Opinion
D073707
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. NIKUN LUVERT, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1504191) APPEAL from a judgment of the Superior Court of Riverside, Bambi Moyer, Becky Dugan and Bernard J. Schwartz, Judges. Affirmed in part; reversed in part and remanded for resentencing. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Nikun Luvert was arrested when police officers found he possessed illegal switchblades, methamphetamine, a digital scale, and $265 in cash. After the arrest, his appointed counsel raised a question regarding Luvert's competency to stand trial. The court conducted a competency trial, and found Luvert was competent to stand trial.
Luvert then asserted his constitutional right to represent himself. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) After receiving numerous admonishments about the risks of self-representation, Luvert made clear he wanted to represent himself, and the court granted the request. However, during trial, Luvert changed his mind and requested counsel. The court denied this request.
At the conclusion of the trial, the jury found Luvert guilty of the two charged counts: possessing methamphetamine for sale (Health & Saf. Code, § 11378) and misdemeanor weapons possession (Pen. Code, § 21510). The jury also found true allegations that Luvert (1) had been previously convicted of possessing cocaine for sale (§ 11351.5); and (2) had suffered a prior strike (robbery) conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All unspecified statutory references are to the Health and Safety Code.
The court granted Luvert's request for counsel in posttrial proceedings, and then denied a new trial motion brought by Luvert's counsel. The court imposed a seven-year prison term, consisting of the two-year middle term for the methamphetamine-possession-for-sale count, doubled to four years for the prior strike conviction, plus the mandatory three-year enhancement under section 11370.2, subdivision (c) for the prior cocaine-possession-for-sale conviction.
On appeal, Luvert contends the court erred in (1) granting his self-representation motion without a hearing on his competency to represent himself and/or without adequate admonishments; (2) failing to sua sponte revoke his self-represented status; (3) denying his midtrial request for appointed counsel; and (4) failing to sua sponte appoint standby counsel. We reject these contentions.
In a supplemental brief, Luvert contends the three-year enhancement under section 11370.2 for his prior cocaine-possession-for-sale conviction (§ 11351.5) must be stricken. We agree. Under a recent amendment to section 11370.2, the three-year enhancement applies only to certain qualifying drug offenses, which do not include a conviction under section 11351.5. The Attorney General concedes this amendment is retroactive. We accept this concession and remand for the court to strike the three-year consecutive sentence. We affirm the judgment in all other respects.
FACTUAL SUMMARY RELATING TO CHARGED OFFENSES
A police officer approached Luvert in a public park at about 9:00 p.m. when the park was closed except for a soccer game. The officer asked Luvert if he had anything illegal on him, and Luvert responded that he had knives. The officer then recovered two folding knives from Luvert's waistband. One knife had a blade longer than three inches, and a loosened blade hinge so it could open with a flip of the wrist. The other had a spring opening mechanism, with a blade length just under four inches.
The officer arrested Luvert for possessing these weapons (Pen. Code, § 21510), and searched his duffel bag incident to the arrest. The bag contained $270 in cash, an operable digital scale, and two bindles of crystal methamphetamine weighing about 22 grams. The prosecution presented evidence that the amount of methamphetamine, together with the cash and operable scale and the lack of evidence of personal-use paraphernalia, was "indicative of" an intent to sell the drugs.
DISCUSSION
Luvert asserts numerous appellate contentions relating to his self-represented status. We first set forth the facts relating to this status, and then discuss Luvert's specific legal contentions. At the end of this discussion, we consider Luvert's challenge to the three-year sentence enhancement based on the jury's true finding on Luvert's prior cocaine-possession-for-sale conviction.
I. Factual Background Pertaining to Luvert's Self-representation Status
A deputy public defender was appointed to represent Luvert. After Luvert unsuccessfully brought a motion to substitute counsel, his counsel raised the issue of Luvert's competency to stand trial and the court suspended criminal proceedings for a trial on competence. After numerous delays, Luvert waived a jury for the competency trial, and Superior Court Judge Becky Dugan presided over the trial. Four mental health experts testified at the competency trial.
Dr. Jennifer Bosch, a forensic and clinical psychologist, examined Luvert several weeks after his arrest. Dr. Bosch opined that Luvert was fully competent to stand trial. She said he was "appropriate in terms of conversation. He didn't get off on unrelated tangents. He didn't attempt to control the interview . . . . He answered questions and [was] very engaged in the process." Dr. Bosch said Luvert was "unusual" in the sense that he appeared to fully comprehend so many aspects of the criminal process and procedures, and understood the relevant facts of his case. She said Luvert was aware he had a mental illness (a schizophrenia disorder diagnosed about 12 years earlier), and he recognized it was important to stay on his medications to prevent delusions and other symptoms. She saw no symptoms of mental illness, observing that "defendant was not responding to internal stimuli. . . . [H]e was not mumbling to himself. He was looking directly at me. He was making good eye contact. He was logical and linear in his thoughts. He was appropriate in his presentation. His affect was appropriate to the topic at hand. He talked about a Marsden hearing. He knew about his right to a speedy trial. He knew considerably more than the majority of the defendants that I evaluate about his rights . . . ."
When the court asked whether she saw "any disorganized thought pattern, any auditory hallucinations, any rambling tangential answers," Dr. Bosch responded: "Not even close. If I had no records on this defendant and he had not disclosed a diagnosis of schizophrenia, that would not have been my diagnostic impression . . . ." Dr. Bosch said Luvert was "[c]ompletely [de]void of any symptomatology of a psychotic disorder and/or episode."
Dr. Gene Berg, a clinical psychologist, also found Luvert to be competent to stand trial. He said Luvert was "very logical, coherent"; "quite organized in his thinking"; "very poised and responsive to the questions"; and "very pleasant and cooperative." Dr. Berg said Luvert would be capable of assisting counsel in his defense, and understood the nature and consequences of his criminal case.
Dr. Patricia Kirkish, a clinical psychologist and defense expert, reached different conclusions. Dr. Kirkish opined that Luvert was incompetent to stand trial because his thought processes were "disorganized." She acknowledged, however, that Luvert had a "very good understanding" of the criminal process, and that he "aced" his mental status examination that evaluates "attention, concentration, short-term memory, problem-solving, judgment [and] reasoning." She said that Luvert was organized and coherent when discussing the judicial proceedings aspect of the evaluation. Dr. Kirkish also said it was possible Luvert's thought-processing issues could be addressed with medications. She noted that Luvert understood the need to take his prescribed medications, and Luvert had suggested he was not being given all of his medications since his arrest.
Dr. David Walsh, a psychologist and university faculty member, likewise concluded that Luvert was not competent to stand trial. Dr. Walsh said that Luvert understood why he was arrested and how the court system works, but opined that Luvert would not be capable of interacting with counsel given his "current paranoia symptoms."
At the conclusion of the evidence and before counsel argued, Judge Dugan observed: "I think we can all agree that there's only one . . . issue here, and that's whether [Luvert] can assist his attorneys. All four doctors agree he knows the system inside and out. He's very intelligent about it. He answers appropriately about it, and the only issue really is can he assist his attorney."
The prosecutor agreed, and urged the court to credit Dr. Bosch's opinion, and identified specific grounds to reject the opinions of Dr. Kirkish and Dr. Walsh. The prosecutor also noted that during the competency hearing, Luvert was assisting his counsel, including to suggest appropriate follow-up questions.
In response, defense counsel agreed that Luvert is "intelligent" and "familiar with the legal system in general," but argued that he does not have the ability to rationally assist his counsel, relying on the testimony and opinions of Dr. Walsh and Dr. Kirkish.
Judge Dugan then ruled that Luvert was competent to stand trial, concluding that although Luvert may have had a "bad day" with Dr. Kirkish, his conduct and responses were fully appropriate during the other doctors' examinations. The court stated:
"So we have a situation where here's a person who has a long-term mental illness, and he knows it. I think he was just sick of the whole thing by the time he talked to Dr. Walsh—and who can blame him—and I think Dr. Walsh misunderstood some stuff. . . . [¶] . . . [¶]
"I have observed Mr. Luvert many, many days now. He's always been very, very, very upset . . . about the delay in his proceedings, about the fact that we're going through these competency exams, about how he feels his speedy trial rights have been interfered with. He believes his lawyer should have [brought] . . . a [Penal Code section] 1538 motion . . . because he [believes he] was illegally searched.
". . . I don't know [if his belief that he was illegally searched] is irrational. . . . [¶] He's fixated on that. There's no doubt. There's no doubt he's going to have difficulty with an attorney who doesn't
agree with him. . . . But he has been appropriate not only with the Court but with his attorney. While he observed each doctor, he listened to their testimony. He made comments to [his attorney] that were consistent with what they were telling us where he disagreed. He wanted [his attorney] to ask questions about them. He did that in a way that I consider entirely respectful and appropriate and shows that he can assist his attorney.
"[Luvert and his counsel are] going to disagree and butt heads about what he believes . . . wrongfully happened to him. I don't know that that's paranoia necessarily. Clearly he has a long-term mental illness, and he fights that, but he also knows he has it. He's compliant with his medication. He's rational in every other part of his life.
". . . He may have a [viable] search motion. [If that motion is denied,] his personality and his mental illness may make it more difficult than for some of us to move forward. [¶] But . . . I have known, many, many, people who do not have diagnosed mental illnesses [who] have a hard time moving forward or past an issue. I don't think that makes him incompetent. I think he has a right to go forward with his trial. I think his approach to it is rational. [¶] . . . I think he can act appropriately with his counsel, although they will disagree in parts maybe. [¶] . . . [¶]
"[W]hile he does clearly have a mental illness, he is intelligent and he is completely competent as to the proceedings. And I do think, especially if his lawyer understands where he's coming from, that he can assist his counsel. He is able to assist his counsel, and he will assist his counsel, and his counsel is going to hear a clear message from him. I want my trial. I want to go forward. I'm innocent. I don't think that's irrational."
The next month, after his preliminary hearing, Luvert appeared in Judge Bambi Moyer's courtroom for his arraignment. At the outset, Luvert asked to represent himself. The court responded: "I am just taking a look at this. Due to the fact that I am concerned that this was referred after a doubt [of his competency to stand trial], it looks like doctors were appointed. He was ultimately determined to be competent. [¶] However, I will ask [his appointed counsel], given your conversations with him, does it appear that he is able to rationally work with the Court for the purposes of representing himself?" His counsel responded: "Yes, I believe he is—he's been declared competent. And that's really not my purview to determine whether or not someone can represent themselves."
The court then stated: "Mr. Luvert, I'm going to be discussing this with you, sir. Due to the fact that even though you have a right to represent yourself, it appears that due to any mental difficulties that you may be suffering which caused you to at least be referred over, if you cannot appropriately follow through with representing yourself, the Court can't let you do so. But certainly I'll be happy to talk to you about it."
The court then questioned Luvert to ensure he understood the meaning of proceeding without an attorney, and Luvert made clear that he did understand. In response to Luvert's specific questions, the court explained the different stages of a criminal proceeding, and the trigger dates for his speedy trial right. The court then discussed the risks of proceeding without an attorney. In part this colloquy was as follows:
"[THE COURT:] Now, I have an obligation to advise you that it is an extremely risky venture, especially on a felony case, for you to represent yourself for a number of reasons. Do you have any legal training?
"THE DEFENDANT: That what?
"THE COURT: Do you have any legal training, training in the law?
"THE DEFENDANT: A little bit.
"THE COURT: A little bit, okay. Because keep in mind that the person prosecuting you is a licensed lawyer, and not only are they a licensed lawyer, but they specialize in criminal law. And they probably have been in trial a number of times. So normally you put yourself at an immediate disadvantage by deciding to represent yourself. I know you're shaking your head. You may not agree, I just have to advise you.
"THE DEFENDANT: Okay. Thank you.
"THE COURT: You're allowed to disagree if you think you can do a better job. That's okay with me. I just want to make sure you understand what you're giving up completely.
"THE DEFENDANT: Yes.
"THE COURT: If that is the case, you're going to be required to be treated exactly the same way as a lawyer would, which means you have to follow all the technical rules that a lawyer would, and a judge who is presiding over your trial can't give you any special advantage or explain things to you otherwise.
"THE DEFENDANT: Yes.
"THE COURT: You're aware of that?
"THE DEFENDANT: Yes.
"THE COURT: So you're going to have to do some quick learning on the law.
"THE DEFENDANT: Yes.
"THE COURT: You're prepared to do that?
"THE DEFENDANT: I had eight months.
"THE COURT: Okay. Now, you understand that without the assistance of counsel, in other words, you got to do it all by yourself.
"THE DEFENDANT: Okay.
"THE COURT: You would have to conduct your own trial, which means you need to make any pretrial motions.
"THE DEFENDANT: Okay.
"THE COURT: You need to select a jury.
"THE DEFENDANT: Okay.
"THE COURT: You need to make opening and closing statements. You would need to be able to know how to cross-examine witnesses for the prosecution, how to subpoena and present your own witnesses, how to make objections during the course of your trial, how to prepare and present jury instructions and how to make final argument.
"THE DEFENDANT: Yes.
"THE COURT: That's kind of daunting if you've never done it before. It's even daunting for lawyers if they've never done it before.
"THE DEFENDANT: I have a booklet.
"THE COURT: Is that a book you're looking through?
"THE DEFENDANT: No. This is what I study.
"THE COURT: I see. It looks like it's the Jailhouse Lawyer's Handbook.
"THE DEFENDANT: Yeah, I'm ready.
"THE COURT: Sometimes Jailhouse Lawyer's Handbooks are not as good as having somebody that's been around the block a number of times and knows how to conduct a jury [trial]. You're aware of that?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Okay. I just want to make sure that you're absolutely sure that this is what you want to do.
"THE DEFENDANT: I am.
"THE COURT: And I told you about everything?
"THE DEFENDANT: I am.
"THE COURT: Now, keep in mind that if you get to the day of trial and you say, you know what, I changed my mind, I want a lawyer, judge can deny it.
"THE DEFENDANT: Okay.
"THE COURT: Also, if you get mid trial and you feel like you're way in over your head, and you say, I want a lawyer now, judge can deny that—
"THE DEFENDANT: Okay.
"THE COURT:—as untimely. You're aware of that?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: I like to give people a heads-up, before that train comes [barreling] down the track. I want you to know exactly what you're doing and exactly what you're getting yourself into.
"THE DEFENDANT: Thank you.
"THE COURT: Now, on top of all of this, if worse comes to wors[t], and you are convicted, you cannot tell the Court of Appeal that you were incompetent counsel.
"THE DEFENDANT: Okay.
"THE COURT: Now, you understand everything that I just said to you and what is contained in the form?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Understanding all of that, is it still your desire to represent yourself?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: And you think you can do a competent job at it?
"THE DEFENDANT: Yes.
"THE COURT: Okay. At this point in time, it does appear that he is fully following, he has already started to prepare for this, so I will allow the public defender to be relieved. I will allow you to represent yourself . . . .
"THE DEFENDANT: Thank you, Judge."
Later that day, Luvert was arraigned. The court scheduled trial for June 27, noting the last date for trial (without Luvert waiving his speedy trial right) was July 8.
At the June 27 hearing, Judge Moyer again admonished Luvert about the difficulties of representing himself and said he "may really want to get a lawyer," but Luvert said, "No."
The next day, Judge Dugan presided over a hearing, and asked whether Luvert was "ready to go," and Luvert said "Yes," but expressed concerns his investigator had not completed the necessary work. The court responded by stating it was willing to grant Luvert a continuance, but Luvert said he would not waive his speedy trial right. The court thus scheduled a July 6 trial date.
On July 6, Judge Dugan presided over another hearing at which Luvert again complained about his investigator and said he wanted to bring pretrial motions to dismiss and suppress the evidence. Judge Dugan responded that she was willing to continue the trial for one week to address these issues, but Luvert again made clear that he would not waive his speedy trial right and said "I want to go to trial. [¶] . . . [¶] Now." The court responded, "So you know [your investigator] may not get done with what you want to get done in time," and Luvert replied, "I hear you." The court again warned, "You won't get a new trial because of that," and Luvert replied, "I know."
The next day, July 7, the matter was sent to the courtroom of Judge Bernard Schwartz for trial. Judge Schwartz first noted that "tomorrow is the last day for trial" to satisfy Luvert's speedy trial rights. The court then stated that the "second thing and maybe the most important thing that we're going to talk about now, other than pretrial issues, I know that you've been representing yourself for a period of time on this case. And I'm quite confident that the judges previously on this case have reminded you or at least went over your situation with respect to representing yourself. But I want to make sure in my mind before we go forward that you understand everything that's involved." The court then asked Luvert a series of questions:
"[THE COURT]: First off, . . . What is your highest level of education, sir?
"THE DEFENDANT: College. A little bit of college.
"THE COURT: All right. And where did you go to college?
"THE DEFENDANT: [Riverside Community College.] [¶] . . . [¶]
"THE COURT: What were the courses that you took in college . . . ?
"THE DEFENDANT: Just basics, general.
"THE COURT: Have you ever taken anything in the way of legal training, criminal justice, criminal law, constitutional law, anything like that?
"THE DEFENDANT: Just read books.
"THE COURT: All right. Have you ever represented yourself before in a criminal proceeding?
"THE DEFENDANT: Never.
"THE COURT: All right. Well, just again so that we're all on the same page, by representing yourself, which you absolutely have a constitutional right—[¶] . . . [¶]—to do, you will be held to the same standard as a lawyer.
"THE DEFENDANT: Right.
"THE COURT: You understand that?
"THE DEFENDANT: Yes.
"THE COURT: That means someone that not only graduated high school and college, but also went to law school, got a law degree, . . . passed the bar—[¶] . . . [¶]—and then practiced for some period of time—
"THE DEFENDANT: Right.
"THE COURT: . . . [The prosecutor] is a . . . [d]eputy [d]istrict [a]ttorney. . . . She's done . . . jury trials before. [¶] . . . [¶] Argued motions before . . . . You will be held to the same standard as her in all matters, including jury selection—
"THE DEFENDANT: Right.
"THE COURT:—evidence presentation, questioning of witnesses, closing argument, and opening statement. Do you understand all that?
"THE DEFENDANT: Yes.
"THE COURT: All right. In addition, if there are questions that are asked by [the prosecutor] that would normally be objectionable, or if there's evidence that she's seeking to introduce that may be objectionable and you don't object, I can't help you with that. In other words, I can't say, Don't ask that question. Don't answer that
question. You have to object to any piece of evidence or any question that's asked. And if you don't, you would be deemed to have waived that. In other words—[¶] . . . [¶]—that evidence will come in, perhaps at your peril—The court also discussed Luvert's maximum sentence, and Luvert said he understood this information.
"THE DEFENDANT: Okay.
"THE COURT: —most likely, because otherwise the D.A. wouldn't ask that question.
"THE DEFENDANT: Right.
"THE COURT: And you will be held to the same standard as a lawyer failing to object. Can't argue that you're ineffective assistance of counsel—[¶] . . . [¶]—because—[¶] . . . [¶]—you're representing yourself.
"THE DEFENDANT: Exactly.
"THE COURT: You understand all that?
"THE DEFENDANT: Yes, I do.
"THE COURT: All right. And with all that, do you understand, sir, that you are going to be held to that same standard as a lawyer? And as I indicated, I can't represent you in any regard because I'm a referee in this matter—[¶] . . . [¶]—not an advocate for one side or the other. So I just want to make sure we're on the same page.
"THE DEFENDANT: Yes.
"THE COURT: And if you're prepared to go forward and if you want to do so, you have that right.
"THE DEFENDANT: Yes, thank you. I am prepared to go forward.
"THE COURT: All right. And you do wish to continue to represent yourself?
"THE DEFENDANT: Yes, sir."
Luvert then asked the court to rule on his written dismissal and suppression motions (Pen. Code, §§ 995, 1538.5), but declined to waive his speedy trial rights. Although the court initially said these motions were untimely and there did not appear to be sufficient time to consider the motions if Luvert insisted on his speedy trial right, the court ultimately agreed to hear the motions before the jury panel was sworn the next day. During the remainder of the day, the court held voir dire proceedings and a jury was selected.
The next morning, before the jury was called into the courtroom, the court heard and denied Luvert's Penal Code section 995 motion, finding the preliminary hearing evidence supported the elements of the charged offenses. The court also conducted an evidentiary hearing on Luvert's Penal Code section 1538.5 suppression motion. During that hearing, the arresting officer (Officer Jesus Castro) testified, and Luvert cross-examined the officer. The court also agreed to Luvert's request that it listen to the tape of the incident.
After considering the evidence and arguments, the court denied the suppression motion. The court found Officer Castro had a reasonable basis to approach and question Luvert based on information that drug sales were occurring in the park and that Luvert's presence in the park violated municipal ordinances pertaining to park-closing times. The court further found Luvert voluntarily told the officer he was carrying two knives, and after the officer found the knives to be prohibited weapons, the officer lawfully arrested Luvert, which then allowed the officer to search his bag under the search-incident-to-an-arrest warrant exception. During this search, the officer found the methamphetamine, digital scale, and cash.
The previously selected jury panel was then called into the courtroom, and sworn. The prosecutor and Luvert each gave opening statements, and the prosecutor called Officer Castro as the primary prosecution witness. After the prosecutor completed her examination, and Luvert was in the middle of his cross-examination, the court took its morning recess. During the recess, the court stated that Luvert had given the court deputy a note stating he now wants an attorney. The court said it was denying the motion because "it's too late." The following discussion then occurred:
"THE DEFENDANT: But I either need [an] extension or something because . . . I didn't get to Banning [until], like, 7:00 at night . . . . And, um, . . . it takes a long process to, um, undress us, unchain us. And by the time I get back in the housing unit, it's, like, 8 o'clock. It's almost close to lights out and everything, and I can't do any of my legal work. [¶] I didn't know that I would have a hard time . . . where I have to wake up the next morning at 3 o'clock, be chained up from 3:00 where I can't even look through my—every—every information I have. I have all the evidence to prove my case. It's just that I haven't had time to—it took me, like, three days to fill out the motion because I don't have a typewriter. The law library that we have, it doesn't have a copy machine or any forms to fill out. [¶] It's just a lot of—a lot of different things that I don't have convenient, you know, to—for me to present a good case like—that I have against the officer. And—
"THE COURT: Well, the problem, sir—we talked about this on Thursday. I even offered to give you time to continue the trial if you thought that you needed additional time. You said no, you were not
waiving any time. You wanted to exercise your constitutional rights to go forward.
"I also told you that you're going to be held to the same standard as a lawyer. . . . And I told you about all those pitfalls that you would be potentially exposing yourself to if you go forward. And again, sir, you indicated, No, I want to represent myself. I want to go forward without counsel. Those are choices that you made.
"[Y]esterday we spent the day in jury selection and picked a jury, and then this morning we swore our jury. That means you're in jeopardy now. And then we gave opening statements and we started evidence. It's too late to now say, I think I want a lawyer. We're—we're past that stage now. This is now you are now sinking or swimming on your own. [¶] . . . [¶]
"THE DEFENDANT: Okay. What I'm saying is this. [The prosecutor] has many years in law school. Every time when I ask a question or whatever like that, she's objecting . . . . [¶] . . . [¶] And you're sustaining it in her favor and stuff, and I don't—I'm not understanding all that when I'm trying to explain my case.
"THE COURT: Well, another problem when you're not versed in the law. And we discussed all that, sir, at the outset of the trial. I told you you would be held to the same standard as a lawyer who went to law school, passed the Bar, and [has] been practicing law. [¶] . . . [¶] And you understood that. You indicated, Okay. [¶] . . . [¶]
"THE DEFENDANT: I don't know about understanding it. Because when I saw that just out of hand that, you know, everything that I'm trying to prove, you're trying to discredit by her objection, and you're sustaining.
"THE COURT: Well, if you ask an improper question, just like if a lawyer asks an improper question, the other side has a right to object, and that's what she's doing. . . . [¶] But the bottom line is that I can only rule on the way the law is and how the Evidence Code reads. And I'm only reacting to her objections based under the law.
"THE DEFENDANT: I didn't know that I was in over my head, then, because, you know, it's just—just doesn't make any sense to me. I mean, I can follow her. I can tag along with her and, you know, prove my case that way. . . .
"THE COURT: Well, like we discussed, sir, when you were sent here on Thursday, I went through it all over, and I'm confident that other judges, especially the one that granted you pro per status, would have gone through all these things with you as well. But I know that I did that, whether or not it was done thoroughly or not previously. And I'm confident it was. . . . [¶] . . . [¶]
"THE DEFENDANT: Okay. I just want it on record that—you know, that I did ask, and stuff like that, that, um, you're not letting me present my case the way that I would present to show that—my innocence. Um, that, you know, I . . . didn't want my due process to be violated. And that was almost like cruel and unusual punishment because everybody has their own certain way of proving their facts. . . .
"THE COURT: It has to be under the Evidence Code, sir.
"THE DEFENDANT: Well, I don't have—I didn't have any of that.
"THE COURT: So why would you represent yourself and announce ready for trial?
"THE DEFENDANT: Because I knew I was innocent. That's why I represented myself.
"THE COURT: Why would you announce ready for trial?
"THE DEFENDANT: Because I was supposed to be ready for trial when you say I'm ready for trial.
"THE COURT: I gave you an opportunity to continue the case on Thursday. You said, 'No.'
"THE DEFENDANT: I wanted to pick a jury first.
"THE COURT: Well, we did pick a jury first.
"THE DEFENDANT: Right.
"THE COURT: Now we're in trial. So I'll note your request on the record for counsel. Court is going to find it to be untimely.
"THE DEFENDANT: Okay."
Later that day, the court confirmed that Luvert was being kept in closer jail facilities and was no longer being taken to the Banning facility.
Luvert then completed his cross-examination of Officer Castro. The prosecutor called three additional witnesses, providing expert opinions on the sales element and the identification of the methamphetamine substance, and information regarding Luvert's prior convictions. Luvert briefly cross-examined each of these witnesses.
Luvert then testified in narrative form, explaining his version of the events. He admitted that the officer found in his duffel bag "a baggie of meth, a scale, and . . . some wrappings," but he also discussed facts pertaining to his claims that law enforcement officers had abused their authority by approaching and searching him without cause. He testified he was in the public park because he had lost his wallet and was "trying to . . . figure out a way" to get his property and dogs from his former girlfriend's home. Over the prosecutor's initial objections, the court permitted him to introduce certain photographs of the incident.
At the conclusion of the evidence, the court instructed the jury, and the prosecutor and Luvert each gave closing arguments. After a brief deliberation, the jury found Luvert guilty of the two charged offenses: (1) possessing methamphetamine for sale (§ 11378, subd (a)); and (2) misdemeanor possession of a switchblade (Pen. Code, § 21510). The jury also found true that Luvert had previously been convicted of section 11351.5, possessing cocaine for sale within the meaning of section 11370.2, subdivision (c), and had previously been convicted of a robbery within the meaning of the Three Strikes Law.
II. No Abuse of Discretion in Granting Self-representation Request
As the centerpiece of his appeal, Luvert contends the court erred in granting his request to represent himself because he was not mentally competent to do so.
A. Legal Principles
Under the United States Constitution, a defendant in a criminal case has the Sixth Amendment right to represent himself. (Faretta, supra, 422 U.S. at pp. 818-832.) The "autonomy and dignity interests" that underlie this right are not defeated by "the fact or likelihood that an unskilled, self-represented defendant will perform poorly in conducting his or her own defense . . . ." (People v. Mickel (2016) 2 Cal.5th 181, 206 (Mickel).) A self-represented defendant need not meet the standards of an attorney or even be capable of conducting "an effective defense." (Ibid.) The courts have "accepted that the cost of recognizing a criminal defendant's right to self-representation may result ' "in detriment to the defendant, if not outright unfairness." ' " (Ibid.) Thus a defendant's right to control his defense includes the right to decide to present no defense, or a defense that has little or no chances of success. (Id. at p. 209.)
A defendant also has the constitutional right not to be subject to a criminal trial while he or she is mentally incompetent. (In re R.V. (2015) 61 Cal.4th 181, 188.) Mental competence in this context means that the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and also has "a rational as well as factual understanding of the proceedings against him." (Dusky v. United States (1960) 362 U.S. 402; see Pen. Code, §§ 1367, 1368.)
In Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), the United States Supreme Court recognized that some defendants suffer from "a mental condition that falls in a gray area between [the] minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose," that is, self-representation. (Id. at p. 172.) The Edwards court held that states may, but need not, deny self-representation to "gray-area defendants"—those defendants who are competent to stand trial but lack the mental health or capacity to represent themselves. (Id. at p. 174.) Under Edwards, states may deny self-representation to those who are competent to stand trial, but who "suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Id. at p. 178.)
Six years ago, the California Supreme Court held that a trial court "may deny self-representation in those cases where Edwards permits such denial." (People v. Johnson (2012) 53 Cal.4th 519, 528 (Johnson).) The Johnson court explained that under Edwards, competence to represent oneself at trial is best described as "the ability 'to carry out the basic tasks needed to present [one's] own defense without the help of counsel.' " (Johnson, at p. 530.) The basic tasks needed to present a defense may include "organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury." (Edwards, supra, 554 U.S. at p. 176, italics omitted.)
When ruling on challenges to the court's finding that a defendant was competent to represent himself, "we must defer largely to the trial court's discretion." (Johnson, supra, 53 Cal.4th at p. 531.) "The trial court's determination . . . must be upheld if supported by substantial evidence." (Ibid.)
B. Analysis
The court held a competency hearing and found Luvert was competent to stand trial. The court reasoned that although Luvert suffered from a mental illness, it was undisputed he was intelligent, articulate, and understood the charges against him and court procedures. The evidence also showed Luvert was on medication that controlled his symptoms. The main issue for the court's determination was whether he would work cooperatively with his attorney, particularly if he disagreed with the attorney's tactical decisions. After considering the expert testimony and observing Luvert work with his defense counsel at the competency hearing, the court (Judge Dugan) concluded Luvert would be capable of doing so.
Luvert does not challenge this ruling on appeal. He argues, however, that the court prejudicially erred in allowing him to thereafter represent himself. The argument is without merit.
Judge Moyer (who ruled on the initial Faretta request) specifically analyzed Luvert's competence to act as his own attorney before granting the request. After Luvert said he wished to exercise his Faretta right, Judge Moyer recognized that Luvert had been the subject of a prior competency hearing and said she would grant the motion only if she was satisfied he could "follow through with representing" himself despite his mental illness. She then asked defense counsel for her opinion, and when counsel said she believed he was competent, but it was not her "purview to determine" the issue, the court engaged in a lengthy conversation with Luvert about the impact of self-representation and other pretrial and trial issues. After this conversation, the court granted Luvert's self-representation motion, impliedly finding he was competent to represent himself.
This finding was supported by substantial evidence, including Luvert's responses to the court's questions and the court's findings regarding his capabilities at the prior competency hearing. The evidence showed that Luvert understood the nature of the charges against him, had substantial experience with the criminal justice system, and manifested an understanding of criminal law and procedure. The record showed Luvert was capable of reading and writing motions, and had an ability to effectively communicate his thoughts. Additionally, the evidence established that he graduated high school, and had taken some college classes. The record supports Luvert had the basic competence to " 'to carry out the basic tasks needed to present [his] defense without the help of counsel.' " (Johnson, supra, 53 Cal.4th at p. 530.)
Luvert's arguments to the contrary are unpersuasive. For example, he contends Judge Dugan erred by failing to ask "all the experts . . . their opinion whether [he] was competent to represent himself." However, the issue before Judge Dugan at the competency trial was Luvert's competency to stand trial. At that point, Luvert had not asserted a self-representation request. He was represented at this trial, and neither Luvert nor his counsel asked the court for a determination on this issue.
Luvert also contends Judge Moyer "should have asked the experts to provide opinions as to [his] Edwards-Johnson competence to represent himself . . . ." However, these experts were not before Judge Moyer when she ruled on Luvert's Faretta request; thus she could not have asked this question to the experts. And Luvert cites no authority requiring a court to sua sponte conduct an evidentiary hearing on this issue merely because a defendant was previously the subject of a competency hearing. In this case, Luvert was found competent to stand trial, and the evidence strongly supported this ruling. Once the court found Luvert was fully competent, the competency finding alone did not continue to raise questions as to Luvert's fitness in other areas, such as self-representation.
Absent objective signs that Luvert was mentally ill, the court was not obligated to hold a second hearing. (See People v. Daniels (2017) 3 Cal.5th 961, 979-980 (Daniels).) Luvert argues there was "evidence that [he] suffered from a mental illness," which "produced symptoms such as illogical and delusional thinking, paranoia, and a rambling thought process . . . ." The record did not support this assertion. When Luvert asked to represent himself, the record did not show Luvert was incoherent, could not think logically, was unable to communicate, and/or could not articulate a rational argument based on the facts.
Luvert's reliance on People v. Shiga (2016) 6 Cal.App.5th 22 is misplaced. In Shiga, the court found the general rule that a " 'trial court is presumed to have been aware and followed the applicable law,' " was rebutted by evidence affirmatively showing "the trial court was unaware that it had the discretion both to conduct an inquiry regarding whether defendant was mentally incapable of representing himself and, if necessary, to deny defendant's Faretta request on that ground." (Id. at p. 40.) The Shiga court explained the trial court erroneously believed that a finding a defendant was competent to stand trial " 'tied' " the court's hands as to the determination whether the defendant was competent to represent himself. (Ibid.) Thus, the Court of Appeal found the trial court erred by ruling on the Faretta motion without understanding the scope of its discretion. (Ibid.)
The circumstances here were materially different. Judge Moyer made clear she understood that competence to stand trial was not equivalent to competence to act without an attorney, and engaged in an analysis to confirm Luvert was competent to exercise his constitutional right to represent himself.
III. Luvert Was Properly Admonished About the Self-representation Risks
Luvert next contends the court erred in granting his Faretta request because his waiver of counsel was not knowing or intelligent.
A. Legal Principles
Under the Sixth Amendment, a criminal defendant's waiver of his constitutional right to counsel must be voluntary, knowing, and intelligent. (Faretta, supra, 422 U.S. at p. 807; People v. Miranda (2015) 236 Cal.App.4th 978, 984 (Miranda).) " ' "No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation." [Citation.] Rather, "the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case." [Citations.]' " (People v. Burgener (2009) 46 Cal.4th 231, 241; see Daniels, supra, 3 Cal.5th at pp. 977-978.)
We independently " 'review the entire record—including proceedings after the purported invocation of the right of self-representation—and determine de novo whether the defendant's invocation was knowing and voluntary.' " (People v. Sullivan (2007) 151 Cal.App.4th 524, 547; accord People v. Koontz (2002) 27 Cal.4th 1041, 1070; see also People v. Doolin (2009) 45 Cal.4th 390, 453.) On appeal, " '[t]he burden is on the defendant to demonstrate he did not knowingly and intelligently waive his right to counsel.' " (Sullivan, at p. 547.)
B. Analysis
On our review of the record, we are satisfied that Luvert's waiver of his right to counsel was knowing and intelligent. Luvert signed a Faretta waiver form, and initialed statements specifically warning him it was against the court's advice and recommendation that he represent himself, that he would have no assistance of counsel, and that he would be expected to follow "the many technical rules of substantive law, criminal procedure and evidence." Several different judges also orally admonished Luvert regarding the risks of defending himself without an appointed attorney. In responding to each of these admonishments, Luvert manifested his understanding of the warnings, and the disadvantages of proceeding without an attorney. He unequivocally stated he wanted to represent himself, despite the known risks in doing so.
Luvert contends the advisements were flawed because the court did not specifically elicit his understanding of "the elements of the alleged offenses, lesser included offenses, and feasible trial defenses." However, as the California Supreme Court recently reiterated in a capital case, there is no requirement that a court specifically discuss these issues with the defendant to show a knowing and intelligent waiver of counsel under Faretta. (Daniels, supra, 3 Cal.5th at p. 979 [defendant's "waiver was not defective . . . because the court did not define offense elements . . . or review potential defenses"]; see People v. Riggs (2008) 44 Cal.4th 248, 277 ["The trial court is not required to ensure that the defendant is aware of legal concepts such as the various burdens of proof, the rules of evidence, or the fact that the pursuit of one avenue of defense might foreclose another . . . ."].) Luvert's related claim that he was not advised "of the penal consequences of [his] conviction" is factually unsupported. Judge Schwartz discussed the potential punishment if the jury found him guilty of all charges and found true the enhancement and prior strike allegations.
Luvert also contends his waiver was void because "the court did not warn [him]" that his "mental difficulties" would make it "more difficult, if not impossible" to effectively defend himself. Luvert cites no authority that a defendant need be given this admonishment. Additionally, the record shows Luvert had insight into his mental health condition and understood that the condition could potentially affect his ability to represent himself. The evidence showed he was stable and compliant with his psychiatric medications, and that his medications were effective in preventing the more difficult symptoms of his disease such as psychosis, delusions, and paranoia. The court specifically told Luvert it could not allow him to represent himself if he could not appropriately do so because of "any mental difficulties." On this record, the fact that the trial court did not expressly tell Luvert that he potentially would be at a greater disadvantage due to his mental illness did not affect the voluntariness of his waiver of his right to counsel. Moreover, as discussed, Luvert's problems with representing himself did not appear to stem from his mental illness; rather the issues arose because he had no legal training and this limited his ability to objectively analyze the best defense strategies.
Finally, Luvert contends his waiver was void because Judge Moyer failed to warn him that a midtrial request for counsel " 'will' " be denied. Luvert faults the court for stating only that such request " 'can' " be denied. The court's admonishment was appropriate. As explained below, a court has broad discretion in determining whether to grant a defendant's midtrial "request to change from self-representation to counsel-representation" (People v. Elliott (1977) 70 Cal.App.3d 984, 993), and the timing of the motion is only one of many relevant factors to consider (People v. Lawrence (2009) 46 Cal.4th 186, 188 (Lawrence); People v. Gallego (1990) 52 Cal.3d 115, 164-165 (Gallego)).
IV. No Sua Sponte Obligation to Revoke Luvert's Self-representation Status
Luvert contends the court erred in failing to sua sponte revoke his self-representation status because during trial he demonstrated he was not competent to represent himself. In support, he directs us to various portions of the record in which he does not appear to be acting as an effective advocate for himself or presenting a viable defense. The argument is without merit.
The " '[t]ermination of the right of self-representation is a severe sanction and must not be imposed lightly[.]' " (People v. Becerra (2016) 63 Cal.4th 511, 518.) It may be appropriate as a "last resort" (id. at p. 520) if the defendant engages in " ' "deliberate dilatory or obstructive behavior" ' " that "[' "]threatens to subvert 'the core concept of a trial' [citation] or to compromise the court's ability to conduct a fair trial" [citation] . . . .['] " (id. at p. 518). But a court has no authority to terminate a defendant's constitutional right merely because the defendant fails to assert a viable or effective defense. (See Daniels, supra, 3 Cal.5th at pp. 984-985.) The " 'actuality of a poor performance by a defendant acting in propria persona' does not defeat the [constitutional] right of self-representation." (Id. at p. 985.) " 'The right to defend [oneself] is personal . . . . [A]lthough [the defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of that "respect for the individual which is the lifeblood of the law." [Citation.]' " (Id. at p. 984, quoting Faretta, supra, 422 U.S. at p. 834.)
Luvert contends the pretrial and trial record shows he was uncooperative, disrespectful, and inarticulate, and therefore the court should have realized he was incompetent to represent himself. The record does not support this contention. Although Luvert asked more questions than a trained counsel, engaged in various unproductive inquiries, asserted futile arguments, and manifested frustration with the prosecutor's numerous objections, the record shows that on the whole he acted in a cooperative manner and did his best to follow the court's directions.
Luvert's own testimony (told in a narrative fashion) reflects that he was able to structure his thoughts and discuss the relevant facts in an understandable, chronological fashion. Additionally, the record shows Luvert understood how to ask cross-examination questions, how to obtain information from witnesses, and how to present facts and argument. Luvert also filed written motions, and demonstrated he understood the role of his investigators by working with them to seek information pertaining to his intended defenses. Although Luvert may at some points have been inarticulate, that is not unexpected of a person not trained in the law who is acting as his own lawyer.
Luvert devotes more than 35 pages in his appellate briefs to detail examples of his claimed deficient representation. These examples relate mainly to the fact that Luvert relied on defense strategies that were unlikely to be successful. In particular, Luvert argues that the court should have sua sponte appointed counsel for him because he had an "irrational" fixation on his constitutional speedy trial right and on his assertions that the officers violated his Fourth Amendment rights by approaching, questioning, and searching him in the public park.
Luvert's reliance on these defenses did not provide a basis to revoke his self-represented status. His chosen defenses—though not ones a trained legal counsel would likely have asserted—were a valid exercise of his right to control his defense. (See Daniels, supra, 3 Cal.5th at pp. 980, 984-985; Mickel, supra, 2 Cal.5th at p. 209.) At most, Luvert's focus on these defenses and rights show precisely what he was warned about—that acting as his own attorney would be difficult. These are the same challenges many self-represented defendants face, but it is not a basis to deny them the right to represent themselves. (See People v. Miranda, supra, 236 Cal.App.4th at p. 989 ["We recognize that [the defendant] was sometimes inarticulate and ineffective. Of course that is no doubt the norm in many self-represented cases, not the exception. Those are the risks assumed by any defendant who chooses to represent himself."].)
Moreover, reliance on a constitutional speedy trial right is not "irrational." There is an obvious tension between the speedy trial right and the right to be prepared to assert an effective defense. A defendant's decision to choose one right over the other does not show he was not competent to represent himself, particularly given the absence of any evidence showing Luvert would have been more prepared had he waived his speedy trial right. Likewise, Luvert's assertions of his Fourth Amendment rights and claims of law enforcement overreach were not so irrational that they manifested Luvert's lack of competence to represent himself. Had the court sua sponte revoked Luvert's Faretta right based on his asserted claims of law enforcement abuse, we would most likely be addressing an appellate contention that the court improperly interfered with Luvert's constitutional right to represent himself, a claim that would potentially have had merit under the circumstances.
A defendant has the constitutional right to decide the manner in which he elects to defend himself. It appears Luvert wanted to pursue legal strategies and tactics his lawyer had declined to adopt. This decision did not provide a basis for the court to preclude Luvert from exercising this constitutional right.
V. Court Did Not Abuse Discretion in Denying Luvert's Midtrial Request for Counsel
Luvert contends the court abused its discretion in denying his request during trial to withdraw his self-representation status and to reappoint counsel.
When a self-represented defendant seeks to revoke his self-represented status during trial, a court must consider the totality of the circumstances, including: (1) the defendant's reasons for the request; (2) the delay or disruption likely to be caused to the court, jury, and other parties; (3) the defendant's prior history with respect to counsel, including seeking to substitute counsel; (4) the length and stage of the trial proceedings; and (5) the defendant's effectiveness in defending against the charges if required to continue to act as his own attorney. (See Lawrence, supra, 46 Cal.4th at p. 192; Gallego, supra, 52 Cal.3d at pp. 163-164.) The court has broad discretion in ruling on this request. (Lawrence, at pp. 192-193.)
The court did not abuse its discretion. When Luvert sought appointment of counsel, the court and the parties had already devoted substantial time to jury selection, opening statements, and the presentation of Officer Castro's testimony. Luvert was in the middle of cross-examination of this primary prosecution witness. Had the court granted Luvert's request and appointed counsel, a continuance or mistrial would have been required. Luvert's grounds for seeking counsel were not new or unexpected. Several different trial judges had expressly warned Luvert that it would not be a good idea to represent himself and it would be very difficult for him to do so, and explained that he could not change his mind merely because he encountered problems arising from the self-representation.
Luvert contends the court abused its discretion because it denied the request solely because it was untimely. However, we are required to presume the court "considered all of the relevant factors in the absence of an affirmative record to the contrary. [Citation.] Thus, the fact that the court focused its explanatory comments on [one factor] does not mean that it considered only that factor." (People v. Myers (1999) 69 Cal.App.4th 305, 310; see People v. Windham (1977) 19 Cal.3d 121, 129, fn. 6.) This presumption is supported by the record. In denying the motion, the court was aware a substantial portion of the trial had taken place, the adverse impact of a delay on the court and the jury, Luvert's prior repeated and unequivocal demands for self-representation, his prior motions to substitute counsel, his prior difficulties in working with his counsel and investigators, and Luvert's questionable motives for the request. As to the latter factor, although Luvert argues that he was not trying to manipulate the right to counsel for any improper purpose, we are required to accord substantial " 'deference to the trial court's assessment of the defendant's motives and sincerity . . . .' " (People v. Doss (2014) 230 Cal.App.4th 46, 54.) The court did not abuse its discretion in denying Luvert's midtrial motion to revoke his self-representation status.
VI. Standby Counsel
Luvert contends the court should have sua sponte appointed standby counsel when it granted his self-representation request.
" 'Standby counsel' is an attorney appointed for the benefit of the court whose responsibility is to step in and represent the defendant if that should become necessary because, for example, the defendant's in propria persona status is revoked." (People v. Blair (2005) 36 Cal.4th 686, 725, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919; see Faretta, supra, 422 U.S. at p. 834, fn. 46.) A defendant "has no constitutional right to advisory or stand-by counsel or any other form of 'hybrid' representation." (People v. Garcia (2000) 78 Cal.App.4th 1422, 1430; see People v. Moore (2011) 51 Cal.4th 1104, 1119-1120.) Moreover, the appointment is within the court's broad discretion. (Ibid.) If " ' "there exists a reasonable or even fairly debatable justification, under the law, for the action taken, [the] action will not be . . . set aside . . . . [Citations.]" ' " (Moore, at p. 1120.)
Luvert acknowledges he never asked for a standby counsel, nor does he identify a statutory or constitutional right for the sua sponte appointment of such counsel. Instead, he urges this court to establish a new rule that standby counsel must be appointed for a "gray-area" defendant. This proposed rule is inapplicable here. As we have explained, the court made a factual finding—based on substantial evidence—that Luvert was not a "gray-area" defendant because he was competent to perform the basic tasks of representing himself. A gray-area defendant is a defendant competent to stand trial because he or she can work with counsel, "yet at the same time . . . may be unable to carry out the basic tasks needed to present [a] defense without help of counsel." (Edwards, supra, 554 U.S. at pp. 175-176.) The record supports that Luvert was competent to carry out the tasks necessary to present a defense on his own; thus, Luvert's argument that standby counsel should be appointed for a "gray area" defendant would not benefit him in this case.
Further, the court had a reasonable basis to conclude that a standby counsel was unnecessary. The record shows Luvert had familiarity and experience with the justice system, and repeatedly demonstrated his strong desire to represent himself. The court acted reasonably in not anticipating that Luvert would change his mind after trial began, particularly after Luvert was warned that he would not be able to do so merely because he found the work to be difficult.
VII. Section 11370.2 Enhancement
In a supplemental brief, Luvert contends the three-year enhancement for his prior cocaine-possession-for-sale conviction (§ 11351.5) is improper based on a recent amendment to section 11370.2, subdivision (c). The People agree with this contention.
At the time of Luvert's sentencing, section 11370.2 provided for sentencing enhancements for certain drug-related offenses if a defendant had a prior conviction for specified drug-related crimes. Specifically, section 11370.2, subdivision (c) mandated a three-year consecutive sentence for a defendant convicted of possessing methamphetamine for sale (§ 11378) if the defendant had a prior conviction for possessing cocaine base for sale (§ 11351.5). The jury found Luvert guilty of possessing methamphetamine for sale (§ 11378) and that he had previously been convicted of possessing cocaine for sale in violation of section 11351.5. Thus, the court imposed a three-year enhancement to Luvert's sentence under the then-existing version of section 11370.2, subdivision (c).
After Luvert's sentencing and while this matter was pending on appeal, the Legislature enacted Senate Bill No. 180, effective January 1, 2018, which limited the prior convictions that permit a sentencing enhancement under section 11370.2, subdivision (c). (Stats. 2017, ch. 677, § 1.) Of relevance here, Senate Bill No. 180 removed prior convictions for possessing cocaine base for sale (§ 11351.5) from the list of offenses giving rise to a sentencing enhancement under section 11370.2, subdivision (c).
In a supplemental brief, Luvert, citing In re Estrada (1965) 63 Cal.2d 740 and its progeny, asks this court to retroactively apply the amendments to section 11370.2, subdivision (c) and strike his three-year sentencing enhancement. The People concede that these recent legislative amendments govern this case and apply retroactively.
In People v. Millan (2018) 20 Cal.App.5th 450, our court concluded that the legislative amendments to section 11370.2 applied retroactively and directed the trial court to strike the defendant's sentencing enhancement. (Millan, at pp. 455-456.) We agree with Millan's reasoning and result, and find its holding applicable to the circumstances here. Accordingly, we accept the Attorney General's concession and remand the matter to the trial court with instructions to strike the three-year enhancement under section 11370.2, subdivision (c) and resentence Luvert.
We note that throughout the record Penal Code section 11351.5 is referred to as prohibiting possession of cocaine for sale, rather than in the statutory terms—possession of "cocaine base" for sale. (Pen. Code, § 11351.5, italics added.) Because we order this enhancement stricken, we need not address the issue whether the jury's finding on the prior cocaine possession conviction satisfied this code section regarding cocaine base possession. --------
DISPOSITION
We reverse Luvert's sentence and remand with directions to strike the section 11370.2, subdivision (c) enhancement and to resentence Luvert. The judgment is affirmed in all other respects.
HALLER, J. WE CONCUR: NARES, Acting P. J. GUERRERO, J.