Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA070637, Jesse I. Rodriguez, Judge.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Christopher Duke Young appeals from a judgment of conviction entered after a jury trial. He was charged with two counts of first degree burglary (Pen. Code, § 459; count 1, burglary of Georgia Case’s home, and count 2, burglary of Kim Dupree’s home) and one count of receiving stolen property (§ 496, subd. (a); count 3). It was alleged as to all three counts that defendant had two prior felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12) and had served six prior prison terms (§ 667.5, subd. (b)). As to counts 1 and 2, the information further alleged that defendant had two prior serious felonies pursuant to section 667, subdivision (a)(1).
All further statutory references are to the Penal Code.
Defendant was convicted on counts 1 and 3, and the jury deadlocked on count 2. Defendant admitted the prior convictions. He was sentenced to a total of 74 years to life in prison. On count 1, the court sentenced him to 25 years to life as a third strike, plus five years on each of the two prior serious felony convictions, plus one year on each of the four prior prison terms. On count 3, the court sentenced defendant to 25 years to life as a third strike, plus five years on each of two prior serious felony convictions, to run consecutively to count 1.
The court declared a mistrial on count 2 and it was later dismissed.
On appeal, defendant contends the trial court committed reversible error by denying his request to represent himself (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]). Defendant also contends that the two five-year enhancements were improperly imposed on count 3. We reject defendant’s Faretta claim but agree that the two five-year enhancements imposed on count 3 were improper.
FACTUAL AND PROCEDURAL BACKGROUND
The History and Denial of Defendant’s Request for Self-Representation
Defendant pled not guilty on October 26, 2006, and asked to represent himself. His request was granted. On January 10, 2007, he changed his plea to not guilty and not guilty by reason of insanity. The court appointed two doctors to examine defendant.
On the date set for trial, May 17, 2007, the court declared a doubt as to defendant’s competency to stand trial, revoked his pro. per. status, and suspended criminal proceedings. On June 27, 2007, the court declared defendant incompetent to stand trial and transferred him to Patton State Hospital.
On April 15, 2008, the court received a report from Patton State Hospital indicating defendant was competent. On October 1, 2008, the trial court appointed counsel to represent him. On October 6, 2009, defendant asked to represent himself. The request was granted. On October 14, 2009, defendant’s pro. per. status was revoked when the court found defendant’s request for self-representation was equivocal.
On October 26, 2009, the first day of jury selection, defendant again asked to represent himself. The court reiterated the reasons for its prior denial and jury selection began. The next day, the court again addressed defendant’s self-representation request. Defendant stated that he wanted to represent himself with a two-week continuance. The court again noted defendant’s request was equivocal and indicated that it would not grant a continuance.
As the facts are not relevant to the issues raised on appeal, we briefly summarize them.
On June 7, 2006, Susan Margeson (Margeson) and Kim Dupree left their residence in Long Beach in the morning. When they came home for lunch, certain items were missing, including an iPod, camera, night scope vision, rings, and cash. Some time later, some of the items were recovered.
On June 8, 2006, Georgia Case (Case) left her Long Beach home in the morning and returned to find her kitchen door wide open. Her dog was barking and she went down the street, borrowed a cell phone and called the police. While she was on the phone, she saw a man go over the fence. When she went back to her house, she found that three laptop computers were missing.
When the police arrived, they discovered defendant hiding in a garage nearby. Case identified defendant as the man climbing over her neighbor’s fence. A camera found in defendant’s car was identified as belonging to Margeson and it contained images and videos that she did not take. Defendant’s cousin, Markel, testified that defendant took the photos.
Case later received a letter from defendant regretting the actions on June 8 and offering to pay for her laptop. Law enforcement connected the two incidents when they searched defendant’s car and found the missing iPod. Defendant told law enforcement that he would get the laptops back if they agreed to charge him only with receiving stolen property.
DISCUSSION
Right to Self-Representation
Defendant challenges the trial court’s decision to deny his motion for self-representation. There is no merit to this challenge.
A right to self-representation is implied in the Sixth Amendment to the United States Constitiution. (Faretta v. California, supra, 422 U.S. at p. 819.) “[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 127-128, fn. omitted.) In reviewing the trial court’s denial of a defendant’s request to represent himself, we consider the record as a whole, including proceedings after defendant’s purported invocation of the right to represent himself, to determine whether the invocation was knowing, intelligent and unequivocal. (People v. Marshall (1997) 15 Cal.4th 1, 24-25.)
On October 6, 2009, defendant expressed dissatisfaction with his counsel and requested to proceed in pro. per., explaining, “I have no other choice. I’m doing this under duress. I have no other option.” The trial court held a Marsden hearing to listen to defendant’s concerns. He requested “another lawyer or, in the alternative, under duress, represent myself with at least a 30-day continuance....” The trial court denied defendant’s request for new counsel. Defendant then stated that he wanted to represent himself.
People v. Marsden (1970) 2 Cal.3d 118.
The court explained the risks in self-representation, and defendant filled out a pro. per. form. After a lengthy discussion with defendant, the court asked him if he thought he could represent himself and defendant responded, “I have no choice.” The court explained it would give no more continuances and again asked defendant if he wanted to represent himself. Defendant said he wanted to represent himself and twice asked for a 30-day continuance, which was denied. The court did relieve defendant’s counsel but appointed him as stand-by counsel.
On October 14, 2009, the prosecution announced it was ready for trial. Defendant asked for a continuance, asserting that no order had been made to place him on pro. per. status within the jail. The following colloquy occurred:
“The Court: When we were here last week, you asked to represent yourself. And you said I have no choice, correct?
“The Defendant: That was my belief. That still is my belief.
“The Court: Say that again.
“The Defendant: That was my belief at that time, and it still is.
“The Court: You said at least I hung myself and didn’t let somebody else do it, correct?
“The Defendant: If I give the earnest effort, at least I could say it I did my best.
“The Court: You also said at least I hung myself, and I didn’t let somebody else do it, correct?
“The Defendant: I might have said that, but the undertones is, like I said, to try my best with the case rather than have someone else that didn’t get the things that I needed to represent myself and be prepared for trial.
“The Court: You said you wanted to represent yourself because you had no choice. Is that still your belief?
“The Defendant: As far – yeah, because I can’t get the things that I need from [defense counsel].
“The Court: Very well. Thank you. Your pro per status is revoked. Therefore, this case is sent to Department J forthwith. [Defense counsel], you’re on.
“[Defense Counsel]: I have a conflict, your honor.
“The Defendant: I would object to my pro per status being taken.
“The Court: Thank you.
“The Defendant: For what reason? I have a constitutional right to pro per status, right? Faretta, California Faretta.
“The Court: The court finds that the defendant’s request is equivocal. Forthwith to Department J. Both lawyers are ordered to Department J. The court finds the defendant’s request for a lawyer is equivocal. The court having reviewed the transcript, the unofficial transcript of the proceedings by the reporter, finds that the defendant’s request is equivocal on both cases.”
Defendant’s initial request to represent himself was made because he was not satisfied with his defense counsel and because the trial court denied his request to substitute counsel. While the trial court did grant defendant’s request to represent himself, it revoked it at the next hearing when it confirmed that defendant’s request was made because he felt under duress and it was equivocal. (See People v. Tena (2007) 156 Cal.App.4th 598, 607 [court should evaluate all circumstances, including all of the defendant’s words and conduct, to determine whether he has unequivocally requested to represent himself].) We conclude the trial court properly revoked defendant’s pro. per. status.
In People v. Scott (2001) 91 Cal.App.4th 1197, the defendant made a Marsden motion before trial. After the trial court denied the motion, the defendant stated, “‘If that’s the case, I hereby move the court to let me go pro se.’” (Id. at pp. 1204-1205 & fn. 3.) When the trial court asked, “‘For the record, ... are you sure you want to represent yourself?’” The defendant replied, “‘Yes. I do, judge. I don’t want [appointed defense counsel] to represent me.’” (Id. at p. 1205.) He also said, “‘[I]f I can’t get a [new] state appointed attorney, then I[’ll] represent myself, ’” and “‘For the record, I don’t want this attorney representing me. You the court is [sic] coercing me.’” (Ibid.) The motion was made four days before trial and the court found that the remarks by the defendant, viewed in context, were too equivocal to constitute a Faretta request and were made out of frustration at the denial of his Marsden motion. (Id. at pp. 1205-1206.)
The case of People v. Michaels (2002) 28 Cal.4th 486, on which defendant relies, is distinguishable. In Michaels, the defendant claimed that the trial court erred in granting his request to represent himself because he made it clear that he only wanted to represent himself if the court refused to remove his attorney. The Supreme Court stated that “[t]here is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant [be allowed] to represent himself.” (Id. at p. 524.)
Here, by contrast, there were lengthy discussions with defendant in which he repeatedly told the court that he had “no choice” but to request self-representation and was making his request “under duress.” Defendant also asked for a 30-day continuance with his requests for self-representation. The trial court properly considered the circumstances surrounding defendant’s request to represent himself and found the request was equivocal. (People v. Scott, supra, 91 Cal.App.4th at pp. 1205-1206.)
On October 26, 2009, the day jury selection was to begin, defendant again made a request to represent himself. After the court reiterated the reasons for its prior denial, the jury selection process began.
On the next day, the court again discussed the issue of self-representation with defendant. The court reviewed the long history of the case and noted its belief that “sometimes your tactics are to invite error and to create issues on appeal.... [¶] I believe that you have on purpose failed to appear several times. I believe that the court has made orders to extract you from your cell with reasonable force or with the force that the Sheriff’s department believes is necessary to bring you to court.”
The court asked defendant what he wanted to do and he began to explain his need for a continuance. Defendant stated that he wanted to represent himself with a two-week continuance. The People objected to any further continuance. The following colloquy occurred:
“The Court: And you realize that at this time, based on everything that I’ve handled in this case, based on the totality of the circumstances of this case, of all the tens of motions that have been filed, of all the rulings that this court has made and other courts, that this court believes at this time that the court would entertain your request and is entertaining your request but the court believes that a continuance will not be timely in this case, would not be fair in this case, would not be proper in this case.
“So, Mr. Young, what I’m going to tell you is this: If you make an unequivocal request to represent yourself I’m willing to grant that request even at this late time, but the court sincerely – the court being fully aware of all of its discretionary powers, the court believes that a motion to continue will not be granted and I am not inclined to grant a motion to continue for all the reasons that I stated.
“So, therefore, a motion to continue will be denied. So the question is having heard that, do you still wish to, without any reservation, with all consideration do you wish to at this time exercise your right to represent yourself and proceed to trial forthwith, keeping in mind that this court doesn’t have the ability to buy your clothing, this court cannot buy your clothing? We do not have any clothing. We don’t keep clothing because they’ve been lost before. So if you want to represent yourself you are it and we’re going to proceed to trial and we are going to proceed with the motions that we have.
“So, Mr. Young, my question is: Do you wish to unequivocally, directly and forthrightly wish to now be your own lawyer taking into consideration all of the numerous disadvantages that there are intrinsic in this endeavor?
“The Defendant: Your honor, with all of the disadvantages that have just been named to me it appears as though that the odds have been stacked against me and any possibility of a fair trial without a continuance, without any powers that are granted by the constitution of the 6th Amendment due process, I am without anything. I don’t even have the basic necessities. I don’t have access to the court, access to
“The Court: Sir, I don’t know what you’re saying.
“The Defendant: I’m not familiar
“The Court: I don’t know what you’re saying, and you don’t know what?
“The Defendant: I’m saying if I proceed it would be under duress.
“The Court: Very well. Thank you. Again, for the third time your request is equivocal and, therefore, the court cannot grant your request.”
The defendant’s requests for self-representation were conditional and equivocal and the trial court properly denied defendant’s Faretta motions.
Sentencing Enhancements on Count 3
Defendant contends that the imposition of two five-year enhancements pursuant to section 667, subdivision (a)(1), was improperly applied to count 3. The People concur.
Section 667, subdivision (a)(1), states in part, “any person convicted of a serious felony who previously has been convicted of a serious felony... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.”
Defendant was convicted of receiving stolen property in count 3. It is not a serious felony. (See § 1192.7, subd. (c).) When defendant admitted his prior convictions, defense counsel, the prosecutor and the trial court agreed that admitting to the section 667, subdivision (a)(1), conviction only applied to count l. At sentencing, the court improperly imposed the two five-year enhancements on count 3.
DISPOSITION
The two five-year enhancements imposed on count 3 are ordered stricken. In all other respects, the judgment is affirmed. The court is ordered to prepare a modified abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., WOODS, J.