People v. Franco CA4/2 ( 2021 )

Filed 5/26/21 P. v. Franco CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073793
v. (Super.Ct.No. RIF1408130)
RICKY CAMPOS FRANCO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. David A. Gunn and F.
Paul Dickerson III, Judges. Affirmed in part; reversed in part with directions.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.
Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Ricky Campos Franco guilty of three
counts of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a).)1 The
jury found true the allegations that, during two of the attempted killings, (1) defendant
personally and intentionally discharged a firearm resulting in great bodily injury (§
12022.53, subd. (d)); and (2) defendant personally inflicted great bodily injury (§
12022.7, subd. (a)). The jury also found true the allegations that, during all three of the
attempted killings, defendant personally used a firearm. (§ 12022.5, subd. (a).)
The jury found defendant not guilty of the greater charges of three counts of
attempted murder. (§§ 664, 187, subd. (a).) The jury found untrue the allegations that
(A) the three attempted killings were willful, deliberate, and premeditated (§ 189); (B)
the three attempted killings were committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); (C) during one of the
attempted killings, defendant personally and intentionally discharged a firearm resulting
in great bodily injury (§ 12022.53, subd. (d)); and (D) during one of the attempted
killings, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The trial court found true the allegation that defendant had a previous conviction
in Texas for aggravated robbery, which qualified as a prior strike conviction (§§ 667,
subds (c) & (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony conviction (§ 667,
subd. (a)). The trial court sentenced defendant to prison for a term of 25 years, eight
months.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
Defendant raises four issues on appeal. First, defendant contends the trial court
erred by denying defendant’s pretrial motion for the court to revoke his status as a self-
represented litigant and appoint counsel. Second, defendant asserts the trial court erred
by denying the same motion when it pertained to the bifurcated trial on the prior
conviction allegations and the sentencing hearing. Third, defendant contends the
enhancements for personally and intentionally discharging a firearm resulting in great
bodily injury (§ 12022.53, subd. (d)) must be stricken. Fourth, defendant asserts the
presentence incarceration fee (§ 1203.1c) must be stricken. We affirm in part and
reverse in part with directions.
FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT’S CRIMES
1. THE PEOPLE’S CASE
Roberto Franco (Brother) is defendant’s half-brother. Brother is a member of the
Eastside Wilmas street gang, located in Wilmington, California. Defendant has tattoos
strongly indicative of membership in the Eastside Wilmas, such as “Wilmas” tattooed
across his abdomen. Richard Franco (Nephew) is defendant’s nephew and Brother’s
son. In April 2019, Nephew was 26 years old. Damien Nava (Nava) is Nephew’s
friend. Nava is a member of the Family Mob street gang, in Orange County.
On June 16, 2014, at approximately 11:30 p.m., Nephew and Nava (collectively,
the sellers) went to a McDonald’s to sell marijuana. The sale was arranged in advance
for approximately $200, but the purchasers were people who the sellers did not know
well. The purchasers were Demoundray Johnson (D.J.), and D.J.’s brother Dante
3
Johnson (collectively, the brothers).2 Nephew met D.J. on Facebook when D.J. sent
Nephew a message asking to buy marijuana from Nephew. On Facebook, Nephew saw
that he and D.J. shared a mutual friend, Gilbert Moreno. Nephew asked Moreno about
D.J. Moreno said that he knew the brothers cousin, Reginald Hamilton, and that
“they’re cool.”
At the McDonald’s, the brothers robbed the sellers at gunpoint. The brothers
took the sellers’ cell phones, Nephew’s wallet, and the marijuana, which weighed one
ounce. After the robbery, Nephew saw that Hamilton was selling the cell phones on
Facebook. Nephew sent a message to Hamilton via Facebook stating that he wanted the
sellers’ stolen property returned. Hamilton agreed to leave the phones and Nephew’s
identification at a mutual acquaintance’s house for Nephew to pick-up. Brother picked
up the property. When Nephew again had his cell phone in his possession, he began
receiving death threats from Hamilton due to Hamilton’s belief that Nephew had
disrespected Hamilton.
On June 18, 2014, Nephew went to see Brother, who was at the home of a
cousin, Ruben Franco. Nephew told Brother about the death threats. Nephew found
pictures of D.J. and D.J.’s Cadillac on Facebook and showed the pictures to Brother.
Nephew also told Brother the name of the street Hamilton lived on, which Nephew
learned through friends. Brother instructed Nephew to go to Nephew’s girlfriend’s
2 In this opinion we use first names for people who share the same last name as
other people involved in the case, in order to make the facts clearer. No disrespect is
intended.
4
trailer, pick up Nephew’s baby and girlfriend (Girlfriend), and whatever he needed to
leave because Brother planned to help Nephew flee due to the death threats. Brother
had Richard Uribe, a family friend and fellow Eastside Wilmas street gang member,
follow Nephew to the trailer park where Girlfriend lived to ensure no harm came to
Nephew.
After Nephew and Uribe arrived at Girlfriend’s trailer, others began gathering at
the trailer including defendant, Brother, Ruben, and Nava. Hamilton called Nephew
with another death threat while the group was at Girlfriend’s home. Brother took the
phone and argued with Hamilton, which resulted in Hamilton threatening Brother.
After the phone call, someone said, “[L]et’s go see where these fools are at.” Nephew,
his son, and Girlfriend went to Brother’s house.
Defendant and Brother got into a Subaru, with Brother driving and defendant in
the passenger seat. Nava and Uribe got into a Volkswagen SUV, with Uribe driving
and Nava in the passenger seat. Brother drove to the street where he believed Hamilton
lived and “just drove up and down the street.” Uribe and Nava followed behind
defendant and Brother.
Eventually, Brother saw D.J.’s gold Cadillac. There were three people inside the
Cadillac: the brothers and Hamilton. The Subaru, with defendant and Brother inside,
“pull[ed] up next to the Cadillac and then [defendant] fired” two or three shots. The
Cadillac made a right turn, and the Subaru and Volkswagen followed. After more
driving and turns, defendant fired more shots at the Cadillac. Brother crashed the
Subaru into a light pole. The Volkswagen stopped next to the Subaru. Defendant
5
tossed a rifle into the Volkswagen, and defendant and Brother entered the Volkswagen.
Uribe drove away from the crash site. One of the men inside the Volkswagen
recognized the home of an acquaintance. Defendant and Nava exited the Volkswagen
and went to the acquaintance’s home. Shortly thereafter, Sheriff’s deputies came to the
acquaintance’s home and arrested defendant. There were no bullet strikes or bullet
holes on the Subaru.
Riverside County Sheriff’s deputies found D.J.’s Cadillac approximately one-
half mile away from the Subaru, stopped next to a sidewalk. D.J.’s Cadillac sustained at
least 20 gunshots along the driver’s side and rear end of the vehicle. During the
shooting, D.J. suffered “gunshot wound[s] to the back of his head, back of his neck, and
to his [l]eft thigh.” D.J. was placed in an induced coma for a month. D.J. was then
transferred by ambulance to a second hospital “because his brain was bleeding and it
wouldn’t stop,” and then he was transferred to a rehabilitation hospital where he stayed
for a couple of months relearning how to walk and speak. Nearly five years after the
shooting, D.J.’s left side was paralyzed, he walked with a walker, and his speech was
slurred. During the shooting, Dante was shot in his right thigh, left arm, and left hand.
Nearly five years later, he was still unable to use his fingers. Hamilton suffered gunshot
wounds on his right calf and left upper thigh. Hamilton stayed in the hospital for one
day.
Sheriff’s deputies found a semiautomatic handgun on the floorboard of the
Cadillac, underneath the driver’s seat. A revolver was found close to the Cadillac, “in
the bushes near the sidewalk.”
6
2. DEFENDANT’S CASE
Defendant testified at trial. Brother was at Ruben’s house helping Ruben move
when Nephew came to the house tell Brother about Hamilton’s threats. Nephew looked
scared. Brother told Nephew to go home, pack, and get the baby. Uribe left when
Nephew left. Brother and defendant went to Girlfriend’s trailer to help “get [Nephew]
out [of] there.”
At Nephew’s house, defendant heard Brother arguing on the phone. After the
phone call ended, Brother told defendant that the people who robbed Nephew were
threatening to kill Nephew and were now threatening to kill Brother, and that they were
planning to come to Girlfriend’s home. Nava said, “ ‘That’s them right there,’ ” and a
Cadillac and Altima passed by. The Altima belonged to Hamilton’s brother.
Brother, Ruben, and Uribe got into Uribe’s Volkswagen with Uribe driving.
Defendant sat down in the passenger seat of the Subaru. Defendant could not name the
driver of the Subaru in court because, if he did, then he would be killed in jail, but he
did say the driver of the Subaru was not Brother, Ruben, Uribe, or Nephew; Defendant
could not say if Nava was the driver. Once defendant and the unidentified driver of the
Subaru (the Driver) were inside the Subaru, the Driver placed a gun next to defendant.
The Driver followed Nephew part of the way as Nephew drove to Brother’s house. “All
[defendant] wanted was a ride home”; and he believed that he was in the Subaru for a
ride home. The Driver told defendant that, before the Driver drove defendant home,
they would “turn back around and make sure they are not by” Nephew’s girlfriend’s
7
home. After driving by Nephew’s girlfriend’s home, the Driver began driving
defendant home.
As the Driver drove “he said, ‘That’s them.’ ” Defendant saw the Cadillac and
the Altima. The Driver grabbed the gun and fired. Defendant saw a person in the
Cadillac or Altima also pointing a firearm and he heard two shots that he believed came
from the Cadillac or Altima. The Driver drove away, but the Cadillac and Altima
followed. After various turns down different streets, defendant was in a position to see
the backseat passenger in the Cadillac pass a firearm to the front seat passenger. After
more turns, the Subaru was behind the Cadillac. The Cadillac slowed, and the Subaru
passed alongside of it. The Cadillac driver rolled down his window and pointed a gun
at the Subaru. Defendant pointed the gun at the Cadillac and began firing. Defendant
was aiming for the driver of the Cadillac but shot the entirety of the Cadillac because
the vehicles were moving. “[Defendant] shot and [he] kept firing [because he] had guns
pointed at [him].” Defendant “was trying to protect [his] own life.” Then the Subaru
crashed.
Defendant was born in 1984. Defendant was a member of the Eastside Wilmas
when he was younger but, by 2014, he no longer considered himself a member of the
gang. Defendant did not “throw up a gang sign” during the shooting and neither did the
victims. Defendant did not speak to the victims on the telephone and never asked the
victims where they were from. The shooting “ha[d] nothing to do with gangs”; “[i]t just
ha[d] to do with family.”
8
B. PROCEDURAL HISTORY
On June 23, 2014, the original complaint charging defendant and Brother was
filed in the case. The Public Defender was appointed to represent defendant. At the
arraignment, defendant was represented by deputy public defender Emma Smith. On
June 25, 2014, an amended complaint was filed. On July 7, the Public Defender
declared a conflict of interest. The trial court relieved the Public Defender and
appointed Greg Comings of the Law Offices of Gregory H. Comings to represent
defendant.3 Defendant was arraigned on July 18, 2014, and he was represented by Mr.
Comings. Mr. Comings represented defendant at the preliminary hearing on July 14,
28, and 29, 2015.
On November 17, 2016, the trial court granted a motion for defendant to change
counsel to Parwana Anwar, a private attorney. On March 29, 2017, Ms. Anwar filed a
written motion to continue the April 4, 2017 trial date. Ms. Anwar asserted a
continuance was needed because (1) the discovery in the case was lengthy, (2) the
prosecutor assigned to the case recently changed, and (3) Ms. Anwar and the new
prosecutor needed time to discuss a pretrial resolution of the case. The trial court
granted the motion and continued the trial to June 13, 2017.
3 The July 7, 2014 minute order reads, “VMB attorneys appointed. [¶]
Defendant represented by Greg Comings.” We infer “VMB attorneys” is short for
Virginia M. Blumenthal Law Offices, which is on the conflicts panel. We also infer
that, in the minute order, the clerk erred in entering “VMB attorneys” because the
preliminary hearing transcript reflects Mr. Comings worked at the Law Offices of
Gregory H. Comings.
9
On June 9, 2017, Ms. Anwar again moved the court to continue the trial date.
Ms. Anwar asserted that (1) she and Brother’s counsel were hoping to resolve the case
prior to trial and were trying to have discussions with the prosecutor; and (2) the
prosecutor had not yet provided gunshot residue (GSR) test results for defendant,
Brother, and the three victims. The trial court granted the motion and continued the trial
to September 6, 2017. On August 8, 2017, the trial court found that defendant was
indigent. More continuances were granted in the second half of 2017.
In January 2018, Ms. Anwar applied for funds for GSR testing after learning the
prosecution would not be conducting its own tests. On March 1, 2018, the trial court
granted the request for funds. On March 5, 2018, a motion to continue trial was filed by
Nicolas J. Estrada, as defendant’s attorney. Mr. Estrada asserted the March 16, 2018,
trial date needed to be continued due to defendant recently retaining Mr. Estrada. On
March 13, 2018, Ms. Anwar filed a motion to continue the trial date. Ms. Anwar
asserted the continuance was needed because (1) defendant was seeking to substitute in
Mr. Estrada; and (2) the GSR testing process would take more time. On March 16,
2018, the trial court relieved Ms. Anwar as defendant’s counsel, substituted in Mr.
Estrada, and granted the motion for a continuance. The trial was set for September 11,
2018.
Defendant had two codefendants: Brother and Uribe. On July 6, in chambers,
one of the parties requested a continuance of the trial date to September 19, 2018. On
the record, Brother said he would not waive time past September 11. Defendant
requested to be self-represented. The trial court, with Judge Helios Hernandez
10
presiding, said, “That’s a real big decision. Do you really want to do that?” Defendant
said he would use the law library to prepare his case and confirmed he wanted to be
self-represented. The trial court warned, “It is never going to be as good and as easy as
you think it is.” The trial court noted that the case was 1,000 days old and estimated
that the case would be delayed another 10 months if defendant switched to being self-
represented. The court continued defendant’s request so that Judge David A. Gunn
could decide “whether or not he wants to let this trial get delayed.” Brother’s counsel
said, “My client does object to any further delay. This case is almost four years old. I
have been ready to try this case for a year and a half. [¶] . . . [¶] And I have only been
on it for two years.” The trial court set the trial date for Brother and Uribe for
September 19, 2018.
On July 9, 2018, the trial court, with Judge David A. Gunn presiding, heard
defendant’s request to be self-represented. The trial court noted that defendant had been
represented by two private attorneys (Ms. Anwar and Mr. Estrada), that the preliminary
hearing was in 2015, and that trial was scheduled for September. The trial court said it
did not intend to change the trial date, so it would grant defendant’s request only if
defendant could tell the court that he would be ready for trial in September. Defendant
said, “I should be ready about that date, Your Honor.” The trial court warned defendant
that “it is a very foolish thing to represent yourself on these types of charges,” that
defendant would be “up against an experienced prosecutor,” and that the court could not
assist defendant “in any type of legal research.” Defendant said he understood and that
he wanted to represent himself. The prosecutor said, “[T]he case is so old it has already
11
had its fourth birthday.” The trial court again said it intended to keep the September
trial date. The trial court relieved Mr. Estrada and granted defendant’s request to be
self-represented.
The trial court explained that defendant would need to select an investigator from
a list, then the court would appoint the investigator, and defendant would be given an
initial allotment of investigator hours and any additional allotment would need to be
granted by the court’s funding panel after an application by defendant. Defendant said
he was familiar with the application process.
On August 17, 2018, the trial court held a trial readiness conference. Defendant
said he had made a formal discovery request but had not yet received discovery, and
defendant had dismissed his investigator because the investigator refused to accept calls
from the jail, so defendant wanted a different investigator appointed. The court said it
would appoint a different investigator for defendant. The prosecutor said she told
defendant that discovery had been provided to defendant’s previous attorney and that
defendant would need to obtain the discovery from the prior attorney. The trial court
made an order for Mr. Estrada to provide all of the discovery to defendant forthwith.
Defendant asked the court for an order directing the jail to give defendant access to the
telephone from 6:15 p.m. to 7:00 p.m. so that defendant could “contact any witnesses,
investigator, anybody to help me in this defense.” Defendant explained that his
telephone access was limited due to the overcrowding in the jail. The court said
defendant would need to provide more detail in a motion.
12
On September 7, 2018, defendant moved to continue the September 19 trial date.
Defendant declared that he was not ready for trial because he had not yet received
discovery. The trial court granted the motion and continued the trial to January 15,
2019.
On December 7, 2018, defendant moved to continue the trial. Defendant
declared he had not yet “receive[d] [his] full discovery,” so he was not ready for trial.
Defendant’s investigator declared that (1) she had received discovery from defendant’s
prior counsel on September 24, 2018; (2) that she had learned on November 13, 2018
that defendant would need to submit a new application for GSR test funding; (3) that on
November 26, 2018, the investigator received approval of defendant’s funding
application for the investigator to make photocopies and purchase flash drives; and (4)
on November 29, 2018, defendant’s application for funding for GSR testing had been
sent to the funding panel.
The investigator explained that she had already documented the discovery she
had received; photocopied and redacted 274 pages, which contained 33 police reports;
and photocopied and redacted 134 pages of transcripts. The investigator still needed to
copy and redact approximately 450 pages of discovery; redact 11 audio interviews and
videos and put them on flash drives; go through 34 folders on a flash drive received
from counsel to redact and print or put on another flash drive; and receive approval of
new applications to replenish the funds for photocopying. The trial court granted the
motion and continued the trial to March 14, 2019.
13
On February 22, 2019, defendant filed another motion to continue the trial.
Defendant said he was not ready for trial because he had “not reviewed all [the]
evidence, still ha[d] not received [the] flash drive from [the] investigator[, and a]lso still
need[ed] to test G.S.R. and get prepared.” On March 12, 2019, the trial court, with
Judge David A. Gunn presiding, held a hearing on defendant’s motion. Brother’s and
Uribe’s attorneys were present at the hearing. The trial court said defendant’s motion
failed to provide any specifics as to why defendant was still unprepared for trial. The
court found that, in November, defendant’s investigator declared that defendant had
been provided with “most of the discovery at that time.”
Defendant responded by requesting to be represented by counsel. Defendant
explained, “I tried everything I could as far as this case. I can no longer proceed. I
can’t comprehend everything that’s going on any further. I tried the best I could. I tried
to get GSR funding. Both times I’ve been denied. [¶] To this day I still do not have a
hundred percent discovery. There are videos I still—video surveillance I still haven’t
reviewed.”
The trial court said defendant’s request was untimely because trial was set to
begin in two days. Defendant said, “I can’t comprehend what’s going on. I don’t know
what to do anymore.” The trial court said that the case was more than four years old,
that defendant was familiar with the case, that any discovery issues that remained were
minor and could be cured in a few days, and that defendant was aware of the need for
GSR funding in November 2018.
14
Brother’s counsel explained that the GSR testing could help defendant because it
could support a theory of self-defense. The trial court again noted that defendant had
been aware of the need for funding for GSR testing since November 2018. The trial
court said that if defendant’s funding application had been denied, then the court would
have to assume that defendant “is not going to get the GSR tested [because] he’s had
time to do that or to ask for a hearing before the pay panel.”
Defendant again said, “I don’t comprehend what’s going on anymore. . . . I need
counsel.” The trial court noted that Brother and Uribe “had kept objecting to the
continuances of these trials.” Uribe’s counsel said he would rather have an attorney
representing defendant to avoid “the ills of a pro per [that] may splash over onto [his]
client,” therefore, Uribe did not object to a continuance. Brother’s counsel said, “I’m
still objecting.” Brother’s counsel explained that she filed a motion to sever because (1)
she was pursuing a different defense, and (2) Brother “ha[d] been refusing to waive time
since July.”
The trial court said, “[I]t’s just an untimely request at this point. I’m inclined to
deny it.” Defendant said he was unable to access the computer kiosk every day and that
he did not have 100 percent of his discovery, such as various videos and GSR tests.
Defendant said, “I don’t know what I’m doing, Your Honor. I can’t proceed any further
than now.” The court again noted that defendant had been part of the case for four
years. Defendant said that for four years he “just prayed and hoped to get a good
lawyer.” The trial court responded, “You had good lawyers when you decided to
represent yourself. Again, I don’t know what lawyer I could give you that would
15
change that perception.” Ms. Larson from the Public Defender’s Office was at the
hearing and said the office was available to be appointed, but Ms. Larson was not
familiar with the case.
The trial court denied defendant’s motion for a continuance, finding that
defendant failed to demonstrate good cause. Due to the attorneys being involved in
other trials, the trial court continued the trial from March 14 to March 18, 2020. There
was not an explicit denial of defendant’s request to withdraw his status as a self-
represented litigant.
On March 18, the trial court, with Judge John D. Molloy presiding, heard the
prosecutor’s motion to trail the trial in order to serve a witness. The trial court granted
the motion and trailed the trial to March 21. Defendant asked to withdraw his status as
a self-represented litigant. Defendant said he lacked knowledge of the law, could not
obtain funding for GSR testing, lacked videos that were part of the discovery, and did
not “know what [he’s] doing.” The trial court scheduled defendant’s motion for
reconsideration for March 21 before Judge Gunn.
At the hearing on the motion for reconsideration, the trial court, with Judge Gunn
presiding, said no documents had been filed with further information for the court.
Defendant said he was “stressed out,” “can’t do the motions,” and “need[s] help.” The
trial court said, “[Y]ou can’t wait until the time of trial to request counsel. It’s
untimely.” The trial court noted that the complaint was filed in 2014, and defendant
waited until two days before trial to terminate his self-represented status. The trial court
again said, “It’s untimely.”
16
Defendant said he still lacked video and audio recordings that were part of the
discovery, so he did not “have all of the discovery even if [he] wanted to go to trial.”
The trial court noted that defendant knew of these discovery issues in November 2018
and could have asked for an attorney at that point and the trial court “probably would
have honored [defendant’s] request at that time, because we didn’t have a trial date, or
we[re] going to continue the trial date.” The trial court concluded, “But, again, two
days before trial isn’t sufficient time. I have to conclude it’s delay tactics, I mean, I
really do.” The trial court concluded, “I don’t find good cause to appoint an attorney for
[defendant] at this late date.”
Later in the day on March 21, with Judge F. Paul Dickerson, III, presiding, the
parties announced they were ready for trial with the exception of defendant. Defendant
said, “I need counsel.” Defendant explained that he was missing video recordings,
needed transcriptions, and needed GSR tests. The trial court denied defendant’s request
to continue because Judge Gunn denied defendant’s request for counsel.
The three defendants and the court agreed that Brother’s and Uribe’s attorneys
would cross-examine witnesses before defendant in order to assist defendant in
understanding the cross-examination process. Also, prior to trial, the trial court ruled
that an objection by one defendant would be considered an objection by all three
defendants, so as to preserve any issues for appeal. Uribe’s attorney and Brother’s
attorney said they would work with defendant as they would work with any
codefendant’s counsel. Voir dire commenced on March 27, 2019. On April 3, 2019,
17
the jury was sworn, and the prosecution began presenting evidence. Uribe pled guilty
on April 4, 2019.
Brother’s attorney handled exhibits for defendant while defendant testified on
direct examination, and she helped defendant with exhibits during recesses. Brother’s
attorney also raised objections to some of the prosecutor’s questions during the cross-
examination of defendant. For example, when the prosecutor asked, “What was [Uribe]
doing behind the Cadillac?” Brother’s attorney said, “Objection. Speculation.”
DISCUSSION
A. PRETRIAL REQUEST FOR COUNSEL
Defendant contends the trial court erred by denying his pretrial request for
counsel, which resulted in defendant’s constitutional right to counsel being violated.
A defendant’s timely motion to be represented by counsel must be granted, but a
trial court may exercise its discretion when presented with a defendant’s untimely
motion. (People v. Lawrence (2009) 46 Cal.4th 186, 192; see also People v. Hill (1983)
148 Cal.App.3d 744, 756 [a motion for self-representation made on the eve of trial is
untimely].) In the body of defendant’s appellate argument, he applies the law for an
untimely motion. (People v. Gallego (1990) 52 Cal.3d 115, 164 [“factors a trial court
should consider when faced with a midtrial request to change from counsel
representation to self-representation”].) We infer from defendant’s reliance on the law
related to untimely motions that he concedes his motion was untimely and is asserting
the trial court erred by not granting the untimely motion.
18
In exercising its discretion regarding an untimely motion to return to
representation by counsel, the trial court must evaluate the totality of the circumstances
surrounding the motion. (People v. Lawley (2002) 27 Cal.4th 102, 149; People v. Hill,
supra, 148 Cal.App.3d at p. 756.) Factors for the court to consider include
“(1) defendant’s prior history in the substitution of counsel and the desire to change
from self-representation to counsel-representation, (2) the reasons set forth for the
request, (3) the length and stage of the trial proceedings, (4) disruption or delay which
reasonably might be expected to ensue from the granting of such motion, and (5) the
likelihood of defendant’s effectiveness in defending against the charges if required to
continue to act as his own attorney.” (People v. Gallego, supra, 52 Cal.3d at p. 164.)
We apply the abuse of discretion standard of review. (People v. Lawley, supra, 27
Cal.4th at p. 149.)
Defendant had four attorneys prior to becoming self-represented. Defendant had
one attorney from the Public Defender’s Office, one attorney from the conflicts panel,
and two privately retained attorneys. At the hearing on defendant’s request for counsel,
defendant said, “In four years, Your Honor, I—I just prayed and hoped to get a good
lawyer, you know.” The trial court responded, “You had good lawyers when you
decided to represent yourself. Again, I don’t know what lawyer I could give you that
would change that perception.” Given that defendant had four lawyers, and the trial
court believed the lawyers were “good lawyers,” the trial court could reasonably
conclude that returning defendant to counsel-represented status would likely not resolve
defendant’s concerns.
19
The second factor is the reasons for the request. At the hearing on defendant’s
request to once again be represented by counsel, defendant said he needed counsel
because he could no longer “comprehend everything that’s going on.” Defendant
explained that his efforts to represent himself had failed in that he failed to secure
funding for GSR testing and failed to review the videos that were part of the discovery.
As to defendant’s ability to understand the legal proceedings, the trial court said,
“I’m sure that you’re very familiar with the case. You’re an intelligent person, from
what I can tell here in court.” The trial court also said, “I think [defendant] is capable of
representing himself.” The trial court’s comments indicate the court rejected
defendant’s alleged lack of understanding because defendant was a smart person who
understood the issues in the case. The trial court’s comments are supported by the
record, in that defendant filed two successful motions for continuances based upon his
understanding of the case. The motions indicate that defendant understood the legal
proceedings and the issues in the case.
As to the GSR testing, the trial court said, “I’m going to have to assume that if
there is no funding for it, then [defendant] is not going to get the GSR tested.” We note
that the record indicates Ms. Anwar obtained funding for GSR testing on March 1,
2018. Brother’s attorney explained that when defendant resubmitted his funding request
as a self-represented litigant, “the first time it got denied, they misunderstood and
thought he wanted funding to actually test people, roll people’s fingerprints.”
Defendant said he tried to obtain GSR funding and “[b]oth times I’ve been denied.”
Defendant did not explain why his second request was denied, e.g., if it was due to a
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lack of funding or another misunderstanding. The trial court concluded, “[H]e’s had
time . . . to ask for a hearing before the pay panel.”
The trial court’s comment reflects that the failure to secure GSR funding was not
due to defendant’s lack of counsel, rather, it was due to either a lack of available
funding or defendant’s failure to follow through with the process. Defendant failed to
explain what an attorney would have done differently than him to secure funding. For
example, defendant failed to explain what Ms. Anwar did to obtain funding that was
different from defendant’s applications for funding, and why defendant was unable to
simply copy Ms. Anwar’s application if the problem was due to a misunderstanding
rather than a lack of funds. Given the lack of information in the record, the trial court
could reasonably conclude that involvement of counsel would not have changed the
issue of funding for GSR testing.
In regard to the videos, the trial court said, “[A]ny minor discovery that you still
may need to go over can be accomplished in the next few days,” and “[Y]ou’ll have a
few days to at least review the videos that you were mentioning.” Defendant asserted
that “[I]t takes time to get to the kiosk machine. I’m not able to get to the kiosk every
day, Your Honor.”4 The trial court’s comments indicate a conclusion that defendant
would be able to watch the videos in the days prior to trial, and thus did not necessitate
the appointment of counsel. The trial court’s conclusion was reasonable, in that the
4 We infer defendant was referring to the jail’s law library computer kiosks.
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attorneys for the other parties could show defendant the videos during the pretrial
hearings if defendant was unable to watch them in the jail.
For example, the prosecutor said at the hearing on defendant’s motion for
reconsideration, “The surveillance video and the street cam, those were provided long
ago. The investigator did ask me to reformat them, because they wouldn’t play on
whatever systems are available in the jail. And I did that weeks ago, and she picked
them up. Those are things that he can see when we’re in court. I can bring my
computer and show him the videos as we’re there. So those are things that we can cure
if those are the actual issues.
The third factor is the length and stage of the proceedings. The trial court said,
“This is a—to put it mildly, this is a four-year-old case. I think that’s a conservative
estimate. It’s probably older than four years, certainly, when events took place.” The
trial court noted, “The trial is in two days.” The record supports the trial court’s
timeline. The complaint was filed on June 23, 2014. Defendant made his request for
counsel on March 12, 2019, and trial was scheduled for March 14, 2019. Thus, at the
time defendant made his motion, trial was two days away and the case was over four
and one-half years old.
The fourth factor is the disruption or delay which reasonably might be expected
to ensue from the granting of such motion. Defendant did not specify in his motion if
he wanted a newly retained private attorney, one of the two previously retained private
attorneys, Mr. Comings from the conflicts panel, or a different attorney from the
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conflicts panel.5 Defendant did mention that for four years he “hoped to get a good
lawyer,” so we infer that defendant did not want any of his prior attorneys, who were
familiar with the case. Thus, defendant wanted a new attorney who would need to
become familiar with the case. The trial court noted that the case was not “necessarily a
complex case, but, . . . there was a lot of discovery.”
Defendant’s investigator’s report supports the trial court’s remark, in that the
investigator detailed some of the discovery as including 33 police reports, which totaled
274 pages; two sets of transcripts, which were 134 pages; 11 audio and video
recordings; and a flash drive from counsel containing 34 folders of “audio, video,
photos, multiple cellebrite records, [and] multiple interviews.” Given the amount of
discovery, if a new attorney were appointed or retained, there would necessarily be a
delay in the trial because the attorney would need time to process the discovery.
Defendant contends the trial court erred by not asking Ms. Larson, the deputy
public defender who said the Public Defender’s Office was available for appointment,
how long a delay the Public Defender’s Office would need to prepare the case. The trial
court checked if Ms. Larson was familiar with the case, and Ms. Larson said she was
not familiar with the case. Given Ms. Larson’s lack of familiarity with the case, it
would not have been reasonable to ask her how long it would take a public defender to
prepare the case. Moreover, the public defender declared a conflict in July 2014 and
was relieved as defendant’s counsel.
5 On April 16, 2019, defendant renewed his motion for counsel in the midst of
trial and requested “Virginia Blumenthal from the conflicts panel.”
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The fifth factor is the likelihood of defendant’s effectiveness in defending against
the charges if required to continue to act as his own attorney. Brother’s attorney told
the trial court that defendant had “a pretty good self-defense claim,” which would
involve the testimony of three prosecution witnesses—a civilian witness who saw one
of the victims throw a firearm in the bushes, a law enforcement officer who recovered
the firearm from the bushes, and a law enforcement officer who found a firearm in the
Cadillac.
Defendant’s defense was fairly simple in that it essentially involved asking
witnesses about firearms in the Cadillac and the bushes. Defendant had successfully
argued motions to continue the trial, and the trial court noted that defendant was
intelligent. Given that defendant was capable of arguing motions, the trial court could
reasonably conclude that defendant would likely be effective in asking witnesses about
firearms in the Cadillac and the bushes.
Defendant asserts that he was unable to effectively defend himself because he
“was inexplicably unable to obtain approval” of his application for funding for GSR
testing when Ms. Anwar was able to obtain such funding. Brother’s attorney told the
trial court that, when defendant became self-represented, defendant was given a copy of
Ms. Anwar’s funding application and the pay panel’s order granting the funding.
Defendant’s investigator declared that defendant successfully applied for funding for
photocopying and flash drives. Thus, defendant (1) had a copy of a successful
application for funding for GSR testing in his possession, and (2) knew how to file a
successful funding application for photocopies and flash drives. Given the record, the
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trial court could reasonably conclude that defendant did not need counsel to apply for
funding for GSR testing.
In sum, (1) defendant had four attorneys prior to becoming self-represented;
(2) defendant’s reasons for wanting counsel did not demonstrate a need for counsel;
(3) the case was over four years old, and defendant’s motion was made two days before
trial; (4) if defendant’s motion were granted, then a delay in the proceedings would
occur while counsel became familiar with the case; and (5) defendant was likely to be
effective in defending himself. The trial court’s denial of defendant’s motion was
within the bounds of reason; therefore, we conclude the trial court did not abuse its
discretion. Consequently, we conclude defendant’s constitutional right to counsel was
not violated.
Defendant contends the trial court erred because “[t]he sole reason the court
denied the request was because it came several days before trial in a case that had been
pending for several years.” Immediately after defendant made his oral motion, the trial
court said, “The trial is in two days, [defendant]. Frankly, that request is untimely.”
Then, as it appeared the hearing was concluding, the trial court said, “And, again, it’s
just an untimely request at this point. I’m inclined to deny it.” The trial court’s
comments cannot be read in isolation. When hearing defendant’s motion, the trial court
made comments that relate to all five of the factors, as detailed ante. Thus, the record
shows that the trial court considered more than the timeliness of the motion when
exercising its discretion.
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B. POSTVERDICT MOTION FOR COUNSEL
1. PROCEDURAL HISTORY
Defendant made his initial pretrial motion for counsel on March 12, 2019.
Defendant renewed that motion at nearly every court appearance thereafter. When
defendant renewed the motion on March 27, 2019, and several times thereafter, the trial
court said that it would consider the renewed motion to be a continuing objection to
defendant having to represent himself and that the objection was overruled or the
motion was denied.
On May 13, 2019, while the jury was deliberating, a discussion was held
regarding the prior conviction allegations. Defendant chose to have a court trial
regarding the prior strike conviction and prior serious felony conviction. After the jury
returned its verdicts, the trial court scheduled the court trial for May 31. The court said
that, after the prior conviction allegations were decided, the court would refer the matter
to the Probation Department for a probation report. Defendant asked for an attorney.
The trial court denied the motion but again said it would be an ongoing objection.
At the court trial on May 31, 2019, the trial court found the prior conviction
allegations to be true. The court scheduled the sentencing hearing for August 16.
Defendant reminded the trial court that he wanted to be represented by counsel.
Defendant explained that he had been making motions for attorney representation “from
day one before I started trial,” but the motions had been denied. Defendant said he
lacked knowledge of the law and did not “know what [he was] doing.” Prior to the
sentencing hearing, defendant filed a motion requesting the trial court strike defendant’s
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prior strike conviction (a Romero6 motion). At the sentencing hearing, the trial court
denied defendant’s Romero motion.
2. ANALYSIS
Defendant contends the trial court erred by denying his motion for counsel to
represent him at the trial on the prior conviction allegations and at the sentencing
hearing.
“[A]ppellate courts have concluded that a motion for self-representation made
after the jury returns its verdict on a primary offense but prior to commencement of a
bifurcated trial on prior convictions is untimely and subject to the trial court’s discretion
because proceedings on the priors are merely part of the trial. [Citations.] In each of
these [appellate] decisions, the courts concluded that the motions were actually made
during trial, even though they were brought prior to the start of a second phase or stage
of the trial.” (People v. Miller (2007) 153 Cal.App.4th 1015, 1023.)
As to defendant’s motion for counsel for the bench trial on the priors, our
analysis ante applies because the bench trial was not a separate proceeding. In other
words, the analysis ante regarding defendant’s motion for counsel for the trial
encompasses the substantive charges and the prior conviction allegations. Accordingly,
we will not set forth a separate analysis concerning the bifurcated bench trial on the
prior conviction allegations.
6 People v. Romero (1996) 13 Cal.4th 497.
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By contrast, sentencing “is a proceeding separate and distinct from the trial.”
(People v. Miller, supra, 153 Cal.App.4th at pp. 1023-1024.) The concerns about delay
that can accompany a motion for representation by counsel made during trial do “not
apply to sentencing hearings, which are separate proceedings from the trial and occur
after the trial has been completed. This is not to say that every request for [counsel] at
sentencing will be timely. Much as a request [for counsel] at trial must be made a
reasonable time before trial commences, the request for [counsel] at sentencing must be
made within a reasonable time prior to commencement of the sentencing hearing.” (Id.
at p. 1024.) When an unequivocal motion for representation by counsel is made a
reasonable time prior to sentencing, the motion must be granted—it is not a
discretionary decision. (Id. at p. 1024.)
On May 14, 2019, after the jury returned its verdicts, the trial court set the bench
trial for May 31 and explained that, on May 31, it would refer the matter to the
Probation Department for a probation report. The trial court said it would not yet
schedule the sentencing hearing. The following exchange then occurred:
“[Defendant]: That’s for sentencing? [(presumably referring to the probation
report)]
“The Court: Okay.
“[Defendant]: Can I ask for an attorney right now?
“The Court: You can and that—and that request is denied, but it is continued
okay.
“[Defendant]: Thank you, your Honor.”
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Because defendant asked a question about sentencing immediately before asking
for an attorney one can reasonably infer that defendant’s May 14 motion for an attorney
was meant to include the bench trial and the sentencing hearing. In regard to the
sentencing hearing, defendant’s motion was timely because the sentencing hearing had
not been scheduled at that point and a probation report had not yet been requested.
Defendant’s motion was also unequivocal because he had been asking for counsel for
two months. Because the motion was timely and unequivocal, the trial court was
required to grant the motion. (People v. Miller, supra, 153 Cal.App.4th at p. 1024.)
Therefore, the trial court erred by denying defendant’s motion for counsel for the
sentencing hearing. The error is reversible per se, which means defendant’s sentence
must be reversed. (Ibid., citing People v. Welch (1999) 20 Cal.4th 701, 729 [“Faretta[7]
error is reversible per se.”].)
C. FIREARM ENHANCEMENT
Defendant contends the two firearm enhancements (§ 12022.53, subd. (d)) must
be stricken because the enhancement does not apply to attempted voluntary
manslaughter. The People concede defendant is correct. Former section 12022.53,
subdivisions (a) and (d), list all of the substantive offenses to which the firearm
enhancement can be attached, and attempted voluntary manslaughter is not on the lists.
Accordingly, we will reverse the two firearm enhancements (§ 12022.53, subd. (d)).
7 Faretta v. California (1975) 422 U.S. 806.
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D. JAIL COSTS
Defendant contends the trial court erred by suspending an order for defendant to
pay jail costs because such costs can only be imposed as a term of probation or a
conditional sentence. (§ 1203.1c, subd. (a).) The People concede defendant is correct.
We have concluded ante that defendant’s entire sentence must be reversed, which
means this issue is moot in that we can provide defendant no further relief. (People v.
Echavarria (2017) 13 Cal.App.5th 1255, 1272.) Accordingly, we will not address the
merits of this issue.
DISPOSITION
The section 12022.53, subdivisions (d) and (e), enhancements in Counts 1 and 2
are reversed. The denial of defendant’s motion for counsel for the sentencing hearing is
reversed. The sentence is reversed, which includes the ruling on the Romero motion.
The trial court is directed to grant defendant’s motion for representation by counsel for
the sentencing hearing and resentence defendant. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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