People v. Turner CA3 ( 2021 )

Filed 4/20/21 P. v. Turner CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C074524
Plaintiff and Respondent, (Super. Ct. No. SF123036A )
v.
THOMAS JAMES TURNER,
Defendant and Appellant.
Defendant Thomas James Turner was charged with a series of domestic violence
acts against the same victim. A jury found him guilty of a single violation of Penal Code
section 273.5, subdivision (a),1 and further found that defendant caused great bodily
injury under circumstances involving domestic violence (§ 12022,7, subd. (e)). The trial
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
1
court found three prior strike convictions and section 667, subdivision (a) allegations
true, and sentenced defendant to a term of 39 years to life.
In multiple briefs, defendant contends: (1) the trial court erred in denying his
Faretta2 motion to represent himself; (2) the trial court prejudicially abused its discretion
by stationing a sheriff’s deputy behind him while he testified at trial; (3) the conviction
offense did not qualify him for three strikes and section 667, subdivision (a), sentencing;
(4) he should not have been sentenced to two section 667, subdivision (a), enhancements;
(5) his prior conviction for a violation of section 417.8, exhibiting a deadly weapon with
intent to resist arrest or detention, does not qualify as a serious felony offense and
therefore should not factor into his three strikes sentencing or serve as a prior serious
offense for section 667, subdivision (a) sentencing; and (6) in light of Senate Bill No.
1393 (S.B. 1393), the case must be remanded to permit the trial court to exercise its
discretion to strike the section 667, subdivision (a), serious felony enhancements.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges and Enhancement Allegations
Defendant was charged with six counts of inflicting corporal injury on a
cohabitant (§ 273.5, subd. (a); counts 1, 2, 3, 4, 5, 9); criminal threat (§ 422; count 6);
dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 7); and false
imprisonment by violence (§ 236; count 8). Count 1 is alleged to have occurred on
February 7, 2013. Counts 2 through 5 were all alleged to have occurred between
February 8 and February 11, 2013. Count 9 is alleged to have occurred in October 2012.
As to counts 1, 2, 3, 5, 6, and 9, defendant was alleged to have caused great bodily injury
under circumstances involving domestic violence. (§ 12022.7, subd. (e).) As to counts 2,
2 Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
2
3, 4, and 9, it was also alleged defendant personally used a weapon in the commission of
the crime. (§ 12022, subd. (b)(1).) For count 2, the alleged weapon was a baseball bat;
for count 3, a beer bottle; for count 4, a stick; and for count 9, a knife. And as to all
counts, defendant was alleged to have three prior serious felony convictions (§§ 667,
subd. (a) & 1170.12, subd. (b)) and a prior prison term (§ 667.5, subd. (b)).
Prosecution Evidence
Defendant and the victim were involved in an off-and-on romantic relationship
from July 2012 until February 11, 2013. During that time, they lived together some of
the time and apart at other times; the last time they lived together began in January 2013
and ended on February 11, 2013, the date of the last domestic violence incident. Both
were homeless and were living along Highway 99 in Stockton. They frequently drank
alcohol, smoked marijuana, and used methamphetamine.
The victim testified that in October 2012, defendant came to the area where she
was living, threatened to kill her, and stabbed her six times using two knives. The victim
did not seek medical attention or report the attack to anyone. She testified that she used
super glue to close the knife wounds.
In November 2012, defendant punched the victim multiple times. She sprayed
him with pepper spray and fled. She sustained “a black eye and messed up lip.” Again,
she did not seek medical treatment or contact the police.
On February 7, 2013, defendant and the victim got into an argument because the
victim did not want to get drugs for him. He beat her with his fists when she refused.
The victim’s eye was blackened and swollen shut. She did not go to the hospital or
contact the police; instead, she ran to a friend’s house at a neighboring trailer park.
On February 10, 2013, defendant and the victim “fought and argued all day.” In
the morning, they began arguing because defendant was using methamphetamine.
Defendant dragged the victim down a hill; when the victim attempted to leave, defendant
chased her, so she hid from him. She stayed at a friend’s house overnight and returned to
3
their shared encampment the following morning. There, she found defendant using
methamphetamine. When she tried to leave, defendant would not let her. She sat on the
mattress, where they continued to argue about drugs and alcohol.
Later, in the afternoon, February 11, defendant began hitting the victim. He sat on
top of her on the bed and repeatedly hit her in the face and on the top of her head with his
fists. She testified that as he struck her, she could hear “stuff breaking.” She felt her
nose break, felt two of her teeth being knocked out, and felt punches on her face,
forehead, and head. She repeatedly asked defendant to stop, which he finally did. He left
to get more beer from his hiding place, and the victim remained on the mattress. He
brought her a beer, apologized, helped her clean up some of the blood, and they drank
together.
When the victim told defendant she needed to “go to the bathroom,” he thought
she was trying to leave. He grabbed her by the hair, ripping some of it from her head,
threatened to kill her, and began to look for knives to stab her. When he could not find
the knives, he threw other things at her and appeared to leave, but was actually on top of
a nearby bridge. Thinking he was gone, the victim attempted to leave, but she ran into
defendant. He dragged her back to the mattress, where she gave up and fell asleep.
The victim later awoke to defendant jumping and stomping on her legs. He again
threatened to kill her. She screamed and he knelt on top of her and strangled her. She
lost consciousness and later awoke to defendant beating her with a beer bottle. He also
stabbed her under the arm with a pointed stick. She lost consciousness again and awoke
at the bottom of the hill, where she had been dragged by defendant. Defendant was
hitting her with his bicycle, and then with a modified baseball bat. He hit her in the
forehead with the bat and she heard a “crack.” He continued to break objects on the
victim, including a radio and ice chest. The victim tried to crawl away but defendant
kicked her in the face and ear.
4
Thereafter, defendant stopped; she could no longer see him, but she could hear
him looking for her. She crawled in the dark to the nearby frontage road because she
could not walk.
A good Samaritan who was driving by saw her in the middle of the road waving
him down, and stopped to help her. He testified that she was bleeding and dragging one
of her legs behind her. He called 911, and the sheriff’s department and paramedics
responded.
The responding deputy testified that she found the victim lying in a fetal position,
“screaming, moaning, crying in pain” and repeatedly saying that defendant was trying to
kill her. The deputy testified that the victim was “red from head to toe.” From what the
deputy could see in the dark with her flashlight, the victim’s face was swollen and bloody
and she had marks on her arms.
The victim was taken to a hospital by ambulance, where she presented with two
spinal fractures and a fibular fracture to one of her legs. She also sustained significant
trauma to the head area. She had numerous facial fractures, including a maxillary sinus
fracture, two orbital fractures on the left side, and “severely comminuted nasal fractures”
on both sides of the nose. Her eyelids were swollen shut, she could not open one of her
eyes and there was soft tissue swelling along the left scalp. There were lines on her left
cheekbone that could be consistent with a shoe mark. Additionally, she had several
abrasions. The victim’s treating physician testified that the nasal and orbital fractures
could have been caused by a punch to the face, being stomped on with shoes, or hit with a
baseball bat, and that it takes substantial force to break a bone.
The victim had a blood-alcohol level of 0.25 percent and tested positive for
marijuana. She did not test positive for methamphetamine, however.
Defense Evidence
Defendant testified he met the victim when she was dating one of his friends.
When that boyfriend was incarcerated for domestic violence, the victim asked defendant
5
to come to her camp and drink with her. Defendant routinely checked on her, brought her
food and beer, and generally helped her. Eventually in July 2012, they began a sexual
relationship. In October, the victim was forced out of her campsite by Caltrans and went
to stay with another ex-boyfriend. Defendant denied that he and the victim lived together
at all in 2012, and denied that he stabbed her in October 2012 or hit her in November
2012. He testified he did not see her at all between Halloween and New Year’s Day.
Defendant testified that someone appeared in the middle of the night on January 1,
2013, and hit him in the face while he slept. He did not see anyone, but he heard
someone and tried to find them. As he followed the sound, he came across the victim,
who was on a mattress, in shorts, a “slingshot,” and no shoes. She appeared disoriented.
She was breathing hard, and he thought she must have been the one who hit him. He
tried to report the attack to the police, but the police station was closed. On cross-
examination, defendant claimed he spoke with an officer but reported that “a Mexican
guy” had hit him because he wanted to cover for the victim, and because he speculated
the attack had been part of a gang initiation. Later that afternoon, the victim tackled him
and admitted she had hit him with a piece of rebar. Nevertheless, defendant let her stay
with him.
Defendant also denied hurting the victim on February 7, 2013. He said they were
drinking and she fell down the embankment, approximately 30 feet at a 30 degree pitch.
As a result, she had scratches on her arms and face. And, on February 8, 2013, she cut
herself. Defendant also denied beating the victim on February 10, 2013, and denied
using methamphetamine that day.
Defendant testified that on February 11, 2013, he and the victim were drinking
together though he knew she could become violent when drunk. At some point, she
became so drunk that she fell down; she was running down the embankment and
“slam[med] into the concrete.” She tried to brace her fall with her arm, but hit the right
side of her face with enough impact that “it knocked her out.” He tried to revive her by
6
talking to her and shaking her, and she slowly “came out of it” but she was making
“funny smiling faces.” He sat her up, told her what happened, and they both began to
climb back up the embankment. He reached the camp first and began reading a book.
When he looked up, the victim had a knife in her hand and was coming at him.
She hit him with the butt of the knife on his spine and held the knifepoint to his temple.
Defendant later testified the victim hit him with the blade but that he was not hurt
because he was wearing several layers of clothing. Defendant testified he “snatched her
up,” and she “sw[u]ng [at him] with the knife.” He testified, “I hit her once, bam,” took
the knife, and “chuck[ed]” it. She began clawing at his face, so he grabbed her and
pushed her down. She grabbed his foot, and he kicked her once, hard in the cheek. She
still did not let go, so he kicked her again in the thigh. He tried to get away and she threw
bottles at him. He denied hitting her with a baseball bat or bike, poking her with a stick,
or choking her. Defendant testified that he rode his bicycle to his son’s house and tried to
call 911 but could not reach the 911 operator. Thereafter, he rode his bicycle to buy beer
and drank it. He returned to the encampment, but left when the victim began to throw
bottles at him. After dark, he went back to the camp for a blanket, but he left again, even
though the victim was no longer there.
Verdicts and Sentencing
The jury acquitted defendant on all counts except a single count of inflicting
corporal injury on a cohabitant (count 5). As to that count, the jury found defendant
guilty and also found true the allegation that he had inflicted great bodily injury under
circumstances involving domestic violence. The trial court found the prior strike, section
667, subdivision (a), serious felony conviction and section 667.5, subdivision (b) prior
prison enhancement allegations to be true, and struck the prior prison term enhancement
for sentencing purposes. The court sentenced defendant to an aggregate sentence of 39
years to life.
7
DISCUSSION
I. Faretta Motion
A. Additional Background3
Defendant was arraigned on an information on March 22, 2013. Counsel who
represented defendant at trial was appointed at that time. The case was set for a trial
readiness conference on June 5 and jury trial on June 21, 2013. Two pretrial conferences
were held before the readiness conference. On June 21, the case was assigned to a trial
department. In limine motions were heard on that day and the court requested 90
prospective jurors to appear on June 25.4
On the morning of June 25, while the prospective jurors assigned to the trial were
on their way to the courtroom, defendant requested a Marsden hearing. He asserted, “I'm
not going to go to trial with this guy.” Defendant handed the court papers. The trial
court reviewed defendant’s motion and conducted an in camera hearing.5
During the in camera hearing, defendant’s complaints first focused on trial counsel
not providing him a copy of the preliminary hearing transcript, the victim being
“coerced” to come to court for the preliminary hearing in what defendant asserted was a
3 Since defendant made his Faretta request during an in camera Marsden hearing
(People v. Marsden (1970) 2 Cal.3d 118) and the context is important, we set forth those
proceedings in some detail. We order the proceedings unsealed only to the extent
necessary to address defendant’s Faretta claim and his contention about the positioning
of the deputy during his testimony.
4 We take judicial notice that June 21, 2013, was a Friday and June 25, 2013, was the
following Tuesday. (Evid. Code, §§ 452, subd. (h), 459 subd. (a)(2); Douglas v. Janis
(1974) 43 Cal.App.3d 931, 936.)
5 Defendant’s written Marsden motion is not in the record on appeal, but reading the
reporter’s transcript, the issues addressed by the court in the in camera hearing appear to
be what was set out in the motion.
8
violation of Code of Civil Procedure section 1219 (section 1219)6 and defendant’s desire
to have trial counsel file a motion to dismiss asserting prosecutorial misconduct based on
the purported violation of section 1219.
Regarding the preliminary hearing transcript, defendant complained he repeatedly
asked trial counsel for a copy, but was not given access to it until 90 days after the
preliminary hearing. And when counsel brought the transcript to the jail, he took it back,
telling defendant an extra copy for him would cost money.
Defendant complained that a bench warrant issued for the victim to compel her
appearance at the preliminary hearing was “illegal” under “1219(b).” He complained the
prosecutor did not follow the “format” in section 1219, so he thought there were grounds
for a prosecutorial misconduct motion. He stated that the victim testified during the
preliminary hearing, “I don’t want to be here, I’m here because I fear being locked up.
They never told me about my rights as a domestic violence victim as far as I don’t have
to testify, all they said was they can help me.” Defendant added, “which means they can
screw me around and enforce her to get a conviction, basically, what that amounts to, is
how I took it.”
Defendant went on to complain that the victim did not have to show up for the
preliminary hearing as required by the subpoena because she is a domestic violence
victim. He complained that the victim told the Sheriff’s deputies she did not want to
6 In pertinent part, section 1219, subdivision (b), in effect at the time, provided:
“Notwithstanding any other law, no court may imprison or otherwise confine or place in
custody the victim of a sexual assault or domestic violence crime for contempt when the
contempt consists of refusing to testify concerning that sexual assault or domestic
violence crime. Before finding a victim of a domestic violence crime in contempt as
described in this section, the court may refer the victim for consultation with a domestic
violence counselor. All communications between the victim and the domestic violence
counselor that occur as a result of that referral shall remain confidential under Section
1037.2 of the Evidence Code.” (Italics added.)
9
testify and did not want defendant to go to jail. He continued: “It’s gotten too far out of
hand. Somebody needs to step in that can step in and maintain the law and uphold
procedures like they are supposed to be upheld and keep this from getting out of hand.
This is getting way out of hand, is what it is.” He complained about all the charges that
had been alleged against him, but acknowledged “I can understand one domestic violence
charge of 273.5(A) with GBI based on the pictures and the police report.”7 Defendant
complained that trial counsel was not doing anything he asked and that he would not get a
fair trial with trial counsel’s representation. Defendant concluded: “I mean, I can go on
and on and expound further and further, but why? It’s cut and dried. It’s like the
1219(B) in that motion, it’s cut and dried.”
Beginning with what appears to have been the first item on defendant’s list, the
court began to explain why a copy of the preliminary hearing transcript would not be
provided. As the court did that, the following colloquy took place.
“THE COURT: [Y]ou want a copy of the prelim transcript. There is no rule that
requires that your attorney give you a copy of the prelim transcript. He has to go over it
with you so that he can understand your responses to some of [the] claims that are made.
“DEFENDANT: How about I go pro per?
“THE COURT: He does not have to give you a copy of the transcript.
“DEFENDANT: I’ll go pro per, Your Honor.
“THE COURT: So that’s – so it’s not a basis for finding [defense counsel] ---
“DEFENDANT: I have a right to go pro per, too.
“THE COURT: No, you don’t.
“DEFENDANT: Yes, I do. I do have that right.
7 Presciently, this is exactly what the jury ultimately found him guilty of.
10
“THE COURT: You know, you and I might differ, and if I’m wrong, the appellate
court will correct me, okay?
“DEFENDANT: We already know the appellate court is going to.
“THE COURT: I get to make the decisions, and I’m finding that you don’t have a
right to.
“DEFENDANT: 1219, the appellate court is going to reverse this.” (Italics
added.)
Referencing defendant’s Marsden motion, the trial court then engaged in an
explanation about the history of section 1219, and explained that it does not protect a
domestic violence victim from having to honor a subpoena and appear in court or prohibit
the prosecution from requesting a bench warrant to compel the victim’s appearance. As
the trial court explained, it only protects victims if, once in court, they say they do not
want to testify. The court concluded trial counsel was not incompetent for not having
filed the motion defendant wanted, noting the motion would have been frivolous and
attorneys are not required to file frivolous motions.
The court started to take up the next item on defendant’s written motion, which
apparently related to a claim the case should have been filed as misdemeanors instead of
felonies. Defendant interrupted, “how many felonies am I facing?” The court responded,
“Mr. Turner I understand, you know, I know you’re having a tough time. Unfortunately,
we could have had this conversation earlier, had you requested it, but it is really is quite
late to be doing this.” (Italics added.)
The court found that trial counsel had not been incompetent and told defendant he
was lucky to have him. The court explained that counsel had appeared before the court
numerous times, “has a wealth of knowledge about the law, and he fights very hard for
his clients, and he has gotten some good results” in all the courts in the county. The
following colloquy then occurred:
11
“DEFENDANT: Your Honor, you can hold this -- proceeding in absentee because
I’m not going to be with this man. I don’t want this man representing me.
“THE COURT: [Trial counsel] is a fine lawyer.
“DEFENDANT: He is not representing me. Get me out of here or I’m going to
cause a scene, I’m warning you. I’m giving you fair warning.
“THE COURT: I’m going to deny the Marsden hearing under these
circumstances.
“DEFENDANT: I’m not going to get up, but I’m just going to keep doing this and
disrupting.[8]
“THE COURT: Okay.
“DEFENDANT: Your Honor, I don’t want this man representing me.” (Italics
added.)
The court asked trial counsel if he wanted to respond. Counsel explained what he
told defendant about his prosecutorial misconduct motion, which coincided with what the
trial court had just told defendant; section 1219 did not prohibit compelling a domestic
violence victim’s appearance pursuant to a subpoena.9 He stated he had visited defendant
“numerous times.” He gave defendant the preliminary hearing transcript to review for
two weeks.
Trial counsel noted defendant’s problem was that this is a three strikes case and
any felony with a great bodily injury enhancement would result in a term of 25 to life.
Counsel then informed the court that defendant passed up an offer of ten years.
8 Defendant’s conduct is pertinent to his Faretta contention and the second issue we
address on appeal, the positioning of the bailiff during his testimony.
9 Counsel said according to his file, the victim did not originally appear at the
preliminary hearing, a bench warrant was issued for her appearance, and the case was
continued one day. She ultimately testified without asserting any privilege.
12
Defendant interrupted, complaining that he was being “railroaded” but added: “[I]f my
lawyer can get this ten put back on, I’ll take the ten and we can avoid all of this.”
Counsel stated that when talking to defendant, “as the court has experienced,” defendant
“will fire back at you, not let you get a word in.” The trial court admonished defendant,
“let him finish.” Defendant continued: “I feel pushed into a situation like that. Put the
ten back out, I’ll take the God damn ten.” The court admonished defendant again to let
trial counsel finish what he had to say.
Trial counsel summarized his professional experience for the record, noting that he
had been handling criminal matters over thirty years. He had handled “all kinds of cases,
death penalty cases, murder cases, three strikes cases.” He continued: “I have handled
hundreds of cases in this county, probably thousands of cases in thirty years, not all
serious, but many serious cases. I have had trials in San Francisco County, so that’s just
my credentials.”
Defendant persisted in claiming section 1219 had been violated. He argued the
prosecutor was supposed to get the victim a counsellor, drop the charges, and refile.
Defendant did not express a desire for self-representation other than mentioned
ante. Ultimately, the trial court told defendant: “Your best chance to avoid a conviction
is to stick with this guy right here and work with him. If you want to beat this whole
thing, you do what he tells you to do. He is a good lawyer.” To that, defendant stated:
“I know he is.” The court indicated its intent to proceed with defense counsel
representing defendant, and told defendant if he is convicted he could raise all the
complaints he made on appeal.10 The court then asked that the jury panel be brought in.
10 Defendant has not raised any issues related to section 1219 in this appeal.
13
B. Defendant’s Contentions
Defendant acknowledges that when an untimely Faretta motion is made, the trial
court has discretion to deny or grant it. He asserts, however, that the trial court failed to
exercise its discretion under the purported belief that defendant had no right to represent
himself. He also complains that the trial court failed to consider the factors set forth in
People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham), to appropriately consider
the timeliness of defendant’s request. We reject defendant’s Faretta claim.
C. Analysis
1. Timeliness
“ ‘[O]nce a defendant has chosen to proceed to trial represented by counsel,
demands by such defendant that he be permitted to discharge his attorney and assume the
defense himself shall be addressed to the sound discretion of the court.’ ” (People v.
Buenrostro (2018) 6 Cal.5th 367, 425 (Buenrostro), quoting Windham, supra, 19 Cal.3d
at p. 128.)
“A trial court must grant a defendant’s request for self-representation if the
defendant unequivocally asserts that right within a reasonable time prior to the
commencement of trial.” (People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch), italics
added.) But “the right of self-representation is not absolute.” (Ibid.) A Faretta motion
may be denied if untimely. (Ibid.) “[A] motion is timely if made ‘a reasonable time prior
to the commencement of trial.’ ” (Id. at p. 722.) The purpose of the timeliness
requirement “is ‘to prevent the defendant from misusing the motion to unjustifiably delay
trial or obstruct the orderly administration of justice.’ ” (Ibid.) The timeliness
requirement “reflects that ‘the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own
lawyer.’ ” (Ibid.)
We review a trial court’s denial of a Faretta motion for abuse of discretion.
(Buenrostro, supra, 6 Cal.5th at p. 426; People v. Valdez (2004) 32 Cal.4th 73, 103
14
(Valdez).) “ ‘A trial court abuses its discretion when its rulings “fall ‘outside the bounds
of reason.’ ” ’ ” (People v. Smith (2018) 4 Cal.5th 1134, 1182 (Smith); People v. Powell
(2011) 194 Cal.App.4th 1268, 1278 (Powell).)
As our high court noted in Lynch, it has “held on numerous occasions that Faretta
motions made on the eve of trial are untimely.” (Lynch, supra, 50 Cal.4th at p. 722.)11
The Lynch court went on to explain that motions made “long before trial” have been
considered timely, citing a case where the motion was made seven months before the
penalty retrial and another made one year before the preliminary hearing. (Id. at p. 723.)
Contrasting eve-of-trial motions and motions made long before trial as two opposite
points in a continuum of time, the court in Lynch stated the following: “our refusal to
identify a single point in time at which a self-representation motion filed before trial is
untimely indicates that outside these two extreme time periods, pertinent considerations
may extend beyond a mere counting of the days between the motion and the scheduled
trial date.” (Ibid., italics added.) Regarding the day-of-trial end of the continuum, the
court in Powell, supra, 194 Cal.App.4th 1268, stated, based on Lynch: “a trial court
rarely should grant such a motion on the day set for trial,” and further observed, “[a]
11 As examples, the Lynch court listed People v. Horton (1995) 11 Cal.4th 1068, 1110,
(self-representation motion made on the date scheduled for trial untimely) and People v.
Clark (1992) 3 Cal.4th 41, 99-100 (case had been continued day to day after day set for
trial “in the expectation that the motions would be concluded and jury selection set to
begin at any time,” and hence the defendant’s motion made three days after day set for
trial was “in effect the eve of trial” and untimely). More recently, in Buenrostro, supra, 6
Cal.5th at page 427, our high court cited other examples, including Valdez, supra, 32
Cal.4th at page 102 (Faretta motion made “moments before jury selection was set to
begin” was untimely), People v. Frierson (1991) 53 Cal.3d 730, 742 (defendant’s request
for self-representation was untimely when made on the eve of trial, over 10 months after
appointment of trial counsel), and People v. Burton (1989) 48 Cal.3d 843, 853
(defendant’s Faretta request was untimely when made “after the case had been called for
trial, both counsel had answered ready, and the case had been transferred to a trial
department for pretrial motions and jury trial” and jury selection was to commence the
next day).
15
motion made that close to the day set for trial is ‘extreme’ [citation] and now is
disfavored.” (Id. at p. 1277.) Here, defendant’s motion was made on the extreme end of
the continuum. Indeed, defendant mentioned self-representation for the first time not
close to trial or even on the eve of trial, but at the beginning of trial, after in limine
motions and while the prospective jurors were making their way to the courtroom for jury
selection.
Defendant makes much of the trial court’s statement that defendant did not have a
right to self-representation, asserting that the court’s statement was legally wrong. It was
not. Our high court has made clear, “ ‘ “[w]hen a motion for self-representation is not
made in a timely fashion prior to trial, self-representation no longer is a matter of right
but is subject to the trial court’s discretion.” ’ ” (Valdez, supra, 32 Cal.4th at p. 103,
italics added.) In our view, the trial court’s reference to its authority to make the
decisions is a reference to the court’s authority to exercise its discretion, and the court
stating it was “finding” defendant did not have a right of self-representation was an
exercise of that discretion. (Italics added.) And, although the court did not mention
timeliness at that junction in the proceedings, it did later. As noted, in connection with
defendant’s Marsden claims, the court told defendant: “Mr. Turner I understand, you
know, I know you’re having a tough time. Unfortunately, we could have had this
conversation earlier, had you requested it, but it is really is quite late to be doing this.”
(Italics added.)
2. Windham / Lynch Factors
Defendant also asserts that, because the trial court did not expressly address
timeliness using the factors outlined by our high court, it was an abuse of discretion to
deny his Faretta request. In this regard, defendant points to the factors set forth in
Windham, supra, 19 Cal.3d at page 128. The Windham court held that when a defendant
makes an unequivocal but untimely request, “the trial court shall inquire sua sponte into
the specific factors underlying the request thereby ensuring a meaningful record in the
16
event that appellate review is later required. Among other factors to be considered by the
court in assessing such requests made after the commencement of trial are the quality of
counsel’s representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings, and the
disruption or delay which might reasonably be expected to follow the granting of such a
motion.” (Id. at pp. 128-129, italics added.) More recently, our high court held in Lynch
that timeliness is based on the totality of the circumstances that exist in the case at the
time the self-representation motion is made. (Lynch, supra, 50 Cal.4th at p. 724.) The
Lynch court went on to state: “a trial court may consider the totality of the circumstances
in determining whether a defendant’s pretrial motion for self-representation is timely.
Thus, a trial court properly considers not only the time between the motion and the
scheduled trial date, but also such factors as whether trial counsel is ready to proceed to
trial, the number of witnesses and the reluctance or availability of crucial trial witnesses,
the complexity of the case, any ongoing pretrial proceedings, and whether the defendant
had earlier opportunities to assert his right of self-representation.” (Id. at p. 726.)
The trial court here undoubtedly could have made a better record. However, it
need not have expressly cited the Windham factors or any factors that motivated its
decision. It is sufficient if there is substantial evidence in the record to support the
court’s exercise of discretion to deny the request. (People v. Perez (1992) 4 Cal.App.4th
893, 904 (Perez) [“While the court did not specifically make [a Windham ] inquiry, we
conclude there were sufficient reasons on the record for the court to exercise its discretion
to deny the request”]; see also Powell, supra, 194 Cal.App.4th at p. 1278 [defendant
made Faretta motion on the date set for trial; the appellate court stated: “[t]he trial court
need not have elaborated on its ruling that defendant’s motion could not be granted under
such inopportune circumstances”]; People v. Scott (2001) 91 Cal.App.4th 1197, 1206
[“while the trial court may not have explicitly considered each of the Windham factors,
there were sufficient reasons on the record to constitute an implicit consideration of these
17
factors”].) Windham “specifically contemplated that even without a recitation of reasons
for denying an untimely Faretta motion, ‘there should be a sufficient record on appeal in
such cases in order to sufficiently evaluate alleged abuses of discretion when motions for
self-representation are denied.’ ” (People v. Bradford (2010) 187 Cal.App.4th 1345,
1355, quoting Windham, supra, 19 Cal.3d at p. 129, fn. 6.) Our review of the totality of
the circumstances supporting the trial court’s decision here follows.
a. The Stage of the Proceedings, Ongoing Pre-trial Proceedings, and
Defendant’s Prior Opportunities to Seek Self-representation
In Windham, the court cited the stage of the proceedings as a relevant factor
(Windham, supra, 19 Cal.3d at p. 128), and in Lynch, the court cited whether there were
“ongoing pretrial proceedings,” the “time between the motion and the scheduled trial
date,” and added as a consideration whether the defendant had prior opportunities to
assert his right of self-representation (Lynch, supra, 50 Cal.4th at p. 726).
Here, four months lapsed between the arraignment on the information when trial
counsel was appointed and the first time defendant mentioned self-representation.
During that time period there were numerous court settings when defendant had earlier
opportunities to assert his right of self-representation. After the case was assigned to the
trial department, motions in limine were heard on June 21, 2013, and still defendant did
not mention self-representation, but he undoubtedly heard the trial court announce on the
record it was requesting a jury panel of 90 people for June 25, 2013. It was not until the
morning of June 25 when, for the first time, defendant mentioned self-representation,
during the Marsden hearing held just as the court was about to bring the panel of
prospective jurors into the courtroom.
b. The Reasons for Self-Representation
In Windham, the court cited the reason for the request for self-representation as a
relevant consideration. (Windham, supra, 19 Cal.3d at p. 128; see also Buenrostro,
supra, 6 Cal.5th at 427.) The immediate reasons for mentioning self-representation
18
appear to be defendant’s desire to have a copy of the preliminary hearing transcript and a
disagreement with counsel about a motion related to section 1219. As to the latter, trial
counsel had previously, correctly, explained the motion had no validity. Then, at the
Marsden hearing, the trial court also correctly informed defendant the motion was not
viable, and further informed him that trial counsel was not incompetent for refusing to
make what would have been a frivolous motion. The court’s explanation came after the
colloquy where defendant mentioned self-representation. (See Windham, at p. 129 [“We
find no abuse of discretion in the trial court’s denial of the motion. The sole reason put
forth by defendant to support his request was the claim that his admittedly competent
counsel had been unable to present a stronger case on the theory of self-defense”]; Scott,
supra, 91 Cal.App.4th at p. 1206 [defendant’s “main problem with counsel was a
disagreement over trial tactics, which is ‘an insufficient reason to grant an untimely
Faretta request’ ”].) Instead of persisting in a genuine claim for self-representation,
defendant’s last statement was that his case would be reversed because of his section
1219 argument: “1219, the appellate court is going to reverse this.”
The record is clear that the first time defendant mentioned self-representation was
when the trial court was explaining why he was not entitled to his own copy of the
preliminary hearing transcript. In context, his question, “How about I go pro per?”
followed by “I’ll go pro per, Your Honor” appears to have been an effort to get the
transcript by “go[ing] pro per” since he did not otherwise have a right to it.
c. Reluctance of a Critical Trial Witness
Importantly, the court in Lynch cited the reluctance of crucial trial witnesses as a
relevant consideration. (Lynch, supra, 50 Cal.4th at p. 724.) Here, a bench warrant was
required to secure the victim’s appearance for the preliminary hearing. The record
clearly demonstrates defendant knew long before trial was to begin that the victim was
reluctant and otherwise problematic. His comment about things “getting out of hand”
19
suggests at that point he realized he could not count on her failing to appear to testify as a
witness at trial.
d. Potential for Disruption or Delay
Windham identifies, as a relevant factor, the delay or disruption that might be
expected if a defendant is allowed to represent himself. (Windham, supra, 19 Cal.3d at
p. 128.) Our high court has since characterized this factor as the “potential for delay or
other disruption,” and at the same time noted that although it is an important factor, it is
not the only factor to be considered. (Buenrostro, supra, 6 Cal.5th at p. 426.) Given the
timing here, it is fair to infer the proceedings would be disrupted by defendant’s belated
self-representation. Although the trial court did not expressly ask defendant whether he
was requesting a continuance, defendant did not affirmatively state he was prepared to
proceed with the trial as scheduled, including jury selection at that very moment.
Moreover, we may fairly infer defendant needed time to prepare because his question,
“how many felonies am I facing?” suggests he did not even fully comprehend something
as rudimentary as the charges he was facing.
Regarding the potential for disruption, defendant interrupted the trial court and
defense counsel multiple times during the Marsden proceedings, and the trial court had to
remind defendant no fewer than five times not to interrupt when the court was speaking.
Indeed, as the transcript reflects, defendant interrupted the court’s explanation about the
preliminary hearing transcript when he first mentioned self-representation. Furthermore,
when it became clear the court was not going to replace trial counsel, defendant, who the
trial court had already recognized was “having a tough time,” threatened to become
disruptive. As our high court observed in Smith, supra, 4 Cal.5th at page 1182, “[t]he
trial court could reasonably believe that granting the motion would be disruptive because
defendant would have difficulty controlling his temper.”
20
e. The Complexity of the Case
The record reflects the victim presented some unique challenges. Her potential
testimony required a person with cross-examination skills that would be effective without
seeming unduly aggressive to a jury. Her testimony called for someone skilled at
establishing prior inconsistent statements. Also, in addition to the victim, the prosecution
had listed 14 other witnesses, five of whom were medical-related witnesses.
f. The Quality of Trial Counsel’s Representation and Readiness to
Proceed
In Windham, the court cited the quality of counsel’s representation as a relevant
circumstance (Windham, supra, 19 Cal.3d at p. 128), and in Lynch, the court also noted
whether trial counsel was ready to proceed to trial was another relevant consideration
(Lynch, supra, 50 Cal.4th at p. 724). At the trial readiness conference on June 5, 2013,
speedy trial time remained waived but the case remained set for trial on June 21, which
indicates trial counsel was prepared to proceed. As far as trial counsel’s background and
experience, he outlined his credentials on the record during the Marsden hearing, and the
court was aware of the quality of trial counsel’s representation in other cases. In the end,
defendant even acknowledged that trial counsel was a good attorney.
g. Windham / Lynch Conclusion
Throughout the proceedings, defendant only mentioned “go[ing] pro per” once.
The record establishes substantial evidence supporting sufficient reason for the trial court
to exercise its discretion to deny defendant self-representation (Perez, supra, 4
Cal.App.4th at p. 904) that existed prior to defendant’s reference to self-representation
and that developed thereafter. Because all of the aforementioned factors weigh against
allowing self-representation, the trial court’s refusal to allow defendant to represent
himself was not an abuse of discretion. Moreover, as we next discuss, the record is not as
clear as defendant suggests as to whether he even made an unequivocal request to
represent himself.
21
3. Unequivocal Request for Self-Representations
“Even [if] a trial court denied the [Faretta] request for an improper reason, if the
record as a whole establishes defendant’s request was nonetheless properly denied on
other grounds, we uphold the trial court’s ruling.” (People v. Dent (2003) 30 Cal.4th 213,
218.) Aside from the timeliness issue, the record is not clear defendant’s request to
represent himself was unequivocal. Courts “should draw every reasonable inference
against waiver of the right to counsel,” and consequently, “[a] motion for self-
representation made in passing anger or frustration . . . or one made for the purpose of
delay or to frustrate the orderly administration of justice may be denied.” (Valdez, supra,32 Cal.4th at pp. 98-99.) Thus, “[a] court faced with a motion for self-representation
should evaluate not only whether the defendant has stated the motion clearly, but also the
defendant’s conduct and other words.” (Id. at p. 98.) And a defendant’s “single
reference” to proceeding in pro per may be viewed “as an ‘impulsive response’ ” to a
denial of a Marsden request. (Id. at p. 99; see also People v. Marshall (1997) 15 Cal.4th
1, 21, citing People v. Hacker (1990) 563 N.Y.S.2d 300, 301 [recognizing a New York
case where the appellate court held the record as a whole did not reflect an unequivocal
request for self-representation, but rather a spur of the moment decision prompted by the
denial of defendant’s motion for substitute counsel]; Scott, supra, 91 Cal.App.4th at
p. 1205 [“the motion was not unequivocal. [Defendant] made his Faretta motion
immediately after the trial court denied his Marsden motion, and [defendant’s]
subsequent comments suggest he made the Faretta motion only because he wanted to rid
himself of appointed counsel”].)
Our review of the entire record – not just the isolated part of the record cited in
defendant’s briefing – reveals defendant’s request was an impulsive reaction to the court
explaining why he could not get a copy of the preliminary hearing transcript.
Defendant’s frustration was apparent. The trial court recognized defendant was having
“a tough time.” And regarding representation, the transcript reveals that defendant’s
22
focus was firing trial counsel. But, despite his desire for substitute counsel, later in the
proceedings, defendant expressed a desire to rely on trial counsel to reopen the plea
negotiations in an effort to get the prosecutor to reoffer a ten-year deal. Under the
circumstances, defendant’s request for self-representation was not unequivocal and for
this separate reason, we conclude the trial court did not abuse its discretion in its decision
concerning self-representation.
II. Positioning of the Bailiff During Defendant’s Testimony
A. Additional Background and Defendant’s Contentions
At sentencing, defense counsel, at defendant’s prompting, informed the court
defendant objected to the sheriff’s deputy sitting behind him while he testified at trial.
Defendant felt the presence of the sheriff’s deputy made him appear violent. Counsel
stated, “I didn’t object. This is done routinely with somebody in custody.” The trial
court stated, “It is true, especially in this courthouse, because we had the judge stabbed,
we are probably overly cautious about things like that.” The court went on to say that,
though there had been a couple of deputies in the courtroom while defendant testified and
one was “seated at the top of the courtroom,” defendant was not subjected to any other
restriction. The court did not say anything about the threat defendant made during the in
camera Marsden hearing to be disruptive; the in camera proceedings had been sealed.
Defendant contends in his original brief that the trial court abused its discretion by
stationing a sheriff’s deputy behind him while he testified, and that the error was
prejudicial. Alternately, he contends that trial counsel rendered ineffective assistance by
failing to object to the presence of the deputy during his testimony.
Because of defendant’s threat to become disruptive during the in camera Marsden
hearing, we conclude the trial court did not abuse its discretion in allowing a deputy to be
stationed behind defendant when he testified, even though the court did not expressly
make a case-specific determination that the security measure was needed and place the
reasons for that determination on the record. Moreover, even if the bailiff’s positioning
23
was error, defendant was not prejudiced because it is not reasonably probable he would
have achieved a better result if the deputy had not been seated behind him while he
testified. Finding no error or prejudice, we also reject defendant’s contention that he
received ineffective assistance of counsel.
B. Analysis
1. Abuse of Discretion
“A ‘trial court has broad power to maintain courtroom security and orderly
proceedings. [Citations.]’ [Citation.] For this reason, decisions regarding security
measures in the courtroom are generally reviewed for abuse of discretion.” (People v.
Stevens (2009) 47 Cal.4th 625, 632 (Stevens).) However, some “extraordinary security
practices carry an inordinate risk of infringing upon a criminal defendant’s right to a fair
trial” and “must be justified by a particularized showing of manifest need sufficient to
overcome the substantial risk of prejudice they pose.” (Ibid.) But “the stationing of a
courtroom deputy next to a testifying defendant is not an inherently prejudicial practice
that must be justified by a showing of manifest need.” (Id. at pp. 629, 635-636.) Thus,
we review the trial court’s decision here to station a deputy behind defendant for abuse of
discretion.
While a showing of manifest need is not required, our high court has said the trial
court must nonetheless exercise its discretion on a case-by-case basis and cannot simply
follow a generic policy in deciding whether to station a deputy near a testifying
defendant. (Stevens, supra, 47 Cal.4th at pp. 642, 644; see also People v. Hernandez
(2011) 51 Cal.4th 733, 742 (Hernandez).) And “[t]he trial court should state its reasons
for stationing a guard at or near the witness stand and explain on the record why the need
for this security measure outweighs potential prejudice to the testifying defendant.”
(Stevens, at p. 642.) Trial judges have a duty to state the reasons for such a decision on
the record. (Hernandez, at p. 744.)
24
Analogizing this duty to sentencing decisions, our high court stated, “ ‘a
requirement of articulated reasons to support a given decision serves a number of
interests: it is frequently essential to meaningful review; it acts as an inherent guard
against careless decisions, insuring that the judge himself analyzes the problem and
recognizes the grounds for his decision; and it aids in preserving public confidence in the
decision-making process by helping to persuade the parties and the public that the
decision-making is careful, reasoned and equitable.’ ” (Hernandez, supra, 51 Cal.4th at
p. 744.) Where the record does not reveal this level of “thoughtful consideration” but
instead indicates the court has relied on a generic policy, “the order constitutes an abuse
of discretion, and an appellate court will not examine the record in search of valid, case-
specific reasons to support the order.” (Id. at p. 744, italics added.)
However, while we need not search the record, we cannot ignore it either. As
noted, during the Marsden hearing, defendant declared, “Get me out of here or I’m going
to cause a scene, I’m warning you. I’m giving you fair warning,” and “I’m not going to
get up, but I’m just going to keep doing this and disrupting.” This was reason enough to
allow the deputy’s positioning during defendant’s cross-examination. The trial court
simply may have felt compelled not to state for the record what happened during the
sealed proceedings. In any event, under these circumstances, we cannot say the court
abused its discretion.
C. Harmless Error
Even if the trial court had a duty to state specific reasons under circumstances
where a defendant had been openly disruptive on the record during in camera
proceedings, defendant’s claim here still fails in the absence of prejudice.
Because the proximal presence of a security officer while a defendant testifies is
not an “inherently prejudicial practice,” a court’s failure to “exercise discretion and make
a record of case-specific reasons for ordering this procedure” does not amount to a
constitutional violation. (Hernandez, supra, 51 Cal.4th at p. 746.) Thus, a defendant
25
cannot demonstrate he was actually prejudiced unless he can establish it is reasonably
probable he would have obtained a more favorable result absent the error under People v.
Watson (1956) 46 Cal.2d 818, 837 (Watson). (Hernandez, at pp. 745, 746.) Our high
court has noted that “the Watson test for harmless error ‘focuses not on what a reasonable
jury could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 956.)
Here, there is ample evidence from the victim, corroborated by the good
Samaritan, the responding Sheriff’s deputy, the victim’s treating physician, and the
photographs that defendant severely injured the victim, his current or former cohabitant,
as charged in Count 5, which apparently pertained to the events of February 11, 2013.12
Though the jury acquitted defendant of hitting the victim with a baseball bat or beer
bottle, or stabbing her with a stick, the apparent shoeprint on the her face and defendant’s
own admission that he kicked her in the face was compelling evidence that defendant was
guilty of inflicting corporal injury on a cohabitant.
Additionally, defendant’s acquittal as to all other counts belies his contention that
the jury assumed he was violent merely as a result of the deputy’s position behind him
during his testimony. Instead, defendant’s own testimony demonstrated his violence. He
testified that, after the intoxicated victim had purportedly knocked herself unconscious by
“slam[ming] into the concrete” and then climbed an embankment and attacked him with a
knife, he disarmed her and punched her in the face, “bam.” He said he hit her “hard,” but
12 Count 5 was the last of the section 273.5, subdivision (a), counts that was alleged to
have taken place between February 8 and February 11, 2013.
26
“not too hard.” When she then purportedly began clawing at his face with her bare
hands, defendant pushed her down to below his knee level. The victim then grabbed his
foot, so he kicked her once in the face “hard.” And, when she did not let go of his leg, he
kicked her again in the thigh. He said, “the second kick I decided -- I kicked her a little
too hard. She’s a little thing.” He said he outweighed the victim by 50 pounds. A
photograph of the victim’s face while she was at the hospital showed shoe tread marks on
her cheek. Based on this evidence, it is not reasonably probable that defendant would
have obtained a more favorable result on Count 5 absent the error. (Hernandez, supra,51 Cal.4th at p. 746.) Thus, defendant was not prejudiced by the presence of a sheriff’s
deputy behind him while he testified.
D. Ineffective Assistance of Counsel Claim
Defendant also contends his trial counsel’s failure to object to the bailiff’s position
amounted to constitutional ineffective assistance of counsel. To establish ineffective
assistance of counsel, a defendant must show (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms, and (2) the
deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S.
668, 688, 691-692 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Because we find there was sufficient reason for the positioning of the deputy based on
defendant’s own courtroom behavior during the in camera Marsden hearing – behavior
trial counsel observed – and since defendant suffered no prejudice, we reject defendant’s
claim of ineffective assistance of counsel. We also note that counsel had good reason to
believe a complaint about the positioning of the deputy would be futile, given defendant’s
behavior during the in camera Marsden hearing.
27
III. Qualification of the Conviction Offense for
Third Strike and Section 667, Subdivision (a) Sentences
A. Additional Background and Defendant’s Contention
As noted, defendant was convicted of infliction of corporal injury on a cohabitant
(§ 273.5, subd. (a)) and causing great bodily injury under circumstances involving
domestic violence (§ 12022.7, subd. (e)), and sentenced to a term of 25-years-to life as
third strike offender in addition to two five-year terms under section 667, subdivision
(a).13 The information alleged that defendant violated section 273.5 in that he “inflict[ed]
a corporal injury resulting in a traumatic condition upon Jane Doe who was then and
there a . . . cohabitant. . .” It further alleged that, “in the commission of the above
offense,” defendant “personally inflicted great bodily injury under circumstances
involving domestic violence upon Jane Doe, within the meaning of Penal Code section
12022.7(e) and also causing the above offense to be a serious felony within the meaning
of Penal Code section 1192.7(c)(8).” (Italics added.) (Capitalization omitted.)
Defendant contends in his third supplemental brief that the conviction offense and
enhancement did not constitute a serious felony offense because the prosecution did not
plead and prove the great bodily injury victim was not an accomplice as required by
section 1192.7(c)(8). Based on this, defendant asserts his conviction offense did not
qualify him for a third strike sentence. He also asserts the conviction did not qualify him
for the section 667, subdivision (a) serious felony enhancement sentence. Both
contentions are meritless.
B. Analysis
Under the current version of the Three Strikes law, the current conviction offense
must be a serious or violent felony offense to qualify a defendant for third strike
13 He was also sentenced to a consecutive term of four years for the section 12022.7,
subdivision (e) great bodily injury enhancement.
28
sentencing. (§ 667, subd. (e)(2)(C); People v. Johnson (2015) 61 Cal.4th 674, 681.)
Section 1192.7, subdivision (c)(8), provides that any “felony in which the defendant
personally inflicts great bodily injury on any person, other than an accomplice” is a
serious felony offense. (Italics added.) According to defendant, because section
12022.7, subdivision (e), pertaining to the personal infliction of great bodily injury
involving domestic violence, does not include the words “other than an accomplice,” it
does not make an offense where such injury is inflicted a serious felony offense.
As noted, the information alleged the same person who was the victim of the
charged crime, corporal injury on a cohabitant, was the same person who was the victim
of the great bodily injury enhancement. An accomplice is a person who is liable to
prosecution for the identical offense charged against the defendant. (§ 1111.) An
accomplice is a principal in the crime and can be liable by directly perpetrating the act
constituting the crime, aiding and abetting the act, or by being a coconspirator. (§ 31;
People v. Houston (2012) 54 Cal.4th 1186, 1224.) An aider and abettor is a person who
“aids, promotes, encourages, or instigates the perpetrator with the intent of encouraging
or facilitating the commission of the crime.” (Ibid.)
Defendant has not presented any authority establishing that it is even a legal
possibility that a domestic violence victim who sustained great bodily injury could be an
accomplice to her own victimization, and we are aware of none. Indeed, as far as we
know, no crime prohibits a person from inflicting traumatic injury on themselves.
Consequently, we conclude this scenario falls within the meaning of section 1192.7,
subdivision (c)(8), because, as a matter of law, the great bodily injury victim cannot be an
accomplice.14
14 Defendant relies on People v. Henley (1999) 72 Cal.App.4th 555. Henley involved
the question of whether a prior conviction constituted a serious felony offense because of
the infliction of great bodily injury. In that case, defendant was charged with inflicting
29
Assuming the Legislature and the electorate intended the absurd consequence of
requiring a showing that a domestic violence victim was not an accomplice to her own
victimization, any error here had nothing to do with the pleading – the prosecution pled
the great bodily injury made the offense a serious felony offense within the meaning of
section 1192.7, subdivision (c)(8). Defendant simply ignores this fact when he asserts the
prosecution did not plead the conviction offense is a serious felony offense. We agree
with the People that if there was error, it related not to the pleading requirement, but
rather to the proof requirement inasmuch as the jury was not instructed it had to find that
the victim here was not an accomplice to her own victimization. We conclude any such
error is harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705] [the error is harmless beyond a reasonable doubt]; Watson, supra, 46 Cal.2d
at p. 836 [it is not reasonably probable that defendant would have obtained a more
favorable result in the absence of the error].) Had the jury been instructed it had to find
that the victim was not an accomplice, it would have done so.
The victim sustained two spinal fractures and a fibular fracture to one of her legs,
significant trauma to the head area, numerous facial fractures, including a maxillary sinus
fracture, two orbital fractures on the left side, and “severely comminuted nasal fractures”
on both sides of the nose. Her eyelids were swollen shut and there was soft tissue
swelling along the left scalp. Lines on her left cheekbone were consistent with a shoe
mark. She had several abrasions. The treating physician testified that the nasal and
orbital fractures could have been caused by blunt force trauma such as a punch to the face
or being stomped on with shoes. Substantial force was required to cause those injuries
according to the physician.
great bodily injury in the commission of evading a peace officer in violation of Vehicle
Code section 2800.3. (Henley, at p. 559.) Henley did not involve the scenario we have
here where the great bodily injury was inflicted against a victim of the charged crime
who could not be an accomplice.
30
Based on the evidence the jury heard, it would not have found that the victim
intentionally aided defendant when these injuries were inflicted; for example, it would
not have found the victim aided defendant when he stomped or kicked her head, leaving
footprint impressions on her face and causing the blunt force trauma previously described
and that she did so sharing defendant’s intent.
We conclude the current conviction offense, plus the great bodily injury
enhancement, which was both pled and proven, made the conviction offense a serious
felony offense within the meaning of section 1192.7, subdivision (c)(8). Additionally,
the serious felony offense allegation was properly pled. The conviction offense and great
bodily injury enhancement here qualified defendant for both three strikes sentencing and
sentencing under section 667, subdivision (a).
IV. Imposition of Two Section 667, Subdivision (a) Sentences
A. Additional Background and Defendant’s Contention
The court imposed two separate five-year terms under section 667, subdivision (a),
one for the 2009 conviction for exhibiting a deadly weapon with intent to resist arrest or
detention and the other for one of the 1984 first degree burglary convictions, noting that
the two first degree burglary convictions were imposed at the same time.15
In his second supplemental brief, defendant contends one of the section 667,
subdivision (a), prior serious felony enhancements must be stricken. This contention is
completely meritless.
15 The trial court stayed the section 667, subdivision (a), prior serious felony
enhancement related to the other first degree burglary conviction. It also stayed
imposition of the sentence on the single section 667.5, subdivision (b), prior prison term
enhancement; it was for the sentence related to the exhibiting conviction.
31
B. Analysis
Defendant relies on People v. Sasser (2015) 61 Cal.4th 1 (Sasser). In Sasser, a
five-year sentence was added to each of several determinate term sentences for a single
section 667, subdivision (a), prior. The Sasser court held that the single prior could only
be applied once. (Sasser, at pp. 6-7.) Here, defendant had two section 667, subdivision
(a), priors brought and tried separately. A separate five-year sentence may be imposed
for each prior serious felony conviction “ ‘separately brought and tried.’ ” (People v.
Jones (2015) 236 Cal.App.4th 1411, 1415.)
V. Three Strikes and Section 667, Subdivision (a)
Allegation Based on Prior Section 417.8 Conviction
A. Additional Background and Defendant’s Contention
In a bifurcated proceeding, the trial court found defendant had prior strikes for two
first degree burglary convictions (§ 459) and one exhibiting a deadly weapon with intent
to resist arrest or detention conviction (§ 417.8). The trial court rejected defendant’s
contention that the section 417.8 conviction was not a strike, ruling that “it clearly is
covered by Penal Code section 1192.7 in that it is a felony in which a person personally
used a deadly weapon. And so that’s one of the serious felonies listed in that section.”
The court continued, “it was the use of a deadly weapon in connection with any type of
felony” and further noted, “it was used in the sense that it was an implement designed to
facilitate the use of the person getting away.” As noted, defendant was sentenced as a
third-strike offender and given an additional five-year sentence for the section 667,
subdivision (a), enhancement based on the prior section 417.8 conviction.
In his second supplemental brief, defendant argues section 417.8 is not a serious
felony offense under section 667, subdivision (a), because section 417.8 is not listed in
section 1192.7, subdivision (c). We disagree.
32
B. Analysis
We first note that regardless of our holding as to the section 417.8 prior, defendant
would still qualify for a life sentence based on the two prior first degree burglary
convictions. The import of our analysis here relates to the five-year section 667,
subdivision (a) enhancement.
As for the section 417.8 conviction, as the trial court observed, it is a serious
felony within the meaning of section 1192.7, subdivision (c)(23), because it qualifies as
“any felony in which the defendant personally used a dangerous or deadly weapon.” The
definition of “use” in this context includes displaying the weapon “ ‘in an intentionally
menacing manner’ . . . .” (People v. Winslow (1995) 40 Cal.App.4th 680, 686, italics
added; see also CALCRIM No. 3145.) Section 417.8 provides: “Every person who
draws or exhibits any . . . deadly weapon, with the intent to resist or prevent the arrest or
detention of himself or another by a peace officer shall be imprisoned in the state prison
for two, three, or four years.” (Italics added.) As the trial court’s ruling implies, drawing
or exhibiting a deadly weapon in the context of intending to resist or prevent arrest or
detention is the equivalent of displaying a weapon in an intentionally menacing manner.
Thus, the trial court’s finding comports with our high court’s pronouncement in People v.
Gallardo (2017) 4 Cal.5th 120, that the trial court’s role is “limited to identifying those
facts that were established by virtue of the conviction itself.” (Id. at p. 136.)
Accordingly, we reject defendant’s contention.
VI. Senate Bill No. 1393
A. Defendant’s Contention
Defendant contends in his third supplemental brief that he is entitled to remand for
the trial court to determine whether to exercise its discretion to strike or dismiss the
section 667, subdivision (a), enhancement sentences under the authority granted in S.B.
1393. We disagree. Statements the trial court made at sentencing make clear that it
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would not have stricken or dismissed the section 667, subdivision (a), enhancements in
the interest of justice under section 1385 if it had previously had the authority to do so.
B. Additional Background
In considering whether to strike defendant’s strike allegations under People v.
Romero (1996) 13 Cal.4th 497 (Romero), and People v. Williams (1998) 17 Cal.4th 148,
the trial court noted that defendant’s two first degree burglary convictions were from
1984 when defendant was 18. The court stated: “[Y]ou just continued throughout your
life to just keep yourself constantly in trouble with the police . . . and you are constantly
in and out of jail. If it weren’t for that I really would consider eliminating your strikes
because they are so old. . . . [¶] Two of them anyway. The two most important ones.
But you have just a consistent history, ever since then of constantly getting into one kind
of trouble or another. And looking at the probation report, and they set forth your record
on that . . . I don’t see a lot of things like robberies or rapes or anything like that. But you
do hurt people, sadly enough. A lot of your convictions are types of convictions that
relate to hurting people. [¶] It’s just you constantly are . . . getting into trouble one way
or another. And you keep getting sent back on parole violations. So the result of that all
is that I don’t feel that I would be upheld if I were to strike any of your old strikes. I
don’t think that you come within the purview of the Williams case or the Romero case. I
cannot find that legally permissible to strike any of your strikes.” (Italics added.) The
court concluded, “the sentence the law calls for . . . is perfectly justified in your case.”
C. Analysis
S.B. 1393 (2017-2018 Reg. Sess.) went into effect on January 1, 2019, and
amended sections 667, subdivision (a), and 1385, subdivision (b) to give a trial court the
authority to strike or dismiss a prior serious felony allegation in the furtherance of justice
under section 1385. Because defendant’s appeal was pending when S.B. 1393 went into
effect, it applies to defendant retroactively. (People v. Franks (2019) 35 Cal.App.5th
883, 892 (Franks); People v. Jones (2019) 32 Cal.App.5th 267, 272-273 (Jones).)
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Defendant asks us to remand this matter to allow the trial court to exercise its discretion
as to whether to strike or dismiss the section 667, subdivision (a), enhancements under
section 1385. The People argue that, given the various factors the court considered in
ruling on the Romero issue and its reasons for its denial, remand would be futile. We
agree with the People.
“We are not required to remand to allow the court to exercise its discretion if ‘the
record shows that the trial court clearly indicated when it originally sentenced the
defendant that it would not in any event have stricken [the] . . . enhancement’ even if it
had the discretion.” (Jones, supra, 32 Cal.App.5th at p. 273, quoting People v.
McDaniels (2018) 22 Cal.App.5th 420, 425; accord, Franks, supra, 35 Cal.App.5th 883,
892.) “The trial court need not have specifically stated at sentencing it would not strike
the enhancement if it had the discretion to do so. Rather, we review the trial court’s
statements and sentencing decisions to infer what its intent would have been.” (Jones, at
p. 273, citing People v. McVey (2018) 24 Cal.App.5th 405, 419.)
Here, the record clearly indicates the trial court would not strike or dismiss the
section 667, subdivision (a), five-year enhancements. Indeed, in denying the Romero
motion, the trial court considered the same section 1385 furtherance of justice factors it
would be required to consider on remand to consider whether to strike or dismiss the
section 667, subdivision (a) enhancements in the furtherance of justice under section
1385. (See People v. Shaw (2020) 56 Cal.App.5th 582, 586.) There are no other factors
for the court to consider.
The court primarily focused on the probation report’s recitation of defendant’s
criminal history. According to the probation report, defendant’s criminal history spanned
29 years. The report reflects five felony convictions, 12 misdemeanor convictions, and
11 probation/parole violations. Of particular concern for the court was that “a lot of”
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defendant’s convictions “relate[d] to hurting people.”16 And the court noted the sentence
it imposed was “perfectly justified in [defendant’s] case.” Given those statements, it is
clear the trial court would not have found it in the interests of justice to strike or dismiss
the two section 667, subdivision (a), enhancements for which it imposed five-year
sentences. Remand would be futile.
DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
HOCH, J.
16 In addition to the current offense, the probation report reflects a 1992 conviction for
section 273.5; a 1994 conviction for former 12021, subdivision (a), felon in possession of
a firearm; a 2003 conviction for section 422, criminal threats; and the 2009 conviction for
section 417.8, exhibiting a deadly weapon with intent to resist arrest or detention.
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