People v. Corona CA4/2 ( 2015 )

Filed 9/29/15 P. v. Corona 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E061580
v. (Super.Ct.No. FWV1200093)
JESUS CORONA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald L. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Susan
Miller, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant and appellant, Jesus Corona, appeals from his conviction of three
counts of robbery (Pen. Code, § 211)1 and three counts of assault with a semiautomatic
firearm (§ 245, subd. (b)), along with true findings on the allegation as to the robbery
counts that a principal personally used a firearm (§ 12022.53, subd. (b)), on the allegation
as to the assault counts that defendant personally used a firearm (§ 12022.5, subd. (a)),
and on the prior conviction allegation (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-
(d)).
Defendant contends the trial court erred in revoking his right to represent himself
and in failing to properly evaluate his repeated requests for replacement of his appointed
counsel.2
We find no error, and we affirm the judgment.
II. FACTS AND PROCEDURAL BACKGROUND
On appeal, defendant challenges only the denial of his right to represent himself
and his requests to replace appointed counsel. We therefore set forth the facts of the
underlying crimes summarily.
On January 8, 2012, defendant entered an Auto Zone store in Rancho Cucamonga
near closing time. After the last customer left, defendant approached the register, pulled
1 All further statutory references are to the Penal Code unless otherwise indicated.
2Defendant initially contended, and the People conceded, that he was entitled to
an additional five days of custody credit. The trial court has since corrected the error and
issued an amended abstract of judgment.
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out a semiautomatic gun, and demanded money from three store employees. When
defendant was arrested shortly after he left the store, deputies found an Auto Zone plastic
bag containing approximately $1,300 in cash nearby, and defendant was carrying a
loaded semiautomatic handgun.
The jury found defendant guilty of three counts of robbery (§ 211) and three
counts of assault with a semiautomatic firearm (§ 245, subd. (b)), and found true the
allegations as to the robbery counts that a principal personally used a firearm
(§ 12022.53, subd. (b)), and as to the assault counts that defendant personally used a
firearm (§ 12022.5, subd. (a)). The trial court found true a prior conviction allegation.
(§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced
defendant to a total term of 51 years in prison.
Additional facts are set forth in the discussion of the issues to which they pertain.
A. Self-representation
Defendant contends the trial court erred in revoking his right to represent himself.
1. Additional Background
In September 2012, defendant had two cases pending: FWV1200093 (the current
case), which was designated the lead case, and FWV1200156, which was designated the
trailing case. Before the preliminary hearing, defendant requested propria persona status
in both cases. The trial court stated that defendant had filled out the appropriate
paperwork and advised defendant of the consequences of acting as his own attorney.
Defendant informed the court that he had dropped out of school in the 10th grade, and he
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acknowledged that he understood the consequences of representing himself. The trial
court granted the request.
At the next reported appearance on November 15, 2012, M.J. De la Pena appeared
for defendant and informed the court that defendant had retained her to represent him in
both cases, but that he wished to remain as cocounsel so he could retain law library
privileges. The trial court stated that defendant would either act in propria persona or
not. Defendant informed the court that he had hired the De la Pena firm, and they could
speak for him. The trial court revoked defendant’s propria persona status, and the De la
Pena firm became counsel of record.
On April 22, 2013, Ms. De la Pena informed the court that defendant again wanted
to go in propria persona in both cases. The trial court stated that it was “seeing a
disturbing pattern,” and that it could deny propria persona status if it appeared defendant
had delayed the process. The court stated that it would not entertain the Faretta3 motion
that day, but that defendant could bring the motion in superior court. The court
confirmed the preliminary hearing for the following Wednesday on the lead case and
repeated its concern that defendant’s Faretta motion was a delay tactic.
Defendant acted as his own attorney at the preliminary hearing on the lead case;
however, no discussion regarding the trial court’s grant of propria persona status appears
in the record. The De la Pena firm continued to represent defendant in the trailing case.
3 Faretta v. California (1975) 422 U.S. 806 (Faretta).
4
At a hearing on May 31, 2013, the court stated it had received a petition from
defendant for discovery in the lead case. The court found that the document did not
comply with the requirements for bringing a discovery motion, and the court denied the
petition without prejudice. The court explained that defendant had to follow specific
rules to bring a motion for discovery, and the court would not consider a motion that did
not comply with those rules.
At a hearing on July 26, 2013, for pretrial and motions, the deputy district attorney
stated he had received a document labeled as an informal discovery request. The deputy
district attorney represented that all discovery obligations had been complied with. The
court stated it had read defendant’s document and did not know what defendant was
asking for. When the court asked defendant to explain his request, defendant repeatedly
demanded that the trial court state its full name and failed to respond to the court’s
questions about his request. The trial court stated it would deny defendant’s motion
because it made no sense. Defendant continued to insist that the trial court state its full
name for the record.
At a pretrial hearing on December 20, 2013, defendant was still acting in propria
persona. He filed a document titled “letter Rogatory . . . opportunity to exhaust
administrative remedy statement of interest of admiralty . . . .” The trial court stated it
had attempted to read the document but was unsure what defendant was asking for, and
asked defendant to explain. Defendant asked: “What’s the claim filed against the legal
entity?” The following colloquy ensued:
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“[Defendant]: What’s the claim filed against the legal entity? Was the claimed
[sic] filed against a legal entity?
“THE COURT: Whether or not the Information was lawfully filed? Is that what
you’re asking?
“[Defendant]: Yes. The legal entity.
“THE COURT: It is lawfully filed at this point. It’s within the procedures of the
criminal law to file anything you want to. In terms of those procedures to change the
legality of the file—
“[Defendant]: That still doesn’t answer my question.
“THE COURT: This document to exhaust administrative remedies, we’re not in
administrative court, so this document is really nonsense.
“[Defendant]: What jurisdiction are we under?
“THE COURT: I’m sorry?
“[Defendant]: What jurisdiction are we under?
“THE COURT: I have jurisdiction as a judge of Superior Court. We’ve gone
through this before. I’m not going to argue it with you. You know, we need to move
forward on this matter. I’m beginning to wonder, sir, whether or not you do really
understand what’s going on.
“[Defendant]: I just asked you a question. You didn’t answer. What—what
jurisdiction are we under?
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“THE COURT: Under the jurisdiction of the state of California and I’ve told you
that before.
“[Defendant]: You’re not answering my question.
“THE COURT: I’m not he[re] to answer your questions. You’re here to tell me if
you’re ready for trial.
“[Defendant]: Are you dishonoring my statement of interest?
“THE COURT: I’m telling you I’m here today to find out if this matter is ready
for trial.
“[Defendant]: I just asked you a question.
“THE COURT: You have—you haven’t answered my question. I told you I’m
not going to answer your questions unless they have some legal relevancy to this case.
You tell me, are you ready for trial in this matter?
“[Defendant]: Are you referring to a defendant?
“THE COURT: I’m referring to you, sir.
“[Defendant]: I’m asking are you referring to a defendant?
“THE COURT: I’m referring to—
“[Defendant]: Do you have the birth certificate of the defendant?
“THE COURT: I’m referring to—
“[Defendant]: I’m not a defendant, ma’am.
“THE COURT: All right. I am prepared to find in this matter, [defendant], you
do not have the ability to represent yourself based on your refusal to talk about this case
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in a manner that makes sense and I will appoint counsel in this matter to represent
you. . . .”
2. Standard of Review
A ruling revoking a defendant’s propria persona status is reviewed for an abuse of
discretion and “‘will not be disturbed in the absence of a strong showing of clear abuse.’”
(People v. Welch (1999) 20 Cal. 4th 701, 735.)
3. Analysis
A defendant who represents himself must be willing and able “to abide by rules of
procedure and courtroom protocol.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.)
The trial court may properly revoke a defendant’s propria persona status if the defendant
“‘deliberately engages in serious and obstructionist misconduct’” (Faretta, supra, 422
U.S. at p. 834) “that seriously threatens the core integrity of the trial” (People v. Carson
(2005) 35 Cal. 4th 1, 6).
The trial court stated that defendant “d[id] not have the ability to represent
[him]self based on [his] refusal to talk about the case in a manner that ma[d]e sense
. . . .” Defendant contends the trial court found either that he lacked the ability to act as
his own counsel or that he was deliberately refusing to make sense.
Defendant argues that if the court found he lacked the ability, the ruling was in
error because there was no showing he was mentally incompetent. In People v. Johnson
(2012) 53 Cal. 4th 519, the court stated that the standard for denying the right to self-
representation is “whether the defendant suffers from a severe mental illness to the point
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where he or she cannot carry out the basic tasks needed to present the defense without the
help of counsel.” (Id. at p. 530.) Although the trial court stated that defendant “d[id] not
have the ability” to represent himself, the trial court further explained that such inability
was based on defendant’s refusal to talk sensibly about his case. Thus, we interpret the
trial court’s statement to mean that the defendant was deliberately engaging in
obstructionist conduct. (See People v. Butler, supra, 47 Cal.4th at p. 825.)
Defendant argues that if it found defendant was engaging in obstructionist
conduct, the trial court should have considered alternative sanctions before revoking his
right to self-representation. In People v. Carson (2005) 35 Cal. 4th 1, the defendant’s out-
of-court conduct led the trial court to revoke his right to self-representation. Our
Supreme Court held that the trial court should have considered “the availability and
suitability of alternative sanctions.” (Id. at p. 10.) In our view, Carson is
distinguishable—in that case, the trial court revoked Faretta rights as a sanction for the
defendant’s out-of-court conduct. Here, in contrast, the trial court revoked self-
representation on the basis that defendant was, in effect, deliberately engaging in
obstructionist conduct.
Defendant suggests that the trial court here could have offered the alternative
sanction of appointing advisory counsel to present motions while allowing him to act as
his own attorney during the evidentiary portion of the trial. However, the trial court had
previously denied defendant’s request for advisory or joint counsel. To offer that
alternative after finding defendant had deliberately engaged in obstructionist conduct
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would be to reward defendant for his own bad behavior. We find no abuse of discretion
in the trial court’s order revoking defendant’s self-representation.
B. Request to Replace Appointed Counsel
Defendant contends the trial court erred in failing to properly evaluate his repeated
requests for replacement of his appointed counsel because the trial court did not assess
whether an irreconcilable conflict with counsel existed.
1. Additional Background
At the Marsden4 hearing, the trial court asked defendant to state his reasons for
requesting a change of counsel. Defendant stated: “We have a conflict of interest. I
gave her a piece of paper to accept charges for value. She said you’re not paying your
way out of this. You’re going to prison. Then she tells me I’m incompetent. Also, I tell
her what to do, she don’t want to do it.” The court stated it needed more information, and
defendant responded: “The issue is she—I asked her to do things, she won’t do it. She
said I was incompetent. She is representing me telling me I’m incompetent. So then we
have a report saying I was competent. She goes no she won’t do it.”
Defendant’s counsel told the court she had more than 32 years of criminal defense
experience. She denied telling defendant he was going to prison. He had given her a
document to file, but she did not know what it meant. She had shown the document to
the court and the prosecutor, and they also did not know what it meant. She stated
defendant was not talking to her and was reporting her to the State Bar. The trial court
4 People v. Marsden (1970) 2 Cal. 3d 118 (Marsden).
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asked if a report to the State Bar would affect her ability to represent him, and she
responded she was not concerned about it. She had asked to have his competency
evaluated because she had observed his prior conduct in court, and she was “fine with”
the report indicating he was competent. She believed his failure to communicate was
willful.
The trial court found that defendant’s noncooperation was willful and denied the
Marsden motion. Defendant repeated to the court that he and his attorney had a conflict
of interest. “She’s not doing what I ask. I told her to accept the charge for value in
consideration. You say you understand what a UCC-1 is?” The trial court stated it
would not engage in a conversation with defendant and told defendant to talk to his
counsel.
2. Analysis
Under Marsden, a defendant must show that appointed counsel is not providing
competent representation or that there is an irreconcilable conflict such that ineffective
representation is likely to result. (People v. Dickey (2005) 35 Cal. 4th 884, 917.) The
trial court must permit the defendant to explain his request for replacement of counsel
and to relate specific instances or purported inadequate performance. (Marsden, supra, 2
Cal.3d at p. 124.)
“Once a defendant is afforded an opportunity to state his or her reasons for seeking
to discharge an appointed attorney, the decision whether or not to grant a motion for
substitution of counsel lies within the discretion of the trial judge. The court does not
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abuse its discretion in denying a Marsden motion ‘“unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel.”’ [Citations.] Substantial impairment of the right to counsel can occur when the
appointed counsel is providing inadequate representation or when ‘the defendant and the
attorney have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citation].’ [Citations.]” (People v. Clark (2011) 52
Cal. 4th 856, 912.) However, “[a] defendant ‘cannot simply refuse to cooperate with his
appointed attorney and thereby compel the court to remove that attorney.’ [Citations.]”
(Id. at p. 918.) A defendant does not have a “constitutional right to an attorney who
would conduct the defense of the case in accord with [his] whims . . . . Nor does a
disagreement between defendant and appointed counsel concerning trial tactics
necessarily compel the appointment of another attorney.” (People v. Lucky (1988) 45
Cal. 3d 259, 281-282.) A conflict between a defendant and counsel will not be considered
irreconcilable “‘if the defendant has not made a sustained good faith effort to work out
any disagreements with counsel and has not given counsel a fair opportunity to
demonstrate trustworthiness.’” (People v. Barnett (1998) 17 Cal. 4th 1044, 1086.)5
Here, the trial court asked defendant to explain his request. Defendant indicated
he wanted his counsel to file motions that counsel considered to be meritless. Defendant
argues that he wanted his counsel to arrange a monetary settlement of the case, and the
5 We note that the trial court had relieved defendant’s previous counsel based on
that counsel’s representation that the attorney-client relationship was irretrievably broken
and that defendant did not want counsel’s advice.
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breakdown in communication resulted from her failure to communicate his offer to the
prosecutor. However, counsel told the court defendant had given her a document to file,
but she did not know what it meant. She had shown the document to the court and the
prosecutor, and they also did not know what it meant.
“A defendant does not have the right to present a defense of his own choosing, but
merely the right to an adequate and competent defense. [Citation.] Tactical
disagreements between the defendant and his attorney do not by themselves constitute an
‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional
counsel, that counsel is “captain of the ship” and can make all but a few fundamental
decisions for the defendant.’” (People v. Welch (1999) 20 Cal. 4th 701, 728-729.)
The trial court specifically found that any failure of communication between
defendant and his attorney was due to defendant’s willful noncooperation. The trial court
did not abuse its discretion in denying the Marsden request.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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