People v. Gonzalez CA2/5 ( 2014 )

Filed 5/23/14 P. v. Gonzalez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B248509
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. KA099051)
v.
GEORGE A. GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Mike
Camacho, Judge. Affirmed as modified.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Tannaz Kouhpainezhad, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________
The jury convicted defendant and appellant George A. Gonzalez in count 1 of first
degree residential burglary (Pen. Code § 459),1 in count 2 of second degree robbery (§
211), and in count 3 of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury
found true the allegation that defendant personally used a deadly and dangerous weapon
– a crowbar – as to count 2. Defendant admitted that he suffered two prior convictions
within the meaning of section 1170, subdivision (h)(3); seven prior convictions within the
meaning of section 1203, subdivision (e)(4); five prior prison terms within the meaning
of section 667.5, subdivision (b); two prior convictions under the three strikes law within
the meaning of sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i); and
two prior convictions within the meaning of section 667, subdivision (a)(1).
The trial court sentenced defendant to 35 years-to-life, consisting of a term of 25
years-to-life in count 1, plus two 5 year enhancements pursuant to section 667,
subdivision (a)(1); a concurrent sentence of 25 years-to-life in count 2; and a sentence of
25 years-to-life in count 3, stayed pursuant to section 654. Defendant’s remaining prior
convictions were stricken.
Defendant contends that the trial court abused its discretion in denying his motion
to represent himself and in refusing to strike either of his two prior strike convictions. He
further contends that his sentence in count 2 was unauthorized, and must be stayed.
We accept the Attorney General’s concession that the sentence in count 2 must be
stayed pursuant to section 654. We order the trial court to prepare an amended abstract
of judgment staying the sentence in count 2 pursuant to section 654, and in all other
respects, affirm.
1 All further statutory references are to the Penal Code unless otherwise specified.
2
FACTS
Prosecution
On the evening of April 14, 2012, roommates Ryan Raskop and Fabian Rosales
saw defendant exit their apartment as they were walking home. Defendant was carrying
a crowbar and a laundry bag. As defendant walked by, Raskop and Rosales noticed that
several items belonging to them and their roommates were inside the laundry bag,
including two computers, a camera, and a jewelry box. They recognized the laundry bag
as belonging to one of their roommates.
Raskop asked defendant where he got the items in the bag. Defendant answered
that someone had given them to him, and walked away. Raskop and Rosales followed
him. Raskop got close to defendant to take a photo of him, and defendant raised the
crowbar over his head as if to swing it, and yelled, “Get away from me.” He chased
Raskop and Rosales for a few feet. Raskop was afraid of being hit with the crowbar, so
he ran away from defendant. Then he and Rosales began following defendant again, in
another attempt to take a photo of him. Defendant warned them to stay back because he
had a gun, and walked towards the parking lot.
Kenneth Breaux, another resident of the apartment complex, saw Raskop chasing
defendant. He heard Raskop yelling that defendant robbed his apartment. Breaux saw
defendant running toward the parking lot very slowly, carrying something in his jacket,
and watched him get into the passenger side of a car. Breaux took a picture of the license
plate with his cell phone.
Raskop called 9-1-1. West Covina Police Officer Michael Harden responded to
the scene, where Raskop and Breaux described defendant and the car, and provided the
photos they had taken of defendant and the car’s license plate. Officer Harden inspected
the apartment and noticed that the sliding glass door in the kitchen appeared to have been
pried open. Raskop, Breaux, and Rosales all identified defendant at trial.
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Defense
Defendant testified that he was at the apartment complex on the day of the
burglary to pick up a girl. His friend had driven him there. Defendant heard someone
arguing, and then heard people screaming for help. He left due to the commotion. He
never saw Raskop or Rosales, and did not have any weapons or a crowbar. He did not go
into any of the apartments or encounter anyone at the apartment complex.
Defendant admitted that the cell phone photos taken by Raskop were probably
him, though he could not remember what he was wearing that day. He recognized the car
in the license plate photo as belonging to the friend who had driven him to the complex.
Rebuttal
West Covina Police Detective Bryan Gaboury testified that when he interviewed
defendant, defendant did not mention going to the apartment complex to visit a girl or
hearing an argument.
DISCUSSION
Motion for Self-Representation
Defendant first argues that the trial court abused its discretion in denying his
motion to represent himself. We disagree.
On December 7, 2012, the day after trial was set to start, defendant made a motion
under People v. Marsden (1970) 2 Cal. 3d 118, to have counsel replaced with a newly
appointed attorney. Defendant told the trial court 2 that counsel denied him access to
police reports and continued defendant’s trial despite stating he was ready to try the case.
The trial court explained to defendant that police reports were not usually provided to
defendants, and that the trial had been continued because defendant had not been present
2Judge Tia Fisher ruled on the Marsden motion and defendant’s request for self-
representation. Judge Mike Camacho presided over the trial.
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on the previous three days and the prosecution had given defense counsel late discovery.
Trial counsel would not be hampered at trial by not disclosing the police report or other
materials to defendant. Defendant asserted that he was willing to waive time, if he could
represent himself. The trial court questioned defendant why he wanted to represent
himself when he had initially moved for a new attorney to be appointed. Defendant
responded that he wanted to have access to all the evidence in the discovery package.
The trial court explained to defendant that he would still not have access to all
information if he represented himself. Defendant said that he could hire a private
investigator to get all the evidence for him. The trial court explained that certain
information could not be disclosed to defendants, and that whoever had advised him was
incorrect. Defendant said he believed he could get the police report and other discovery
documents through a different attorney. The trial court explained that defendant already
had an outstanding and ethical lawyer. The trial court further advised defendant that
because he had not waived time for trial, his request to represent himself was untimely.
Given defendant’s unfamiliarity with the law, the trial court did not believe that he would
adequately defend himself. A continuance would be necessary whether or not defendant
was represented by counsel. Defendant again requested to represent himself, stating he
had been advised by an inmate in the law library. The trial court asked whether
defendant would prefer legal advice from a prisoner or a lawyer. Defendant responded
that he would prefer a lawyer. The trial court ruled:
“The stakes are high. And at the beginning of this you said the only reason you
wanted to go pro per is you didn’t think [defense counsel] was doing the job he should
be. I already told you that he is. So we’re not going to be – I’m not entertaining any pro
per issues today. We are just not going there right now.”
Defendant replied, “Okay.”
A defendant who knowingly and intelligently waives the right to counsel has a
constitutional right to conduct his own defense. (Faretta v. California (1975) 422 U.S.
806, 835-836; People v. Lightsey (2012) 54 Cal. 4th 668, 694-695.) “A trial court must
grant a defendant’s request for self-representation if the defendant unequivocally asserts
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that right within a reasonable time prior to the commencement of trial, and makes his
request voluntarily, knowingly, and intelligently.” (People v. Lynch (2010) 50 Cal. 4th
693, 721 (Lynch), emphasis added, overruled on other grounds in People v. McKinnon
(2011) 52 Cal. 4th 610, 636-643.) We review the determination that the motion for self-
representation was untimely under the deferential abuse of discretion standard. (People
v. Clark (1992) 3 Cal. 4th 41, 98.)
Whether a Faretta motion is timely depends on the totality of the circumstances at
the time that the trial court was asked to rule. (Lynch, supra, 50 Cal.4th at p. 724.)
“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.)
When a defendant’s Faretta motion “is . . . untimely, the grant or denial of that
request is within the sound discretion of the trial court after it has inquired sua sponte into
the specific factors underlying the request.” (People v. Wilkins (1990) 225 Cal. App. 3d
299, 303; People v. Douglas (1995) 36 Cal. App. 4th 1681, 1688-1689.) When exercising
its discretion, the trial court should consider “‘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.’” (People v. Burton
(1989) 48 Cal. 3d 843, 853, quoting People v. Windham (1977) 19 Cal. 3d 121, 128.)
Given the facts in the present case, defendant’s opportunity to proceed pro se was
not an unqualified right because of his delay in seeking to represent himself. Defendant
waited until the day trial was to commence. (See People v. Horton (1995) 11 Cal. 4th
1068, 1110 [motion made on the day trial was scheduled to start was untimely].)
Additionally, the trial court properly took into account that counsel had been prepared to
try the case, and would have if not for the prosecution’s late discovery and defendant’s
failure to be present in court.
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Moreover, the court did not abuse its discretion in denying the untimely request.
The trial court evaluated defense counsel’s performance and concluded that he provided
excellent representation. The trial court also considered the reasons for defendant’s
request – that he had not been provided all discovery and that trial had been delayed –
and found them inadequate to warrant self-representation. The trial was delayed for
reasons outside of defense counsel’s control, and would be delayed whether or not
defendant represented himself. The discovery defendant requested would not normally
be provided to a defendant. Trial counsel’s choice not to disclose the evidence at issue
was based on sound reasoning and would not hamper his defense. Finally, defendant’s
own unfamiliarity with the law would likely be detrimental to himself and the
proceedings. No abuse of discretion occurred.
Strike Convictions
We reject defendant’s contention that the trial court abused its discretion when it
refused to dismiss a prior strike conviction pursuant to section 1385 and People v.
Superior Court (Romero) (1996) 13 Cal. 4th 497.
Under section 1385, subdivision (a), the trial court has discretion to strike a prior
felony conviction allegation in furtherance of justice. (Romero, supra, 13 Cal.4th at pp.
529-530.) To do so, the court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal. 4th 148, 161 (Williams).) A trial court must
enter a statement of reasons in the minutes of the court when dismissing a prior
conviction; however, it is not required to “‘explain its decision not to exercise its power
to dismiss or strike.’ [Citation.]” (People v. Carmony (2004) 33 Cal. 4th 367, 376
(Carmony).)
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This court reviews a ruling upon a motion to strike a prior felony conviction under
a deferential abuse of discretion standard. (Williams, supra, 17 Cal.4th at p. 162.) “It is
not enough to show that reasonable people might disagree about whether to strike one or
more of [the defendant’s] prior convictions.” (People v. Myers (1999) 69 Cal. App. 4th
305, 310 (Myers).) The defendant bears the burden of establishing that the trial court’s
decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14
Cal. 4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing
objectives].) “Where the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the law, we shall
affirm the trial court’s ruling . . . .” (Myers, supra at p. 310.) “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
Here, prior to hearing argument from both sides, the trial court stated
the following:
“Before I can hear argument, I need for you to understand what is required for the
court to look at in order to consider this motion. The court does have the authority to
strike these priors absent abuse of discretion. But what I must consider is whether
in light of the nature and circumstances of the present offense and your prior serious or
violent felonies, which are those two prior residential burglaries, and particulars of your
background, your character, and perhaps future prospects given all of these circumstances
whether or not you would fall within the spirit of the strike law, meaning that they should
be stricken, you should be punished accordingly or you fall outside the true spirit of the
strike law, which really is intended to put an end to recidivism basically and not given a
second chance, for example. So I have to look at those.”
After hearing argument from both counsel, and having considered documents
submitted by defendant regarding his prior employment, a completion notice of academic
and rehabilitative training, and an acceptance letter into a residential educational
treatment program, the trial court denied defendant’s Romero motion, stating:
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“The strike law came into play I believe in 1994 to, again, put an end to what we
would otherwise describe or categorize as career criminal activity. You acquired your
first strike, the residential burglary, shortly thereafter, 1995. That’s when you acquired
your first qualifying strike under that law. Evidently when you were convicted of your
narcotic offense in 1997 or 1998, that strike came into play, and you were punished for it
and received a state prison commitment. Hopefully it was tailored to, again, convince
individuals in your situation that the law will not tolerate recidivism when you have
acquired this type of history. And did it work on you? Unfortunately it did not.
“2002 you committed your second qualifying strike, another residential burglary.
And the court came down on you as a second-strike offender fairly well and imposed up
to a nine-year sentence which meant that you were incarcerated for most of that decade
until being paroled recently and, again, designed to curb recidivism. Society will not
tolerate further criminal conduct from people in your category. I wish it would have
worked. But evidently it didn’t.
“Now we have our present offense, another burglary. This one kind of escalated
into violence, and that’s why you are convicted of the robbery as well, evidently using
some type of force to escape liability. And now obviously you stand convicted and come
before the court saying, well, now is the time to give me a second chance and give me a
chance at Delancey Street. Well you’re kind of a day late and a dollar short, Mr.
Gonzalez. I simply cannot do it. I think it would be an abuse of my discretion to strike
your strikes in a case of this nature. And given the history that you have acquired
throughout the years, there is just no end to it. I wish there was, but evidently it’s time to
punish accordingly. So I have to deny your motion, Mr. Gonzalez. I wish I could grant
it, but, again, I think I would be abusing my discretion if I did on a case of this nature. So
the Romero motion is denied, and the court must sentence accordingly.”
In light of the relevant factors, including defendant’s recidivism and the escalating
nature of the offenses, the trial court’s decision was not “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) It is
difficult to imagine how the trial court could justify dismissing one or more strike prior
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convictions in furtherance of justice under section 1385. The trial court did not abuse its
discretion in denying defendant’s Romero motion.
Multiple Punishment
The trial court imposed a term of 25 years-to-life in count 2 on the charge of
second degree robbery, to run concurrently with the 25 years-to-life sentence imposed in
count 1 on the first degree residential burglary charge, reasoning that the “offense
occurred out of one continuous course of conduct.” Defendant contends that imposition
of a concurrent sentence in count 2 must be stayed pursuant to section 654’s bar on
multiple punishment. The Attorney General concedes the issue, and we agree with the
parties.
Section 654, subdivision (a) provides, in pertinent part: “An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “In Neal v. State
of California (1960) 55 Cal. 2d 11, this court construed the statute broadly: ‘“Section 654
has been applied not only where there was but one ‘act’ in the ordinary sense . . . but also
where a course of conduct violated more than one statute and the problem was whether it
comprised a divisible transaction which could be punished under more than one statute
within the meaning of section 654.” [Citation.] [¶] Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.’ (Id. at p. 19, italics added.)” (People v. Rodriguez (2009) 47
Cal. 4th 501, 507.)
On this record, defendant’s offenses of burglary and robbery were both means of
accomplishing the same objective of stealing the victims’ personal belongings. (See
People v. Guzman (1996) 45 Cal. App. 4th 1023 [section 654 barred punishment for both
burglary in which motorcycle was taken from garage and robbery in which force was
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used against pursuing victim attempting to stop culprits]; People v. Le (2006) 136
Cal. App. 4th 925 [section 654 barred punishment for both burglary in which goods were
shoplifted from drugstore and force used against store employees attempting to prevent
thieves from leaving with goods].) The trial court made no contrary findings, and, in
fact, acknowledged that the offenses arose from one continuous course of conduct.
“It is well settled . . . that the court acts ‘in excess of its jurisdiction’ and imposes
an ‘unauthorized’ sentence when it . . . fails to stay execution of a sentence under section
654.” (People v. Scott (1994) 9 Cal. 4th 331, 354, fn. 17), as the trial court did here. The
judgment shall be modified to stay the sentence in count 2. (Id. at p. 354 [an
unauthorized sentence is subject to correction when it comes to the attention of the
reviewing court]; People v. Ross (1994) 28 Cal. App. 4th 1151, 1160 [remand is not
necessary where there is no need for the trial court to exercise discretion].)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting
that defendant’s sentence for second degree robbery in count 2 is stayed pursuant to
section 654. The trial court shall forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P.J. MOSK, J.
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