People v. Davis CA2/3 ( 2015 )

Filed 10/2/15 P. v. Davis CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B252614
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA370192)
v.
TONCE DAVIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Clifford L. Klein, Judge. Affirmed as modified.
Joseph S. Klapach, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jason Tran and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Tonce Davis appeals his convictions for three counts of
grand theft. He contends: (1) the evidence was insufficient to prove he acted as an aider
and abettor; (2) conviction on only one of the three theft counts was proper; and (3) the
trial court erred by twice terminating his self-representation privileges (Faretta v.
California (1975) 422 U.S. 806 (Faretta)). Davis’s second contention is meritorious, and
we order his three theft convictions consolidated into one count. In all other respects, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. People’s evidence
(i) The thefts
In September 2008, truck driver Byron Jarrett picked up a load of Cricut
scrapbook printers from the Provocraft company in Utah for transport to Riverside,
California. Jarrett owned his 18-wheeler truck, which was valued at $60,000. He leased
or borrowed a 2004 Hyundai trailer, which was valued at approximately $14,000, from
B&K Freightliners. The cargo consisted of 15 shrink-wrapped pallets, loaded with a total
of 180 boxes. Each box contained one printer, valued between $99 to $199.
On September 28, 2008, while en route, Jarrett stopped in Los Angeles, where he
lived, because the load was not due to be delivered until the next morning. He parked the
rig on the 5200 block of Crenshaw Boulevard. He locked the doors, rolled up the
windows, and padlocked the trailer. The padlocks were heavy duty locks that could be
cut only with bolt cutters.
That evening, driving his Escalade, he went to check on the truck. As he
approached, he saw his big rig being driven away by Alvin Johnson.1 A white cargo van,
which had no license plate, pulled onto the road with the truck and followed it. Davis
was driving the van; a passenger sat in the van’s front passenger seat. The big rig moved
1 Johnson was apparently tried separately and is not a party to this appeal.
2
slowly, starting at approximately three miles per hour, and headed southbound on
Crenshaw. Jarrett called 911 and followed the truck and the van. A Los Angeles Police
Department (L.A.P.D.) helicopter piloted by Officer Gerardo Camporredondo responded
to the 911 call, as did L.A.P.D. ground units.
The big rig made a last-minute left turn onto Slauson Avenue. As it changed lanes
to make the turn, the white van pulled alongside Jarrett. Davis looked “dead at” Jarrett as
if to see what he was doing and gave him a “mean” or intimidating look. The van then
dropped behind Jarrett’s vehicle and began following him.
Jarrett, who did not want the persons in the truck or van to know he was following
them, continued southbound on Crenshaw. However, the van followed him. At one
point, Jarrett momentarily stopped and spoke with a pedestrian with whom he was
acquainted; he wanted to alert “somebody what was going on.” While he was stopped,
the van pulled up to Jarrett “real slow.” As it passed by, the van’s occupants looked at
Jarrett again. The van turned left onto 8th Avenue. Jarrett got back on Crenshaw and
returned to Slauson, where he caught up with his truck. The white van was no longer in
sight. When the truck reached Western, it made a right turn, as did Jarrett. On Western,
police officers were waiting. They stopped the truck and ordered Johnson out. The white
van turned southbound onto Western, but immediately made a U-turn and headed
towards the freeway.
From the helicopter, Officer Camporredondo saw the white van on Slauson,
travelling at a speed of 35 to 45 miles per hour. A box fell from the top of the van onto
the street. Officers stopped the van at Slauson and Figueroa. Sergeant Steven Reyes
recovered the box and transported it to the crime scene.
(ii) The investigation
Shortly after police stopped the truck, they transported Jarrett to Slauson and
Figueroa, where the white van was stopped. The officers showed Jarrett the box, which
he identified as being one of the printers from his cargo. The box was unopened and
undamaged. Jarrett identified the van and Davis as the driver.
3
The van was searched one or two days after the incident at the police garage. It
contained, among other things, walkie talkies, a lug wrench, a jack, a bolt cutter capable
of cutting heavy duty padlocks, and a pair of gloves. As to the truck, the ignition had
been removed and one of the cab’s windows was broken. The trailer’s padlocks were
missing and the shrink wrap had been removed from one of the pallets. That pallet was
missing a box.
(iii) Expert testimony
L.A.P.D. Detective Marc Zavala, the investigating officer and an expert in
commercial vehicle and cargo thefts, testified as follows. A “follow car” is sometimes
used in cargo thefts to transport the perpetrators to the target vehicle, trail the stolen
truck, scout the area, and act as a lookout. Persons in a follow car will alert the thieves if
police are in the area or if someone appears to be watching them. Thieves typically
remove a sample of the cargo and place it in another vehicle, allowing them to assess the
cargo and immediately begin soliciting potential buyers. When presented with a
hypothetical based on the evidence presented in the case, Zavala opined that the white
van was a follow car for the stolen truck. Zavala’s opinion was based on the “mean look”
Davis gave Jarrett, the fact the incident occurred in the early hours of the morning, and
the fact a box from the stolen truck was found in the van.
b. Defense evidence
As relevant here, the defense primarily sought to establish that the prosecution
witnesses’ testimony regarding the box that fell from the van was contradictory.
2. Procedure
Trial was by jury. Davis was convicted of grand theft of the truck (count 1,
Pen. Code, § 487, subd. (d)(1));2 grand theft of personal property, the Hyundai trailer
(count 2, § 484, subd. (a)); and grand theft of the trailer’s cargo, the printers (count 3,
2 All further undesignated statutory references are to the Penal Code.
4
§ 487h, subd. (a)).3 The jury additionally found Davis took property valued at over
$65,000 (§ 12022.6, subd. (a)(1).)4 In a bifurcated proceeding, the trial court found
Davis had suffered a prior “strike” conviction for first degree burglary in 1994. It denied
Davis’s motion to strike a prior conviction allegation pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 and sentenced him to seven years in prison,
consisting of the upper term of three years on count 1, doubled to six years pursuant to
the “Three Strikes” law, plus one year for the property value enhancement. The court
stayed sentence on the other two counts pursuant to section 654. It imposed a restitution
fine, a suspended parole restitution fine, a court operations assessment, a criminal
conviction assessment, and a crime prevention fee. Davis appeals.
DISCUSSION
1. The evidence was sufficient to prove Davis was an aider and abettor.
Davis contends the evidence was insufficient to prove he acted as an aider and
abettor to the thefts. He avers there is no evidence he worked in concert with or provided
assistance to Johnson, and no witness “testified as to any affirmative act” he undertook to
assist in the crimes. We disagree.
When determining whether the evidence was sufficient to sustain a criminal
conviction, “we review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence––that is, evidence that is
reasonable, credible and of solid value––from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003)
30 Cal.4th 43, 66; People v. Houston (2012) 54 Cal.4th 1186, 1215.) We presume in
3 Davis was originally charged with three additional counts of receiving stolen
property. Upon the People’s motion, these counts were dismissed pursuant to section
1118.1
4 The verdict form contains a typographical error. It states the jury found Davis
stole property of a value exceeding $65,000 within the meaning of section 12022.6,
subdivision (a)(2). The proper subdivision was (a)(1). The information and the abstract
of judgment contain the correct subdivision.
5
support of the judgment the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is
not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 331.) The same standard of review applies to cases in which the
prosecution relies primarily on circumstantial evidence. (People v. Brown (2014)
59 Cal.4th 86, 106.)
A person aids and abets when he or she, (i) with knowledge of the unlawful
purpose of the perpetrator, (ii) with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages
or instigates its commission. (People v. Smith (2014) 60 Cal.4th 603, 611; People v.
Delgado (2013) 56 Cal.4th 480, 486.) Among the factors that may be taken into account
are presence at the crime scene, companionship, and conduct before and after the offense.
(In re Juan G. (2003) 112 Cal.App.4th 1, 5; People v. Battle (2011) 198 Cal.App.4th 50,
84-85.) Mere presence at the scene of a crime, knowledge of the perpetrator’s criminal
purpose, or the failure to prevent the crime do not amount to aiding and abetting,
although these factors may be taken into account in determining criminal responsibility.
(People v. Garcia (2008) 168 Cal.App.4th 261, 272-273; People v. Nguyen (1993)
21 Cal.App.4th 518, 529-530.) “ ‘Whether defendant aided and abetted the crime is a
question of fact, and on appeal all conflicts in the evidence and reasonable inferences
must be resolved in favor of the judgment.’ [Citation.]” (People v. Campbell (1994)
25 Cal.App.4th 402, 409; In re Juan G., at p. 5.)
The evidence here was sufficient to establish that Davis not only knew about and
intended to facilitate the theft, but took active steps to aid in its commission. Davis,
driving the white van, pulled out onto the road at the same time the stolen truck did. The
van briefly followed the truck, which was initially travelling at approximately three miles
per hour. There was no other traffic in the area, and nothing prevented the van from
passing the truck on the multi-lane street. This evidence suggested the van and truck
were travelling together.
6
When Jarrett began to follow the truck, Davis followed him. Davis gave Jarrett a
“mean” or intimidating look, causing Jarrett to temporarily break off his pursuit of the
truck. According to Jarrett, “the guys in the white van kept looking at me and [were]
really paying a lot of attention to me.” Detective Zavala, testifying as an expert,
explained that thieves sometimes use a “follow car” to act as a lookout. Davis’s conduct
was consistent with that role. We do not agree with Davis’s characterization of Zavala’s
testimony as “speculative.” Furthermore, the box missing from the truck’s cargo was
seen falling from the van Davis was driving. This fact provided compelling evidence that
Davis was actively assisting with the thefts. The circumstances fit the pattern described
by Zavala, namely, that thieves typically remove a sample from a cargo haul to assess the
contents and enable them to immediately begin contacting potential buyers.
Police found bolt cutters and walkie talkies in the van, suggesting Davis provided
or controlled the tools used to cut the padlocks and communicated with Johnson as he
drove the truck away. Jarrett’s testimony that the truck turned on Slauson at the last
minute suggests Davis told Johnson he was being followed. When the truck encountered
the patrol cars, Davis turned and headed in the opposite direction, further suggesting he
was indeed part of the heist team. The absence of a license plate on the van suggested the
thieves had removed it to avoid detection and ensure a clean getaway. In short, there was
ample evidence from which the jury could reasonably have concluded Davis was part of
the team carrying out the heist, and aided and abetted the thefts. This evidence showed
active participation in the crime, not mere presence at the scene or the receipt of stolen
property.
Davis urges the foregoing evidence was insufficient. He contends that the phone,
gloves, and bolt cutters are commonplace items one would expect to find in a work van,
and there was no evidence they were actually used in the theft. He argues that the
evidence connecting the box to the white van was highly contradictory. Jarrett testified
that police showed him the box that fell from the van at Slauson and Figueroa. The box
was in the back of the van, and the officers took it out of the van so he could identify it.
Sergeant Vach, on the other hand, testified that officers showed the box to Jarrett on
7
Western, where the big rig was stopped; they placed it on top of the police car hood or
trunk. Detective Zavala, who was not present on the night of the theft, testified that
Jarrett told him police returned the box to him the night of the incident. Zavala, however,
testified at the preliminary hearing that he, Zavala, saw the box in the van. At trial,
Zavala hypothesized that he probably saw a photograph of the box in the van, not the box
itself. Furthermore, it was undisputed the box was not damaged, a fact Davis contends is
remarkable if, in fact, the box fell from the van while it was travelling at the speed
estimated by the helicopter pilot, 35 – 45 miles per hour.
Davis is correct that the evidence regarding the box was contradictory. However,
he misapprehends our role in reviewing the record for substantial evidence. (People v.
Whitmer (2014) 230 Cal.App.4th 906, 924.) “Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005)
34 Cal.4th 1149, 1181.) “ ‘ “ ‘Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.’ ” ’ ” (People v. Jackson (2014) 58 Cal.4th
724, 749; People v. Cortes (1999) 71 Cal.App.4th 62, 81 [where an appellant “merely
reargues the evidence in a way more appropriate for trial than for appeal,” we are bound
by the trier of fact’s determination].) The evidence was sufficient.
2. Conviction of multiple theft-related counts
Davis was convicted of three offenses arising from the single incident: grand theft
of Jarrett’s truck (§ 487, subd. (d)(1)), grand theft of BK Freightliner’s Hyundai trailer
(§ 484, subd. (a)), and grand theft of cargo, the Cricut Starter Kits belonging to
Provocraft (§ 487h, subd. (a)). Sentence on the latter two counts was stayed pursuant to
section 654. Davis contends two of the convictions should be reversed as improper
multiple convictions for the same offense. We agree that two of the convictions cannot
stand, but rather than reversing counts 2 and 3, we order the three counts consolidated
into a single count.
8
Under section 954,5 a defendant generally may be convicted of more than one
crime arising out of the same act or course of conduct, unless one is a necessarily
included offense of the other. (People v. Reed (2006) 38 Cal.4th 1224, 1226; People v.
Ortega (1998) 19 Cal.4th 686, 692, disapproved on other grounds in People v. Reed,
supra, at p. 1228.) Our Supreme Court has “repeatedly held that the same act can support
multiple charges and multiple convictions. ‘Unless one offense is necessarily included in
the other [citation], multiple convictions can be based upon a single criminal act or an
indivisible course of criminal conduct (§ 954).’ ” (People v. Gonzalez (2014) 60 Cal.4th
533, 537; People v. Reed, supra, at pp. 1226-1227; People v. Benavides (2005)
35 Cal.4th 69, 97.) Pursuant to section 654, however, a defendant may not be punished
more than once for the same criminal act or for a series of acts committed incident to one
objective. (§ 654, subd. (a); People v. Reed, supra, at p. 1227.)
a. People v. Whitmer and the Bailey doctrine
Davis contends that People v. Bailey (1961) 55 Cal.2d 514 (Bailey), as clarified by
People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), requires that two of his convictions
be reversed. In Bailey, a defendant made a single misrepresentation that enabled her to
obtain a series of fraudulent welfare benefits. Each payment was less than the threshold
amount for grand theft, but the aggregated total exceeded it. (Bailey, at p. 518.) “Bailey
held that the People could charge a defendant’s ongoing receipt of welfare benefits
arising from a single fraudulent application as a single grand theft rather than as discrete,
separate petty thefts because the thefts were all committed ‘pursuant to one intention, one
general impulse, and one plan.’ [Citation.]” (People v. Kirvin (2014) 231 Cal.App.4th
1507, 1517.) Thereafter, some courts held that Bailey not only allowed such aggregation,
5 Section 954 provides in pertinent part: “An accusatory pleading may charge two
or more different offenses connected together in their commission, or different statements
of the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . . The prosecution is not required to elect between the
different offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged . . . .”
9
but barred multiple convictions for grand theft when the individual thefts arose from a
single plan or scheme, even though each theft was separate and distinct and involved
property exceeding the amount needed to establish grand theft. (Whitmer, supra, at
p. 739; People v. Kirvin, supra, at p. 1517.)
In Whitmer, our Supreme Court held that the latter cases had misinterpreted
Bailey, and “jettisoned much of this earlier precedent by holding that a defendant could
sustain multiple convictions ‘based on separate and distinct acts of theft, even if
committed pursuant to a single overarching scheme.’ ” (People v. Kirvin, supra,
231 Cal.App.4th at p. 1518; Whitmer, supra, 59 Cal.4th at pp. 740–741.) In Whitmer, the
manager of a motorcycle dealership arranged for the fraudulent sales of vehicles to
fictitious buyers. Most transactions involved a different vehicle and different fictitious
buyers, and took place on different dates. (Whitmer, supra, at pp. 735-736.) Relying on
Bailey, the defendant argued he could be convicted of but one theft because the crimes
were part of a single scheme. (Whitmer, supra, at p. 736.) Reasoning that “each count of
grand theft was based on a separate and distinct act,” (id. at p. 736), our Supreme Court
concluded a thief should not receive a “ ‘ “felony discount” ’ if the thefts are separate and
distinct even if they are similar. . . . [A] defendant may be convicted of multiple counts
of grand theft based on separate and distinct acts of theft, even if committed pursuant to a
single overarching scheme.” (Id. at pp. 740-741.) Whitmer did not overrule Bailey, but
explained the “Bailey rule must be interpreted in light of its facts.” (Whitmer, at p. 740.)
But, because a “long, uninterrupted series of Court of Appeal cases . . . [had] consistently
held that multiple acts of grand theft pursuant to a single scheme cannot support more
than one count of grand theft,” Whitmer’s holding cannot be applied retroactively. (Id. at
p. 742; People v. Kirvin, supra, at p. 1518.)
Davis’s crimes were committed in 2008, before Whitmer was decided; therefore,
the pre-Whitmer interpretation of Bailey applies. (Whitmer, supra, 59 Cal.4th at p. 742.)
Under that interpretation, the motorcycle thief in Whitmer “could only have been
convicted of a single count of grand theft” for the series of fraudulent sales. (Id. at
p. 735.) Davis argues that under Bailey, he can be convicted but once for the three thefts,
10
because they were undertaken pursuant to a single plan and scheme. He reasons that if a
defendant could not be convicted of multiple counts of theft arising from multiple
separate transactions occurring over a period of time, logically he cannot be convicted of
multiple counts of theft for taking multiple items during a single incident. (See People v.
Gardner (1979) 90 Cal.App.3d 42, 45-46 [defendant shot five hogs, belonging to a single
owner, killing them with a single volley, and stole their carcasses; the series of thefts was
carried out with a single purpose and plan, occurred during a single transaction, and
constituted a single offense].) We agree that under Bailey, if the theft of the truck, the
trailer, and the cargo are considered a series of takings, they were carried out pursuant to
only one plan and scheme, and were therefore a single theft.6 (Whitmer, supra, at p. 742
[under the former interpretation of Bailey, there can only be one grand theft if multiple
acts of grand theft are pursuant to a single intention and plan].)
However, application of Bailey is uncertain here. As noted, the property at issue
belonged to three different persons or entities. The appellate courts have disagreed about
whether Bailey applies in the case of multiple victims. (See, e.g., In re David D. (1997)
52 Cal.App.4th 304, 310 [“one limitation of the Bailey doctrine is its inapplicability to
offenses involving multiple victims”]; People v. Tabb (2009) 170 Cal.App.4th 1142,
1149 [Bailey has generally been limited to thefts involving a single victim]; People v.
6 The People argue that Davis committed separate and distinct acts of theft within
the meaning of Bailey because, in order to steal the big rig, he (or his accomplices)
engaged in the “separate and distinct acts” of cutting the lock, removing the shrink wrap
from the pallets, removing one of the printer boxes, and driving the truck away. These
actions are simply not the equivalent of the separate acts at issue in the motorcycle theft
scheme in Whitmer. (See Whitmer, supra, 59 Cal.4th at p. 739 [and cases discussed
therein]; People v. Gardner, supra, 90 Cal.App.3d at p. 48.) Davis aided and abetted the
theft of a single big rig, comprised of a connected truck and trailer, which contained
cargo. The rig was driven off in one single event. The fact the thieves removed one
printer box during the same incident does not give rise to a separate theft. In any event,
Whitmer does not apply retroactively to Davis, and under the pre-Whitmer application of
Bailey, a series of separate thefts that were part of a single scheme resulted in only one
conviction.
11
Garcia (1990) 224 Cal.App.3d 297, 308; People v. Brooks (1985) 166 Cal.App.3d 24, 31
[applying Bailey to multiple thefts from a single fund to which multiple victims had
contributed], disapproved on another point in Whitmer, supra, 59 Cal.4th at pp. 739-740;
In re Arthur V. (2008) 166 Cal.App.4th 61, 68-69 & fn. 4 [in a vandalism case, the
existence of multiple victims does not necessarily preclude aggregation under Bailey];
People v. Carrasco (2012) 209 Cal.App.4th 715, 717 [where a defendant commits
multiple acts of vandalism pursuant to a single plan, the fact the damaged property is
owned by more than one victim does not preclude aggregation resulting in an offense of
felony vandalism].) Accordingly, we turn to defendant’s other arguments.7
b. The single larceny rule
Even assuming arguendo that Bailey does not apply, People v. Smith (1945)
26 Cal.2d 854 compels the conclusion that Davis could not properly be convicted three
times based on the single theft of the big rig, even though he and his compatriots took the
property of three victims. There is no dispute that when a defendant steals multiple items
during the course of an indivisible transaction involving a single victim, he commits only
one theft notwithstanding the number of items he steals. (People v. Ortega, supra,19 Cal.4th at p. 699; People v. La Stelley (1999) 72 Cal.App.4th 1396, 1400; People v.
Brito (1991) 232 Cal.App.3d 316, 326, fn. 8.) Similarly, over 60 years ago our Supreme
Court explained that a defendant who steals items belonging to multiple victims in a
single incident commits only a single theft. (People v. Smith, at p. 859.) This principle is
sometimes known as the “single larceny doctrine.” (People v. Marquez (2000)
78 Cal.App.4th 1302, 1308.)8
7 At oral argument, we invited the parties to submit further briefing on the
significance of the fact that the property taken belonged to multiple victims, and that the
crimes were charged pursuant to different statutes.
8 Of course, the rule is different when the offense is robbery. “Since the central
element of robbery is force or fear, a defendant may be convicted of a separate robbery
for each victim of such force or fear, even if the victims are in joint possession of the
12
In Smith, the defendant was convicted of three counts of receiving stolen property,
based on his receipt of three stolen car radios. Smith held that his simultaneous receipt of
several articles of stolen goods supported only one conviction, even though the articles
may have been previously stolen from several different owners. (People v. Smith, supra,
26 Cal.2d at pp. 858-859.) The court observed that “[n]either the legal nor moral
character of the act is affected in any way by the fact that the stolen property may have
belonged to several persons rather than to a single person.” (Id. at p. 859.) In support of
its holding, the court reasoned “by analogy in the authorities dealing with the crime of
larceny, which authorities hold that the theft of several articles at one and the same time
constitutes but one offense although such articles belong to several different owners.”
(Ibid.)
People v. Bauer (1969) 1 Cal.3d 368, reiterated Smith’s approval of the doctrine in
dicta. There, the defendant was convicted of burglary, robbery, grand theft, and
automobile theft after he and a cohort entered the home of three elderly women under
false pretenses, restrained them, took personal property belonging to each of them, and
drove away in a car belonging to one of them. (Id. at p. 372.) On appeal, the defendant
urged section 654 precluded punishment for both the robbery and the auto theft, and the
court agreed. (Bauer, at p. 378.) Bauer reasoned that “where a defendant robs his victim
in one continuous transaction of several items of property, punishment for robbery on the
basis of the taking of one of the items and other crimes on the basis of the taking of the
other items is not permissible.” (Id. at p. 377.) Section 654 precludes double punishment
when an indivisible course of conduct violates more than one statute; thus, the “taking of
several items during the course of a robbery may not be used to furnish the basis for
separate sentences.” (Bauer, at pp. 376-377.)
The Attorney General argued in Bauer that multiple punishment was permissible
because there was more than one victim. (People v. Bauer, supra, 1 Cal.3d at p. 377.)
property taken.” (People v. Marquez, supra, 78 Cal.App.4th at p. 1308; People v. Bonner
(2000) 80 Cal.App.4th 759, 763-764.)
13
Bauer reasoned that although multiple punishment was permissible where crimes of
violence were committed against different persons, the same was not true when the
crimes were against the property interests of several persons. (Id. at pp. 377-378.)
Although multiple punishment, not multiple conviction, was at issue in Bauer, citing
Smith the Bauer court stated: “this court has pointed out that the theft of several articles at
the same time constitutes but one offense although such articles belong to several
different owners. [Citations.] This view has been followed ‘[i]n the vast majority of
cases’ where it has arisen or been discussed. [Citation.] If the rule were otherwise a
burglar who entered an empty house and took numerous articles belonging to one person
could be punished for only one offense, but if some of the articles belonged to each of the
other members of the family, the burglar could be given consecutive sentences for as
many offenses as there are members of the family. The situation would be even more
anomalous where stolen property was owned jointly or by a partnership.” (Bauer, at
p. 378, italics added.) Because the crimes were committed in the course of an indivisible
transaction, section 654 precluded double punishment. (Bauer, at pp. 375-378.)
The single larceny principle articulated in Smith and Bauer has been echoed by
subsequent courts. People v. Marquez, supra, 78 Cal.App.4th at pp. 1308-1309,
reiterated that “when property properly belonging to different persons is taken at the
same time and place, only one larceny will lie for the taking.” There, the defendant
robbed a restaurant employee of her tips, as well as the restaurant’s money from the cash
drawer in the same incident and, based on the separate ownership of the two amounts of
money taken, was convicted of two counts of robbery. (Id. at pp. 1304-1305, 1307.)
Citing Smith, the court held that “when a defendant steals by force or fear more than one
item during the course of an indivisible transaction involving a single victim, he commits
only one robbery notwithstanding the number and ownership of the items he steals.”
(Marquez, at pp. 1304, 1308.) The offense was comprised of an “indivisible transaction
involving a single victim who was forced to relinquish possession of two separately
owned amounts of money at the same place and at the same time.” (Id. at p. 1307.)
Thus, only one robbery conviction was proper. “To hold otherwise would violate the
14
hoary single larceny doctrine which has long been followed in the majority of cases
wherein the issue of single or multiple larcenies has arisen . . . .” (Id. at p. 1308; see also
People v. Mitchell (2008) 164 Cal.App.4th 442, 461-462; People v. Gardner, supra,
90 Cal.App.3d at p. 47; cf. People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [citing,
in connection with a § 654 analysis, the “long-standing rule” that the “ ‘theft of several
articles at one same time constitutes but one offense [even where] such articles belong to
several different owners’ ”]; People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113-
1114 [same].)
Consistently with the foregoing, our Supreme Court has also held, outside the
context of theft offenses, that a “defendant may properly be convicted of multiple counts
for multiple victims of a single criminal act only where the act prohibited by the statute is
centrally an ‘act of violence against the person.’ ” (Wilkoff v. Superior Court (1985)
38 Cal.3d 345, 351, superseded by statute on other grounds as stated in People v. Arndt
(1999) 76 Cal.App.4th 387, 393-394.) In Wilkoff, the defendant drove under the
influence, killing one victim and injuring five others. (Wilkoff v. Superior Court, at
p. 347.) She was charged with 12 counts in addition to vehicular manslaughter: one
count of driving under the influence in violation of Vehicle Code section 23153,
subdivision (a), and one count of driving with a blood alcohol level above 0.10 in
violation of former subdivision (b) of the same statute, for each of the six victims. She
moved to dismiss 10 of the counts, arguing that only one count of each subdivision could
arise from a single incident of driving under the influence. (Wilkoff v. Superior Court, at
p. 348.) Wilkoff agreed. The court reasoned that “a charge of multiple counts of
violating a statute is appropriate only where the actus reus prohibited by the statute – the
gravamen of the offense – has been committed more than once.” (Id. at p. 349.) The act
prohibited by Vehicle Code section 23153 was defined “in terms of an act of driving.”
(Wilkoff v. Superior Court, at p. 352.) “Defendants are not chargeable with a greater
number of offenses simply because the injuries proximately caused by their single
offense are greater. Rather, the Legislature may provide for increased punishment for an
offense that has more serious consequences by, for instance, raising the statutory prison
15
terms, adding enhancements, or upgrading the offense from a misdemeanor to a felony.”
(Ibid.; see also People v. Garcia (2003) 107 Cal.App.4th 1159, 1163 [defendant could
only be convicted of one count of felony evading an officer, not one count for each
officer who followed him in a single pursuit].)
The central element of theft is taking. (See People v. Neder (1971) 16 Cal.App.3d
846, 852 [“The essential act in all types of theft is taking”].) Theft is a property crime,
not a crime of violence. (People v. Bauer, supra, 1 Cal.3d at p. 378 [“The crime of
automobile theft is not a crime of violence but is a violation of property interests”].) The
gravamen of the offense was committed only once here, when the thieves stole the big rig
and its contents. Given the foregoing authorities, we agree that Davis could not properly
be convicted of three theft-related counts based on his aiding and abetting the single theft
of the tractor-trailer.
The People urge that Smith and Bauer have no application here. They point out,
correctly, that the offense at issue in Smith was receipt of stolen property, not theft, and
the issue in Bauer (and some of the cases quoting it) was whether multiple punishment
was permissible under section 654, not the related but distinct question of whether
multiple convictions were proper under section 954. They also point out that the cases
that quote Smith do not involve the circumstances here, or the offense of theft.9 To these
observations, we add that Smith did not discuss how the single larceny doctrine meshed
9 Citing People v. Gomez (1992) 2 Cal.App.4th 819, disapproved on other grounds
in People v. Lewis (2008) 43 Cal.4th 415, 519, footnote 29, Davis incorrectly avers that
this court has “applied the ‘single larceny rule’ to bar multiple convictions.” Our
decision in Gomez was based not on the single larceny rule, but on the fact theft was a
lesser included offense of robbery, and the crimes occurred in a continous transaction.
(People v. Gomez, supra, at p. 826.) The same is true of several other cases cited by
Davis. (People v. Gamble (1994) 22 Cal.App.4th 446, 450; People v. Irvin (1991)
230 Cal.App.3d 180, 184.) Davis argues that grand theft is a lesser included offense of
cargo theft, but People v. Ortega, supra, 19 Cal.4th 686, suggests it is error to treat
“every form of theft as a separate offense.” (Id. at p. 696.) In any event, Davis was not
convicted under two statutes for the cargo theft; instead the issue is whether the theft of
each item was properly treated as a separate offense.
16
with section 954, or explain whether it constituted an exception to the principle that a
defendant can be convicted of multiple offenses arising from a single act. Smith did not
rely upon California law for the single larceny principle, but instead cited a treatise and
an Iowa case. (People v. Smith, supra, 26 Cal.2d at p. 859.) Moreover, the rule as
articulated in Smith has not been elaborated upon in the more than 60 years since the case
was decided.
But these circumstances do not mean we are free to disregard Smith. Smith’s
discussion of the single larceny principle was an essential part of its reasoning. Although
Bauer’s reference to Smith was dictum, the court’s discussion appears to indicate
approval of the single larceny rule. As stated in People v. Gardner: “While the cases
[including Bauer] fail to adequately distinguish between the concept of a single act or
omission in the context of multiple prosecution and conviction as opposed to multiple
punishment [citations], nonetheless the principle distilled unerringly indicates that in the
crime of larceny the simultaneous theft of several items of property, even from multiple
owners, constitutes but a single offense. [Citation.]” (People v. Gardner, supra,
90 Cal.App.3d at p. 47; see also People v. Valencia (2011) 201 Cal.App.4th 922, 930-931
[even dictum from our Supreme Court is considered persuasive].) The People point to no
case in which the Supreme Court has repudiated its approval of the principle articulated
in Smith, and we are aware of none. We are therefore not free to disregard Smith.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nor do the People
offer any persuasive basis for a contrary conclusion. Thus, on the facts presented here,
Smith’s single larceny rule operates as an exception to section 954’s rule that multiple
offenses may arise from a single act.
People v. Philpot (2004) 122 Cal.App.4th 893, does not suggest a different result.
In Philpot, the defendant stole a landscaping truck with an attached utility trailer that
contained equipment. He was convicted, inter alia, of two counts of unlawfully driving
or taking a vehicle (Veh. Code, § 10851, subd. (a)): one count for the trailer, and one
count for the truck. (Philpot, at pp. 899-900.) He contended his conviction for taking the
trailer should be reversed, apparently on the theory that the truck and trailer constituted
17
but a single motor vehicle. Philpot distinguished authorities holding that when hitched
together, a truck/tractor and a trailer are one motor vehicle. (Id. at pp. 901-903.) The
court agreed with the People that because a trailer was a vehicle, and Vehicle Code
section 10851 punished the unlawful driving or taking of a “ ‘vehicle’ ” rather than a
“ ‘motor vehicle,’ ” both convictions were proper. (Philpot, at pp. 899-900.) In a
footnote, Philpot reasoned in dicta that if the truck and trailer had been owned by
different persons, “public policy would mandate that a defendant should be convicted of
two counts of unlawfully taking a vehicle.” (Id. at p. 904, fn. 4.) The court also
“presume[d]” that the defendant would not have challenged his conviction for the second
vehicle taking count had he stolen a tow truck with an attached motor vehicle, or driven a
big rig truck carrying multiple vehicles. (Ibid.) But Philpot addressed Vehicle Code
section 10851, not the theft statutes at issue here. Moreover, it did not consider the single
larceny rule, section 954, or Smith, nor did the court cite authority for its public policy
discussion. Because cases are not authority for propositions not considered (People v.
Brown (2012) 54 Cal.4th 314, 330), Philpot is not determinative on the issue presented
here.10
c. Counts 2 and 3 should be consolidated with count 1, rather than reversed.
Davis argues that we should reverse his convictions on counts 1 and 3. People v.
Soria (2015) 239 Cal.App.4th 123, recently employed a different remedy for duplicative
convictions, which we adopt here. In Soria, the defendant was convicted of two counts
of violating two subdivisions of section 261: rape by an intoxicated person and rape of an
unconscious person. (People v. Soria, supra, at p. 125.) Soria explained that although
rape is a unitary offense, violations of different subdivsions may have distinct penal
consequences, making it inappropriate to strike counts; striking a count may have
10 In light of our resolution of this issue, we need not reach the question of whether
cargo theft (§ 487h) is a different offense than grand theft, or simply a different statement
of the same offense of theft. (See generally People v. Gonzalez, supra, 60 Cal.4th at
p. 537; People v. White (2015) 237 Cal.App.4th 1087, 1104; People v. Toure (2015)
232 Cal.App.4th 1096, 1105-1106; People v. Coyle (2009) 178 Cal.App.4th 209, 217.)
18
unintended consequences if a particular count is later reversed for reasons specific to it;
and it is unclear how a court should choose which count to strike. (Id. at pp. 144-146.)
Accordingly, Soria applied a procedure used by our Supreme Court in an earlier case,
namely, modifying the judgment by consolidating the two counts into a conviction for a
single count of rape reflecting violations of both subdivisions. (Id. at p. 146; see also
People v. Coyle, supra, 178 Cal.App.4th at pp. 217-218 [consolidating duplicative
murder convictions into a single count].)
We believe this is the appropriate approach here, especially as to count 3. Section
487h was enacted in 2004. (Stats. 2004, ch. 515, §1.) The legislative history of section
487h indicates that the purpose of the statute was to “separately define[ ] the crime of
cargo theft, in order to track the number of cases where the property taken fits this
category.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.
Bill No. 1814 (2003-2004 Reg. Sess.) as amended Aug. 10, 2004, p. 1.) Such tracking
was intended to facilitate the capture of federal funding available for purposes of port
security. (Assem. Com. on Public Safety, Analysis of Assem. Bill 1814 (2003-2004 Reg.
Sess.) as amended March 11, 2004, p. 3.) Thus, modifying the judgment to consolidate
the counts into a single judgment will better effectuate the legislative intent.
3. Faretta claims
a. Additional facts
(i) Pretrial proceedings
On March 21, 2013, at a pretrial conference, Davis stated that he wanted to
“withdraw from counsel.” He complained he was “being held unlawfully” because the
case had been improperly dismissed and refiled. He also argued the case had been refiled
in retaliation for a complaint he had made against the district attorney’s office between
the dismissal and the refilling. The trial court stated that it would address Davis’s request
on the next court date.
On April 5, 2013, defense counsel, Attorney Abukurah, informed the court that
Davis wanted a Marsden hearing. Davis complained that his case had been dismissed
and improperly refiled under a different case number. In Davis’s view, this circumstance
19
barred further prosecution, but counsel had failed to pursue the issue. The trial court
explained that the People were allowed to refile cases. It found that to the extent any
procedural issue might exist, defense counsel appeared aware of the issues, and denied
the Marsden request. When the prosecutor returned to the courtroom, she clarified the
procedural posture of the case.11
On April 8, 2013, Davis made another Marsden motion, based primarily on his
concerns about the refiling of the case. Defense counsel stated that in his opinion, there
was no legal basis to challenge the refiling. The court denied the Marsden motion.
When proceedings resumed, appointed counsel requested a continuance so he could
investigate a potential defense. Davis refused to waive time and stated he would hire
private counsel. The trial court stated Davis could do so, but would need additional time.
Davis stated he wished to proceed to trial and would cross-examine his own witnesses.
When the trial court pointed out that Davis was represented by counsel, Davis asked,
“Can’t I be a co-counsel?” The court replied: “Generally speaking that involvement of a
client in his or her defense is something worked out between counsel, him and herself.
Generally not. Look, you need one captain for this ship, somebody that knows the law,
somebody that knows evidence, somebody that knows his or her way around the jury and
that’s your current counsel.” The court granted the continuance over Davis’s objection.
11 The prosecutor explained the matter was originally filed under case No.
BA347461, but the People were unable to proceed because they had lost touch with the
victim. The matter was refiled under a different case number, BA370192. A section 995
motion was heard and denied, and trial was set for September 3, 2010. Davis, however,
failed to appear for trial and a warrant was issued for his arrest. Before the instant case
was refiled, Davis was charged in an unrelated three-defendant case with receiving stolen
property; that case was dismissed when police declined to disclose the identity of an
informant. Additionally, a separate preliminary hearing and jury trial were held for
another defendant in regard to the Jarrett thefts. The prosecutor believed Davis was
confusing the cases.
20
On May 17, 2013, shortly before jury selection commenced, Davis again
expressed frustration about the refiling. The trial court again explained that the People
had discretion to dismiss and refile.
(ii) May 20, 2013 proceedings
After the jury was impaneled, on May 20, 2013, Davis stated he wanted to
represent himself unless the court appointed different counsel. The trial court conducted
a third Marsden hearing, at which Davis reiterated his complaints about the refiling issue.
After the court denied the motion, Davis stated he wished to represent himself. The trial
court said Davis could represent himself if he was ready to proceed. Davis asked for a
continuance to obtain preliminary hearing transcripts. The court explained, “You either
have to say yes, you’re ready, and you go with what you have, or, no, you’re not ready,
and [appointed counsel] represents you. That’s your choice.” Davis affirmed he was
ready to proceed.
The court advised Davis of the perils of self-representation. It also stressed that if
he failed to follow the court’s orders his Faretta right would be revoked. Davis asked the
prosecutor for authority that allowed the People to refile the case. The trial court
reiterated that the People had a right to refile and ordered Davis to drop the issue. The
court ordered Davis not to raise the refiling issue before the jury. The court explained:
“You don’t bring it up in front of the jury. . . . That’s a legal decision by the court. If
you don’t follow my rules, then – and the rules of evidence and you continue to bring it
up in front of the jury, then I will have to revoke your pro per status.” Davis nonetheless
continued to express the view that the refiling was illegal.
The trial court moved to an explanation of opening statements. Davis returned to
the refiling issue, stating: “You destroying my argument when you tell me I can’t raise
that the District Attorney’s Office – because I have a complaint against the District
Attorney’s Office – that this has been a retaliation due to a complaint, and they took the
case that was dismissed pursuant to Penal Code 1382, and they didn’t refile it, but put it
up under another case number.” The trial court once again reiterated that the issue was
not one for the jury, and that if Davis violated the rules, it would revoke his right to self-
21
representation. Davis then stated: “Well, Your Honor, I might as well let him go on and
do the case then. I can’t say anything. You not giving me no option.” He also
complained that he had only 10 minutes to prepare. The following discussion transpired:
“[The Court:] Do you want to represent yourself? You have the same rules that
all lawyers have. Now what do you want to do? Represent yourself or have Mr.
Abukurah do it?
“[Davis]: I want to be a co-counsel.
“The Court: You’re not going to be co-counsel. It’s one or the other.
“[Davis]: You’re not giving me enough time to prepare.
“The Court: Just tell me, do you want to represent yourself or not?
“[Davis]: Yes, I want to represent myself, but you’re not giving me no time.
“The Court: We’re going around in circles.
“[Davis]: I just told you.
[¶] . . . [¶]
“The Court: All right. Now, it sounds to me like you want Mr. Abukurah to do
the case, because you’re not ready.
“[Davis]: Of course I am not ready. I just did my [Faretta] rights. Everywhere I
went, from pre-trial to trial, I have not had --
“The Court: We’re going in circles. I am bringing the jury in. I am going to
instruct the jury. [The prosecutor] is going to make an opening statement, and I am going
to turn, and I want to know who is making the opening statement, you or Mr. Abukurah?
“[Davis]: He can make the opening statements, but I want to cross-examine my
witness.
“[The Court]: You’re not cross-examining the witnesses, all right? Let’s bring the
jury in. Mr. Abukurah, you’re counsel.
[¶] . . . [¶]
“[Davis]: I want to request private counsel.
“The Court: Denied.”
22
(iii) May 21, 2013 Faretta request and subsequent revocation
During trial, Davis asserted his Faretta rights. The trial court granted his request,
appointed defense counsel as stand-by counsel, and reminded Davis to behave
professionally, follow the rules, and not raise the refiling issue. The court admonished:
“If you bring up the refile, you’re disregarding a court order and not going to represent
yourself anymore, all right?” Davis responded, “Yeah, I understand that, Your Honor.
But why is that so confidential? I mean, I might have an argument that’s leading that
way.” The court reminded Davis that it had already “ruled on that several times.” Davis
again expressed his opinion that the case was improperly refiled. The court advised
“That’s not for the jury. If you bring that up, Mr. Abukurah is going to step right back,
okay? I have ruled that’s inadmissible.” Davis accused the judge of “being protective
of” and “scared of” the issue. The court told Davis it would not entertain further
argument on the issue and Davis was required to follow the rules. Trial resumed, with
Davis representing himself.
During cross-examination, Davis asked whether Officer Camporredondo was
aware Davis had made a complaint against the district attorney’s office “for tampering”
with a tape. Camporredondo said he was unaware of the allegation.
During cross-examination of Sergeant Reyes, Davis asked, “Is you aware that I
have a complaint against your agency, 77th Police Agency, about this matter?” Reyes
responded affirmatively. Davis then asked, “And that’s why you’re here testifying today;
correct?” The trial court sustained the prosecutor’s relevance objection. Davis asked:
“You do know that after this case was dismissed, I filed--” The prosecutor objected, and
the court stated: “I told you we’re not supposed to talk about that. I’ve said it several
times. That’s not an issue.” Davis averred that he was “just trying to get to the
question.” The trial court said, “No. If you want to represent yourself, you have to
follow the rules. I made that statement quite clearly. Don’t bring in extraneous matters.”
During cross-examination of Detective Zavala, Davis again asked about the
refilling issue, querying: “Well, this case was dismissed; correct?” When the prosecutor
objected, Davis insisted that he had to “talk about this part to get to where I’m trying to
23
get to.” The trial court stated, “No. I told you not to ask that.” The court observed Davis
kept “asking questions about things I told you not to ask about. You keep trying to slip it
in.” Davis responded that he had a right to due process, and the court was “not giving me
a fair trial. You covering up information.” The court allowed Davis to elicit that Zavala
had testified at Johnson’s trial. When Davis stated, “Your name is nowhere in the
transcript,” the court excused the jurors.
When the jury was excused for the lunch break, the court stated it intended to
revoke Davis’s pro per status in light of the fact Davis had asked about the dismissal
despite the court’s instructions. Davis replied that he had not understood he was
prohibited from mentioning a “dismissal” as opposed to a “refiling.” He explained:
“You didn’t say ‘dismissed.’ ” He averred he was only asking about the dismissal to “get
to the point about the complaint I filed.” When the afternoon session resumed, the court
revoked Davis’s right to self-representation, explaining: “I’ve reviewed the transcript. I
told you many times before. You were even representing yourself that that dismissal was
irrelevant. I told it to you of course before the witnesses took the stand. You also kept
asking about the complaints, which I said the grounds were not important. You could
raise the fact that there was a complaint, but here I see on two occasions you raised the
issue of a dismissal.” After detailing Davis’s attempts to raise the refiling issue and the
court’s repeated directives on the subject, the court observed, “You are clearly trying to
get that in front of the jury to taint the trial, and I don’t believe there is anything I can do
to prevent you from doing this because you clearly will not follow the court’s rules.”
Davis assured the court he would not “say the word ‘dismissed’ again.” Over Davis’s
objection, the court ruled, “since you refuse to follow the court’s instructions, I am
revoking your pro per privileges and Mr. Abukurah will be representing you.”
24
(iv) Subsequent Faretta proceedings
Trial resumed. Davis twice requested self-representation, but the trial court
declined to revisit its ruling. After the verdicts and a court trial on the prior conviction
allegation, Davis again represented himself. Eventually, at sentencing, Attorney
Abukurah represented Davis, apparently with his agreement.
b. Discussion
Davis claims the trial court erroneously revoked his in propria persona status
twice, in of violation of Faretta. (U.S. Const., 6th & 14th Amends; Faretta, supra,
422 U.S. 806.) We disagree.
(i) Applicable legal principles
“A criminal defendant has the constitutional right to forego the constitutional
guarantee of the assistance of counsel and to represent himself at trial.” (People v.
Kirvin, supra, 231 Cal.App.4th at p. 1515; Faretta, supra, 422 U.S. at pp. 817–818.)
A trial court must grant a self-representation request if the defendant knowingly and
intelligently makes a timely and unequivocal request. (People v. Boyce (2014) 59 Cal.4th
672, 702; People v. Valdez (2004) 32 Cal.4th 73, 97-98; People v. Doolin (2009)
45 Cal.4th 390, 453.) This right is not absolute. (People v. Boyce, supra, at p. 702.)
“The right to self-representation may be abridged when a defendant engages in
‘misconduct that seriously threatens the core integrity of the trial’; if the rule were
otherwise, the right to self-representation could be perverted into a ‘ “license not to
comply with relevant rules of procedural and substantive law.” ’ [Citation.]” (People v.
Kirvin, supra, at p. 1515; see also People v. Trujeque (2015) 61 Cal.4th 227, 262-263.)
The erroneous denial of a proper Faretta request is reversible per se. (People v. Boyce,
supra, at p. 702.)
When determining whether the defendant invoked the right to self-representation,
we examine the entire record de novo. (People v. Weeks (2008) 165 Cal.App.4th 882,
887; People v. Watts (2009) 173 Cal.App.4th 621, 629.)
25
(ii) The May 20 Faretta “revocation”
Davis first argues that the trial court erred by “revoking” his self-representation on
May 20, 2013. We do not agree with Davis’s characterization of the record. The trial
court did not revoke Davis’s pro per status on May 20; instead, Davis changed his mind
and equivocated upon learning that he, like counsel, would not be able to raise refiling of
his case as a defense. As the detailed recitation of events set forth ante makes clear,
Davis’s May 20 self-representation request appears to have been due entirely to his
frustration at his counsel’s refusal to raise the refiling issue, which Davis mistakenly
viewed as central to the case.12 Davis’s three Marsden motions were all made primarily
on this ground. Once it became clear to Davis at the May 20, 2013 hearing that he could
not accomplish his goal even if counsel was out of the picture, the primary reason for
assertion of his Faretta rights evaporated and he stated: “Well, Your Honor, I might as
well let him go on and do the case then. I can’t say anything. You not giving me no
option.” (Italics added.) Viewing the record in its totality, it is clear Davis withdrew his
self-representation request. (See People v. Snow, supra, 30 Cal.4th at pp. 68-70; People
v. Trujeque, supra, 61 Cal.4th at pp. 262-263 [the right to self-representation, “ ‘once
asserted, may be waived or abandoned,’ ” and such “abandonment may be inferred from
a defendant’s conduct”]; People v. Weeks, supra, 165 Cal.App.4th at p. 887 [a defendant
may, by his conduct, indicate abandonment or withdrawal of a request for self-
representation]; People v. D’Arcy (2010) 48 Cal.4th 257, 285.)
Davis did not thereafter make an unequivocal Faretta request on May 20. When
the trial court pressed for an unequivocal declaration that he still wished to represent
himself, Davis alternatively stated he (1) wanted to be co-counsel;13 (2) wanted a
12 Davis does not raise the refiling issue on appeal.
13 “ ‘It is settled that a criminal defendant does not have a right both to be
represented by counsel and to participate in the presentation of his own case. Indeed, such
an arrangement is generally undesirable.’ ” (People v. D’Arcy, supra, 48 Cal.4th at
pp. 281-282.) “ ‘[N]one of the “hybrid” forms of representation, whether labeled
26
continuance to allow for self-representation; and (3) wanted private counsel.
“Equivocation of the right of self-representation may occur where the defendant tries to
manipulate the proceedings by switching between requests for counsel and for self-
representation.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.) An
ambivalent motion, a motion made in passing anger or frustration, or made to frustrate
the orderly administration of justice, may be denied. (People v. Marshall (1997)
15 Cal.4th 1, 23; see also People v. Tena (2007) 156 Cal.App.4th 598, 604; People v.
Scott (2001) 91 Cal.App.4th 1197, 1206.) Courts “must indulge every reasonable
inference against waiver of the right to counsel.” (People v. Marshall, supra, at p. 20;
People v. Boyce, supra, 59 Cal.4th at p. 703.) In short, Davis withdrew his Faretta
request, and did not thereafter make an unequivocal request on May 20. Accordingly, the
trial court did not revoke or deny his self-representation right.
Davis argues that the trial court erred by “revoking Appellant’s self-representation
[request] based upon Appellant’s confusion that the trial court helped create.” He avers
that the court’s April 8, 2013 response to his request to act as co-counsel – namely, that
such an arrangement was “generally” not feasible and had to be worked out with
counsel – led him to believe that he could act as co-counsel. Davis faults the trial court
for “revoking” his Faretta rights when he thereafter sought “just such an arrangement.”
Citing, inter alia, People v. Koontz (2002) 27 Cal.4th 1041, 1071 he argues that when a
defendant “expresses confusion about the contours of his self-representation, a trial court
has a duty to explain the scope of that right,” and complains that the court failed to fulfill
that responsibility here.
We are not persuaded. The trial court’s comments on April 8 regarding a co-
counsel arrangement were neither ambiguous nor misleading, and could not reasonably
have given Davis the impression the court was amenable to allowing him to act as co-
counsel. Moreover, the record makes clear that Davis’s decision to withdraw his Faretta
“cocounsel,” “advisory counsel,” or “standby counsel,” is in any sense constitutionally
guaranteed.’ [Citation.]” (Id. at p. 282.)
27
request was not the result of confusion about the court’s willingness to appoint him as co-
counsel. To the contrary, as we have explained, Davis withdrew his Faretta request
because he realized he would be no more able to raise the refiling issue than would
counsel. (Cf. People v. Snow, supra, 30 Cal.4th at pp. 68-69 [rejecting argument that
defendant’s withdrawal of his Faretta request was ineffective because it was motivated
by confusion over whether the court would appoint advisory counsel; although the court
made inconsistent statements on the issue, the record showed the withdrawal decision
was not based on the contradictory statements].)
(iii) May 21 Faretta revocation
Davis next challenges the trial court’s revocation of his Faretta rights on May 21.
He contends he engaged in no misconduct, and any purported misconduct was neither
deliberate nor serious and obstructionist. We disagree.
A trial court may terminate a defendant’s right of self-representation “for
misconduct that seriously threatens the core integrity of the trial.” (People v. Carson
(2005) 35 Cal.4th 1, 6 (Carson); Faretta, supra, 422 U.S. at p. 834, fn. 46; People v.
Kirvin, supra, 231 Cal.App.4th at p. 1515.) A ruling revoking a defendant’s in propria
persona status is reviewed for abuse of discretion, and will not be disturbed absent a
strong showing of clear abuse. (Carson, at p. 12; People v. Doss (2014) 230 Cal.App.4th
46, 54.) We “accord due deference to the trial court’s assessment of the defendant’s
motives and sincerity as well as the nature and context of his misconduct and its impact
on the integrity of the trial in determining whether termination of Faretta rights is
necessary to maintain the fairness of the proceedings.” (Carson, supra, at p. 12;
People v. Doss, supra, at p. 54.)
In Carson, the issue was whether the defendant’s out-of-court misconduct justified
the trial court’s revocation of his Faretta rights. (Carson, supra, 35 Cal.4th at p. 6.) The
court explained: “Whenever ‘deliberate dilatory or obstructive behavior’ threatens to
subvert ‘the core concept of a trial’ [citation] or to compromise the court’s ability to
conduct a fair trial [citation], the defendant’s Faretta rights are subject to forfeiture.
Each case must be evaluated in its own context, on its own facts.” (Id. at p. 10.) Carson
28
enumerated several factors relevant to this analysis. In addition to the nature of the
misconduct and its impact on the trial proceedings, other considerations include (1) the
availability and suitability of alternative sanctions; (2) whether the defendant was warned
that particular misconduct would result in termination of in propria persona status; (3) the
actual effect of the misconduct; and (4) whether the defendant has intentionally sought to
disrupt and delay his trial. (Ibid.)
Consideration of the Carson factors here demonstrates revocation of Davis’s
Faretta rights was appropriate. First, we are not faced with Davis’s out-of-court conduct,
but instead with his misconduct in the course of the trial itself. (See generally Carson,
supra, 35 Cal.4th at p. 10 [noting that misconduct that is removed from trial proceedings
is less likely to affect the fairness of the trial].)
Davis was repeatedly warned that if he raised the refiling issue at trial, his self-
representation rights would be revoked. The trial court expressly found Davis’s conduct
was intentional (“You are clearly trying to get that in front of the jury to taint the trial”),
and the record amply supports that finding. Davis’s tenacious insistence on raising the
refiling issue repeatedly during pretrial proceedings and at trial indicated he was unlikely
to abandon his quest to litigate it.
Davis argues that he committed no misconduct because his questions at trial were
based on an innocent misunderstanding of the trial court’s confusing rulings. He avers
that he reasonably believed the court had prohibited him from raising the legal argument
that the prosecution was barred by the refiling, but was not prohibited from asking
questions about the dismissal itself. He urges that he was simply attempting to question
the witnesses about a formal complaint he had made regarding Detective Zavala, which
he hoped would demonstrate Zavala’s bias. To demonstrate such bias, he avers, he had to
establish the sequence of events, i.e., that his complaint was filed after the first case was
dismissed but before the second case was filed. He posits that a jury might “dismiss a
defendant’s complaint against a police officer during a pending case as a tactical ploy or
sour grapes. A jury could fairly conclude, however, that a defendant’s complaint made
after the dismissal of a criminal case is a far more serious matter,” demonstrating Zavala
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had a motive to lie. In his view, his questions were appropriate and consistent with the
trial court’s rulings, and the trial court failed to understand his argument when he
repeatedly stated he was “just trying to get to the question.”
We are not persuaded. First, we are not convinced it was necessary for Davis to
raise the issue of the dismissal to attempt to show Zavala’s purported bias. But even if
this had been Davis’s goal, he was clearly aware before examining Zavala that the court
had prohibited him from asking about the dismissal. When cross-examining Reyes,
Davis asked, “You do know that after this case was dismissed, I filed--” and the court
admonished, “I told you we’re not supposed to talk about that. I’ve said it several times.”
(Italics added.) Davis replied that he was “just trying to get to the question.” He did not,
however, seek a sidebar to make an offer of proof and explain the theory he now
advances on appeal. Instead, when he subsequently examined Zavala, he again asked,
“This case was dismissed; correct?” Thus, at least by the time he cross-examined Zavala,
Davis had to have known the court was prohibiting him from asking about the dismissal.
The trial court could reasonably conclude that Davis did not have an innocent
misunderstanding of the ruling, but was attempting to circumvent it. Although Davis
argues he tried several times to explain his goal, his explanations never clearly articulated
the theory now advanced.14 In short, the trial court believed Davis was acting
deliberately and disingenuously, and the record supports this finding, to which we defer.
(Carson, supra, 35 Cal.4th at p. 12.)
Further, the court found there was no satisfactory sanction short of revocation
available to it, stating, “I don’t believe there is anything I can do to prevent you from
doing this because you clearly will not follow the court’s rules.” Given that Davis was
14 Davis also complains that the trial court made confusing evidentiary rulings about
the admissibility of his complaint against Zavala. The court allowed Davis to ask
whether a witness was aware he had filed a complaint, but precluded him from asking
whether the witnesses were testifying at trial due to the complaint. However, the trial
court does not appear to have revoked Davis’s Faretta rights based on questions about
the complaints.
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repeatedly warned not to raise the refiling issue but disregarded the court’s orders, the
court’s finding was supported by the record. Given the totality of the circumstances, the
court was not obliged to accept Davis’s assertion that he would refrain from mentioning
the dismissal again. Unlike in Carson, the misconduct occurred at trial, making
alternative sanctions less feasible. Contrary to Davis’s argument, a limiting instruction or
instructions to disregard improper questions was not a satisfactory alternative, in that the
court reasonably believed Davis would continue to engage in the behavior. People v.
Doss, supra, 230 Cal.App.4th 46, cited by Davis, does not demonstrate the trial court
erred in this regard. In Doss, the trial court revoked a defendant’s Faretta rights after the
defendant abused his in propria persona jailhouse privileges. The appellate court
concluded this was error because the trial court failed to consider the alternative of
restricting the jailhouse privileges. (Doss, at pp. 56-57.) Here, in contrast, Davis’s
misconduct occurred at the trial itself.
Finally, the likely effect of the misconduct – intentionally and repeatedly
disregarding the trial court’s rulings – was inconsistent with the integrity and fairness of
the trial. Carson recognized that “[n]ot every obstructive act will be so flagrant and
inconsistent with the integrity and fairness of the trial that immediate termination is
appropriate.” (Carson, supra, 35 Cal.4th at p. 10.) “By the same token, however, the
defendant’s acts need not result in a disruption of the trial . . . . The likely, not the actual,
effect of the misconduct should be the primary consideration.” (Ibid.) Although a
Faretta right cannot be terminated for mere forceful advocacy (People v. Peyton (2014)
229 Cal.App.4th 1063, 1081), disobeying the court’s orders amounts to more than
forceful advocacy. A defendant is entitled to defend himself only so long as he is able
and willing to abide by the rules of procedure and courtroom protocol. (McKaskle v.
Wiggins (1984) 465 U.S. 168, 173-174.)
Davis argues that any misconduct was not egregious enough to rise to the level of
serious, obstructionist misconduct. But as explained in both Faretta and Carson, “ ‘The
right of self-representation is not a license to abuse the dignity of the courtroom.’ ”
(Carson, supra, 35 Cal4th at p. 9, citing Faretta, supra, 422 U.S. at p. 834, fn. 46.)
31
“Neither is it a license not to comply with relevant rules of procedural and substantive
law.” (Carson, supra, at p. 9.) Indeed, Carson cited with approval State v. Whalen
(1997) 192 Ariz. 103. In Whalen, the court terminated the defendant’s Faretta rights
because he refused to conduct his defense from the front of the courtroom due to his
mistaken belief crossing the bar would waive jurisdictional objections. (Carson, supra,
at p. 10.) Even though Whalen’s conduct was not deliberately obstreperous, it
nonetheless obstructed the court process. (Carson, supra, at pp. 10-11.) If this justified
revocation of a defendant’s Faretta rights, certainly Davis’s repeated attempts to
disregard the court’s orders regarding the examination of witnesses does. A trial court in
a criminal matter has a duty to control the proceedings. (§ 1044 [“It shall be the duty of
the judge to control all proceedings during the trial, and to limit the introduction of
evidence and the argument of counsel to relevant and material matters, with a view to the
expeditious and effective ascertainment of the truth regarding the matters involved.”].) A
repeated, willful failure to abide by the court’s evidentiary rulings undercuts the trial
court’s control of the proceedings, and thereby threatens the core integrity of trial.
Finally, contrary to Davis’s assertion, the record does not suggest the trial court
applied an incorrect standard. While the court did not expressly mention Carson, its
comments indicated it considered the relevant factors.
4. Fines and fees
The People contend that the trial court erred by failing to impose a $40 court
operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code,
§ 70373) on each count. In light of our conclusion that the three counts must be
consolidated, this contention is moot.
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DISPOSITION
The judgment is modified to consolidate counts 2 and 3 into count 1 and reflect
that defendant was convicted of grand theft in violation of sections 484 subdivision (a),
487, subdivision (d)(1), and 487h, subdivision (a); and to vacate the convictions on
counts 2 and 3, together with the sentences imposed but stayed on those counts. The
clerk of the superior court is directed to prepare an amended abstract of judgment and to
forward a copy to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KITCHING, Acting P. J.
EGERTON, J.
 Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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