Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR909350
McGuiness, P.J.
Ricky Lee Johnson (appellant) appeals from a judgment entered after a jury found him guilty of various offenses including kidnapping to commit robbery and burglary. He contends: (1) the trial court erred in denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta motion); (2) the court erred in denying his motion to relieve his attorney under People v. Marsden (1970) 2 Cal.3d 118 (Marsden motion); (3) his conviction on three of the counts should be reversed; and (4) the trial court erred in believing it had no discretion to impose concurrent terms on one of the counts. We reverse the judgment as to two counts as set forth below, and affirm the judgment in all other respects.
Factual and Procedural Background
On October 18, 2006, an amended information was filed charging appellant with two counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1), counts one and two), two counts of first degree burglary (§ 459, counts three and four), first degree robbery (§ 211, count five), two counts of kidnapping (§ 207, subd. (a), counts six and seven), grand theft (§ 487, subd. (a), count eight), grand theft of a firearm (§ 487, subd. (d), count nine), two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1), counts ten and eleven), being a felon in possession of ammunition (§ 12316, subd. (b)(1), count twelve), and felony vandalism (§ 594, subd. (a), count thirteen). The information alleged as to counts one, two, five, six and seven that appellant personally used a firearm during the offenses (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b), 1203.06, subd. (a)(1)). It also alleged appellant had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subd. (b)) and three prior prison terms (§ 667.5, subd. (b)). The information alleged 10 circumstances in aggravation.
All further statutory references are to the Penal Code unless otherwise stated.
Pretrial proceedings
Appellant entered a plea of not guilty on July 31, 2006. On the same day, appellant’s attorney, Thomas Quinn, asked to be relieved as counsel because the scheduled trial conflicted with his pre-planned vacation and appellant did not want to waive time. The trial court granted the request, and Ken Roush was appointed as appellant’s new attorney.
At a hearing on August 7, 2006, appellant stated, “I just want to plead guilty and get out of here.” Roush stated he had just recently received the file and was not prepared to advise appellant on the issue of whether he should enter a plea. Quinn, appellant’s prior attorney, stated, “He’s facing life in prison, Your Honor, as former counsel.” As the court began to suggest to appellant that he discuss with Roush the effect of entering a guilty plea, appellant stated, “It doesn’t matter.” The court responded, “I think it will matter,” and proposed continuing the hearing for one or two weeks. Appellant stated, “I’ll go pro per then.” When the court proceeded to ask Roush how much time he needed, appellant stated, “I’d like to go pro per and plead guilty on my own.” The court continued the matter for two weeks and set the case for trial, noting that it appeared appellant wished to enter a guilty plea as soon as possible. Appellant asked for an early trial date, and the trial was scheduled for September 12, 2006.
On August 24, 2006, Roush filed a motion for a continuance in which he noted that only two and half weeks had passed since he made his first appearance in the case. He stated he had not received all discovery and needed additional time to prepare a defense strategy and adequately represent appellant in the three strikes case. At an August 28, 2006, hearing, the court addressed the motion for a continuance, stating appellant has the right to a speedy trial but also has the right to effective assistance of counsel. Appellant stated, “Then I would like to submit a – a Marsden motion, and I will no longer talk to Mr. Roush as my attorney.” At the Marsden hearing, appellant read a statement into the record, complaining that Roush had ignored his request not to waive time, and concluding with the statement, “I will no longer talk to Mr. Roush at all.” Later, he stated, “My trial from September 12th has moved to – on the who knows when now. And I want to go pro per. I do not want a lawyer out of the County of Lake, and I want to plead guilty. I’m guilty of all [the] charges, and I want to get this done and over with.” Roush stated he believed the attorney-client relationship has been “irreconcilably damaged” because he needed a continuance and appellant did not want one. When the court asked whether appellant wished to say anything further, appellant responded, “No, other than I want it to be put back on calendar for September 12th for a jury trial on my pro per by myself or I plead guilty on September 12th, whichever comes first . . . . And I just want to move on. I can’t beat none of it in a jury trial. Both Quinn has said so, both Roush has said so, and there is no offers, so I just want to plead guilty and get out of here.” The court denied the Marsden motion, stating appellant was receiving competent representation and that a continuance was necessary for Roush to adequately prepare for trial. Appellant stated, “I won’t talk to this lawyer ever again.” The court responded, “Whether or not you try to sabotage the relationship is another issue, but he can effectively represent you from what I’ve heard.” The trial was continued to October 17, 2006.
At the next hearing on October 13, 2006, before a different judge, Roush informed the court that appellant was refusing to meet with him or the defense investigator. The prosecutor noted that appellant had rejected a previous offer and was facing 258 years to life on the charges. Appellant stated, “I put in a Marsden motion on a couple of occasions. There has been a breakdown. I will not talk to him. And I’m the only one that knows . . . what’s going on as far as my case. And if I don’t talk to him and I don’t tell him what’s going on, . . . there’s no communication and that’s not a fair trial.” The court confirmed the original trial date and stated the matter was going to be heard by the trial judge. Appellant responded, “I’d like to Marsden . . . my lawyer. I don’t want him as my lawyer at all and I won’t talk to him.”
Later that morning, before the trial judge, Roush provided the court with a summary of the proceedings to date. The court addressed appellant, stating, “I’m looking at the Court’s minutes from the last two hearings, . . . which backs up what your attorney just said, the Marsden motion has been denied. I also see that you objected to being dressed in civilian clothing for trial and that you want to be shackled and do not want to sit next to your attorney. Is that still the status?” Appellant responded, “Yeah,” and stated he was not going to talk to his attorney and his was “not going to be a fair trial.” He stated he was upset at Roush for waiving time. The court responded that his Marsden motion had previously been denied twice and that the court was not going to entertain a new motion made on the same grounds. Appellant added that he and Roush disagreed regarding whether appellant’s two accomplices should testify for the defense. The court stated there could be various reasons not to have the accomplices testify, including the fact that they could incriminate appellant.
Roush suggested that appellant might wish to enter a “Faretta waiver.” The court asked appellant whether he had “mention[ed] the idea of representing [himself]” at the time of the Marsden hearings. Appellant responded he “didn’t know anything about that waiver” but that he “did . . . say . . . at the Marsden motion . . . pre per (sic).” The prosecutor stated appellant had “mentioned in open court not entirely but ha[d] made representations of that issue.” Appellant later stated he made two prior requests to represent himself. The court responded that it did not see anything in the minutes indicating appellant made such prior requests and asked Roush, “Has he expressed that in court in the past?” Roush responded, “I do not recall that specifically. However, his attitude might be interpreted to mean that.” Roush further stated, “I do recall him mentioning pro per. I do not recall him making a motion at that time, but I do recall him saying pro per.”
The court informed appellant of his right to defend himself and asked whether he wished to do so. Appellant responded, “I do not want Mr. Roush as my lawyer, that’s what I’m telling you. So if I have to defend myself I will.” He stated, “I’d – rather than going to trial with him, I’d rather represent myself.” The court asked appellant if he was aware that he faced a maximum sentence of 258 years to life. Appellant responded, “I didn’t know anything about that until today, your Honor, in the other courtroom.” He reiterated, “And I do not wish to have him as my lawyer. I won’t have him as my lawyer.” The court proceeded to inform appellant of some of the risks of representing himself at trial, and appellant indicated he understood some of those risks. The court asked appellant about his legal training, and appellant responded, “I have none. I still don’t even know what’s going on in this courtroom.” When asked whether he understood the disadvantages of not having an attorney, appellant stated he was at a disadvantage either way because he was going to continue to refuse to see Roush.
The prosecutor stated appellant was going to have to be shackled because he was disruptive in court and “there was a scuffle involving some of the correctional officers.” The prosecutor stated “there was also some concern from other people who heard him at the proceeding in open court that he was going to cause a disruption.” Appellant acknowledged a correctional officer had to take him into a jury room and put him up against a wall. The court noted that the minutes from a prior hearing showed another judge had admonished appellant that he would be removed from the trial if he was disruptive. Appellant stated, “Your Honor, I had already told Mr. Roush . . . that if it went to trial with him as my law[y]er, I would disrupt the jury.” When the court informed appellant that he could be removed from the courtroom for being disruptive, appellant responded, “Well, I don’t even need to be in the courtroom then. I’d be willing to plead guilty right now to the last offer she made before all of this came down.” The prosecutor noted that all offers had been withdrawn.
At a hearing to determine the type of restraints that would be necessary at trial, a correctional officer testified that on October 2, 2006, appellant had to be removed from the courtroom and into a jury room because he was involved in an altercation and warned the officers to “restrain him with as much as we can or he will out act and take advantage of any opportunity.” The officer also testified that on October 14, 2006, appellant “threw [another] inmate down on the ground” and that the inmate had to be taken to the emergency room to receive medical treatment.
Appellant stated he was going to “make a disruption” as soon as the trial started. When asked by the court what specifically he was going to do, and whether he was going to be a “physical threat” in the courtroom, appellant responded he was not going to assault anyone because he was going to be shackled and handcuffed. The court stated it had “some real concerns about [appellant’s] attitude, . . . both mentally and physically,” and stated it was going to make sure appellant was not going to hurt Roush. Appellant responded, “Well, I got a head. [¶] . . . [¶] I’ll let you know that, I got a head. So go ahead and seat me next to [Roush]. I’m telling you right now in this courtroom I will not sit next to him at all.” The court stated, “You’ve got enough problems right now. If I were you, I wouldn’t make it worse. You don’t seem to want to listen.” Appellant responded, “What are you going to do, give me three lives? I ain’t never getting out of prison anyhow.”
The court denied the Faretta motion on the grounds that the request was made less than two court days before trial, appellant did not appear to have the ability and knowledge to represent himself, and “the Court has the impression there’s a very strong possibility that he would disrupt the trial or jury during the course of the trial.” The court also found that appellant was making the request for purposes of delaying the proceedings. After the court made its ruling, appellant asked the court to “just take it to trial” and stated he had decided not to plead guilty but also not to participate in the trial. The court denied the Faretta motion on the grounds that the request was made less than two court days before trial and that appellant did not appear to have the ability and knowledge to represent himself. The court also stated it “has the impression there’s a very strong possibility that he would disrupt the trial or jury during the course of the trial.”
On October 17, 2006, the day scheduled for trial, appellant made another Marsden motion on the ground that Roush lacked the experience to represent him at trial. At the Marsden hearing, the trial court asked Roush about his experience and training and found he was qualified to represent appellant. Appellant also complained that Roush had made no effort to contact him after the prior Marsden motion was denied. The court reminded appellant, “You were pretty definite on Friday [October 13, 2006] that you didn’t want to see or talk to Mr. Roush, so I can understand why he didn’t contact you. Are you saying that now you would like to sit down and talk with him about your case?” Appellant responded, “No,” but stated Roush should nevertheless have made the effort to talk to him because he would have met with him if Roush had tried. At the end of the hearing, appellant stated, “I think me and Mr. Roush need to sit down and talk for a little bit . . . .” The court denied the Marsden motion and called a recess to allow appellant to speak to Roush.
The trial
Kimberlee Dunn and her sister, Cynthia Lunge, testified they arrived at Dunn’s vacation cabin in the afternoon of May 24, 2006. Dunn testified she walked into the cabin and was “just stunned” to see what a mess it was. She immediately noticed that the generator and three dirt bikes were missing. Later, she discovered that numerous other items had been stolen, including two motorcycles, numerous tools, a boat motor, helmets, propane tanks, solar batteries for their solar system, food and utensils, and “just everything they could get their hands on.”
Dunn picked up one of her .22 shotguns from a table, and Lunge told Dunn to load it. Dunn and Lunge testified that at that point, appellant jumped down from an upstairs loft and pointed Dunn’s .30-06 rifle at them. Dunn tried to shoot appellant but her gun was not loaded. Appellant yelled at Dunn to drop the gun, grabbed Dunn’s gun, and told Dunn and Lunge to sit down. He ordered them outside the cabin and Dunn and Lunge left the cabin with him. Once outside, appellant asked for the keys to Dunn’s car. Dunn, who did not want to give appellant the keys to her car, told him he should not drive because there is only one road to the cabin and her family members, who were on their way to the cabin, would call the police if they saw appellant driving her car. Appellant then ordered Dunn and Lunge to go to the creek with him. When Dunn told him she did not want to go, appellant “got really angry and more forceful with that barrel of the gun.” Dunn and Lunge left the cabin with appellant. Shortly thereafter, appellant reentered the cabin to get some ammunition and water before leaving the cabin a second time.
Once the three were outside, appellant went to a shed and picked up two more rifles, neither of which belonged to Dunn. Appellant pointed a rifle at Dunn and Lunge and told them to “keep going.” Once they reached the creek, appellant ordered Dunn and Lunge to cross the creek. Lunge said she could not go on because of her asthma, and Dunn told appellant he should leave because her and Lunge’s husbands were most likely looking for them and would be arriving shortly. Dunn tried to convince appellant to leave her .30-06 rifle, but appellant took it with him.
Once appellant was out of sight, Dunn and Lunge ran back up the hill and their husbands arrived at the cabin shortly thereafter. They told their husbands what had happened, then drove to a nearby store to call the police. The husbands ran down the hill, looking for appellant. Dunn’s husband testified that during a search of the area, he found a “small makeshift camp.” He found some of his tools at the campsite. He also found a bag full of clothing and a wallet with appellant’s identification card in it. Later that day, he and Dunn reported this to the sheriff, and as deputies followed their car back up the mountain toward the makeshift camp, they discovered appellant walking along the road. The officers immediately arrested appellant.
Dolores Price testified that she is Dunn’s mother-in-law and owns a vacation cabin near Dunn’s cabin. She testified that on May 24, 2006, she discovered that a cupboard in her cabin was open and that various items, including three lanterns, batteries, pots and food, were missing. She also noticed that the pipes on the water heater had been disconnected or broken.
At the time of his arrest, appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and agreed to be interviewed. A DVD of the interview was played for the jury. During the interview, appellant admitted that he and two accomplices burglarized Dunn’s cabin, loaded the accomplices’ truck with the stolen items, and entered a second cabin (Price’s cabin) to see if there was anything worth stealing. The accomplices drove the truck back to a storage unit to unload the items, and appellant stayed behind, The accomplices were supposed to return to the cabin to pick up additional items, but they did not return, so appellant stayed in Dunn’s cabin overnight. Appellant stated he was in the upstairs loft smoking marijuana when Dunn and Lunge arrived. He jumped down from the loft and confronted them with a .30-06 rifle because he heard them talking about “load[ing] a gun,” and he did not want anyone to get hurt. He said he had loaded the .03-06 rifle and had been carrying it around while he waited for his accomplices to return, but that he “had no intention of taking their gun . . . until . . . then.” Appellant stated that Dunn also had a gun in her hand and tried to pull the trigger but the gun was not loaded. He grabbed the gun from her, lowered his rifle, thought of taking her car, but decided to walk down to the creek. He told Dunn and Lunge to come with him, and the three of them walked down together. When they arrived at the creek, Dunn asked him to leave the gun, and he responded that he was going to take it and “leave it on the trail somewhere.” He “ditched the gun” the day he was arrested.
A law enforcement officer testified that appellant identified his accomplices by showing the officer where they lived. After obtaining a search warrant, officers searched the home and found the accomplices’ truck and a rental agreement for a storage unit. Dunn’s husband testified that he and his wife went to the storage unit with the officers and found a lot of their property there, including generators, boat motors, gas cans, propane tanks and power inverters.
Appellant took the stand and admitted to three prior felonies. His testimony was consistent with that of Dunn and Lunge, with several exceptions. He testified that he pointed his gun at Dunn and Lunge because he heard them say, “grab the gun” and “load the gun,” and because he did not want anyone to get hurt. Appellant admitted leaving the cabin and reentering with Dunn and Lunge but testified he did not take ammunition at that time, but rather grabbed his own belongings, marijuana and marijuana paraphernalia, tobacco, and his shoes. He testified he already had the ammunition in his pocket at the time he went back inside the cabin, and that he did not take the ammunition or water when he reentered the cabin. Appellant also stated he was too short (five feet, six inches tall) to reach into the loft to pick up the ammunition as Dunn and Lunge testified he had, and that it was also not possible for him to climb a ladder and hold a gun on them at the same time. Appellant testified he walked into the loft and was out of Dunn and Lunge’s sight for “at least a minute.” He also testified there were only a total of two rifles, the .30-06 rifle he took from the cabin and his own .22 rifle he picked up from the shed after he and Dunn and Lunge left the cabin. Appellant stated that after Dunn and Lunge arrived, he did not take anything that he had not taken before they arrived. Appellant stated that Dunn and Lunge agreed to walk with him to the creek as long as he was going to leave.
Appellant further testified that his camp had more than four months worth of supplies at the time the burglaries occurred. Appellant’s sister testified she had purchased a number of items for appellant, including a lot of bottled water, cups, canned meats, batteries and sleeping bags.
The jury found appellant guilty on all counts, and in a bifurcated trial, found the special allegations to be true. At the sentencing hearing, the court denied appellant’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike a prior strike and sentenced him to 240 years to life in prison. The sentence consisted of two terms of 25 years to life with an additional 10 years for the firearm enhancements, plus five years for his prior felony convictions, for a total of 80 years to life on counts one and two; two terms of 25 years to life with an additional five years for his prior serious felony convictions, for a total of 60 years to life on counts three and four; and four terms of 25 years to life on counts ten, eleven, twelve and thirteen, for a total of 100 years to life. Pursuant to section 654, the court stayed sentence on counts five through seven (25 years to life plus a total of 15 years for the firearm and prior conviction enhancements) and counts eight and nine (25 years to life on each count). The sentence on all counts not stayed was ordered to be served consecutively.
The abstract of judgment incorrectly provides that the second five year enhancement was stayed. It shall be amended to state that the enhancement was imposed.
Discussion
The trial court did not err in denying appellant’s Faretta motion.
Appellant contends the trial court erred in denying his request to represent himself. We disagree.
A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. (Faretta v. California (1975) 422 U.S. 806, 835-836 (Faretta); People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall).) “A trial court must grant a defendant’s request for self-representation if three conditions are met.” (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch).) “First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.]” (Ibid.) However, “ ‘[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.’ [Citation.]” (Id. at p. 734.) “The high court reiterated this point in McKaskle [v. Wiggins (1984)] 465 U.S. 168, 173], noting ‘an accused has a Sixth Amendment right to conduct his own defense, provided only that . . . he is able and willing to abide by rules of procedure and courtroom protocol.’ [Citation.]” (Welch, supra, 20 Cal.4th at p. 734.) “This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.” (Ibid.)
Additionally, the defendant “must make his request within a reasonable time before trial” and “make his request unequivocally.” (Welch, supra, 20 Cal.4th at p. 729.) “Unlike the right to representation by counsel, the ‘ “right of self-representation is waived unless [the] defendant[] articulately and unmistakably demand[s] to proceed pro se. ” ’ [Citations.]” (People v. Danks (2004) 32 Cal.4th 269, 295 (Danks).) “ ‘The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.’ ” (People v. Valdez (2004) 32 Cal.4th 72, 98-99, quoting Marshall, supra, 15 Cal.4th at p. 23.) “ ‘[A] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation.’ [Citations.]” (Danks, supra, 32 Cal.4th at p. 295, quoting Marshall, supra, 15 Cal.4th at p. 21 and citing Marshall at p. 23 [“A motion for self-representation made in passing anger or frustration . . . may be denied”]; Reese v. Nix (8th Cir. 1991) 942 F.2d 1276, 1281 [the defendant’s statement, “Well, I don’t want no counsel then” was not a clear and unequivocal invocation of his right to self-representation]; Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888-889 [the defendant’s statement “ ‘I want to fight in pro per then. Relieve him and I do this myself,’ ” was an “impulsive response to the trial court’s denial of his request for substitute counsel,” and “did not demonstrate unequivocally that he desired to represent himself”]; Jackson v. Ylst, supra, 921 F.2d at p. 888 [“trial court properly may deny a request for self-representation that is ‘a momentary caprice or the result of thinking out loud’ ”].)
In determining on appeal whether the defendant unequivocally invoked the right to self-representation, we examine the entire record de novo. (Danks, supra, 32 Cal.4th at p. 295.) “[T]he court should draw every reasonable inference against waiver of the right to counsel . . . .” (Marshall, supra, 15 Cal.4th at p. 23; see also Brewer v. Williams (1977) 430 U.S. 387, 404 [“courts indulge in every reasonable presumption against waiver” of the post-arraignment right to counsel].) Faretta error is reversible per se. (Welch, supra, 20 Cal.4th at p. 729.)
Here, we conclude that appellant’s references to self-representation were equivocal, born primarily of frustration regarding the granting of his attorney’s request for continuances and the denial of his Marsden motions. Appellant contends his first request for self-representation occurred on August 7, 2006, when Roush appeared as counsel in the case. The record shows, however, that appellant referred to pro per status only because it appeared the court was going to continue the matter for a short period to allow Roush to review the file and determine whether he could join in appellant’s guilty plea. After the court properly refused to allow appellant to enter an unknowing guilty plea (see In re Vargas (2000) 83 Cal.App.4th 1125, 1133-1134), appellant interrupted the court, stating “[i]t doesn’t matter” whether he spoke to his attorney about the consequences of entering a guilty plea. He again interrupted the judge, stating that if the court was going to continue the hearing, he was going to “go pro per then” and “plead guilty on [his] own.” The court reasonably did not construe appellant’s statements as a serious or unequivocal request to represent himself.
The record also shows that the references appellant made to pro per status at an August 28, 2006, hearing did not constitute serious, unequivocal requests for self-representation. The focus of that hearing, which took place upon appellant’s Marsden motion, was on whether Roush should be replaced as counsel because of appellant’s dissatisfaction with Roush’s efforts to continue the trial. Appellant made his dissatisfaction with Roush clear and repeatedly stated he was going to refuse to speak to Roush as his attorney. He read a statement into the record complaining about Roush, but apparently making no mention in that statement of his wish to represent himself. He referred to pro per status only in the context of expressing his frustration that the trial had been continued and that he was likely “guilty of all [the] charges” anyway. Appellant’s fleeting statements about pro per status were insufficient to constitute an articulate and unmistakable invocation of the right to self-representation.
We note that neither the prosecutor nor Roush, who were both present when appellant made the statements, believed the statements constituted a Faretta motion. The prosecutor later informed the trial judge that appellant “mentioned” the term pro per and had “made representations of that issue,” but did “not entirely” make such a motion. Roush stated that although appellant mentioned “pro per” and “his attitude might be interpreted to mean that,” he did not recall appellant making a Faretta motion.
Finally, although there was extensive discussion on October 13, 2006, regarding the possibility of a Faretta waiver, appellant did not unequivocally state that he wished to represent himself. The October 13, 2006, hearing also focused on the issue of whether Roush should be relieved as counsel. Appellant referred to the breakdown in communication, stating he was going to continue to refuse to talk to Roush, which would result in an unfair trial. He stated he was upset at Roush for waiving time and added that he and Roush disagreed regarding strategy. Once it became clear the court was not going to entertain another Marsden motion, appellant became upset, threatening to disrupt the trial if Roush was going to be his attorney and stating he would rather represent himself and be at a disadvantage than to be represented by Roush. The record supports the conclusion that appellant’s request for pro per status was a tactic to retain new counsel, and not a sincere request to represent himself.
Moreover, the evidence supports the court’s statement that “there’s a very strong possibility that [appellant] would disrupt the trial or jury during the course of the trial.” The prosecutor noted appellant’s prior disruptive behavior and the court noted that another judge had previously admonished appellant regarding his attitude. Appellant acknowledged he was involved in an incident in which a correctional officer had to remove him into a jury room and put him up against a wall. He threatened to be disruptive if the court did not grant his request to relieve Roush as his counsel, which could have reasonably led the court to believe that he could become disruptive if he represented himself at trial. He stated he would not assault anyone at trial only because he would be shackled and suggested that even if shackled, he could use his head to administer a head butt to his attorney. He indicated he had nothing to lose, stating he was “never getting out of prison anyhow.” The trial court expressed concern about appellant’s “attitude, . . . both mentally and physically.” Appellant’s disruptive behavior and threatening statements provided an additional basis for the court to properly deny appellant’s request to represent himself.
Because we conclude the court did not err in denying the Faretta motion for the above reasons, we need not and do not address appellant’s arguments that the court’s other stated reasons for denying the motion, including untimeliness, were improper.
The trial court did not err in denying appellant’s Marsden motions.
Appellant contends the trial court erred in denying his Marsden motions. We disagree.
A defendant is entitled to have appointed counsel discharged upon a showing that counsel was not providing adequate representation or “that counsel and defendant ‘ “ ‘have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” ’ [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 876.) The way in which one relates with his attorney does not sufficiently establish incompetence. (People v. Hart (1999) 20 Cal.4th 546, 603.) A trial court’s denial of a Marsden motion is reviewed for abuse of discretion. (People v. Earp, supra, 20 Cal.4th at p. 876.) “ ‘Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed counsel would “substantially impair” the defendant’s right to assistance of counsel.’ ” (People v. Smith (1993) 6 Cal.4th 684, 690-691, quoting People v. Webster (1991) 54 Cal.3d 411, 435.)
Appellant contends the court should have granted his first Marsden motion because Roush stated that the attorney-client relationship had been “irreconcilably damaged.” The record shows, however, that Roush felt this way only because he needed additional time to adequately prepare for trial and appellant, who did not wish to waive time, was refusing to speak to him. As the court properly noted in denying the Marsden motion, a defendant has the right to a speedy trial but also has the right to effective assistance of counsel. (See People v. Frye (1998) 18 Cal.4th 894, 938-939.) Although courts have dealt with this conflict in different ways, depending on the circumstances of the particular case, “[i]mplicit in these decisions . . . is the notion that the inherent tension between the right to a speedy trial and the right to competent, adequately prepared counsel is not, in itself, an impermissible infringement on the rights of the accused, including the right to a fair trial.” (Ibid.) Because the conflict that had damaged Roush and appellant’s relationship was one that could be resolved by the court’s ruling on the issue of whether to grant Roush’s request for a continuance, it was not an “irreconcilable conflict” that would “substantially impair” appellant’s right to assistance of counsel. (See People v. Webster, supra, 54 Cal.3d at p. 435.)
Appellant also makes a conclusory statement that Roush had “insufficient experience to handle this matter,” and fails to explain how Roush lacked experience. At the third Marsden hearing, Roush informed the court that he had worked as a deputy district attorney for four years, during which he “worked [his] way up through the juvenile and misdemeanor courts through general felony status” and did a “handful of felony jury trials.” He worked on a case involving a life sentence, although that defendant entered a plea before the case could go to trial. He also worked in child support services, then started his own practice handling criminal law assignments and appearances for law firms. He stated he “signed on with Lake County Legal Defense Services to become a defense attorney” in May or June 2006 and had worked on misdemeanor and felony cases. He described various criminal law conferences and seminars he had attended. The record does not show that the court abused its discretion in denying the Marsden motion on the ground that Roush lacked the necessary experience or training or was otherwise incompetent or unable to provide adequate representation to appellant.
The judgment shall be reversed as to counts six and seven.
Appellant contends the judgment should be reversed as to counts six and seven (two counts of kidnapping) and count nine (grand theft of a firearm) because kidnapping and grand theft of a firearm are lesser included offenses of other offenses of which he was convicted. We agree the judgment must be reversed as to counts six and seven, but not as to count nine.
“A defendant may be charged with and convicted of multiple offenses based on a single act or indivisible course of conduct. However, multiple convictions may not be based on necessarily included offenses.” (People v. Jackson (1998) 66 Cal.App.4th 182, 189; § 954.) As respondent concedes, kidnapping is a lesser included offense of kidnapping to commit robbery. (See People v. Jackson, supra, 66 Cal.App.4th at p. 189.) Because appellant was convicted of two counts of kidnapping to commit robbery and two counts of kidnapping, the judgment shall be reversed as to the two counts of kidnapping (counts six and seven).
Appellant also contends that his conviction for grand theft of a firearm (count nine) should be reversed because he was also convicted of grand theft of various other items he took from Dunn’s and Price’s cabins (count eight). “ ‘[G]rand theft is simply one of the two degrees of the general crime of theft, and . . . the theft of a [firearm] is simply one of the many forms of theft that constitute grand theft.’ ” (See People v. King (2000) 81 Cal.App.4th 472, 478.) “ ‘When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals.’ ” (People v. Ortega (1998) 19 Cal.4th 686, 699.)
Here, appellant’s initial grand theft of numerous items from Dunn’s and Price’s cabins, and his grand theft of Dunn’s .30-06 rifle two days later, did not occur during the course of an indivisible transaction. Dunn testified that when she arrived at the cabin, she noticed that appellant and his accomplices had “trashed” the cabin and had taken “just everything they could get their hands on.” However, they had not taken any of the rifles that were in the cabin, as two .22 rifles and the .30-06 rifle that appellant later took were still in the cabin. Further, in the videotaped interview, appellant stated that although he had loaded the .03-06 rifle and had been carrying it around, he had “no intention of taking” the rifle until Dunn and Lunge arrived at the cabin. At trial, he acknowledged he made that statement during his interview and did not deny that it was a true statement. Dunn testified that she asked appellant to give the rifle back to her, and that he refused. Appellant admitted he kept the rifle until the day he was arrested. Because the theft of the firearm did not occur as part of one, indivisible transaction, convictions on both grand theft counts were proper.
The trial court did not err in imposing consecutive sentences on counts one and two.
Appellant contends the trial court erred in imposing consecutive sentences on the two kidnapping for robbery convictions (counts one and two) because the record shows the court mistakenly believed it had no discretion to impose concurrent sentences on those counts. Assuming, without deciding, that appellant did not waive this claim by failing to raise it below, we conclude it fails because the record does not support his contention.
Before sentencing appellant, the court stated, “Now, as the Court sees the sentencing issues, it appears that . . . because of the two strikes, that . . . both the enhancements and the initial charges for all counts appear to be indeterminate sentences; is that correct?” The probation officer responded, “Yes, your Honor.” The court then stated: “I don’t see any sentencing choices in any of these? Does anyone disagree with that?” Defense counsel and the prosecutor responded, “No.” Appellant contends these statements show the court believed it had no discretion to impose concurrent sentences on counts one and two. The above exchange, however, merely shows the court was aware it did not see any sentencing choices regarding the indeterminate sentences because appellant had two prior strikes. Later, the court reiterated that it had no sentencing choices with respect to the indeterminate sentences, stating, “And again, pursuant to [section] 1170.12, because of the two strikes that are alleged, the Court is required to impose an indeterminate term of at least 25 years to life in prison or three times the term under [section] 1170, including all enhancements, whichever is greater.” The court did not state at any time that it had no discretion to impose concurrent sentences on counts one and two.
Further, the court stated why it decided to impose consecutive sentences, stating: “Each of the crimes for which the sentence was not stayed will run consecutive to the other. They’re separate acts. They occurred at separate times and some of them at separate places; although, some of them occurred at the same place, but there was an intervening time between the acts. The two kidnappings for robbery occurred with two separate persons at the same time. The burglaries occurred to two separate houses and they were on the property. . . . And then the possession of the firearms, the ammunition and the vandalism were also separate acts independent. [¶] So, for that reason, the Court imposes each of the sentences consecutively for a total of 240 to life.” The court’s statement of reasons for its sentencing choice indicated the careful exercise of discretion. (See People v. Minder (1996) 46 Cal.App.4th 1784, 1791.)
Appellant contends that the court’s reference to the fact that there were two kidnapping victims as a reason for imposing consecutive sentences on counts one and two shows it mistakenly believed that consecutive sentences were mandatory, because it indicates the court believed that the multiple victim exception to section 654 applied in the case. The mandatory consecutive sentencing provisions of the three strikes law provide that “[n]otwithstanding any other law,” the court “shall” impose consecutive sentences where the same occasion/same operative facts test is not satisfied. (§ 667, subd. (c); accord, § 1170.12, subd. (a).) This creates an exception to section 654’s preclusion of multiple punishments. (People v. Danowski (1999) 74 Cal.App.4th 815, 822.) Thus, it has been held that section 654 is “irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively under the three strikes law . . . .” (See People v. Lawrence (2000) 24 Cal.4th 219, 226.) “Where the ‘same occasion/same operative facts’ test is satisfied, however, the three strikes law does not similarly mandate that the trial court ‘shall’ do anything. In such a case, there is no ‘notwithstanding any other law’ provision to override section 654. Section 654 applies of its own force.” (People v. Danowski, supra, 74 Cal.App.4th at p. 823, second italics added.) In other words, “where . . . the three strikes law does not mandate consecutive sentencing, section 654 applies to sentencing under the three strikes law.” (Id. at p. 824.) Because the kidnapping in this case occurred in the same occasion under the same operative facts, the court could properly rely on section 654 and its multiple victim exception in imposing consecutive sentences. The court’s reference to the number of kidnapping victims therefore does not show it misunderstood its sentencing discretion.
Section 654 precludes multiple punishment for crimes occurring in the same occasion and under the same operative facts, but provides an exception and allows multiple punishment where there are multiple victims. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.)
Disposition
The judgment is reversed as to counts six and seven. The matter is remanded to the trial court with directions to issue an amended abstract of judgment reflecting reversal on appellant’s convictions on counts six and seven and correcting the error showing that one of the five year enhancements, which was imposed, was stayed (see ante, fn. 3). The court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Siggins, J., Jenkins, J.