendant made no further statement about wanting to represent himself and proceedings were adjourned for the day.
“[A] defendant’s conduct may indicate an abandonment or withdrawal of a request for a Faretta hearing.” (People v. Kenner (1990) 223 Cal.App.3d 56, 62.) In Kenner, the appellate court held, “appellate had ample opportunity to call the court’s attention to the neglected Faretta motion, but did not.... [¶]... [O]ur view of these facts is simply that appellant had second thoughts about the wisdom of representing himself and abandoned the idea. Defendants who sincerely seek to represent themselves have a responsibility to speak up.... [I]t is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion.... [W]here appellant had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion.” (Kenner, at p. 62.)
As with his prior requests to represent himself, this request was within the context of defendant wanting to go to trial quickly, a matter that, as the court had previously pointed out, was impossible due to the state of discovery. Moreover, by not pursuing his request on this day, even though he had the opportunity to do so, defendant demonstrated that he was abandoning it.
The next request came four days later and was delivered by substitute counsel for defendant, who perfunctorily made it merely “for the record.” Defendant said nothing. Later that day, when newly appointed counsel for defendant, who was still in trial, appeared with defendant, defendant said only that he objected to trial beginning on September 26, but, nevertheless, agreed to that date because that was when his attorney would be available. The foregoing did not even constitute a request for self-representation by defendant, and defendant’s actions, once his attorney appeared with him, amounted to an abandonment of substitute counsel’s request. Moreover, as the People point out, defendant’s agreement to allow his attorney to continue to represent him once he became available again indicates that he abandoned his request to represent himself. (See People v. Butler (2009) 47 Cal.4th 814, 825.)
Continuances requested by defendant’s attorney and granted by the court for good cause shown brought defendant up to October 15, 2008, when counsel for the codefendant filed a motion for a continuance. Defendant stated through his attorney that he was not willing to waive time, even though his attorney, who had had the case for only two months and had just finished back-to-back trials, said that discovery was lacking and no investigations had been done. Defendant objected to delaying trial until November 10, a trial date for which both defense counsel said they could be ready. When the court granted the continuance to that date, defendant pointed out that he had previously waived time for a year and eight months, adding “I can represent myself if that will bring the date sooner... [¶] [I]f going pro per would get me two, three weeks, a day sooner, I would go pro per... and announce ready today.” However, defendant added that in order to go to trial the next day, he needed all the discovery immediately. After the trial court offered defendant the discovery which newly appointed counsel for defendant then had, which was not all of it, it asked defendant how he felt about going to trial the next day without all the discovery. Defendant simply replied that he could go to trial the next day if he got all the discovery immediately. After the court and defendant had a discussion off the record, which the court said “would probably qualify under Faretta to [allow defendant] to represent himself” the court mentioned defendant’s concern about the delay, but noted that discovery was still missing and it was not known what exactly was missing. Therefore, the court ordered newly appointed counsel for defendant and the prosecutor to get together and determine what was missing.
The following day, the prosecutor told defendant what was missing, which would take a couple of weeks to replace. The court reiterated to defendant that both defense counsel said they could be ready for trial on November 10, but if defendant wanted to represent himself without all the discovery, the court was ready to let him do so. Instead of standing on his request to represent himself, however, defendant wanted to know why discovery was missing. Defendant again objected to the November 10 trial date. The court again asked defendant if he wanted to represent himself. Defendant asked when the missing discovery would be provided. The court told him it would be at least a week and pointed out that if he did not have the discovery, he could not go to trial and trial would be continued until defendant was provided the discovery. For a third time, the court asked defendant if he wanted to represent himself. Defendant said he “would much rather” be represented by counsel. It is clear from defendant’s actions and statements on these two days that, as throughout his requests for self-representation, his overriding concern was getting the case to trial and not representing himself. When it became apparent to all on these dates that even if defendant represented himself, he could not go to trial substantially before November 10, due to the missing discovery, he clearly stated his preference, i.e., to be represented by counsel.
Our de novo review of this record demonstrates that, contrary to defendant’s current assertion, his requests to represent himself were not ignored, and they were all either equivocal and/or had been abandoned by defendant. Defendant’s reliance on People v. Dent (2003) 30 Cal.4th 213 is misplaced. In Dent, on the day the defendant’s capital murder trial was scheduled to begin, while 260 potential jurors waited out in the hall, neither of the defendant’s attorneys appeared. (Id. at pp. 215, 216.) The trial court noted their history of requests for continuances and failures to appear. (Id. at p. 216.) The court told the defendant that it was apparent that they were too busy to give his case the attention it needed. (Ibid.) The court granted a continuance, relieved the defendant’s attorneys and told him he could not represent himself. (Ibid.) Later, one of the defendant’s attorneys appeared and said he was ready to proceed, but the trial court told him he had been relieved. (Ibid.) This attorney told the trial court that the defendant had expressed concern about the amount of time it would take to get two new lawyers prepared for trial and the defendant wanted this lawyer to continue to represent him, or to have him continue to represent him with the addition of a new second attorney, or to represent himself. (Id. at p. 217.) As to the latter, the defendant said he thought he would be more inclined to get a fair trial than being represented. The trial court said it would not allow the defendant to represent himself in a death penalty case. (Ibid.) The defendant repeated that if the court was going to appoint him two new attorneys, he would like to represent himself instead. The trial court appointed two new attorneys and the defendant did not renew his motion for self-representation. (Ibid.) The California Supreme Court held, “[T]he trial court denied the request to proceed in propria persona on an improper basis, i.e., because it was ‘a death penalty murder trial.’” (Id at p. 218.) The court also said, “Arguably, defendant’s request... was not equivocal.... Moreover, the trial court, which was in a position to view defendant’s demeanor, appears to have treated the request... not as equivocal but serious, and emphatically denied it. [¶] We need not decide this issue, however, because whether or not defendant’s request was equivocal, the trial court’s response was not only legally erroneous but also unequivocal, and foreclosed any realistic possibility defendant would perceive self-representation as an available option.” (Id. at pp. 218, 219.) Thus, Dent provides no binding authority on the issue of the equivocal nature of the defendant’s request, which is the major issue in this case. Additionally, the court here never denied defendant’s motion to represent himself.
Also of no assistance to defendant, despite his reliance upon it, is People v. Rivers (1993) 20 Cal.App.4th 1040, 1047 [Fourth Dist., Div. Two], in which the trial court denied the defendant’s request to represent himself as untimely, despite the fact that the court was obliged to consider certain factors before denying the motion on that basis. No such denial occurred in this case.
Moreover, defendant’s assertions that the court ignored his repeated requests to represent himself or somehow discouraged him from insisting that they be acted upon is belied by the record. The court (on August 12, 2008) brought up the subject of defendant wanting to represent himself, even before defendant said a word about it and it talked several times about its inclination to let defendant represent himself.
b. Speedy Trial
To summarize this case, pretrial, proceedings were suspended under section 1369 from the first court appearance after the arraignment until March 15, 2006. Thereafter, the case was continued at the request of the defense until March 27, 2008, when the defense announced ready but the court granted the People’s motion to trail to April 7, for good cause. From April 7 to the 23rd, continuances requested by the defense were granted because defense counsel was in another trial. Although counsel announced ready on April 21 and 23, by then the codefendant had re-entered the picture and his attorney needed time to prepare, so he was granted a continuance over defendant’s objection to May 19. On May 20, although defendant again announced ready for trial, he agreed to wait for a witness the codefendant wanted to interview and waived time to June 27. On that day, defendant again announced ready, but the prosecutor was granted, over defendant’s objection, a continuance to July 7, because she was in trial. On July 7, the codefendant was granted a continuance over defendant’s objection. The following month, although both the prosecution and the codefendant requested continuances, defendant had just been appointed new counsel, who was told to come back the following month after reviewing discovery and tell the court when he would be prepared to go to trial. Defendant stated he was ready to represent himself, but only if he could have all the discovery, which was not available. He then agreed to allow his attorney, who had requested discovery from the prosecutor, to continue to represent him. Thereafter, and until October 15, defense continuances, some over defendant’s personal objection, were granted due to the unavailability of counsel or his lack of readiness to go to trial. During October 15 and 16, defense counsel and defendant were informed what discovery was still missing and defendant ultimately decided that he wanted to continue to be represented by counsel, even though he was unhappy with the prospect of going to trial the following month. Trial was thereafter continued or trailed until November 18 at defendant’s request or with his stipulation, then was continued two more weeks at the People’s request because an important prosecution witness had been sent out of state for military training. In total, the People received continuances of approximately six and one-half weeks, and the codefendant seven weeks for which defendant stated he did not also need more time.
Under defendant’s federal speedy trial right, there was a total delay of a little over three years before trial and under State law, of two years and ten months. (Stabio v. Superior Court (1994) 21 Cal.App.4th 1488, 1493; People v. Martinez (2000) 22 Cal.4th 750, 763, 764.)
We have subtracted the eight months and nine days proceedings were suspended while defendant was being evaluated pursuant to section 1368.
See footnote 17, ante, page 29.
“To determine whether defendant’s federal right was violated, we evaluate the length of the delay, the reason for the delay, defendant’s assertion of his right, and the prejudice to defendant. (Barker v. Wingo (1972) 407 U.S. 514, 530 [92 S.Ct. 2182] (Barker).)” (People v. Harrison (2005) 35 Cal.4th 208, 227.) No one factor alone is sufficient for a violation. (Barker, at p. 533.)
“[L]ower courts have generally found postaccusation delay ‘presumptively prejudicial’ as it approaches one year.” (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1 [112 S.Ct. 2686] (Doggett).) “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is not necessity for inquiry into the other factors that go into the balance.” (Barker, supra, 407U.S.at p. 530.) However, “presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria” and a presumption of prejudice is not a substitute for a showing of actual prejudice, which is necessary if the other factors do not weigh strongly in favor of defendant. (Barker, at pp. 533-535; Doggett, at p. 656.) “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” (Barker, at p. 531.) Until the codefendant was removed from this case, the prosecutor was predicting that it would take 10 days to try. She planned to call 12 witnesses, the defendant three and the codefendant 10. After the codefendant was removed, the evidentiary portion of the guilt phase of the trial took five days. Fourteen witnesses were called by the prosecution during its case-in-chief. Defendant had been charged with seven serious crimes, numerous allegations and was facing punishment as a third striker. The case was serious and complex.
The vast majority of delay in this case was due to the unavailability of defense counsel and the appointment of new counsel to replace him. Delay caused by the People, on the other hand, was far more brief. “[N]eutral reason[s for delay by the People] such as negligence or overcrowded courts should be weighted less heavily [than]” “[a] deliberate attempt to delay the trial in order to hamper the defense” “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the [People] rather than the defendant.... [A] valid reason, such as a missing witness, should serve to justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531.) The record does not state why the People obtained the 10 day trailing in March 2008. To the extent the prosecutor’s three week continuance in June 2008 because she was in trial, can be considered due to court congestion, it was not a deliberate attempt to hamper defendant’s case. Finally, the last of the delays caused by the People, for two weeks in late November and early December, was due to the unavoidable absence of an important prosecution witness, which Barker holds justifies an appropriate delay.
The unavailability of counsel for the codefendant, or the inadequacy of time for him/her to prepare, like that of counsel for the defendant, is a valid reason for delay. (United States v. Vega Molina (1st Cir. 2005) 407 F.3d 511, 533; United States v. Davenport (11th Cir. 1991) 935 F.2d 1223, 1239 (Davenport).) It is clear from the record that both attorneys for defendant and the codefendant had reasons for being unavailable that were not reasonably unavoidable.
Delay due to the People’s desire to conduct joint trials does not weigh against the People because the law favors such trials. (Davenport, supra, 935 F.2d at p. 1240; section 1098; People v. Alvarez (1996) 14 Cal.4th 155, 190.)
Therefore, the reasons for the delays do not weigh in favor of finding that defendant’s federal constitutional right to a speedy trial was violated.
As to the defendant’s assertion of a speedy trial right, we note that defendant complained five times, but was not joined by his attorney, who was either unavailable or not ready, and the last time, defendant eventually conceded that he wanted to continue to be represented by counsel even though the latter could not go to trial as quickly as defendant wanted. On only three other occasions did defense counsel either object to/disagree with a continuance or trailing and during two of them, defendant eventually agreed to the delay. Defendant never moved for dismissal of the charges against him based on an asserted violation of his federal right to a speedy trial. Therefore, his assertion of his right does not weigh in favor of reversing his convictions.
We note that “[C]ounsel has the authority to waive defendant’s statutory right to a speedy trial, at least in the absence of evidence showing incompetence of counsel.” (People v. Harrison (2005) 35 Cal.4th 208, 225.) Defendant does not allege that either of his attorneys was incompetent for failing to assert his right to a speedy trial.
The fourth Barker factor, the prejudice caused by the delay, is assessed “in the light of the interest of defendants which the speedy trial right was designed to protect” (Barker, supra, 407 U.S. at p. 532), which are preventing oppressive incarceration of the defendant while awaiting trial, minimizing defendant’s anxiety and concern due to the pendency of unresolved criminal charges, and, the most serious of which, is limiting the possibility that the defense will be impaired. (Ibid.) However, delay may also work in a defendant’s favor (Barker, at p. 521), for reasons that are so obvious they need not be listed.
Defendant asserts that he was prejudiced by the delay because “substantial parts of the discovery was [sic] lost for a time, his original lawyer became a judge and he was unable to represent himself.” First, defendant does not state what the causal connection between delay and all three of these facts are-nor does logic suggest that there is any. Even if the delay “caused” discovery to be lost for a time, defendant does not assert that his attorney ultimately went to trial without that discovery. Next, defendant fails to assert how he was ultimately prejudiced by the fact that his first attorney became a judge. Finally, as we have concluded, defendant was unable to represent himself because he did not equivocally request to represent himself. It had nothing to do with the delay. Defendant completely fails to persuade us that he was prejudiced by the delay. We note that, at trial, defendant rested without calling any witnesses to testify, thus, the standard complaint that delay caused witnesses for the defendant to become unavailable or to be unable to remember facts favorable to defendant could not be made.
The record, on the other hand, suggests that the temporary separation of newly appointed defense counsel from the discovery was due to the failure of original defense counsel to give all of it to him.
Therefore, we are not persuaded, by balancing the Barker factors, that defendant is entitled, under his federal right to a speedy trial, to have his convictions reversed due to the delay in bringing him to trial.
Defendant also has a state constitutional right to a speedy trial, embodied in Article 1 Section 15 of the California Constitution, which, in turn, is implemented in section 1382, which is “‘“supplementary to and a construction of”’” that provision. (People v. Anderson (2001) 25 Cal.4th 543, 604 (Anderson).)
“... [W]hen a claim of violation of the state constitutional speedy trial right goes beyond [section 1382] California law requires an affirmative showing of prejudice.” (Anderson, supra, 25 Cal.4th at p. 605.) In a test similar to Barker’s, prejudice to the defendant is weighed against the justification for the delay. (People v. Martinez (2000) 22 Cal.4th 750, 767.) We have already rejected defendant’s claim of prejudice. Moreover, the justifications for most of the delay here, i.e., avoiding severance of trials and giving counsel adequate time to prepare effective representations of defendant and his codefendant, outweigh any such prejudice.
Finally, under section 1382, we ordinarily determine whether defendant expressly or impliedly consented to trial beyond the 60-day period provided in that section, and, if not, whether there was good cause for not trying him within that period. However, defendant’s failure here to bring a motion to dismiss waived any claim he had under section 1382. (People v. Wilson (1963) 60 Cal.2d 139, 146, 147, 148; Accord, People v. Wright (1990) 52 Cal.3d 367, 389, disapproved on other grounds in People v. Williams (June 28, 2010, S029490)___Cal.4th___.)
That section provides in pertinent part, “The court, unless good cause to the contrary is shown, shall order the action to be dismissed... [¶]... when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an... information....” However, dismissal is not appropriate if the defendant by request or consent, expressed or implied, consents to trial beyond the 60-day period. (§ 1382, subd. (a)(2)(B).)
Recently, in People v. Lomax (2010)__Cal.4th __[2010 Lexis 6017] the California Supreme Court was confronted with a defendant’s claim that his constitutional and statutory rights to a speedy trial had been violated by the trial court granting continuances his counsel had requested, but he opposed. Our high court held, “‘Defense counsel, as part of his or her control of the procedural aspects of a trial, ordinarily has authority to waive the statutory speedy trial rights of his or her client, even over the client’s objection, as long as counsel is acting competently in the client’s best interest.’ [Citations.]... [¶] [Defense counsel here] requested a continuance... because he needed ‘a lot more time’ to prepare the case for trial.... Based on [his] unequivocal statement that he could not present the case for trial within the statutory time, the trial court found good cause to grant a continuance over defendant’s objection. [¶]... Delay for the defendant’s benefit... constitutes good cause to continue trial over his objection. [Citation.]... [¶]... [¶]... [T]he record does not support defendant’s claim that the prosecutor was dilatory in satisfying its discovery obligations. Defendant’s difficulties in this regard stemmed from a number of circumstances outside the prosecutor’s control. There is no evidence the prosecution did anything to purposefully delay or interfere with defendant’s ability to investigate the case.... [¶]... [¶] When defendant refused to waive time... despite his attorney’s plea that he was ‘absolutely’ not ready to proceed and needed more time to prepare the case for trial, the situation presented a classic confrontation between defendant’s statutory and constitutional rights to a speedy trial and his Sixth Amendment right to competent and adequately prepared counsel. [Citations.] If counsel seeks reasonable time to prepare a defendant’s case and the delay is for defendant’s benefit, a continuance over the defendant’s objection is justified. [Citation.]” (People v. Lomax, __Cal.4th__ [2010 Lexis 6017 at pp. *32-36, 38, 41].)
2. Sufficient Evidence of the Strike Prior
Defendant here contends that there was insufficient evidence presented below that he suffered a first degree burglary in 2004 as found true by the trial court. The court minutes for that case state that defendant was charged with burglary, he pled no contest and the trial court “f[ou]nd the offense... to be in the first degree.” Defendant asserts that there is “no indication in the records submitted by the prosecution that [he] was charged with first degree burglary, or that he agreed the court could make this finding after he simply pleaded no contest[.]” We note that defendants are routinely charged with burglary, as with murder, without specification as to degree, leaving to the jury the task of determining the degree or having it specified as part of defendant’s plea bargain agreement. Additionally, the minutes from 2004 do not state that defendant objected to the trial court’s finding that he committed burglary in the first degree, nor do the records before the trial court and this court contain an amended minutes indicating that the conviction was for second degree burglary, a matter that any competent defense attorney would be expected to attend to considering the existence, in 2004, of the three strikes law and the enhancement for a serious prior conviction under section 667, subdivision (a).
Defendant points to section 462, which prohibits the granting of probation upon a conviction of first degree burglary absent a statement of reasons in the interest of justice and on the record and the fact that no such statement is contained in the minutes of the 2004 case. However, defendant pled no contest-he was not convicted by a jury. Moreover, the absence of a statement of reasons in the minutes does not overcome the court’s affirmative statement that it found the burglary to be of the first degree.
Viewing the record in the light most favorable to the trial court’s finding that defendant suffered a conviction for first degree burglary in 2004, we conclude that a reasonable trier of fact could conclude that the prosecution had sustained its burden of proof beyond a reasonable doubt. (See People v. Rodriguez (2004) 122 Cal.App.4th 121, 128, 129.)
Disposition
The trial court is directed to amend the abstract of judgment by checking the box at number 4 to indicate that defendant was sentenced pursuant to section 667, subdivisions (b) through (i). In all other respects, the judgment is affirmed.
We concur: McKINSTER J.KING J.
The People report that this statement was made by substitute defense counsel. According to the Reporter’s Transcripts, it was made by the substitute prosecutor. However, the People may be correct in their apparent assumption that the court reporter incorrectly reported that the substitute prosecutor made the statement. Substitute defense counsel was present when the statement was made, and, according to the Reporter’s Transcript, she had just made another statement. We find it incredulous that the substitute prosecutor would have information on the whereabouts of defense counsel, which was part of the statement at issue, and that defendant no longer wished to represent himself. Therefore, it is more likely than not that substitute defense counsel made the statement.
After making this statement, defendant then said, “I would also like all the discovery as well in case this matter comes up again where I can represent myself and be more prepared than I am now.” Defendant mischaracterizes this statement by reporting its context as follows, “[T]he court asked appellant if he wanted to represent himself without all the discovery. [Citation.] The court told appellant: ‘You need to decide today whether you want to represent yourself or be represented by counsel.’ [Citation.] Appellant said he would like all the discovery so that he could be better prepared to represent himself.” He repeats this in his reply brief. Not only did appellate counsel for defendant omit from this defendant’s crucial answer to the trial court’s question whether he wanted to represent himself (he said he did not), but he mischaracterized defendant’s statement about why he wanted the discovery, despite wanting to remain represented.
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