People v. Baker CA2/2 ( 2024 )

Filed 1/3/24 P. v. Baker CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B325893
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA095371)
v.
TOMMIE LEE BAKER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger T. Ito, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Tommie Lee Baker seeks reversal
of his sentence and remand for resentencing, asserting the trial
court’s denial of his motion to represent himself in a resentencing
proceeding was an abuse of discretion as well as a violation of the
Sixth Amendment to the United States Constitution and his right
to due process. We find no merit in defendant’s arguments and
thus affirm the judgment.
BACKGROUND1
A jury convicted defendant of the attempted murder of
Antonio Godinez (count 1) and found he personally used,
intentionally discharged, and proximately caused great bodily
injury with a firearm (Pen. Code, § 12022.53, subds. (b)-(d)),2 and
personally inflicted great bodily injury (§ 12022.7, subd. (a)).
Defendant was also convicted of four counts of attempted
carjacking, and during each crime defendant personally used a
firearm (§ 12022.53, subd. (b)). As to the attempted carjacking
from Godinez (count 2), the jury found defendant inflicted great
bodily injury (§ 12022.7, subd. (a)). In October 2007 defendant
was sentenced as a second strike offender to an aggregate
sentence of 58 years to life in prison. On appeal, this court held
the sentences for the attempted carjacking alleged in counts 3
and 4 were erroneously stayed, and the matter was remanded for
resentencing. (People v. Baker (May 7, 2009, B204173) [nonpub.
1 We do not include a summary of the evidence adduced at
trial, as it is unnecessary to the determination of the issues
raised on appeal. We provide a timeline to address arguments
made by defendant regarding delays.
2 All further unattributed statutory references are to the
Penal Code.
2
opn.].) The trial court resentenced defendant to the same total
term by striking the order to stay counts 3 and 4, and instead
imposing the concurrent middle terms of five years for each
count.
In 2018, the California Department of Corrections and
Rehabilitation notified the trial court of inconsistencies between
the abstract of judgment and a related minute order, suggesting
the possibility of an unauthorized sentence. When the case was
called for resentencing on January 15, 2019, defendant moved
pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) to
have appointed counsel relieved and to represent himself. The
trial court reviewed the court record and found defendant had
filed a “whole bunch” of petitions for habeas corpus petitions.
Defendant volunteered that the court had sent him a cease and
desist letter. The court also found defendant was originally
granted pro. per. status in January 2007, and asked for
reappointment of counsel in April 2007. The court noted that
after conviction defendant filed a number of habeas petitions, as
well as various motions before three different judges. Based on
these findings the trial court denied the Faretta motion and noted
trial counsel had been adequate counsel through trial and to the
present. The court observed defendant to be “playing games.”
In response, defendant stated reasons for his
dissatisfaction with appointed counsel. The trial court asked
whether defendant was requesting new counsel. Defendant said
he was, prompting the court to conduct a Marsden hearing.3
Defendant explained that counsel had been ineffective prior to
his 2007 trial. The court denied the Marsden motion.
3 See People v. Marsden (1970) 2 Cal.3d 118.
3
Defendant was resentenced and again appealed, citing
sentencing errors and asserting that the trial court erred by
denying defendant’s request to represent himself at the
resentencing hearing. (People v. Baker (May 6, 2020, B295721)
[nonpub. opn.].) Due to sentencing errors, we again remanded
the matter with directions regarding resentencing, noting, “On
remand, defendant can again request self-representation, and the
trial court can consider that request based on the facts known at
the time.” (Ibid.)
On October 30, 2020, after remand, defendant requested
appointment of new counsel. A new bar panel attorney was
appointed on October 30, 2020, and a resentencing hearing was
scheduled for November 30, 2020. After several continuances due
to defendant’s medical condition, a hearing was held on May 19,
2021, for resentencing and to consider defendant’s renewed
Faretta motion. After hearing from defendant regarding the
Faretta motion, and warning defendant of the drawbacks of self-
representation, the trial court granted the motion, relieved
counsel, and continued the matter to June 2, 2021.
On that date the court advised it had been notified that
defendant’s pro. per. privileges had been revoked due to concerns
about his mental health and possible self-harm by the sheriff’s
department. The trial court declared a doubt about defendant’s
mental status pursuant to section 1368. The court revoked
defendant’s pro. per. status, appointed stand-in counsel, and
continued the matter to the following week. A bar panel attorney
was appointed and requested a continuance to investigate the
sheriff’s department report. The proceedings were suspended.
On June 29, 2021, the new attorney told the court that
unlike the last court date defendant appeared to be “quite
competent,” but that he would return the next day with an
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evaluation order. The matter was continued to July 29, 2021
pending an evaluation pursuant to section 1368. On that date,
defense counsel reported the psychologist needed an additional
30 to 45 days due to limited video availability. The matter was
continued twice, awaiting reports from the psychologist.
On December 21, 2021, before the completion of defendant’s
evaluation, the trial court allowed defense counsel to withdraw as
counsel for defendant, as defendant had written a letter to the
court making allegations against counsel, creating an
irreconcilable conflict. The court appointed another bar panel
attorney, who requested a three-week continuance. On
January 10, 2022, the court appointed still another bar panel
attorney. On January 11, 2022, defendant’s handwritten pro. per.
Faretta motion was filed. On February 1, 2022, defendant
appeared with new counsel, who informed the court that the
psychological evaluation had not been completed due to the
conflict with prior counsel. The new attorney, McCurry, asked to
bring in a psychologist of his choosing and for time to do so.
The competency hearing was continued several times at
defense counsel’s request due to the medical evaluation not being
completed. On September 1, 2022, the parties submitted the
issue on the psychologist’s report. After review the trial court
found defendant was fully aware of the nature of the proceedings
against him and competent to proceed with resentencing on
September 22, 2022. Defendant did not mention a motion to
represent himself.
On September 22, 2022, defendant appeared with counsel,
who had filed an extensive sentencing memorandum advocating
full resentencing due to ameliorative changes to the law. The
trial court had reviewed the memorandum and the attachments,
including letters of support, prison accomplishments, defendant’s
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age at the time of the crimes (25 years), and evidence of a
troubled childhood due to his mother’s longstanding drug abuse
issue. The court agreed full resentencing was warranted and
sentenced defendant to a total term of 20 years, eight months
plus 25 years to life in prison. The court chose the middle term
over the high term as to count 1, doubled as a second strike to 14
years, plus the firearm enhancement pursuant to section
12022.53, subdivision (d) of 25 years to life. The court then
imposed one-third the middle term of one year eight months as to
count 2, without doubling as a second strike. The firearm and
great bodily injury enhancements as to that count were stricken.
The court imposed but stayed five years as to each count 3 and 4,
and struck the firearm enhancements as to those counts. As to
count 5, the court imposed the middle term of one year eight
months plus one-third the enhancement alleged pursuant to
section 12022.53, subdivision (b) of three years four months.
Defendant did not mention a motion to represent himself
and spoke only one word during the 30 minute hearing. After the
court pronounced sentence and informed defendant of his appeal
rights, the court asked defendant if he had any questions about
his appeal rights. Defendant had none.
A timely notice of appeal from the judgment was filed.
DISCUSSION
Defendant contends: “The sentence must be reversed
because appellant was denied his right to represent himself in
violation of the Sixth Amendment and a denial of due process of
law.” (Boldface omitted.)
The Sixth Amendment of the United States Constitution
gives a defendant the right to be represented by counsel and the
right of self-representation. (Faretta, supra, 422 U.S. at pp. 819-
6
820.) The Sixth Amendment right to self-representation may be
asserted by any defendant competent to stand trial. (Godinez v.
Moran (1993) 509 U.S. 389, 399-400.)4
We construe defendant’s arguments to be that the trial
court abused its discretion by denying defendant’s request to
represent himself on multiple occasions, for taking too long to
resolve the competence issue, and the trial court committed
structural error by failing to sua sponte reinstate defendant’s pro.
per. status once he was found competent to proceed with
resentencing. Defendant contends that an abuse of discretion
standard of review applies to the first two contentions, and the
alleged structural error is reversible per se.
Defendant seems to contend the trial court abused its
discretion in denying his right to self-representation because
appointed counsel testified on June 29, 2021, that defendant was
competent, aware of the issues he faced at resentencing, yet the
trial the court delayed granting his request for self-
representation. Even if counsel’s testimony were enough,
appointed counsel did not testify but merely stated to the court
that unlike their last meeting, defendant “seemed quite
competent” that day. Moreover, counsel made no objection to the
court’s suspension of criminal proceedings and indeed selected a
court-approved expert. Citing People v. Horton (1995) 11 Cal.4th
1068, 1108, defendant acknowledges that once doubt of
4 Defendant does not argue that the Sixth Amendment or
state law allows a person to be sentenced while mentally
incompetent. “A person shall not be tried or adjudged to
punishment . . . while that person is mentally incompetent.”
(§ 1367, subd. (a).) Indeed, doing so would violate state law and
federal due process guarantees. (People v. Ary (2011) 51 Cal.4th
510, 513; see Pate v. Robinson (1966) 383 U.S. 375, 385.)
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competency was declared and the criminal proceedings were
suspended, the court lacked jurisdiction to rule upon a Faretta
motion. The trial court was required to appoint counsel until the
conclusion of the competency proceedings. (See People v. Lightsey
(2012) 54 Cal.4th 668, 696, fn. 11, 697-698.) Failure to do so
would have been a reversible miscarriage of justice under article
VI, section 13 of our state Constitution. (Lightsey, at p. 702.)
The People observe defendant makes no claim the trial
court’s revocation of his pro. per. status was error. We agree
defendant does not challenge the court’s discretion to suspend
proceedings and obtain a competency evaluation after the report
of symptoms of mental illness. However, defendant does appear
to claim that revocation of his pro per status was nevertheless an
abuse of discretion because the competency determination was
such a “slow, inconsistent, and confusing process [that it]
effectively eclipsed his constitutional right to autonomy in
directing his case.” Defendant claims he repeatedly asked to
represent himself during the 15 months between the court’s
suspension of proceedings to the determination of his competence,
but the requests were denied without giving any reason.5
Defendant also complains that when competence was reinstated
the court failed to reinstate his pro. per. status on its own.
Defendant argues the revocation of the grant of an order
granting pro. per. status is reviewed under an abuse of discretion
5 In making these assertions, defendant fails to refer to the
record. We found a single request after doubt was declared and
have described the continuances and the reasons for them in the
Background section. Defendant was present at about half the
hearings. He thus exaggerates claims to have repeatedly
requested self-representation during that time.
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standard. As it is defendant who claims discretion was abused, it
is his burden to demonstrate the alleged abuse, and he must do
so by showing the court’s exercise of discretion was irrational or
arbitrary, and not “‘grounded in reasoned judgment and guided
by legal principles and policies appropriate to the particular
matter at issue.’” (People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977.) Moreover, it is always the complaining party’s
burden to demonstrate a miscarriage of justice suffered as a
result of an abuse of discretion. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 566.) A miscarriage of justice occurs when it
appears that a result more favorable to the appealing party
would have been reached in the absence of the alleged errors.
(People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const., art.
VI, § 13.) We note counsel was thorough in his advocacy,
resulting in defendant’s aggregate prison term being reduced
from 58 years to life in prison to 45 years to life. Defendant does
not suggest he could have achieved a different outcome. As
defendant has made no effort to demonstrate either an abuse of
discretion or prejudice, we need not undertake any further
discussion of defendant’s arguments on this issue.
Defendant also appears to claim the trial court should have
reinstated his pro. per. status without further request, and a
failure to do so violated his Sixth Amendment under the United
States Constitution. He argues this was structural error,
reversible without regard to prejudice. Defendant adds he was
unable to make such a request because he was forced to proceed
with unwanted counsel and was thus not given the opportunity to
renew his request at the resentencing hearing.
The People respond that defendant did in fact have an
opportunity to renew his request for self-representation. On
September 1, 2022, the court declared defendant competent to
9
proceed with resentencing. At that time, counsel told the court
he intended to file additional documentation setting forth
defendant’s position and requested time to do so. Defendant said
nothing at that hearing.6 The September 22, 2022 sentencing
hearing lasted about 30 minutes. Defendant appeared with
counsel, and at no time did defendant renew his request to
represent himself. Defendant demonstrated many times in
hearings prior to June 2, 2021, that he had no compunction
against interjecting his views in open court. Yet he did not do so
at resentencing even when the court asked both counsel whether
there was anything else they wished to say. Nor did defendant
speak up after the trial court imposed a reduced sentence and
then asked defendant whether he had any questions about his
appeal rights.
We agree with the People that by his conduct defendant
abandoned or withdrew any request to represent himself. A
“Faretta right, once asserted, may be waived or abandoned.”
(People v. Dunkle (2005) 36 Cal.4th 861, 909, disapproved on
another point in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) “A defendant may, by his or her conduct, indicate
abandonment or withdrawal of a request for self-representation.”
(People v. Weeks (2008) 165 Cal.App.4th 882, 887.) For example,
where a self-represented defendant acquiesces in the
participation of stand-by counsel, he may not complain on appeal
6 Defendant incorrectly asserts that the trial court found him
competent and sentenced him the next day. According to the
record, the trial court sentenced defendant three weeks after
finding him competent. We have examined the record de novo to
determine whether defendant effectively requested the right to
self-representation. (See People v. Dent (2003) 30 Cal.4th 213,
218.)
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that he was denied his right to self-representation. (People v.
Dunkle, supra, at p. 909, citing McKaskle v. Wiggins (1984) 465
U.S. 168.)
In People v. Kenner (1990) 223 Cal.App.3d 56, 62 (Kenner),
as here, defendant “had ample opportunity to call the court’s
attention to the neglected Faretta motion, but did not.” Also as in
Kenner, defendant may have “had second thoughts about the
wisdom of representing himself and abandoned the idea. [¶]
Defendants who sincerely seek to represent themselves have a
responsibility to speak up.” (Ibid.) The Kenner court concluded
that “it is reasonable to require the defendant who wants to take
on the task of self-representation to remind the court of the
pending motion. Therefore, we hold that on this record, where
appellant had both time and opportunity to follow up on his
request for a hearing on his Faretta motion, and failed to do so,
he must be deemed to have abandoned or withdrawn that
motion.” (Ibid.; accord, People v. Skaggs (1996) 44 Cal.App.4th 1,
5-9.)
Defendant may have been influenced by counsel’s extensive
sentencing memorandum with mitigation evidence, advocating
full resentencing due to ameliorative changes to the law. In
agreeing full resentencing was warranted, the court was guided
by the memorandum and evidence, particularly the evidence of
defendant’s troubled childhood and substance abuse, the support
of his family, and his age (25 years) at the time of the offense.
The court complimented counsel on his presentation and noted
that although defendant was quite agitated in court with prior
counsel, he had been exceptionally courteous and professional in
his demeanor since McCurry’s appointment.
Moreover, at sentencing the only Faretta motion before the
court was defendant’s pro. per. motion filed in January 2022
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while proceedings were suspended. There had been no ruling,
and it was incumbent upon defendant to request such a ruling.
(People v. Skaggs, supra, 44 Cal.App.4th at pp. 7-8.) By failing to
do so and never raising the issue again, defendant abandoned the
motion. (Ibid.)
Defendant contends that renewing the motion would have
been futile, and thus his failure to do so did not constitute a
waiver. He argues the combination of denials and inordinate
delays would make any further requests appear to be futile. “It
may be that where a defendant has been repeatedly rebuffed in
his request to proceed in propria persona an inference of futility
may be indulged to obviate the inference from his appearance
with retained counsel that he intended to give up his right to
proceed in propria persona.” (People v. Weeks, supra, 165
Cal.App.4th at p. 889, italics added.) Defendant fails to refer to
the record in support of his argument of many requests and
denials, which the record does not in fact support. Defendant
was granted pro. per. status in January 2007, and then he asked
that counsel be appointed in April 2007. His next request, on
January 15, 2019, was denied when the trial court suspected he
was “playing games.” His subsequent request was granted in
May 2021. This does not suggest that a renewed request upon
being declared competent to proceed would have surely been
denied.
Defendant next relies on United States v. Arlt (9th Cir.
1994) 41 F.3d 516, 523, where the court did not find a waiver
when defendant appeared with counsel, because the defendant
had previously “stated his request clearly and unequivocally and
the judge has denied it in a[n] equally clear and unequivocal
fashion.” Defendant also relies on People v. Tena (2007) 156
Cal.App.4th 598, 609-610, and quotes People v. Butler (2009) 47
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Cal.4th 814, 825, footnote 3, to argue that “defendant was not
required to renew his request after it was conclusively denied.”
Defendant’s reliance on these cases is misplaced, as defendant’s
pro. per. status was not conclusively denied after an unequivocal
request, or any request, but revoked as required due to doubts
about his competence. (See People v. Lightsey, supra, 54 Cal.4th
at pp. 696, fn. 11, 697-698.) Moreover, even though the trial
court had conclusively denied one request in the past before
granting another, defendant’s silence after being found
competent does not suggest futility, particularly after all the
delays noted by defendant, but instead a decision to abandon the
request. (See Kenner, supra, 223 Cal.App.3d at pp. 58-59, 62.)
We conclude that the trial court did not err or abuse its
discretion, and no constitutional right was violated by the court’s
appointment of counsel for resentencing.
DISPOSITION
The judgment is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
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