Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, No. INF053129. H. Morgan Dougherty, Judge.
Patricia L. Brisbois, 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, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Vincent Johnny Avalos had stopped paying rent on his Desert Hot Springs’s house, and his landlord, Guadalupe Franco, started eviction proceedings. On January 25, 2006, defendant was ordered evicted from the premises. After the hearing on the eviction proceedings, defendant threatened retribution to Franco and the property manager, Thomas Reagan. Reagan drove by the house later that morning to make sure defendant was not damaging the property. Reagan saw defendant outside the house, so he decided not to stop and drove away. Defendant followed Reagan. After 20 to 25 minutes, defendant pulled up next to Reagan and shot twice into Reagan’s car. Reagan slammed on the brakes, but defendant was able to shoot into Reagan’s car three or four additional times, breaking the front windshield and shattering the back window. Reagan was not shot, but he was cut by the broken glass.
Defendant was convicted of attempted premeditated and deliberate murder, assault with a firearm, negligent discharge of a firearm, and several personal use of a firearm enhancements.
Defendant now contends:
1. Insufficient evidence was presented to support the jury’s finding of premeditation and deliberation.
2. The trial court violated his right to due process by refusing to continue sentencing so that he could investigate and prepare a motion for new trial.
3. The trial court improperly refused his request to be appointed new counsel to prepare a motion for new trial and to represent him at the sentencing hearing.
4. His Sixth Amendment right to counsel was violated by the trial court removing him from the sentencing hearing, at which he was representing himself.
We conclude that no error occurred and affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of attempted premeditated and deliberate murder. (Pen. Code, §§ 664, 187, subd. (a).) Defendant was also found guilty of assault with a firearm (§ 245, subd. (a)(2)), and discharge of a firearm with gross negligence (§ 246.3). In addition, the jury found true the allegations that he personally discharged a firearm in committing the attempted first degree murder (§§ 12022.5, subd. (a), 12022.53, subd. (c)), and personal firearm use enhancements for the remaining counts. The trial court sentenced defendant to life with the possibility of parole plus 20 years for the attempted murder, and stayed the remaining sentences.
All further statutory references are to the Penal Code unless otherwise specified.
II
FACTUAL BACKGROUND
A. Prosecution
Defendant rented a house that was located on 3rd Street in Desert Hot Springs. Franco owned the property and Reagan managed the property for Franco. Defendant failed to pay his rent, so Franco filed an unlawful detainer action against defendant. A hearing on the eviction was conducted on January 25, 2006, in Indio Superior Court. The trial court granted an eviction order, and defendant was ordered to vacate the premises in 10 to 15 days.
Defendant confronted Franco and Reagan outside the courtroom. He told them that there would be “retribution for this.” They all left the courthouse around 9:45 or 10:00 a.m. Fearing that defendant may damage it, Franco told Reagan to keep an eye on the house until defendant moved out.
Reagan drove by the house around 10:30 a.m. When Reagan arrived at the house, defendant was exiting a parked car. They made eye contact. Reagan did not stop at the house and kept driving. Reagan looked in his rearview mirror and saw that defendant was following him.
Reagan drove for approximately 20 to 25 minutes, and defendant continued to follow after him. He then heard defendant’s car accelerate and come up next to him. He heard two gunshots and determined they were coming from the direction of defendant’s car. The glass on the back windows shattered. There was a brief pause, and then Reagan heard three or four more shots. Reagan slammed on the brakes and bent down over the passenger’s seat. Defendant sped away.
Reagan called the police. He advised the 911 dispatcher that he had been shot at by defendant. The rear passenger and front driver’s side windows of Reagan’s car had been shattered. Reagan’s left hand was cut by the glass, but he had not been shot. There were bullet holes in the front windshield and the driver’s side door. Based on the bullet holes, it was consistent with defendant driving next to Reagan when the first shots were fired and then slightly in front of him when the second shots were fired.
The parties make no objection on appeal that the transcript of the 911 call was inaccurate.
B. Defense
Daniel Flores, defendant’s long-time friend, testified that defendant was at his house in San Fernando at 2:00 or 3:00 o’clock in the afternoon on January 25, 2006. San Fernando was at least a two-hour drive from Indio.
Flores had told a defense investigator prior to trial that he was not sure of the date in January that defendant came to his house.
Robert Avalos, defendant’s identical twin brother and a convicted felon, lived in Desert Hot Springs on January 25, 2006. Robert saw defendant at their father’s house in Sylmar at 12:00 noon on January 25, 2006. Sylmar was 150 to 160 miles from Desert Hot Springs. Their other brother, Timothy, was also at the house.
III
SUFFICIENCY OF THE EVIDENCE OF PREMEDITATION AND DELIBERATION
Defendant contends that there was insufficient evidence presented to support the jury’s finding of premeditation and deliberation for first degree attempted murder.
A. Standard of Review
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
B. Analysis
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) An unlawful “willful, deliberate, and premeditated [attempted] killing” is attempted murder in the first degree. (§ 189.) “‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) But “‘[t]he process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .” [Citations.]’ [Citation.]” (Ibid.) The jury was instructed here in accordance with this definition.
In determining whether evidence is sufficient to support a finding that a killing or attempted killing was willful, deliberate, and premeditated, reviewing courts may consider evidence of prior planning, motive, and whether the manner of killing shows a preconceived design to take the victim’s life. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) Rather, they serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (Perez, at p. 1125.)
Defendant concedes that he had motive to commit the instant crime but argues that this was not enough to support a finding of premeditation and deliberation. However, there was overwhelming evidence to support the jury’s finding that the attempted murder was deliberate and premeditated. Before defendant even left the courthouse, he threatened Reagan and Franco that there would be retribution for the eviction. When defendant saw Reagan drive by his house, he did not hesitate, but rather immediately followed Reagan, obviously carrying a loaded weapon in his car. This supports that there was some planning on defendant’s part to follow Reagan and, it could be reasonably inferred, to shoot at him.
Defendant then followed Reagan for 20 to 25 minutes until they reached a less populated area. Defendant then fired at Reagan’s car two times, shattering the back windows. Defendant then moved forward, pausing, then shooting directly into the driver’s side door and the front windshield. Defendant clearly deliberated not only before he shot the first shots, but also in pausing and driving in front of Reagan before shooting again. It could reasonably be inferred he moved forward to get a better shot at Reagan. The manner of the shots fired in this case clearly show the shooting was premeditated and deliberate. Further, defendant presented no evidence to the contrary, but rather relied on an alibi defense.
Based on the foregoing, the evidence overwhelming supports the jury’s finding of premeditation and deliberation.
IV
DENIAL OF CONTINUANCE TO FILE MOTION FOR NEW TRIAL
Defendant contends that his rights to due process were violated by the trial court’s denial of his request for a continuance so that he could investigate and prepare a motion for new trial.
A. Additional Factual Background
On June 4, 2007, the jury entered its verdict. On June 29, 2007, the parties returned to court for sentencing. Defendant brought a Faretta motion asking to represent himself at sentencing. The prosecution objected that it was untimely but did not oppose the request if defendant was ready to proceed. The trial court granted defendant’s request after clearly admonishing him of the pitfalls of representing himself.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta).
The trial court then advised defendant that it was the time and place for sentencing. Defendant requested a continuance, claiming he was not ready to proceed. Defendant wanted to present witnesses on his behalf for sentencing. He acknowledged that the trial court had no sentencing options. The trial court felt that defendant was simply delaying the process, as no amount of good character witnesses would change the mandatory sentence.
However, the trial court acquiesced in a two-week continuance based on the seriousness of the case, but it further admonished defendant, “As long as we agree that it will just be two weeks then that’s the end of it.” Defendant responded, “That’s fine, Your Honor.” The trial court advised defendant there would be no further continuances.
At the hearing on July 13, 2007, the trial court stated for the record that defendant had submitted a handwritten request for a continuance that morning. According to the written request, defendant wanted 16 weeks to investigate and research matters pertaining to the case. Defendant provided only that he wanted to investigate potential ineffective assistance of trial counsel claims. Defendant also stated he was not prepared to represent himself at sentencing.
Defendant orally advised the trial court that he wanted to continue the matter in order to file a motion for new trial, “and there’s a lot of serious issues that I need to look into for that motion,” including ineffective assistance of counsel. Defendant stated that his counsel did not call certain witnesses and did not investigate a “few things.” Defendant claimed that a courtroom deputy overheard the conversation between defendant, Reagan, and Franco that occurred outside the courtroom, but defendant did not elaborate on the details of her testimony. Defendant also claimed that his attorney never visited him after the preliminary hearing and “basically didn’t even defend me.”
The trial court was concerned that if it continued the matter, defendant would come back and ask for more time. Defendant responded that he was asking for enough time to investigate and was going to bring an ex parte motion to have an investigator appointed to help him with the new trial motion.
The prosecution advised the trial court that it had not been served with the continuance request two days before the hearing as required and that the written request consisted of authorities merely copied out of a book. The prosecution also responded that defendant had done nothing since the original continuance; the only reason for the delay was so that he could stay in local custody. The prosecution requested that the motion be denied as untimely and that defendant should be held to the same standard as an attorney. The trial court denied defendant’s request for a continuance.
B. Analysis
Initially, we agree with the People that the trial court could deny the continuance on the grounds that defendant failed to comply with section 1050, subdivision (b) by failing to file the request two days prior to the hearing.
“To continue any hearing in a criminal proceeding . . . a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary . . . .” (§ 1050, subd. (b).) If a party moves for a continuance without complying with these requirements, and the party is unable to show good cause for the failure to give notice, “the motion for continuance shall not be granted.” (Id., subd. (d).)
Here, defendant did not file his request for a continuance until the day of the hearing. The People were not advised that defendant would be seeking a continuance, nor should they have known based on the prior hearing in which defendant agreed that there would be no further continuances. Defendant gave no reason for failing to give such notice. Accordingly, defendant’s request for a continuance could not be granted, as he failed to comply with the notice requirements.
In his reply brief, defendant claims that he was not given an opportunity to show good cause for his failure to properly file the request for continuance. However, in People v. Smithey (1999) 20 Cal.4th 936, a case concerning the denial of continuance motion under section 1050, subdivision (b), the Supreme Court held that, “[i]n the absence of any justification in the record for the failure to prepare a timely motion for a continuance or for new trial, we determine that the trial court did not abuse its discretion in denying a continuance.” (Smithey,at p. 1012.) In that case, it does not appear that any hearing was conducted for a showing of good cause for the late filing of the motion. Further, the defendant was faulted for failing to show good cause on appeal. (Id. at pp. 1012-1013.)
Here, the record provides no justification for defendant’s failure to properly notice the prosecution of his request for a continuance. As is oftentimes stated, “‘[a] defendant appearing in propria persona is held to the same standard of knowledge of law and procedure as is an attorney.’ [Citation.]” (People v. Pinholster (1992) 1 Cal.4th 865, 958, fn. 18, quoting People v. Clark (1990) 50 Cal.3d 583, 625.).
Although defendant makes a broad statement that he did not know he could file a motion for new trial, he is held to the same standard as an attorney, who would be aware of the right to file such new trial motion and the notice requirements for requesting a continuance. Defendant also does not state why he failed to give timely notice. We find that the trial court could properly deny the continuance on the basis that defendant failed to comply with the applicable notice requirements.
Moreover, the trial court could deny defendant’s request because he failed to show good cause for a continuance.
Continuances shall be granted only upon a showing of good cause. (People v. Froehlig (1991) 1 Cal.App.4th 260, 265; § 1050, subd. (e).) “‘The grant or denial of a motion for a continuance rests within the sound discretion of the trial judge [citations].” (Froehlig,at p. 265.) “The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 920.) The denial of a continuance may be so arbitrary as to deny due process. (See People v. Frye (1998) 18 Cal.4th 894, 1013.) “However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.]” (Beames, at p. 921.)
In establishing good cause for a continuance, “[a]n important factor for a trial court to consider is whether a continuance would be useful. [Citation.] . . . [T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time.” (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
In Beeler, the court found mere assertions that new evidence appeared to suggest problems with the defendant’s mental state were insufficient to justify a continuance of the sentencing hearing in a death penalty case. The court noted the lengthy passage of time since the verdict, 10 months, and the lack of specific facts showing the new evidence would be helpful and could be obtained in a reasonable time. (People v. Beeler, supra, 9 Cal.4th at p. 1004.)
Here, although the sentencing had been delayed for only a month, defendant gave little indication of the evidence he intended to investigate in order to file a new trial motion. Although defendant claimed that a courtroom deputy would testify regarding the discussion between Franco, Reagan, and defendant, he failed to present how it was different than what had already been presented or how it could possibly affect the fact that he shot directly at Reagan. Further, defendant clearly was aware of the deputy’s testimony as he purportedly asked counsel to present her testimony at trial, but he refused to advise the trial court as to the testimony. Further, he refused to advise the trial court what other evidence may be investigated or why it would warrant a new trial based on ineffective assistance of counsel. Defendant failed to show the materiality of the evidence he sought to investigate. His mere “speculation” as to the materiality of the evidence was not enough to warrant granting the continuance. (People v. Beeler, supra, 9 Cal.4th at p. 1104.)
Further, defendant offered no reason to believe the evidence he sought “could be obtained within a reasonable time.” (People v. Beeler, supra, 9 Cal.4th at p. 1003.) Defendant asked for 16 weeks to investigate. Since he refused to disclose what he intended to investigate, the trial court was not in a position to determine whether it could be obtained in a timely manner.
The court in granting or denying a continuance also shall take into account convenience of witnesses. (§ 1050, subd. (g)(1).) Here, pursuant to the prosecution, Reagan had appeared on a prior occasion expecting sentencing. The sentencing itself had been continued for over one month. Certainly, Reagan was entitled to closure of this case.
In view of the circumstances presented here, we cannot say that the trial court abused its discretion in refusing to grant a continuance or that defendant was denied due process.
V
REFUSAL TO APPOINT COUNSEL TO FILE A NEW TRIAL MOTION AND TO REPRESENT DEFENDANT AT SENTENCING AFTER HE WAS GRANTED PROPRIA PERSONA STATUS
Defendant contends that his Sixth Amendment right to counsel was violated by the trial court’s refusal to appoint him counsel to file a new trial motion and represent him at sentencing.
A. Additional Factual and Procedural Background
After the trial court denied defendant’s continuance and proceeded with sentencing, defendant stated, “Okay. Your Honor, before you proceed any further, at this point I’m requesting counsel be appointed to assist me in what I’m requesting.” The trial court responded, “Too late, sir.” Defendant stated, “Your Honor, I’m asking again one more time that counsel be appointed. [The prosecutor’s] not giving me no chance to explain what I got to explain. I spoke to no investigator at all about this case. I never even spoke to my attorney. I had no defense at all. How can she say that it was investigated when I never even spoke to an investigator at all.” Defendant argued he had been denied a fair trial. The trial court ruled, “I understand sir. You can raise all those points with the Appellate Court. You’ll be appointed an attorney by them.” The trial court then proceeded with sentencing, as will be set forth, post, in part VI.
B. Analysis
The trial court has discretion to deny a defendant’s request to change from self-representation to representation by counsel. (People v. Elliott (1977) 70 Cal.App.3d 984, 997-998.) In determining whether the trial court abused its discretion in denying a request for appointment of counsel after a defendant has been granted self-representation status, a reviewing court examines the totality of the circumstances surrounding the trial court’s ruling. (People v. Gallego (1990) 52 Cal.3d 115, 161; see also People v. Lawley (2002) 27 Cal.4th 102, 149.) Relevant factors include: “(1) defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.” (Elliott,at pp. 993-994; see also Gallego,at p. 164.)
Defendant contends in his reply brief that the trial court merely advised defendant that his request was “too late” and did not analyze the above factors as was required. Although defendant appeared to concede in the opening brief that the trial court’s “implicit” denial constituted an abuse of discretion, we will address the issue.
In Elliot, after determining that the above factors, derived from People v. Windham (1977) 19 Cal.3d 121, were relevant to a determination of discretion, it stated, “The Windham court emphasized that the exercise of discretion by the trial court, in ruling on the defendant’s request for a change from counsel-representation to self-representation should be predicated on a consideration of these factors with the record showing that the trial court considered such factors in ruling on the defendant’s request. One of the basic reasons for imposing upon the trial court the making of a record with respect to the factors undergirding his exercise of discretion was the necessity for the trial court to make an inquiry, sua sponte, into the specific factors underlying the request in order to ensure a meaningful record for appellate review in the event that such review was later required. [¶] . . . [¶] As in Windham, the trial judge must establish a record based upon the relevant factors involved and then exercise his discretion and rule on defendant’s request for a change from self-representation to counsel-representation.” (People v. Elliot, supra,70 Cal.App.3d at pp. 993-994.)
However, in a later case, another appellate court held that, “[w]hile the consideration of all of these [Windham] criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.” (People v. Smith (1980) 109 Cal.App.3d 476, 484.) In addition, in the context of a trial court’s failure to conduct a Windham inquiry in its denial of a Faretta motion, it has been held that if the explicit or implicit reasons for the denial appear on the record, no detrimental effect can be had if the reviewing court draws the inferences necessarily implied in the ruling. (People v. Marshall (1996) 13 Cal.4th 799, 828; People v. Scott (2001) 91 Cal.App.4th 1197, 1206; People v. Perez (1992) 4 Cal.App.4th 893, 904, fn. 10.)
Here, the trial court had recently granted defendant propria persona status and presided over his request for a continuance. It is implicit in the trial court’s ruling that it was “too late,” that it felt that this was merely a delay tactic and intended to disrupt the proceedings. Further, it is implicit in the trial court’s ruling that at the stage of the proceedings, it was simply not feasible to appoint new counsel. We therefore review the record for an abuse of discretion.
Defendant did not request appointed counsel until after his request for a continuance of sentencing had been denied. At this point in the proceedings, defendant had appointed counsel at trial and then had been granted propria persona status. He had then tried to continue the matter to purportedly bring a motion for new trial. Clearly, defendant’s request at this point in the proceeding was an attempt to disrupt and delay the proceedings. Further, the trial was at the sentencing stage and defendant’s motion for a continuance had already been denied. As will be discussed, post, there was essentially nothing left to do in the case save pronouncement of judgment. Finally, as stated by the trial court, the sentence was mandatory and no amount of character witnesses would change the sentence. We conclude that it was not an abuse of discretion to deny defendant’s request for appointed counsel.
Defendant relies upon Menefield v. Borg (9th Cir. 1989) 881 F.2d 696 (Menefield), which held that “in the absence of extraordinary circumstances, an accused who requests an attorney at the time of a motion for a new trial is entitled to have one appointed, unless the government can show that the request is made for a bad faith purpose.” (Id. at p. 701.) This holding has been rejected by the California Court of Appeal in People v. Ngaue (1991) 229 Cal.App.3d 1115, 1124 and rejected as contrary to federal authorities in United States v. Tajeddini (1st Cir. 1991) 945 F.2d 458, 469-470, overruled on other grounds in Roe v. Flores-Ortega (2000) 528 U.S. 470, 478 [120 S.Ct. 1029, 145 L.Ed.2d 985].
To the extent Menefield has any persuasive weight, it is distinguishable, and even under the case, the request for appointed counsel here would be denied. First, in Menefield, the defendant expressed that he could not file a motion for new trial because of the intricacies of the law. (Menefield, supra, 881 F.2d at p. 697.) Here, by contrast, defendant expressed no difficulty with filing a new trial motion. Moreover, this case arguably was at the stage of sentencing, not a motion for new trial, and hence, Menefield would not be applicable. Further, even under Menefield, appointment can be denied if it is made for bad faith purposes. (Id. at p. 701.) Here, defendant’s request clearly was made in bad faith. Defendant had just been granted propria persona status after being represented at trial. After his request for a continuance had been denied, he immediately requested counsel. Even if we were to consider Menefield, we believe that the request was made in bad faith.
Finally, even if the trial court erred by refusing to appoint counsel to bring a new trial motion or appear at sentencing, or erred by failing to state its considerations on the record, we are unable to say that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error discussed herein. (See People v. Duran (1976) 16 Cal.3d 282, 296; People v. Watson (1956) 46 Cal.2d 818, 836.) As set forth, ante, in part IV, the trial court had already denied defendant’s request for a continuance to file a new trial motion, and it is not reasonably probable that the court would have reconsidered that ruling had counsel been appointed. Additionally, based on the strong evidence presented by the prosecution at trial, it is unlikely a new trial motion would have been effective. Further, as stated by the trial court, the sentence imposed was mandatory. Although defendant points to the restitution fine of $10,000 imposed as discretionary and claims it could have been objected to, the trial court’s imposition of such fine was not an abuse of discretion. (See Pen. Code, § 1202.4, subd. (b)(1) [restitution fine can be up to $10,000].) As such, there was little that counsel could do to benefit defendant at sentencing. Accordingly, even if the trial court erred by denying defendant’s request to withdraw as propria persona and have counsel appointed, it was harmless.
VI
DEFENDANT’S ABSENCE FROM SENTENCING
Defendant contends that his Sixth Amendment right to counsel was violated by his removal from the courtroom during sentencing since he was representing himself.
A. Additional Factual and Procedural Background
After the trial court denied defendant’s request to have an attorney appointed to represent him, the trial court started with pronouncement of judgment. Defendant interrupted the trial court and stated, “I do not wish to proceed with sentencing at this time at all, and I do not want to be in contempt, but I feel I’m not being heard out at all. And I’m sorry. I apologize in advance for anything that I might do. I really do not wish to proceed at all.” The trial court instructed defendant not to speak. Despite that warning, defendant stated that he did not want to proceed with sentencing; the trial court responded that it had no choice. Defendant stated, “I haven’t been given a fair chance. Your Honor, I have not been given a fair trial at all.” The trial court indicated it understood defendant’s position.
Defendant again stated that he did not want to go forward. The trial court admonished defendant to stop talking or he was going to be removed from the courtroom. Defendant then stated, “Well, I’ll ask in advance that you remove me because I do not wish to proceed with this at all.” The trial court ruled, “We’re going to proceed with the sentencing in your absence. [¶] I’ve directed him on two separate occasions to stop talking. He continues to interfere with me. I’ll find . . . him in contempt, and I’ll order him removed forthwith from the courtroom.”
Defendant was sentenced in his absence to the mandatory sentence of life with the possibility of parole plus 20 years. A restitution fine of $10,000 was imposed with an attendant stayed parole revocation fine in the same amount.
B. Analysis
A criminal defendant has “statutory and constitutional rights to be present with counsel at sentencing and pronouncement of judgment, a critical stage of the criminal prosecution. [Citations.]” (People v. Rodriguez (1998) 17 Cal.4th 253, 257; see also People v. Waidla (2000) 22 Cal.4th 690, 741-742.) However, a defendant who absences himself from sentencing, even if self-represented, cannot later claim error on appeal. (People v. Parento (1991) 235 Cal.App.3d 1378, 1381-1382.)
The facts of the instant case are identical to those in Parento. In that case, the defendant chose to represent himself but, on the day of trial, requested appointment of counsel and a continuance. When the requests were denied, he refused to participate further in the proceedings and was removed from the courtroom. Thus, he was absent from the trial and no counsel was present in his absence. (People v. Parento, supra, 235 Cal.App.3d at p. 1380.)
The Parento court first noted that a defendant in a noncapital case has an absolute right to absent himself from the proceedings. (People v. Parento, supra, 235 Cal.App.3d at p. 1381; § 1043.) Further, when a defendant chooses to represent himself, he can proceed with the case in any manner he or she sees fit, including presenting no defense. (Parento,at p. 1381.) Accordingly, the court concluded, “a defendant who has exercised his right of self-representation by absenting himself from the proceedings, may not later claim error resulting from that exercise.” (Id. at pp. 1381-1382.)
Here, after being denied a continuance and appointment of counsel, defendant did not want to proceed to sentencing. He unequivocally informed the trial court that he did not want to be present. He advised the court, “Well, I’ll ask in advance that you remove me because I do not wish to proceed with this at all.” Despite the fact that the trial court ruled that defendant was in contempt of court and then removed him, we do not think such determination distinguishes this case from Parento. The fact of the matter is that defendant refused to continue with sentencing and asked to be removed. We believe this supports that defendant voluntarily removed himself from the proceedings and cannot now claim his absence was error.
Even if we were to conclude that defendant did not voluntarily remove himself from sentencing, and was removed from the courtroom on less than disruptive behavior, we conclude his absence would be subject to harmless error analysis. Citing to People v. Carroll (1983) 140 Cal.App.3d 135, 138-140, 142 (a case in which the defendant was absent from opening statements and prosecution witness testimony), defendant argues that his removal from sentencing is reversal per se error. However, in People v. El (2002) 102 Cal.App.4th 1047, 1050, the court held that because the court’s error left the defendant absent from trial and unrepresented for only a brief period of time, reversal is not automatic. “‘[V]iolations of the right to be present during all critical stages of the proceedings and the right to be represented by counsel . . . as with most constitutional rights, are subject to harmless error analysis . . . .’” (Ibid.) We believe defendant’s absence from a perfunctory sentencing proceeding is more properly analyzed under a harmless error analysis. Because the right to be present at sentencing is a federal constitutional right, the case would need to be remanded unless defendant’s absence was harmless beyond a reasonable doubt. (People v. Robertson (1989) 48 Cal.3d 18, 62l; El, at p. 1050.)
The sentence imposed by the trial court in this case was mandatory. There was no jury present, and the trial court had no discretion to reduce the sentence. The trial court had already advised defendant of his right to appeal, and defendant had filled out the notice of appeal. As such, that fact that defendant was absent during sentencing, and thus not represented by counsel, was harmless beyond a reasonable doubt.
Defendant claims in his reply brief that he was prejudiced by the imposition of a $10,000 restitution fine pursuant to section 1202.4, subdivision (b)(1). Obviously, such a claim raised for the first time in the reply brief need not be considered. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
Moreover, we disagree that such imposition of the restitution fine shows prejudice. The trial court may use a formula provided in the statute to calculate the amount of the fine. (§ 1202.4, subd. (b)(2).) The calculation involves multiplying $200 by the number of years of imprisonment and then by the number of counts of which the defendant is convicted. (Ibid.) Here, defendant was convicted of serious charges and facing a life with a possibility of parole plus 20 year sentence. The imposition of the $10,000 could not be viewed as an abuse of discretion and was not unauthorized.
Based on the foregoing, the record amply supports that defendant voluntarily excluded himself from sentencing, and cannot claim error based on his absence from the sentencing proceeding. In addition, if there was error, it was harmless beyond a reasonable doubt.
VII
DISPOSITION
We affirm the judgment in all respects.
We concur: KING, J., MILLER, J.