People v. Surrell CA3 ( 2022 )

Filed 6/1/22 P. v. Surrell CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C090151
Plaintiff and Respondent, (Super. Ct. No. 16FE011674)
v. OPINION ON TRANSFER
ALVON SHONER SURRELL,
Defendant and Appellant.
After numerous prior attorneys for defendant were replaced, Alvon Shoner Surrell
made a motion under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent
himself. On the first day of trial, defendant asked the trial court to reappoint counsel.
The trial court denied the request. Defendant represented himself at trial and the jury
found him guilty of four robberies (Pen. Code, § 211),1 and found true a firearm
enhancement as to each robbery (§ 12022.53, subd. (b)). On appeal, defendant contends
1 Undesignated statutory references are to the Penal Code.
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the trial court abused its discretion by denying his untimely request for reappointment of
counsel. In an unpublished opinion, we affirmed the judgment. (People v. Surrell (Dec.
9, 2021, C090151) [nonpub. opn.].)
Our Supreme Court granted review and transferred the matter back to us with
directions to vacate our decision and reconsider the cause in light of section 1170 as
amended by Assembly Bill No. 124 (Stats. 2021, ch. 695) and Senate Bill No. 567 (Stats.
2021, ch. 731). The parties thereafter filed supplemental briefs. Defendant argues the
provisions apply to him retroactively and require remand because he may be entitled to a
lower term sentence because he might have experienced childhood trauma. The People
agree the provisions apply retroactively to defendant but contend remand is unnecessary
as the circumstances he cites do not qualify as trauma, and there is no evidence those
circumstances contributed to the commission of the offenses.
Upon reconsideration, we conclude defendant has not demonstrated that any of the
circumstances listed in section 1170 contributed to the commission of the robbery and he
is therefore not entitled to resentencing based on the amendments in Senate Bill No. 567
and Assembly Bill No. 124. We affirm.
I. BACKGROUND
The substantive facts underlying defendant’s convictions are not recounted, as
they are not relevant to the disposition on appeal.
On January 30, 2018, defendant was arraigned on two cases alleging a total of four
robberies, accompanying firearm enhancements, and prior strike convictions. Public
defender Allison Williams represented defendant at the arraignment.
Approximately one month later, defendant made a Marsden2 motion to relieve his
appointed counsel. Ashley Burg was the public defender assigned to represent defendant
after his case proceeded past arraignment and was his attorney when defendant made the
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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Marsden motion. Defendant alleged that public defender Williams had continued the
matter at the arraignment, against his wishes, as he had wanted to plead, go to
preliminary hearing, and exercise his right to a speedy trial. He also stated that public
defender Burg could have tried to contact him in the period when the matter was
continued and inform him of what was happening in his case. Burg noted the seriousness
of the charges defendant faced, the magnitude of discovery yet to be received, and
defendant’s potential three strikes sentencing exposure. Given these circumstances, she
did not believe anyone in the public defender’s office would have advised defendant to
proceed to set the case for preliminary hearing at the first court appearance. She also
indicated she had not met with defendant, as he had refused to meet with her. Defendant
confirmed he had refused to meet with Burg, because once he had made up his mind that
he did not need “present counsel” to be part of the case, he did not feel compelled to meet
with her. The trial court denied the motion.
On March 6, 2018, defendant pled not guilty. He was advised he faced a
maximum exposure of 40 years, plus 100 years to life. Following a preliminary hearing,
defendant was held to answer on a consolidated complaint alleging he committed four
counts of robbery, personally used a firearm in each, and had two prior strike convictions.
The court deemed the consolidated complaint an information. Defendant again entered
pleas of not guilty.
On June 25, 2018, defendant’s public defender, Melissa McElheney, declared a
conflict, apparently based on the prior Marsden proceedings and defendant’s claims of
misconduct by the public defender’s office. The court relieved the public defender’s
office as counsel and appointed conflict counsel.
One month later, defendant’s new appointed counsel, Alan Donato, advised the
court he had put the matter on calendar, as defendant wanted to represent himself.
Defendant wanted to represent himself because Donato refused to file motions defendant
wanted him to file, which Donato had concluded were without merit. The hearing on the
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motion was continued to permit defendant and his attorney to complete the waiver forms.
At the August 6, 2018 Faretta hearing, defendant was explicitly advised of his exposure
to four 25 year to life terms, plus 40 years as a result of the firearm enhancement
allegations. Defendant indicated he understood the potential sentence. Defendant also
indicated he understood his right to an attorney, a speedy trial by jury, to subpoena
witnesses and records, confront and cross-examine witnesses, against self-incrimination,
and to self-representation. He indicated he was not a high school graduate, but he had
obtained a GED and worked as a real estate consultant. He was advised of, and
acknowledged, the dangers and disadvantages of self-representation, including that
without an attorney, he would be required to: (1) follow the technical rules of substantive
law, procedure, evidence, and courtroom protocol without the assistance of a lawyer; and
(2) conduct his own trial, including making motions, selecting a jury, cross-examining
witnesses, presenting and examining his own witnesses, making appropriate objections
and motions, preparing jury instructions, and making post-trial motions. In addition, he
would not receive assistance from the court and because of his custodial status, it would
be difficult to contact witnesses, investigate his case, and he would have limited access to
the telephone and law library. The court advised him he was going to be facing “an
incredibly experienced prosecutor.” He was also advised a subsequent motion to give up
his pro per status might be denied and he would still have to proceed without an attorney,
and that he had no right to standby or advisory counsel. The court recommended
defendant not represent himself and, instead, accept court-appointed counsel. Defendant
stated he understood all of the advisements, and defendant still wanted to represent
himself.
After inquiring into defendant’s legal background, training, and knowledge, the
court found defendant had the ability to act as his own attorney; and, had knowingly,
intelligently, and voluntarily chosen to act as his own attorney, with full knowledge of the
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risks and dangers of doing so. Accordingly, the court granted his Faretta motion and
relieved appointed counsel.
In the ensuing nine months, defendant filed numerous motions, including a motion
to dismiss. The trial court denied these motions. Trial was originally set for
September 27, 2018 and was continued as a result of defendant’s motions. The trial date
was reset to November 14, 2018, and was continued to January 24, 2019, because of
defendant’s motions. On January 24, 2019, defendant’s motion to continue was granted.
Trial was reset for March 25, 2019. On March 25, 2019, the Sheriff’s Department
advised the court that defendant refused to be transported from jail to court. Trial was
reset to April 24, 2019. Defendant again refused to be transported to court. Trial was
then set for May 9, 2019.
On May 9, 2019, defendant made an oral motion to disqualify the judge under
section 170.6 and a challenge for cause. The court denied these motions. As the
discussions proceeded as to how trial would be conducted, including examination of
witnesses and motions in limine, defendant asked the court if it was “too late for me to
request counsel because this—at this point, it is a little intimidating. There’s a lot to
remember. There are a lot of rules that need to be attended to. I want to give myself my
best defense. I want to be able to do that. I believe I’m entitled to and I expect it even
for myself. So I think that is a fair question for me to ask. Whether it’s too late or not, I
don’t know.” He went on to state he had sought self-representation as he did not think he
could get a fair trial with the available representation; “However, like I said—like the
D.A. just said, this is a life case and it’s extremely technical, and it is, if I could be honest
intimidating to have so much riding on every single detail that is going to be played out
over the next two, three, four days.” The court asked the prosecutor for her thoughts,
noting that reappointing counsel would require a delay. The prosecutor objected. She
noted the crimes occurred in 2016, so were three years old. There were four victim
witnesses and several other civilian witnesses who had been waiting to testify for quite
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some time and were prepared to testify, and the matter was set to go to trial. She also
argued defendant had been represented by three different public defenders and conflict
counsel, and he had been conducting his own defense for months. Defendant summed up
the reasons for his request, stating: “I learned enough about the law to find out that at
this point I may be in over my head. The severity of the case requires a little more than I
can offer. My hands are tied in terms of just my ability to access the law library, my
ability to research materials, my ability to try to catch up to speed. [The D.A.] is
qualified. . . . So I understand what I’m up against, and that is the reason why I ask for an
attorney at this point.”
The court noted that previously defendant had, and replaced, four attorneys and
experienced significant conflicts with each. The court had no confidence that if it
appointed another attorney, defendant would have a cooperative relationship with that
attorney. Rather, the court expected there would be more problems and defendant would
again request to substitute counsel or represent himself. The court also considered that
the case was three years old, and the People also had a right to trial in a timely manner.
The motion was made on the day set for trial, late in the proceedings, after defendant had
brought many motions, and the matter had been continued several times. Defendant had
repeatedly stated he was ready for trial. Accordingly, based on the totality of the
circumstances, the court denied the motion.
Following trial, the jury found defendant guilty of all four robbery counts and
found all four firearm enhancements true. In bifurcated proceedings, the jury found the
two prior strike allegations true. The court granted defendant’s Romero3 motion as to
one of the prior strike convictions. The court sentenced defendant to an aggregate term
of 32 years in prison, consisting of: the midterm of 3 years on count one, doubled
because of the strike, plus a consecutive 10 years for the attendant firearm enhancement,
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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a consecutive two years each for counts two, three, and four (one-third the midterm,
doubled), plus a consecutive three years four months for each attendant firearm
enhancement.
II. DISCUSSION
A. Faretta Motion
Defendant contends the trial court abused its discretion by denying his motion to
reappoint counsel after granting his request to represent himself under Faretta. He
acknowledges his request, made on the first day of trial, was untimely, but contends the
trial court was incorrect as to his history of substituting counsel.
When a criminal defendant who previously waived his or her right to counsel and
has elected self-representation seeks, during trial, to revoke that waiver, the trial court
exercises its discretion under the totality of the circumstances. (People v. Lawrence
(2009) 46 Cal.4th 186, 188 (Lawrence).) In ruling on such a request, among the factors
the court may consider are: “(1) defendant's prior history in the substitution of counsel
and in the desire to change from self-representation to counsel-representation, (2) the
reasons set forth for the request, (3) the length and stage of the trial proceedings,
(4) disruption or delay which reasonably might be expected to ensue from the granting of
such motion, and (5) the likelihood of defendant's effectiveness in defending against the
charges if required to continue to act as his own attorney.” (People v. Elliott (1977)
70 Cal.App.3d 984, 993-994 (Elliott).) These factors are not absolutely necessary for a
court to consider, nor is any one factor necessarily determinative. (Lawrence, supra, at
p. 196.)
Defendant had made multiple changes to his representation. After having refused
to meet with counsel, defendant made a Marsden motion in which he complained about
the representation of the first two public defenders to represent him. He claimed that one
had continued the arraignment against his wishes and the other had not been available to
him and had not tried to meet with him. He claimed the public defender’s office had
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engaged in misconduct. This misconduct allegation led the third public defender to
declare a conflict and be relieved as counsel. He disagreed with conflict counsel about
the filing of various motions, which conflict counsel refused to file as they were without
merit. Based on conflict counsel’s refusal, defendant made a Faretta motion. Thus,
defendant was represented by four different attorneys and had disputes with them all
either about trial tactics or their office’s conduct in the proceedings. It was reasonable for
the court to conclude that if counsel was reappointed, defendant would continue to have
conflicts with counsel and would again seek to change his representation, causing further
disruption and delay to the trial.
Defendant requested reappointment of counsel on the day of trial, just prior to jury
selection. By that point, defendant had been representing himself for nine months and
had filed numerous, voluminous motions. Trial was continued at least four times because
of defendant’s motions. Defendant also refused to be transported to court at least twice
on the date trial was set. On the day of trial, defendant also made two motions to
disqualify the judge.
Defendant was charged with four separate robberies occurring on separate dates.
There was significant discovery involved in the case and multiple witnesses. Defendant
was faced with a possible sentence of 100 years to life, plus 40 years. The trial court
could reasonably conclude a new attorney would need a continuance. In addition, the
crimes were committed three years earlier, and defendant had been arraigned over 15
months earlier. There were numerous witnesses who were prepared to testify and had
been waiting to do so for some time.
Finally, we are not convinced that defendant’s claimed inability to effectively
represent himself at trial warranted reappointment of counsel. Defendant “was told of—
and affirmed his understanding of—the risks and disadvantages of self-representation
before” his Faretta waiver. (Lawrence, supra, 46 Cal.4th at p. 195.) “Because defendant
had been fully advised before he chose self-representation, his later change of mind
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properly bore less weight in the trial court’s discretionary decision on the revocation
request.” (Id. at pp. 195-196.) Defendant had not suddenly learned on the day of trial
that he was facing a “life case,” that there were “a lot of rules that need to be attended
to,” that he had limited access to the law library and research materials, or that the district
attorney had greater qualifications in trying a case than he did. He was explicitly advised
of each of these facts before he entered the waiver. He had not just discovered that he
might “be in over [his] head,” “he had simply reweighed the pros and cons of self-
representation and changed his mind as to the best course.” (Id. at p. 195.) Moreover, a
“defendant’s asserted ineffectiveness at self-representation does not demonstrate an abuse
of discretion. Defendant was untrained in the law and may not have been especially
experienced in court procedures, but the same could be said of many, if not most, in
propria persona criminal defendants. That defendant’s defense would have been more
effectively presented (or a better sentence obtained through a negotiated plea) had he
been represented is likely. But if that fact were determinative, virtually all self-
representing defendants would have the right to revoke their counsel waivers at any time
during trial. That is not the law.” (Id. at p. 196.)
Based on the totality of the circumstances, we find no abuse of discretion in the
denial of the belated request for reappointment of counsel.
B. Amended Section 1170
On transfer, the Supreme Court order directed us to reconsider this cause in light
of section 1170, as amended by Senate Bill No. 567 and Assembly Bill No. 124. Senate
Bill No. 567 amended section 1170. (See Stats. 2021, ch. 731, § 1.3, effective Jan. 1,
2022.) Assembly Bill No. 124 also proposed amendments to section 1170 and was
signed by the Governor in 2021.4 (See Stats. 2021, ch. 695, § 5.) However, because
Senate Bill No. 567 was the last bill signed by the Governor and bears the higher chapter
4 Assembly Bill No. 124 also amended section 236.23, and added sections 236.15, 236.24,
and 1016.7. (Stats. 2021, ch. 695, §§ 1-4.) Those provisions are not relevant here.
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number, its amendments to section 1170 prevail over those specified in Assembly Bill
No. 124. (Gov. Code, §§ 9510, 9605, subd.(b); In re Thierry S. (1977) 19 Cal.3d 727,
738-739.)
Among other things, Senate Bill No. 567 sets a presumption that the trial court
will impose the lower term under specified circumstances, including, as relevant here,
when a defendant has experienced childhood trauma, including but not limited to abuse,
neglect, exploitation, or sexual violence and that trauma was a contributing factor in the
commission of the offense. (§ 1170, subd. (b)(6)(A), added by Stats. 2021, ch. 731, §
1.3.)
The parties agree that as an ameliorative statute, the amended provisions of section
1170 apply retroactively to defendant’s nonfinal judgment. They disagree, however, as
to whether remand for resentencing is necessary. Defendant argues the record
demonstrates he may have experienced childhood trauma, which might entitle him to the
lower term on his principal robbery conviction. Specifically, he was “primarily raised by
his mother in Oakland. [Citation.] At the time, Oakland ‘was an environment where
there was no opportunity for advancement due to extreme poverty, a drug epidemic, and
prevalent racial prejudice.’ [Citation.] [Defendant] ‘and his brother basically raised
themselves because their parents worked a lot.’ ” The People argue defendant has
forfeited this claim by failing to explain how these circumstances amount to trauma
within the meaning of the statute. The People also contend the circumstances do not
amount to trauma under the statute, and even if they did, defendant has not demonstrated
those circumstances from his youth contributed to his commission of these four armed
robberies.
“Issues do not have a life of their own: if they are not raised or supported by
argument or citation to authority, we consider the issues [forfeited].” (Jones v. Superior
Court (1994) 26 Cal.App.4th 92, 99; see also Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785; Cal Rules of Court, rule 8.204(a)(1)(B).) We will not develop
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the argument for defendant. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10.) The
absence of cogent legal argument or citation to authority allows us to treat the claim as
forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) As the appellant, it is
defendant’s burden on appeal to establish both error and prejudice. (Vaughn v. Jonas
(1948) 31 Cal.2d 586, 601; People v. Homick (2012) 55 Cal.4th 816, 861.) To meet this
burden, defendant must establish both that he experienced childhood trauma within the
meaning of the statute and that the trauma was a contributing factor in the commission of
the offense. Defendant has done neither. Defendant has offered no argument that the
circumstances of his youth qualify as trauma under the statute. He has not even alleged
he was subjected to parental neglect.5 Nor has he alleged he lived in extreme poverty, or
was personally denied opportunity for advancement by the drug epidemic or racial
prejudice in Oakland, California. To the extent he did experience childhood trauma, he
has also not argued those circumstances contributed to the commission of the four armed
robberies committed when he was 46 years old, after over 10 years with no criminal
convictions.6 Accordingly, we find that claim forfeited.
5 We note, having parents who “worked a lot” by itself is unlikely to constitute neglect.
This is particularly true, where as here, defendant’s mother was employed by a school
district and his father was a university professor who was active in his life.
6 We note, the record also shows in that period of no criminal convictions, defendant
worked as a carpenter until he suffered a workplace injury, then as an executive assistant,
then in real estate consulting. He also started two businesses.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
KRAUSE, J.
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