Opinion
C080909
02-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PAUL BECKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CR19671)
Defendant Joseph Paul Becker exercised his constitutional right to represent himself at trial and during sentencing. He was convicted by a jury on one count of issuing a criminal threat. (Pen. Code, § 422.) The jury also found true allegations defendant had previously served 6 prior prison terms (§ 667.5) and had previously been convicted of 26 serious felonies (§§ 667, subds. (b)(i), 1170.12, subd. (a)). The trial court sentenced defendant to serve 25 years to life plus 7 years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the evidence was insufficient to convict him of issuing a criminal threat because no evidence demonstrated any immediate prospect the threat would be carried out, (2) the trial court erred in admitting evidence of defendant's past convictions for issuing criminal threats under Evidence Code section 1101 in the absence of any showing the facts of the prior offenses were similar to the current charged offense, (3) the trial court erred in failing to inquire whether the then-burning Butte County wildfire would affect jurors' ability to fairly decide the case, and (4) defendant's right to counsel was violated when the trial court refused to appoint counsel to represent him during the sentencing hearing.
We conclude the evidence sufficed to convict defendant. Although defendant issued his threat to "cut" the prison librarian "into little pieces" while confined in a temporary holding cell at Mule Creek State Prison, the threat indicated he intended to attack the victim as soon as he had the opportunity. We determine defendant did not preserve for appeal the argument regarding the admission of evidence relating to his prior convictions. The trial court did not have a sua sponte duty to inquire about the possible effects of the wildfire on jurors. And we agree with the trial court that defendant's request for counsel toward the end of his sentencing hearing was untimely.
Our examination of the record reveals the abstract of judgment erroneously reflects defendant was convicted by guilty plea on. Accordingly, we affirm defendant's conviction and sentence but remand with instructions to correct the abstract of judgment to reflect the fact defendant was convicted by jury.
BACKGROUND
Prosecution Evidence
In August 2011, defendant was an inmate at Mule Creek State Prison, where he used the library both as a priority and as a general user. Priority users are inmates who have upcoming court cases for which they are granted access to the library before recreational users. The victim was the librarian in charge of the library. The victim testified defendant was "constantly in the library just doing legal work and recreational work."
On August 16, 2011, the victim informed the priority users present in the library they had used more than their allotted four hours of time that day. Thus, she planned to let nonpriority users receive their allotted two hours of time the next day before she would admit priority users. Defendant "had an issue with that" and "kept saying that he had upcoming court cases and what not and he needed access to the library." The victim asked the other inmates if they would grant defendant an exception to use the library the following day. The other inmates agreed to the exception. The victim informed defendant he could come into the library the next day. Defendant responded with comments, including that the victim "was creating an enemy situation." The victim told him if he "kept going" she would deny him access the next day. Defendant "got really frustrated. Stood up, slammed the computer desk shut really, really hard. And then he looked directly at [the] inmate clerk and stated, if you keep this up, I am going to break your neck or bash someone's face against the wall." The victim ordered defendant to leave the library, and defendant immediately complied.
The next day, defendant was held in a temporary holding cell for threatening the inmate clerk. Mule Creek State Prison Correctional Officer Mark Campbell was responsible for watching the inmates in the temporary holding cells. Officer Campbell heard defendant loudly exclaim: "I am going to catch up with you some day you fucking bitch and cut you up in little pieces." Due to the proximity of the library to defendant's holding cell, Officer Campbell believed defendant's threat was loud enough the victim could have heard it. At the time, Officer Campbell did not know whether the victim was in the library. However, he observed there were no other women around. Officer Campbell noted defendant "was complaining about [the victim] and how she was out to get him." Officer Campbell instructed defendant to be quiet, but defendant "continued to make threats, comments, suggest serious issues" with the victim.
Also while defendant was in the temporary holding cell, Mule Creek State Prison Officer Michael Rinehart observed defendant yelling and screaming. Defendant was yelling, "You are going to pay for this, you fucking bitch." Officer Rinehart understood defendant's threat to be directed toward the victim. Defendant did not appear to be angry at any other inmates in the holding cell area.
Arthur Suarez was an inmate at Mule Creek State Prison and was working in the program office nearby defendant's temporary holding cell. Around noon on August 17, 2011, Suarez heard defendant yell, "I will bump into you out there, you bitch. And when I see you, I am going to chop you up in little pieces and kill you. I know you can hear me. I know you can fucking hear me, bitch."
Around noon, the victim was in the library and could hear screaming and yelling from the temporary holding cell area. She was able to hear defendant's threat. The victim testified she heard defendant say, "[Y]ou fucking liar, you fucking cunt. I will catch up to you one day. You will be sorry." The victim understood defendant to be threatening her based on his use of the feminine pronoun and the reference to "fucking cunt."
The victim became scared, and her heart raced. She testified defendant's threat caused her to become "super nervous" and "super scared." The victim waited until defendant was moved to administrative segregation before going to talk with the lieutenant and sergeant in the program office. The victim testified she was still fearful of defendant at the time of trial. She believed defendant would carry out his threat "if he got out."
Defense Evidence
Defendant called as a witness Amador County District Attorney Investigator Ronald Rios. Rios testified that during the course of his investigation he learned defendant and Wilson, the inmate library clerk, did not get along. Defendant once accused Wilson of threatening him. On August 17, 2011, three inmates in addition to defendant were in temporary holding cells. The other three inmates were intoxicated on contraband alcohol. Before defendant was moved into administrative segregation, an evaluation of defendant noted defendant had an injury on his lower lip.
Mule Creek State Prison Correctional Lieutenant Thomas Tyler testified that on August 17, 2011, another woman in addition to the victim regularly worked in the same building that housed the library. Lieutenant Tyler acknowledged other women work at the prison and frequently entered and exited the building containing the library. However, Lieutenant Tyler could not recall which women other than the victim were present in the building that day. Lieutenant Tyler remembered being in his office and hearing defendant yelling but could not determine what defendant was saying. Lieutenant Tyler instructed Officer Campbell to go and write down what defendant was saying. Campbell did so and a crime incident report was initiated.
John Ambrose is a licensed private investigator who assisted defendant. Ambrose requested to interview the correctional officers connected with the case, but all of them refused to speak with him. Ambrose was unable to locate a paroled inmate who was connected with the case. And Ambrose was unable to enter the prison library because the prison was on lockdown the day he was there to investigate. Ambrose was able to enter the area that contained the temporary holding cells in which defendant was located when he issued his threats. Each temporary holding cell was slightly larger than a telephone booth and made of expanded metal screen. Ambrose testified it appeared to him each temporary holding cell was sufficiently secure to prevent an inmate from escaping. The prison library is located approximately four to five steps from the temporary holding cells.
DISCUSSION
I
Sufficiency of the Evidence of Criminal Threat
Defendant contends his conviction of issuing a criminal threat must be reversed because the evidence did not show any immediate prospect the threat would be carried out. We disagree.
A.
Standard of Review
Challenges to the sufficiency of the evidence supporting a conviction are reviewed under the substantial evidence standard of review. (In re George T. (2004) 33 Cal.4th 620, 630.) "Under that standard, ' "an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." ' " (Id. at pp. 630-631.) The substantial evidence standard of review requires we " 'presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508, quoting People v. Bolin (1998) 18 Cal.4th 297, 331.)
B.
Criminal Threat
A conviction of issuing a criminal threat requires the prosecution to prove "all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
The requirement that a threat under section 422 be "immediate" has been construed to include threats "made to convince the victim to do something 'or else.' " (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538, italics added.) As the Melhado court recognized, "threats often have by their very nature some aspect of conditionality." (Ibid.) Nonetheless, these types of threats fall under section 422 when they involve a "degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met." (Ibid.)
C.
Defendant's Threat to Kill the Victim
We reject defendant's contention the evidence of defendant's threat against the victim was insufficient because he issued the death threat while locked inside a temporary holding cell. Defendant stated he would "catch up to [the victim] one day," and would kill her when he would "bump into [her] out there." Defendant indicated an expectation he would eventually be released from administrative segregation to threaten: "And when I see you, I am going to chop you up in little pieces and kill you."
The victim testified she believed defendant would carry out his threat if he got out of administrative segregation. Her fear reflected her experience he had "constantly" been in the prison library and in close proximity to her. The victim's past interactions with defendant as part of her job supported her belief defendant would carry out his threat when he had the opportunity. During their last interaction, defendant had angrily slammed the computer desk, threatened violence against the inmate library clerk, and stated the victim had created "an enemy situation." Defendant's threat on August 17, 2011, combined with his prior history with the victim, provided substantial evidence for the jury to find defendant expressed an intent to kill the victim as soon as he gained the opportunity.
Defendant cites several cases involving threats by in-custody defendants to support his argument he did not convey an immediate prospect of executing his threat. None of these cases helps defendant. Defendant's attempt to distinguish these cases is unavailing. If anything, the factual similarities support the finding of a criminal threat. In People v. Franz (2001) 88 Cal.App.4th 1426, this court affirmed convictions of section 422, including one made when the defendant was standing "behind the [police] officer, and defendant 'swiped his hand across his throat' perhaps twice, shook his head and put his finger to his lips, which [the victim] understood to mean defendant would slice his throat if he said anything to the police." (Id. at p. 1436.) In affirming the conviction, we rejected an argument that "there is no substantial evidence of immediacy because the police officer was present during the threat and thereafter escorted defendant away from the scene, and neither [victim] saw defendant again until prosecution of this matter." (Id. at p. 1449.) This court explained that "[t]he immediacy factor was present in the surrounding circumstances that defendant was in a rage." (Ibid.) Moreover, we noted that although "the officer was present when defendant made the threat, the threat and surrounding circumstances were a reminder that the officer would not always be there to protect" the victims. (Ibid.) The same reasoning applies in this case. Although defendant could not immediately carry out his threat, he made clear in his threat that he expected to eventually "bump into" the victim and use the opportunity to kill her.
For similar reasons, defendant misplaces his reliance on People v. Gaut (2002) 95 Cal.App.4th 1425 (Gaut). Gaut involved a conviction of section 422 for a threat issued while the defendant was in jail. (Id. at p. 1427.) The defendant challenged his conviction on grounds that "there was insufficient evidence to support his conviction for violating section 422 as a matter of law because he was incarcerated when the threats were made." (Ibid.) The evidence in Gaut showed the defendant had a history of threatening and becoming physically violent with the victim. (Id. at p. 1431.) After being arrested, the defendant repeatedly called the victim from jail and issued numerous death threats against her. (Id. at p. 1428-1429.) The victim attended the defendant's parole violation hearing, which caused her to fear defendant would soon be released. (Id. at p. 1432.) Some of defendant's subsequent threats "made reference to the fact that she had only a few days until he would be released: 'Just three more days'; 'You got three more days to apologize for your disrespect'; and 'Hey tramp. I'm gon[na'] spare you one more day.' " (Id. at p. 1432.)
The Gaut court held the evidence showed defendant's "threats were specific, unequivocal, and immediate" even though they were made while defendant was incarcerated. (95 Cal.App.4th at p. 1432.) As Gaut notes, " 'A threat is not insufficient simply because it does "not communicate a time or precise manner of execution, section 422 does not require those details to be expressed." ' " (Id. at p. 1432.) This case, like Gaut, involves an unequivocal threat that meets the definition of section 422 even though the defendant was not immediately able to carry out the threat. Section 422 "does not require an immediate ability to carry out the threat." (Ibid., citing People v. Lopez (1999) 74 Cal.App.4th 675, 679-680.)
For similar reasons, we reject defendant's reliance on People v. Mosley (2007) 155 Cal.App.4th 313 (Mosley) and People v. Wilson (2010) 186 Cal.App.4th 789 (Wilson). In Mosley, the defendant was convicted of section 422 for issuing threats against correctional officers that his fellow gang members would attack them outside of prison. (155 Cal.App.4th at pp. 320-321.) The defendant in Mosley argued that "he was known as a difficult inmate and the deputies were in control of his confinement and limited movement" so he could not have immediately carried out his threats. (Id. at p. 324.) The Mosley court affirmed the convictions based on evidence of past violence on correctional officers both by defendant himself and by gang members on other correctional officers. (Id. at pp. 325-326.)
And, in Wilson, a defendant's convictions of section 422 were affirmed based on threats to find a correctional officer and "blast" him when defendant would be released from prison in 10 months. (186 Cal.App.4th at p. 814.) As the Wilson court explained, "The only condition attached to the threat was that defendant intended to carry it out when he was released in 10 months. Defendant effectively made an appointment to kill [the victim] at his earliest possible opportunity—he would perform the act the instant he was set free." (Ibid.) Although the time frame to fulfill the threat to kill the victim in this case was not as certain, defendant's threat was unequivocal and indicated an intent to carry out the promised violence at the earliest opportunity. Here, as in Wilson and Mosley, the fact the threat could not be carried out immediately does not render the evidence insufficient. Accordingly, we reject defendant's sufficiency of the evidence challenge.
II
Admission of Defendant's Prior Convictions
Defendant next contends the trial court "committed prejudicial error when it permitted the prosecutor to inform the jury of [defendant's] 2006 criminal threat convictions on the issue of 'intent' during the guilt phase of trial." This contention is imprecisely worded and may refer to three different arguments: (1) the prosecutor committed misconduct in arguing to the jury defendant's intent could be inferred from the very fact of prior convictions of section 422, (2) the trial court misinstructed the jury on how it could use the prior acts evidence, and (3) the trial court should have told the jury about the circumstances of the prior convictions so that the jury could have assessed for itself whether the prior convictions were sufficiently similar to the charged offense to constitute proof of intent. Defendant's discussion of this issue meanders through all three of these arguments. We reject them.
A.
The Prosecutor's Closing Argument to the Jury
Defendant's argument appears to refer to the prosecutor's closing argument to the jury. Defendant asserts: "In closing argument, the prosecutor urged the jury that 'in assessing intent, you know that he already had convictions for the same thing. So he knows that words have meaning." Defendant misquotes the record. The prosecutor actually argued, "Consider the fact that he already has convictions for the same thing. So he has to know that his words have meaning." Defendant's opening brief neglects to note there was no objection to this argument.
To preserve an issue of prosecutorial misconduct during closing arguments, a defendant must timely object and request a curative admonition in the trial court. " 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Ochoa (1998) 19 Cal.4th 353, 427, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) For lack of objection, this contention has not been preserved for appeal.
B.
Whether the Trial Court Misinstructed the Jury
Defendant asserts: "Although the court's instruction required the jury 'to consider the similarity or lack of similarity between the prior convictions and the charged offense,' the jury could not do so, since the prosecution offered it no facts regarding the uncharged incident." Elsewhere defendant asserts: "Additionally, the court's ruling effectively eliminated [defendant's] right to have the jury decide every element of the offense in the crime of criminal threats . . . ." In support of these assertions, defendant offers no legal authority or discussion regarding the standards governing the trial court's duty to instruct the jury. The assertions are forfeited.
"To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' (Atchley v. City of Fresno [(1984)] 151 Cal.App.3d [635,] 647; accord, Berger v. Godden [(1985)] 163 Cal.App.3d [1113,] 1117 ['failure of appellant to advance any pertinent or intelligible legal argument . . . constitute[s] an abandonment of the [claim of error'].)" (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
C.
Whether the Jury Should Have Been Informed of the Underlying Facts of the
Prior Convictions
Defendant asserts that "the prosecution never offered to the jury any facts from which it could reasonably infer that in light of the [prior convictions arising in] the San Diego case, [defendant] acted with the intent that his statements be understood as a threat or acted with the intent that [the victim] hear the statements." This assertion seems to underpin an argument that defendant was prejudiced by the lack of information given to the jury about his prior convictions. The argument has not been preserved for appeal.
At trial, defendant objected to the admission of any evidence he had sustained prior convictions of section 422. However, he objected only on grounds of relevance. After defendant noted he incurred all of the prior convictions for conduct on one day, the trial court indicated it would not allow the jury to be informed he committed 26 violations of section 422. Defendant wondered what form the evidence would take. The trial court responded by looking at the "969b packets" offered by the prosecution that had been previously served on defendant. The trial court noted the date of the prior convictions and stated the 969b evidence was admissible. The prosecutor gleaned from the 969b packet that the prior convictions involved "bomb threats by telephone."
A "969b packet" refers to "certified copies of documents from the California Department of Corrections (CDC) which that agency . . . provide[s] in compliance with section 969b." (People v. Scott (2000) 85 Cal.App.4th 905, 910-911.)
In front of the jury, the prosecutor read to the jury the following stipulation by the parties: "On August 23rd, 2006, in the Superior Court of the County of San Diego, Defendant Joseph Becker was convicted of felony counts of criminal threats." Defendant did not object on grounds he would be prejudiced by the jury not having enough information about his prior convictions. Accordingly, the contention is forfeited for purposes of appeal.
"Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . . [Citations.]" (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Here, defendant knew about the nature of his prior convictions. And, as the record shows, the trial court and prosecution had the 969b packets in front of them and could have used them to give the jury more information about the prior offenses. Defendant's lack of objection on grounds the jury should have had more facts about the prior convictions forfeits the issue.
III
Whether the Trial Court Should Have Sua Sponte Asked Jurors about the Effects of
the Wildfire
Defendant next argues that the trial court committed reversible error by failing to inquire whether jurors were unable to decide the case fairly due to the then-burning Butte County wildfire. We are not persuaded.
A.
Duty to Inquire of Jurors
As the California Supreme Court has explained, "[s]ection 1089 provides, in pertinent part: 'If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his [or her] duty, . . . the court may order him [or her] to be discharged and draw the name of an alternate . . . .' [Citation.] 'We review for abuse of discretion the trial court's determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court's ruling, we will uphold it. [Citation.] We also have stated, however, that a juror's inability to perform as a juror " 'must appear in the record as a demonstrable reality.' " [Citation.]' (People v. Marshall (1996) 13 Cal.4th 799, 843.)
"The most common application of these statutes permits the removal of a juror who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. (People v. Fudge (1994) 7 Cal.4th 1075, 1100 [anxiety over new job would affect deliberations]; People v. Johnson (1993) 6 Cal.4th 1, 23 Cal.Rptr.2d 593 [sleeping during trial]; People v. Espinoza (1992) 3 Cal.4th 806, 821 [sleeping during trial]; People v. Dell (1991) 232 Cal.App.3d 248 [juror involved in automobile accident]; Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 629 [inability to concentrate]; In re Devlin (1956) 139 Cal.App.2d 810, 812-813 [juror arrested on felony charge], disapproved on another ground in Larios v. Superior Court (1979) 24 Cal.3d 324, 333.) [¶] These statutes also have been applied to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is 'unable to perform his [or her] duty' within the meaning of . . . section 1089." (People v. Cleveland (2001) 25 Cal.4th 466, 474-475 (Cleveland), fn. omitted.)
The Cleveland court cautioned that "not every incident involving a juror's conduct requires or warrants further investigation. 'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] . . . [¶] As [the Supreme Court's] cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute "good cause" to doubt a juror's ability to perform his [or her] duties and would justify his [or her] removal from the case. [Citation.]' (People v. Ray (1996) 13 Cal.4th 313, 343.)" (Cleveland, supra, 25 Cal.4th at p. 478.)
B.
Speculation Regarding the Effect of the Wildfire on Jurors' Ability to Deliberate
September 10, 2015, was the third day of trial in this case. On that day, the trial court noted: "And the record should reflect that yesterday a fire started near Amador near Jackson and has progressively gotten worse. I just got a call from one of the jurors, Juror Number 5, whose husband is disabled. And she needs to move him out of the fire zone, so I let her go immediately. [¶] Some of you are probably affected also, is that fair to say?" The court recognized two jurors were affected and the wildfire presented an emergency. The trial court recessed the trial for five days.
Trial resumed five days later, on September 15, 2015. The trial court noted it had excused two jurors for hardship - the juror who need to help her disabled husband evacuate and a juror who was living in a car while caring for her animals. Defendant stated the circumstances were unfair to him because the trial concerned a charge the victim experienced fear and the jurors were experiencing fear due to the wildfire. The trial court rejected defendant's reasoning as follows:
"Well, first of all, I think the analogy of the fire danger and fear and a 422 is extremely misplaced. I don't buy that at all. It is true to a point that some or more of the jurors, one or more of the jurors or none of them, I don't know their situation or mindset prior to the lunch hour when everybody went out, including myself, and found out we had lost power, which is when they were essentially excused. Because that is when the evacuation orders came in. Be that as it may, I don't feel that there has been anything provided on the record yet to justify an open inquiry as to jurors' and alternatives' mindsets. I think that is a dangerous slippery slope which I am not going to do because there is really no basis for me to make inferences of the mindsets of the jurors on something that is not before the Court evidenti[arily]." Although defendant noted his objection, he offered no evidence to support the allegation jurors might not be able to deliberate fairly due to the wildfire.
The trial court called roll and determined four jurors were not present. Two jurors had previously been excused for good cause, and the trial court learned another was in the hospital with a broken wrist. The trial court then inquired: "Are any of you twelve whose names I mention the subject of any evacuation orders?" The trial court inquired whether an alternate would be able to be attentive. Receiving a positive response, the trial court seated the alternate on the jury. The missing juror never showed up and was replaced by the second alternate.
On this record, we reject defendant's speculation that jurors were unable to fairly deliberate. The record contains no indication of the size, scope, or effect of the wildfire on or after September 15, 2015. Moreover, the trial court displayed a willingness to consider and excuse jurors for hardship connected with the wildfire.
IV
Right to Counsel
Defendant argues the trial court deprived him of his right to counsel when it denied his request for counsel that he made toward the end of his sentencing hearing. We disagree.
A.
Defendant's Self-Representation
Defendant's motion to represent himself was granted prior to trial. Defendant represented himself throughout trial. Defendant also represented himself in moving for a mistrial. The motion was denied, and the issue of defendant's sanity was tried. Defendant represented himself during the sanity phase. The sanity phase ended when the trial court determined there was insufficient evidence presented by the defense to submit the issue of sanity to the jury. Defendant indicated he was working on a motion for new trial and waived time for sentencing.
At the sentencing hearing, the trial court heard and denied defendant's motion for new trial on grounds of insufficiency of the evidence of specific intent to issue a criminal threat. Defendant then argued a new trial should be granted for lack of evidence regarding the identity of the person who was threatened. When the motion on that ground was denied, defendant moved for a continuance. Defendant acknowledged receipt of the probation officer's report, but asserted he had not received the victim's statement. The trial court noted it also had not received the victim's statement. Copies were then made by the clerk and distributed to the court and defendant. Defendant then argued against the issuance of a protective order for the victim. After the trial court denied defendant's motion for a continuance, defendant moved to rescind his self-representation and requested the appointment of counsel. The prosecution expressed opposition. The trial court denied defendant's motion and request on the following grounds:
"I have reviewed the request for the Court to rescind pro per status and appoint counsel. I would deny the motion to appoint counsel. I would find it's not timely. We're here at sentencing. Given the vociferous and voluminous motions, law cited, and my previous statements on the record, [defendant], that you have done probably as good or better job than I've seen some lawyers do. Certainly you're - and I know this is going to stroke your ego, but that's okay - certainly the most competent of all the pro pers, Faretta that I've had - and I've had more than a few. [¶] It's just denied for those reasons."
Faretta v. California (1975) 422 U.S. 806 (Faretta). --------
Defendant then argued he should not be sentenced for a third strike because his prior convictions related to one occasion. Defendant then submitted the matter on the basis of his written opposition to the prosecution's motion to sentence him on a third strike.
B.
Right to Self-Representation
Criminal defendants have a constitutional right to represent themselves. (Faretta, supra, 422 U.S. 806 .) As the Faretta court explained, "The right to defend is personal. The defendant, and not his [or her] lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his [or her] particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his [or her] own detriment, his [or her] choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' " (Ibid., quoting Illinois v. Allen (1970) 397 U.S. 337, 350-351 .)
A defendant's request to abandon self-representation and for the reappointment of defense counsel lies within the trial court's discretion that must be exercised based on " 'the totality of the facts and circumstances.' " (People v. Gallego (1990) 52 Cal.3d 115, 164 (Gallego).) In the exercise of its discretion, the trial court should consider factors that "include the defendant's prior history in the substitution of counsel, the reasons set forth for the request to return to representation by counsel, the length and stage of the trial proceedings, the disruption or delay which reasonably might be expected to ensue from granting the motion, and the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney." (Ibid.)
C.
Defendant's Request for Reappointment of Counsel
Here, the trial court did not abuse its discretion in denying a request by defendant for reappointment of counsel toward the end of the sentencing hearing. Defendant's request was made immediately after his request for a continuance was denied. Notably, defendant does not contend the trial court erred in denying his request for a continuance of the sentencing hearing. Defendant's request was made after representing himself at trial, the sanity phase, and most of the sentencing hearing. Defendant requested appointment of counsel only after his motion for new trial had been denied on two separate grounds and he had filed a brief arguing he should not be sentenced on a third strike due to the nature of the prior convictions.
The record suggests the request for reappointment of counsel was taken for the purpose of delay. The appointment of counsel would have resulted in the same delay as defendant's request for continuance. Newly appointed counsel would have required time to become familiar with the case. In requesting the appointment of counsel, defendant did not articulate any reason as to why he could not properly argue the issue of sentencing. To the contrary, the trial court found defendant had ably represented himself. And the record discloses defendant's preparation for and vigorous advocacy during the sentencing hearing. The trial court did not abuse its discretion in denying the request for reappointment of counsel on grounds the request was not timely.
V
Correction of Abstract of Judgment
On review of the record, it appears the abstract of judgment erroneously notes defendant was convicted by guilty plea. Defendant, however, was convicted by a jury. Because a court has inherent power to correct clerical errors on its own motion, we remand this case with instructions for the superior court to correct the abstract of judgment to reflect defendant's conviction by a jury. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The matter is remanded with directions that the trial court (1) correct the abstract of judgment to reflect defendant was convicted by a jury and (2) send a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
RENNER, J.