Opinion
C077247
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JASON SWIGGART, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F6178)
Defendant Robert Jason Swiggart was convicted by jury of several domestic violence and stalking crimes. He admitted various prior convictions and prison terms. On appeal, defendant contends: (1) the trial court abused its discretion and violated his Sixth Amendment right to counsel when it denied his motions to substitute appointed counsel, (2) defendant's waiver of his right to counsel when he moved to represent himself was not knowing and intelligent, (3) defendant did not waive his right to a court trial on his prior convictions, (4) the trial court erred by not instructing the jury on the lesser included offense of attempted criminal threat, and (5) the court committed various sentencing errors. We conclude that some of the orders at sentencing must be modified; however, the remaining contentions have no merit. We therefore modify the judgment and affirm it as modified.
BACKGROUND
Our resolution of defendant's contentions on appeal does not require a detailed recitation of the facts.
Defendant and his girlfriend, Donna Stevenson, lived together until they broke up in the summer of 2013 because defendant had been using methamphetamine. Defendant believed Stevenson owed him money for the work he performed in the home she bought while they were living together. For the next few months, Stevenson saw defendant occasionally and helped him with food and gas.
In December 2013, Stevenson allowed defendant to stay at her house while she was out of town because it was cold and he had been living in his car. When she returned he refused to leave, so she agreed that he could stay through Christmas. During that time, they became intimate again.
On Christmas Eve, Stevenson took a sleeping pill and went to bed. Defendant also went to bed because he had work early the next morning. He tried to initiate sexual relations, but she declined. During the night, defendant woke up Stevenson by turning on the light and yelling at her. Defendant had accessed Stevenson's iPhone, which had a passcode, and discovered that she had texted another man. Stevenson, though drowsy from the sleeping pill, explained that it was a business associate. The explanation did not appease defendant.
Defendant, who is tech-savvy, changed the passcode on Stevenson's iPhone so that she could not access it, and he told her that the data would be wiped from the phone if she tried more than once.
Stevenson left her bedroom and went upstairs to access her landline, but defendant got between her and the phone. He got right in her face, screaming and yelling at her. He head-butted her, knocking her back onto a couch. He jumped on her, straddling her, and put his arm across her throat, putting enough pressure on her throat so that it hurt her and prevented her from talking. Defendant continued to yell at Stevenson about the business associate she had texted and about someone else Stevenson dated once. After a minute or two, defendant got off Stevenson and sat down on the hearth.
Defendant began smoking a cigarette. When Stevenson asked him not to smoke, he laughed at her and asked if she was going to call the police. Stevenson moved toward the phone, but defendant jumped on her again, grabbing her by the throat and screaming that he had not told her she could move. Defendant's fingers dug into her throat. Stevenson thought defendant was going to kill her. Eventually, defendant let go of Stevenson's throat, but he threatened her that he would jam the fireplace poker into her eye socket if she moved again. She believed him.
Defendant sat on a footstool by the couch and went through a roller coaster of emotions, cycling through bouts of remorse and then more yelling and screaming. Stevenson did not move because she believed defendant would hurt her. Eventually, defendant calmed down and gave Stevenson the passcode for her iPhone. Stevenson fell asleep on the couch from the effects of the sleeping pill.
Stevenson woke up at four or five in the morning and saw that defendant was asleep on the floor. She went into her bedroom, closed the door, and went to bed.
Stevenson did not try to leave the house because defendant said he had changed the passcode to the garage and because she did not want to give defendant the satisfaction of having made her leave her own house. She did not lock her bedroom door because defendant had broken down the door before. She did not seek assistance because defendant told her that he had nothing to lose by killing her as he already had two strikes. She believed him.
When Stevenson came out of her room on Christmas morning, defendant had left for work. During the day, defendant texted Stevenson, asking to come to Christmas dinner. But she told him that he could not come over because she was afraid of him.
On the day after Christmas, Stevenson went to her office. Defendant showed up there, again threatening her and yelling at her. She asked him to leave, but he told her he would not leave unless she wrote him a check for $5,000. He left when she said she would call the police.
On New Year's Eve, defendant threatened to send a letter to a regulatory agency about Stevenson's work as a financial advisor if she did not pay him the money.
Later, defendant hacked into Stevenson's client database and copied information about two client accounts, and he tampered with her online account with her broker-dealer.
Defendant stole a hard drive out of Stevenson's computer, and he threatened to sell Stevenson's client data unless she gave him half of the equity in her house.
Additional evidence of defendant's stalking activities against Stevenson was presented.
Defendant testified that on Christmas Eve he and Stevenson argued. She asked him to leave, which he did. He denied tampering with her phone or assaulting her. Defendant also denied tampering with Stevenson's client data. Defendant admitted asking for half the equity in the home, even though Stevenson was the only person on the deed, because he felt he earned it with work he did there while he lived with her over the course of two years. He believed that Stevenson's allegations in this case were motivated by her desire to avoid paying defendant what he felt he deserved from the equity in the home.
By a second amended information, the district attorney charged defendant with count I, infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); hereafter, unspecified code citations are to the Penal Code); count II, criminal threats (§ 422); count III, obstructing the use of a wireless device (§ 591.5); count IV, attempted extortion (§ 524); and count V, stalking (§ 646.9, subd. (a)). The district attorney also alleged that defendant had two "strike" prior convictions (§§ 667, subd. (d); 1170.12, subd. (b)), two serious prior convictions (§ 667, subd. (a)(1)), and four prior prison terms (§ 667.5, subd. (b)).
A jury convicted defendant on all counts, and defendant admitted the prior convictions and prison terms.
The trial court sentenced defendant to an indeterminate term of 25 years to life on count II (criminal threat) under the "Three Strikes" law. As determinate terms, the court sentenced defendant to eight years on count I (corporal injury on cohabitant), a concurrent six months on count III (misdemeanor obstructing use of wireless device), a consecutive 16 months on count IV (attempted extortion), and a consecutive 16 months on count V (stalking). The court added five years for the prior serious felony convictions (only one five-year term because the two prior serious felonies were not brought and tried separately (People v. Jones (2015) 236 Cal.App.4th 1411, 1416)) and four years (one year each) for the prior prison terms. The aggregate sentence imposed was a determinate term of 19 years eight months, followed by an indeterminate term of 25 years to life.
Additional factual and procedural matters are detailed below as they become relevant to the discussion of defendant's contentions on appeal.
DISCUSSION
I
Marsden Motions
Defendant contends that the trial court abused its discretion and violated his right to counsel when it denied his motions for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We conclude there was no abuse of discretion and no violation of defendant's right to counsel.
A defendant's Sixth Amendment right to counsel includes the right to substitute appointed counsel if failure to substitute appointed counsel would substantially impair the defendant's rights. (Marsden, supra, 2 Cal.3d at p. 123.) In a Marsden motion, " '[a] defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (People v. Taylor (2010) 48 Cal.4th 574, 599, quoting People v. Smith (2003) 30 Cal.4th 581, 604.)
Whether to substitute appointed counsel is within the discretion of the trial court. The court need not grant the request for substitute counsel unless the defendant makes a sufficient showing that the right to counsel would be substantially impaired by the current attorney. (Marsden, supra, 2 Cal.3d at p. 123.)
We review denial of a Marsden motion for abuse of discretion. (People v. Taylor, supra, 48 Cal.4th at p. 599.)
A. Background
On Monday, May 19, 2014, the trial court held a hearing in this matter on the prosecutor's motion to file a second amended information, preliminary to trial set for Wednesday, May 28, 2014. The prosecutor said it was his intention to file a second amended information to add prior convictions, and defense counsel Joe Dickerson said he had no legal reason to object. Defendant complained that the prosecutor had told him that, if defendant did not accept a plea bargain offered before this hearing, the prosecutor would file the amended information. He felt coerced, but he did not accept the plea bargain. He also said that attorney Dickerson did not know about the amended information. Defendant said he did not feel like he was being represented at all and asked for a Marsden hearing.
After the trial court cleared the courtroom, defendant gave his reasons for wanting new counsel:
1. He felt like counsel (including prior counsel) had lied to him that they needed more time to prepare the case even though he did not want to waive time.
2. Counsel prior to attorney Dickerson said they needed more time to get an expert witness.
3. Later, attorney Dickerson said they did not need an expert witness (on the issue of bruising on the victim's neck).
4. Counsel had not communicated with defendant, and defendant had seen counsel only four times in the last thirty days for a short time at the jail.
5. Nobody had investigated his case.
6. Defendant asked for the file but received only a narrative from the Calaveras County Sheriff's Department.
7. Counsel advised defendant that he was being prosecuted for felonies instead of misdemeanors because of his past.
8. Counsel did not explain the proposed amendment to defendant, and defendant did not understand it.
9. Defendant had told prior counsel that he did not feel safe at the jail because the sheriff was involved in the case.
10. Other inmates had threatened him.
11. He filed a grievance in jail and felt like he was subject to retaliation.
12. Again, no one was investigating his case or talking to him at the jail.
Attorney Dickerson responded that the proposed amendment to the information appeared to be a restatement of the priors already charged. He had conveyed to defendant the prosecutor's offer of admissions to a domestic battery and a violation of a court order, which are not serious felonies, which would moot the other allegations. Concerning the expert witness on the bruising, attorney Dickerson did not think it would be helpful.
The trial court explained to defendant that whether to obtain an expert witness is a tactical decision left to the attorney. And the court inquired whether defendant was willing to talk to the prosecutor about a plea bargain. Defendant replied that he was willing. But defendant restated that he wanted a new attorney because attorney Dickerson was not ready to defend him.
The court asked attorney Dickerson if he was ready to go to trial, and the attorney responded that he was not. He said, "I am never ready to go to trial two weeks before trial, because that is the period in which you do your preparation." Attorney Dickerson said he had read the file and considered some defenses, but he expressed his opinion that the testimony against defendant was going to result in a conviction.
The trial court denied the Marsden motion without prejudice.
Back in open court, the court informed the prosecutor that defendant was interested in talking about a disposition. The prosecutor clarified that the proposed amendment would potentially add time to the maximum exposure to imprisonment if he were convicted, including a five-year term and several one-year terms. Defendant said that he would be willing to take the nine-year four-month offer if the sentence were stayed, but no plea bargain was agreed to. The court scheduled a new hearing on the proposed amendment for Friday, May 23, 2014.
At the hearing on Friday, May 23, 2014, the trial court considered the proposed amendment. Attorney Dickerson told the court that he had advised defendant to take the offer from the prosecution of a cap of nine years four months because the charging document exposed defendant to a Three Strikes sentence. The attorney said he had told defendant he was willing to try the case but needed more time because he was physically unable to try the case at that time because he had injured his back. Based on attorney Dickerson's injury and new evidence recently produced by the prosecutor, the court granted the motion to continue the trial to July 2, 2014. Defendant waived time. The prosecutor said that he would keep the plea offer open until Friday, June 6, 2014, and the prosecutor added that the proposed amendment would expose defendant to a potential term of "37 years, two days [probably meant two months] to life." The court delayed ruling on the proposed amendment until June 6.
On June 6, 2014, defendant filed a written Marsden motion, asserting various deficiencies in attorney Dickerson's representation. The court cleared the courtroom and held the Marsden hearing. And defendant made the following allegations:
1. Attorney Dickerson had not responded to defendant's attempts to communicate about the case.
2. The court should appoint another attorney to investigate whether attorney Dickerson was acting diligently.
3. Attorney Dickerson had not handled Three Strikes cases and did not understand some of the motions.
4. The public defender's office, for which attorney Dickerson worked, was overloaded.
5. The public defender's office had encouraged defendant to take the prosecutor's plea offer.
6. Attorney Dickerson had not followed up on some alibi evidence.
7. Attorney Dickerson did not have defendant's best interest at heart.
Defendant submitted to the court a letter from attorney Dickerson encouraging him to take the plea deal. The letter included a statement that defendant faced a possible sentence of 38 years to life. (The eventual sentence on the charges in the second amended information was 19 years eight months, plus 25 years to life.)
Attorney Dickerson assured the court and defendant that defendant's welfare was his priority. Although he did not have Three Strikes experience, he had done everything he could to avoid for defendant the consequences of a Three Strikes conviction. Concerning contact with defendant, attorney Dickerson said he had not been to the jail to meet with defendant as frequently as he would have liked because of this back injury. Attorney Dickerson maintained that he would make the tactical decisions and that defendant would not be allowed to dictate every move.
Defendant complained again that attorney Dickerson had not spent time with him talking about the evidence; instead, attorney Dickerson kept urging him to take the plea offer. Attorney Dickerson noted that the evidence against defendant was strong. Even so, attorney Dickerson said he would try the case and attempt to convince the jury. He assured the court that he would be ready to go to trial (which was still four weeks away). But he added, defendant "wants somebody to be working on his case twenty-four hours a day and three investigators out doing it. We don't have that capability unfortunately."
The court found that attorney Dickerson was properly representing defendant and denied the Marsden motion.
B. Analysis
Defendant argues that the trial court abused its discretion by denying the Marsden motions because: (1) attorney Dickerson made a mistake in calculating the maximum exposure to imprisonment under the second amended information and (2) the court failed to adequately inquire concerning defendant's allegations that counsel failed to consult and investigate. Neither argument requires reversal or remand.
1. Mistake in Calculating Maximum Exposure to Imprisonment
The Attorney General notes that attorney Dickerson was wrong about the maximum exposure to imprisonment. Under the original information, defendant was exposed to a maximum of 25 years to life plus 11 years two months. As amended, defendant was exposed to 25 years to life plus 20 years two months. So the second amended information added a potential nine years of incarceration. However, we note that attorney Dickerson encouraged defendant to accept the plea bargain, which would have radically reduced his time of imprisonment, regardless of the maximum exposure under the amended information.
Defendant claims that case law supports his assertion that the Marsden motions should have been granted because counsel made a mistake in calculating his maximum exposure to imprisonment if convicted of all charges. In support of this claim, he cites cases concerning ineffective assistance of counsel. We conclude that, while those cases are instructive, they do not support defendant's contention that the Marsden motions should have been granted.
In determining whether counsel provided constitutionally ineffective assistance, the court may look for assistance to "the prevailing norms of practice relating to advising a defendant as to the decision whether to reject an offered plea bargain and proceed to trial. Under these guidelines, defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction. [Citation.]" (In re Alvernaz (1992) 2 Cal.4th 924, 937, fn. omitted.) In Alvernaz, counsel misadvised the defendant concerning his maximum exposure to imprisonment if convicted. The prosecutor offered a plea bargain with a maximum exposure of five years, and counsel advised defendant that his maximum exposure without the plea bargain was eight years. The defendant rejected the offer, and, after he was convicted, he was sentenced to life with possibility of parole. (Id. at pp. 930-931.) However, even considering counsel's significant mistake in advising concerning maximum exposure, the Supreme Court determined that the mistake did not warrant relief for ineffective assistance of counsel because the defendant did not make a credible showing of a reasonable probability that he would have accepted the prosecutor's offer if counsel had not made the mistake. (Id. at p. 946.)
In People v. McCary (1985) 166 Cal.App.3d 1, at pages 8 and 9, this court decided counsel rendered ineffective assistance in plea negotiations. The defendant in that case accepted a plea bargain with a three-year prison term based on a misapprehension that he faced a possible eight-year term as a result of a five-year enhancement for a prior serious felony. But the serious felony enhancement did not apply to him because he committed the current crime before the serious felony enhancement was passed as part of Proposition 8. (Id. at pp. 7-8.) The defendant moved to withdraw his guilty plea, but the trial court denied the motion. (Id. at p. 6.) We reversed based on ineffective assistance of counsel because counsel failed to advise the defendant that the serious felony enhancement did not apply to him, which resulted in a misapprehension on the defendant's part that he was subject to an eight-year maximum (more than twice the three-year maximum without the serious felony enhancement). (Id. at pp. 10-12.)
"[W]hen defendants claim they received ineffective assistance of counsel at the plea bargain stage, they must show that had they received effective representation, they would not have accepted the offer. (In re Alvernaz, supra, 2 Cal.4th at p. 934; cf. People v. McCary[, supra,] 166 Cal.App.3d [at pp.] 9-12 [defendant denied effective representation when entering plea].) A defendant's statement to that effect is not sufficient. Rather, there must be some objective showing. (Cf. In re Alvernaz, supra, 2 Cal.4th at p. 938.)" (In re Vargas (2000) 83 Cal.App.4th 1125, 1140.)
With respect to defendant's Marsden motions, attorney Dickerson's mistake in calculating the maximum exposure to imprisonment under the second amended information was insignificant, under the circumstances, because (1) the maximum exposure to imprisonment remained a severe Three Strikes sentence and (2) defendant exhibited no signs of relying on advice from counsel, regardless of the maximum exposure, to accept a plea bargain. Instead, he insisted on rejecting the plea bargain (and criticizing defense counsel for suggesting that he accept it). Therefore, there was no showing that defendant's right to counsel was substantially impaired or would be substantially impaired by the attorney's mistake.
2. Sufficient Inquiry
Defendant argues that "the trial court failed to adequately inquire into [defendant's] repeated allegations that counsel had failed to consult and failed to investigate." The argument fails on this record.
In considering a Marsden motion, the trial court must make an inquiry sufficient to determine the facts behind the defendant's complaint about appointed counsel. (People v. Smith, supra, 30 Cal.4th at p. 606.) Defendant, here, claims "the trial court should have made a more thorough inquiry into the substance of [defendant's] complaints with Dickerson." After this statement, defendant catalogs his grievances against attorney Dickerson, but he does not explain why the trial court's inquiry was insufficient. He claims: (1) attorney Dickerson had spent insufficient time exploring defendant's assertions of innocence and (2) attorney Dickerson had not contacted witnesses and had not done sufficient investigation to be ready for trial. Defendant concludes: "At both the May 19 and June 6 Marsden hearings, [defendant] presented allegations suggesting that Dickerson's [sic] was rendering ineffective assistance, but the trial court erred in failing to conduct an inquiry sufficient to assess [defendant's] claims. It failed to either ask [defendant] for more particulars concerning what investigation he thought counsel should have undertaken and why, and failed completely to ask counsel to respond to the allegation that he had conducted no investigation."
To the contrary, defendant's allegations at the Marsden hearing did not call for further inquiry because the allegations were both self-explanatory and premature. Attorney Dickerson did not dispute that he had not expanded his investigation beyond reviewing the file and limited contact with defendant. He explained that he had not visited defendant more because of his back injury. Concerning attorney Dickerson's lack of readiness for trial, we note his reasonable statement that most of the preparation was yet to come. The second Marsden motion on June 6, 2014, took place nearly a month before trial started on July 2, 2014. Attorney Dickerson assured the court and defendant that he would be ready for trial.
Defendant did not make a showing that failure to substitute counsel would substantially impair his right to receive effective assistance of counsel. Therefore, the trial court did not abuse its discretion by denying the Marsden motion and did not violate defendant's right to counsel.
II
Self-representation
During trial, defendant decided to represent himself. Defendant contends that his waiver of counsel (Faretta v. California (1975) 422 U.S. 806 (Faretta)) was not knowing and intelligent because (1) the trial court improperly denied the Marsden motions and failed to make an adequate inquiry into defendant's continuing dissatisfaction with counsel and (2) the trial court did not inquire whether defendant understood the charges against him and did not properly advise defendant of the maximum exposure to imprisonment he faced if convicted. We conclude the trial court did not err in determining that the waiver of counsel was knowing and intelligent.
"The Sixth Amendment right to the assistance of counsel applies at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake. [Citation.] The right to counsel may be waived by a defendant who wishes to proceed in propria persona. [Citation.] By such waiver, a defendant surrenders 'many of the traditional benefits associated with the right to counsel.' [Citation.] In view of these consequences, a knowing and intelligent waiver of the right to counsel is required before a criminal defendant is permitted to proceed in propria persona. [Citation.]" (People v. Crayton (2002) 28 Cal.4th 346, 362.)
The trial court "must discuss with the defendant the consequences of his decision. [The defendant] should at least be advised that: self-representation is almost always unwise and that the defense he conducts might be to his detriment; he will have to follow the same rules that govern attorneys; the prosecution will be represented by experienced, professional counsel who will have a significant advantage over him in terms of skill, training, education, experience, and ability; the court may terminate his right to represent himself if he engages in disruptive conduct; and he will lose the right to appeal his case on the grounds of ineffective assistance of counsel. [Citation.] In addition, he should also be told he will receive no help or special treatment from the court and that he does not have a right to standby, advisory, or cocounsel." (People v. Phillips (2006) 135 Cal.App.4th 422, 428.)
"No particular form of words . . . is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. ' "The test of a valid waiver of counsel is not whether specific warnings or advisements were given but 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." ' [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 140.)
A. Background
During attorney Dickerson's cross-examination of the victim, the court took a morning break. During that time, the parties discussed a possible plea bargain, but no deal was reached. Before the jury was brought back in, defendant addressed the court, as follows:
"Before we start, I have some conflicting issues with Mr. Dickerson. I don't believe that the way this is being handled is in my best interest. I have drawn up numerous—I have also had two Marsden motions in play before concerning the Public Defender's Office and the lack of them doing their jobs diligently. I personally have asked and have asked through them for evidence that the Detective . . . has possession of. They refused to turn that over to me.
"We have made a request to [the prosecutors;] none of them will give up the evidence. They continue to hold onto it. They know they are hanging onto it because it's exculpatory in nature, from what I understand, from reading what I have ready under Brady, they are not supposed to hold this. They are supposed to give it up and they are not giving it up. And I have brought this up numerous times.
"Like I said, I have two Marsden motions. I do not feel I am being represented properly. I don't—this line of questioning about her, her and mine relationship has no bearing on if I did the crime or not.
"I would ask that you allow Mr. Dickerson to walk away. I would like to fire him. And I would go in as Pro Per.
"I feel I have a better chance of presenting to the jury a true and accurate thing than what is being posed here. And the fact—"
At that point, the trial court inquired whether they had a Faretta waiver form and assured the prosecutor that, if defendant were allowed to represent himself, the trial would not be continued.
Defendant said that he had no problem going forward but that he needed the victim's cell phone to show that, on the day after the attack, defendant and the victim were texting each other about the victim bringing lunch to defendant at work and the victim inviting him to her house and office. On this issue, the prosecutor told the court that the victim had deleted those messages when she deleted defendant as a contact. Therefore, that evidence was not available because the prosecutor did not have it.
Speaking about his desire to represent himself, defendant said:
"I have a serious conflict. I don't believe I have been represented whatsoever throughout this whole thing. I have a little bit that I have been given. Then he says that it doesn't mean anything.
"The fact that I have had to write letters myself to get people to come forward, to say oh, yeah, [defendant] came to our—our business with a hard drive from Ms. Stevenson's office, that she paid a check for to show that, oh, this hard drive is no good [sic].
"So if her hard drive is no good, then how did I steal her data, okay? I have texted where I sent her, where she had to send this hard drive in to get it repaired. Because to my knowledge on it, the information couldn't be taken by any other means. They actually would have to physically take this hard drive apart. This hard drive is the same hard drive that supposedly has all of her client data on it, okay?
"But I can't get the Public Defender's Office to make one phone call to JC Systems for ticket 1020 to say hey, do you have this? Do you have the receipt? Do you have the invoice? What was the end bit for this? Okay."
At that point, the trial court gave defendant a Faretta waiver form to fill out.
Defendant filled out the form and acknowledged that he read, understood, and signed it.
The following discussion took place:
"THE COURT: Do you understand that there are certain problems and pitfalls of self representation?
"THE DEFENDANT: Yes, sir.
"THE COURT: Including the potential ground of appeal of any criminal case would be that you were denied the effective assistance of counsel, if you chose to act as [] your own attorney and do a poor job, you won't have that as an option.
"THE DEFENDANT: Yes, sir, I am aware.
"THE COURT: How much schooling did you complete, college or any tech school? How much school have you had besides high school?
"THE DEFENDANT: Well, the only thing I have had out of high school would be water certification, which is through Sacramento State. I am state certified.
"THE COURT: You understand if convicted of the current charges, you will be sentenced to life in prison?
"THE DEFENDANT: Yes, Your Honor. But I also believe
"THE COURT: You are willing to gamble that to represent yourself?
"THE DEFENDANT: Yes, Your Honor. I don't believe that I
"THE COURT: You understand that the Court can't bail you out if you are trying to get some sort of evidence in and some concept in front of the jury and you are not asking the question in the right format, the Court can't bail you out and tell you how to do it?
"THE DEFENDANT: No.
"THE COURT: You are pretty much on your own. Do you understand that?
"THE DEFENDANT: I understand that. All I would ask if that the Court be fair and impartial and if it sees the facts that the District Attorney or its ability or not providing evidence that could be used on either side of the law, then admonish them and make them give up that evidence, quit letting them hide behind the facts that, oh, well, she said she didn't do this.
"So then if she deleted that, then maybe we should have excluded all the evidence that came from her phone if she deletes certain things, then maybe she deleted more.
"THE COURT: All right.
"THE DEFENDANT: These are arguments that my attorney
"THE COURT: You do not interrupt me when I am talking.
"THE DEFENDANT: I apologize.
"THE COURT: The Court allows the defendant to proceed as a self represented person.
"I will relieve the office of the Public Defender. [Defendant] knows that we are not granting a continuance of the trial. We are just continuing on until the Court is finished with the case.
"So motion granted."
B. Analysis
1. Marsden Motions and Inquiry into Defense
Defendant argues that the trial court failed to adequately inquire into his reasons for requesting to represent himself. Given his prior complaints about attorney Dickerson, he claims the court should have investigated whether his attorney's representation was adequate. We disagree that the trial court in this case had a duty to inquire further into defendant's complaints about counsel.
"Although a formal motion is not required, the trial court's duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides ' "at least some clear indication" ' that the defendant wishes to substitute counsel. [Citations.] (People v. Martinez (2009) 47 Cal.4th 399, 418.) Here, in his motion to represent himself, defendant asked only to represent himself. He did not seek substitution of counsel. Therefore, his motion to represent himself did not trigger a duty on the part of the trial court to make an inquiry into why defendant thought counsel was not competent. Moreover, defendant knew how to make a Marsden motion, as he had done so twice before. "Given defendant's insistence on self-representation, the trial court was under no obligation to conduct an inquiry into any dissatisfaction defendant might have with his appointed counsel so as to necessitate substitution of counsel." (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
According to Division Five of the Court of Appeal, Second Appellate District, when a defendant requests to represent himself based on his claim that the public defender is not providing effective representation, the trial court has a duty to make a Marsden-like inquiry into the defendant's reasons for so believing and to ask counsel about the allegations of ineffective representation in order to make a record. (People v. Cruz (1978) 83 Cal.App.3d 308, 315-316 (Cruz).) In Cruz, the defendant made a motion to represent himself. He claimed he had a conflict with the public defender's office, which had represented him before but had not investigated his cases. The court allowed the defendant to state his concerns with counsel, but it did not inquire of counsel concerning the truth of the allegations. The Cruz court held that because, if the defendant's allegations were true, the public defender's actions constituted ineffective assistance of counsel, defendant could not be said to have knowingly and intelligently waived his right to counsel. (Id. at pp. 317-318.)
Defendant in this case bases his argument on Cruz.
We need not determine whether we agree with the holding in Cruz because the circumstances of this case are distinguishable from the circumstances in Cruz. Here, the trial court twice held Marsden hearings which, as we held in the previous part of this discussion, were sufficient to rebut defendant's claim that attorney Dickerson was not effectively representing him. We need not rehash those proceedings. Also, in this case, the complaints that defendant raised about attorney Dickerson when he made his motion to represent himself related to matters not calling into question whether attorney Dickerson was providing effective assistance of counsel. For example, (1) defendant believed the prosecutor had exculpatory evidence (asserting a violation of Brady v. Maryland (1963) 373 U.S. 83 ) even though the prosecutor said that the victim had deleted the text messages that defendant sought, (2) defendant did not like the way counsel was cross-examining the victim, (3) defendant believed he had a better chance of prevailing if he represented himself, and (4) defendant and attorney Dickerson did not see eye-to-eye on what evidence was relevant and should be obtained. These were matters that were subject to the discretion of counsel or had already been discussed in connection with the Marsden hearings. (See People v. Streeter (2012) 54 Cal.4th 205, 230-231 [tactical disagreements between defendant and counsel not sufficient cause for substitution].)
The trial court did not err by not inquiring further into defendant's discontentment with attorney Dickerson's representation.
2. Maximum Exposure to Imprisonment
Defendant argues that the trial court violated his right to counsel because it did not fully advise him of his maximum exposure to imprisonment. He claims that advising him that he faced a life term was insufficient. We rejected the same argument in People v. Jackio (2015) 236 Cal.App.4th 445 (Jackio). In that case, we held that the trial court sufficiently advised the defendant of the dangers of representing himself when it told him he could face life in prison, even though the actual sentence may have involved multiple life terms. (Id. at pp. 455-456.)
" 'A defendant seeking to represent himself "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation]." (Faretta, supra, 422 U.S. at p. 835.) "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.]' [Citation.] Thus, '[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.' [Citations.]" (People v. Burgener (2009) 46 Cal.4th 231, 241.)
In Jackio, we concluded: "[T]he most reasonable solution consistent with case law and the United States Constitution is to require the trial court to advise a defendant desiring to represent himself at trial of the maximum punishment that could be imposed if the defendant is found guilty of the crimes, with enhancements, alleged at the time the defendant moves to represent himself. By so advising, the trial court puts the defendant on notice that, by representing himself, he is risking imposition of that maximum possible punishment. The defendant who decides to represent himself after this advisement proceeds with his ' "eyes open" ' and understands the dangers of self-representation, at least with respect to the possible punishment. (Faretta, supra, 422 U.S. at p. 835; see People v. Burgener, supra, 46 Cal.4th at p. 241.) Neither the Constitution nor interpretive case law requires more." (Jackio, supra, 236 Cal.App.4th at pp. 454-455.)
Defendant argues that Jackio is distinguishable on the facts because in Jackio the defendant had not been misadvised about the maximum exposure to imprisonment. We disagree because it is a distinction without a difference. Regardless of whether there was a prior problem with calculating defendant's maximum exposure to imprisonment for the charged crimes and enhancements, neither the Constitution nor interpretive case law required the court to advise defendant of his maximum exposure to imprisonment beyond the statement that he faced life in prison. (Jackio, supra, 236 Cal.App.4th at pp. 454-455.)
Defendant knowingly and intelligently waived his right to counsel when he decided to represent himself.
III
Waiver of Court Trial on Prior Convictions
Defendant contends that the trial court violated his constitutional rights by not advising him of his right to a court trial, as opposed to a jury trial, on the prior conviction allegations, and by not obtaining an express waiver of that right. We conclude that the trial court was not required to advise defendant and obtain an express waiver of his right to a court trial on the prior conviction allegations. And, in any event, even if the court should have obtained a waiver of defendant's right to a court trial, defendant's rights were not violated under the totality of circumstances in this case.
A. Background
After the presentation of the evidence on the substantive crimes was completed but before the trial court had charged the jury and sent them to deliberate, the trial court discussed with defendant his options as to the prior conviction allegations. The jury had learned of the prior convictions by way of impeachment of his testimony, but the prosecution had not presented the documentary evidence to prove the prior convictions. The court told defendant he could: (1) have a bifurcated jury trial on the prior conviction allegations, (2) be tried on the prior conviction allegations by the jury along with the substantive crime allegations, (3) admit the prior conviction allegations, or (4) waive jury trial and have a court trial on the prior conviction allegations.
While the defendant had earlier expressed a desire, with respect to the prior conviction allegations, "to preserve anything as to any deficiencies for a possible appeal," the following discussion took place:
"THE DEFENDANT: I guess my only question is I would almost say, let's just admit them because to me the case is if I am guilty or if I am found not guilty.
"THE COURT: If there is something wrong in the paperwork and the Court finds the admissions to be true, the fact that you admit them, that forecloses
"THE DEFENDANT: What proof?
"THE COURT: —an appeal.
"Just to preserve the right to appeal, maybe you might consider waiving jury on those, only having the Judge alone decide whether those prior convictions are true.
"THE DEFENDANT: What would they have to show to prove it?
"THE COURT: She will show the paperwork.
"[THE PROSECUTOR]: I have your prison history. I have everything you need. I think I have a copy of this.
"THE COURT: We show everything to the jury. We ask the jury to say, do you have all of these prior convictions. It takes about ten seconds for the [] DA to say, Madam Clerk, here is a certified copy of the defendant's prior prison sentences, I would like to have that marked as Exhibit 31.
"How long will that take? Five seconds to do that?
"THE DEFENDANT: I have admitted them. I don't know, you know. I mean, I am asking the system to work. I got up there and I brought it up myself and I wanted to do that.
"THE COURT: That is why I am raising the issue.
"THE DEFENDANT: So maybe I
"THE COURT: I am not going to tell you what to do. I am just telling you what I see are four options.
"THE DEFENDANT: That is just going to be
"[THE PROSECUTOR]: The first option is basically having one trial instead of two.
"THE DEFENDANT: Guess what my question is, certain things that I went to prison for now, I would not go to prison. So the fact that I went to prison on what would be a misdemeanor now, does that change the fact that I went to prison? You know, is that something that matters? Because obviously I went to prison on a receiving stolen property, which is now a misdemeanor.
"THE COURT: No, it's still a felony.
"THE DEFENDANT: If it's over the $950.
"THE COURT: No, it was $400.
"THE DEFENDANT: At the time, yeah. And it was so.
"THE COURT: Well that
"THE DEFENDANT: Those are the only issues I have. If that doesn't matter, I will just admit it and let you decide and save the jury.
"THE COURT: Instead of admitting them, one thing you can do is waive a jury trial and my representation is I will probably find the prior convictions to be true.
"THE DEFENDANT: Right.
"THE COURT: By waiving jury and still contesting that issue, then you are preserving for any future appeal any deficiencies.
"THE DEFENDANT: I am fine with that, because I have already admitted this to the jury. They don't need to see it on paper."
Later, the discussion continued:
"THE COURT: You do have the right to have a jury trial on the issue of any prior strikes and the prior serious felony convictions or any prior prison terms.
"THE DEFENDANT: I don't
"THE COURT: You think you understand that right?
"THE DEFENDANT: I think the way you said so, I can just—I guess waive the jury trial.
"THE COURT: That is what I am asking, do you understand you do have the right to have a jury decide the existence of the status
"THE DEFENDANT: It is. And I went to prison for them. I don't want to argue that point, okay?
"THE COURT: So you
"THE DEFENDANT: They have already been
"THE COURT: So the question is basically yes or no, do you understand you have the right to a jury trial on those issues?
"THE DEFENDANT: Yes, I understand that.
"THE COURT: Do you waive or give up that right?
"THE DEFENDANT: I waive and give up that right.
"THE COURT: Has anyone promised you any acts of leniency in order to have you give up the jury trial right as to the prior convictions that are alleged?
"THE DEFENDANT: No.
"THE COURT: Has anyone threatened you in any way?
"THE DEFENDANT: No."
The court then went through the prior convictions allegations in the second amended information. After the court read the first allegation, defendant said: "This is where I am supposed to say I did it, right?" And the court responded: "Yeah, so you admit that?" Defendant replied: "Yes." The court went through the remaining prior conviction allegations, and defendant admitted each one, along with the prior prison terms. Defendant said that he understood that admitting the prior convictions made him subject to the Three Strikes law.
B. Analysis
The California Supreme Court has held, as a rule of judicial procedure, that when taking an admission of a prior conviction, the trial court must expressly advise the defendant of the three Boykin-Tahl rights—jury trial, confrontation, and self-incrimination—and obtain an express waiver of those rights. (In re Yurko (1974) 10 Cal.3d 857, 863; Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).) Here, defendant claims the trial court committed error by not expressly advising defendant of his right to a court trial and obtain an express waiver of that right. To the contrary, the right to a court trial, as opposed to a jury trial, is not one of the rights included in the advisement required by Yurko, so there was no error here.
In any event, even if we were to apply the standard of determining whether Boykin-Tahl error was prejudicial in a case in which the court did not obtain an express waiver of the right to a court trial, we would conclude there was no prejudice. When a defendant does not expressly waive all of his rights, a reviewing court must examine "whether 'the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.' " (People v. Mosby (2004) 33 Cal.4th 353, 360, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175, italics omitted.) "The focus is not whether [an allegation of] a prior [conviction] would have been found true, but on whether the defendant knew of his constitutional rights." (People v. Stills (1994) 29 Cal.App.4th 1766, 1770, citing People v. Howard, supra, 1 Cal.4th at p. 1180.)
Here, under the totality of the circumstances, the record shows that defendant made his admissions knowing that he had a right to a court trial. The trial court told defendant that one of his options was to have a court trial on the prior conviction allegations. However, instead of requesting a court trial, defendant waived his Boykin-Tahl rights and admitted the allegations. Also, defendant was an experienced criminal defendant—a factor relevant to his knowledge and sophistication regarding his rights. (People v. Mosby, supra, 33 Cal.4th at p. 365.) While it is true that defendant initially said he wanted "to preserve anything as to any deficiencies for a possible appeal," he apparently decided against doing so when he admitted the prior conviction allegations.
In short, the record affirmatively shows that defendant voluntarily and intelligently admitted the prior convictions and prison term allegations.
IV
Instruction on Lesser Offense
Defendant contends that his conviction of making a criminal threat must be reversed because the trial court failed to instruct on attempt as a lesser included offense of a criminal threat. Defendant claims that the jury may have found that Stevenson did not suffer sustained fear as a result of his threat. The contention is without merit under the circumstances of this case because, even if there was substantial evidence that the victim was not in sustained fear for her safety, it is not reasonably probable that defendant would have achieved a more favorable result if the attempt instruction had been given.
We independently review a trial court's failure to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.) The trial court was required "to instruct fully on all lesser necessarily included offenses supported by the evidence," even in the absence of a request for that attempt instruction. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 154.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Id. at p. 162, italics omitted.) The court must instruct when there is evidence from which a reasonable jury could have concluded the defendant was guilty of the lesser crime but not the greater. (People v. Flannel (1979) 25 Cal.3d 668, 684.) When assessing the sufficiency of the evidence we may not weigh the credibility of the witnesses, "a task exclusively relegated to the jury." (Ibid.)
A person commits the offense of making a criminal threat when (1) the defendant "willfully threatens to commit a crime which will result in death or great bodily injury to another person"; (2) the defendant makes the threat "with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out"; (3) "on its face and under the circumstances in which it is made," the threat "is 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) 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) the threatened person's fear was reasonable under the circumstances. (§ 422, subd. (a).)
"[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. . . . [¶] A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, . . . if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat. In [this] situation[], only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (People v. Toledo (2001) 26 Cal.4th 221, 230-231, italics omitted.)
Defendant argues that the evidence supported an instruction on attempted criminal threat, as follows: "Here, a jury could reasonably infer from the evidence that [the victim] was only momentarily afraid as a result of [defendant's] threat. The evidence established that [the victim] fell asleep on the couch some time after the threat was made. She failed to either leave the home or otherwise seek assistance when she woke up some hours later to find [defendant] asleep on the floor. Instead, she simply went back to bed, leaving the bedroom door unlocked. . . . There was substantial evidence which, if accepted, would have absolved [defendant] from guilt of the greater offense, but not the lesser."
We find no merit in this assertion because there is no showing of prejudice on this record. Even if there was substantial evidence upon which the jury could decide that defendant's threats did not cause the victim to be in sustained fear for her safety, it is not reasonably probable that defendant would have achieved a more favorable result if the jury had been instructed on attempted criminal threat. The evidence of defendant's guilt was overwhelming, and the jury did not credit any of the evidence in defendant's favor. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Watson (1956) 46 Cal.2d 818, 836.)
Stevenson testified consistently that defendant's threats on Christmas Eve caused her to fear defendant. She was, in her words, "scared to death" when defendant threatened to jam the poker into her eye socket. She believed he would hurt her and feared for her life. She did not allow defendant to come to the home for Christmas dinner because she was afraid of him.
Defendant's threat to jam the poker into Stevenson's eye socket was not made in isolation. He also physically assaulted Stevenson, knocking her down and attacking her throat twice. Even after defendant left the house, he stalked her.
Considering this evidence, as well as the jury's crediting of Stevenson's testimony and discrediting of defendant's testimony, it is not reasonably probable that defendant would have obtained a more favorable result if the trial court had instructed the jury on attempted criminal threat.
V
Sentencing
Defendant makes several contentions concerning sentencing and the abstract of judgment, each of which we consider separately.
A. Presentence Custody Credits
Defendant asserts, and the Attorney General agrees, that the trial court made two mistakes in awarding presentence custody credit.
First, the trial court found that defendant had served 171 actual days in custody. However, because defendant was arrested on February 14, 2014, and was sentenced on August 5, 2014, during which time he was incarcerated, the court should have found defendant served 173 actual days in custody.
And second, the trial court limited presentence conduct credits to 20 percent of the actual time in custody under section 667, subdivision (c)(5). However, that provision applies only to postsentence, state prison credits, by its terms. "The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison." (§ 667, subd. (c)(5).)
Under the applicable statute, section 4019, defendant was entitled to two days of conduct credit for every two days of actual presentence custody. (§ 4019, subds. (c), (d), and (f).) Defendant and the Attorney General agree that defendant was entitled to 172 days of presentence conduct credit under this formula. We also agree.
B. Restitution Fine and Restitution Award
Before sentencing, the probation report reflected: "The victim stated that she is not claiming restitution . . . ." The probation report recommended a restitution fine of $48,000 under section 1202.4, and a parole revocation restitution fine of $48,000 under section 1202.45.
At sentencing, the trial court began to order that victim restitution be determined later, but the prosecutor reminded the court the victim was not requesting any restitution. So the trial court set victim restitution at zero. The court imposed a restitution fine of $24,000 under section 1202.4, as well as a parole revocation restitution fine of $24,000 under section 1202.45.
Defendant correctly asserts on appeal that the restitution fine and parole revocation restitution fine were invalid because the maximum fine the court may impose is $10,000 for each case. The Attorney General agrees, as do we. (§§ 1202.4, subd. (b)(1); 1202.45, subd. (a).)
Defendant also asserts that, instead of simply modifying the judgment by reducing each fine to $10,000, we must remand for reconsideration: He argues: "[A] trial court is vested with discretion to choose any restitution fine it finds appropriate between the minimum and maximum statutory amounts. In this case, the record is not clear that the trial court's intent was to impose the maximum allowable restitution fine. The probation report recommended a restitution fine in the amount of $48,000 [record citation], and the record does not reflect why the trial court chose a lesser amount, or what it believed the minimum and maximum amounts to be." (Italics omitted.)
The Attorney General agrees that we should remand, but for a different reason: "It is quite possible based on the facts of the case that the court combined the amounts of victim restitution under section 1202.4, subdivision (a), and the restitution fine under section 1202.4, subdivision (b), into one ordered amount. On remand, the court should be ordered to clarify its restitution award under 1202.4, subdivision (a), and be instructed not to impose any amount in excess of the statutory maximum under 1202.4, subdivision (b)."
Neither position is well taken.
There is no indication that the trial court intended to impose a restitution fine or parole revocation restitution fine less than $24,000. Since the statutory maximum is $10,000, the only rational remedy on appeal is to reduce those fines to the statutory maximum. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 [remedy for excessive restitution fine is to reduce the fine to the statutory maximum].)
There is also no indication that the trial court intended to make a restitution award. The victim did not claim restitution. While a restitution award is mandatory (People v. Brown (2007) 147 Cal.App.4th 1213, 1225), the award may be based on what the victim claims. (§ 1202.4, subd. (f).) Here, the victim did not claim restitution, and we see no precedent or reason for forcing her to make such a claim and to receive restitution if she chooses not to do so.
Accordingly, modification of the fines to their statutory maximums is the appropriate remedy here.
C. Abstract of Judgment
Defendant asserts, and the Attorney General agrees, that two boxes were checked on the abstract of judgment that should not have been checked.
First, a check appeared indicating that defendant's worktime credits are limited to 15 percent under section 2933.1, subdivision (a) because he was convicted of a violent felony enumerated in section 667.5, subdivision (c). However, defendant was not convicted of a violent felony enumerated in section 667.5, subdivision (c). Therefore, that box should not have been checked.
And second, a check appeared indicating defendant was sentenced under the habitual offender law, section 667.7. The box should not have been checked because defendant was sentenced under the Three Strikes law, not the habitual offender statute.
DISPOSITION
The judgment is modified by increasing the award of presentence credits to 173 days for actual custody plus 172 days of conduct credits. The judgment is also modified by reducing the restitution fines pursuant to sections 1202.4 and 1202.45 to $10,000 each. The judgment is affirmed as modified. The case is remanded to the trial court to prepare an amended abstract of judgment consistent with this opinion and to send the amended abstract to the Department of Corrections and Rehabilitation.
NICHOLSON, J. We concur: RAYE, P. J. HULL, J.