People v. Wilson CA2/3 ( 2021 )

Filed 1/14/21 P. v. Wilson CA2/3
Opinion on transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B287272
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA454306)
v.
DAMION WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jose I. Sandoval, Judge. Reversed with
direction.
Edward Mahler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.
Damion Wilson pleaded no contest to forcible rape and
admitted prior felony convictions after the trial court denied his
Faretta1 motion. He appealed and contended that the motion
should have been granted, that he did not knowingly and
intelligently waive his right to a jury trial on his priors, and that
he was entitled to remand for resentencing under Senate Bill
No. 1393. In our original opinion filed in 2019, we rejected these
contentions and affirmed the judgment.
Wilson petitioned for review. The California Supreme
Court granted review and transferred the matter with directions
to vacate our decision and to reconsider the cause in light of
People v. Stamps (2020) 9 Cal.5th 685, which held that a
defendant who entered into a negotiated plea that included a
sentence on a five-year prior is entitled to have a trial court
consider on remand whether to strike that enhancement under
Senate Bill No. 1393. Accordingly, on reconsideration, we reverse
the judgment as to the sentence only and remand to give Wilson
the opportunity to raise that new law. As before, we reject his
remaining contentions.2
BACKGROUND
Wilson and the victim had a brief relationship. After it
ended, he forcibly entered the victim’s home and raped her. An
information therefore charged Wilson with kidnapping (Pen.
1 Faretta v. California (1975) 422 U.S. 806 (Faretta).
2 Because the matter is being remanded, we need not
address Wilson’s contention that he is entitled to a hearing on his
ability to pay assessments and fines, under People v. Dueñas
(2019) 30 Cal.App.5th 1157.
2
Code,3 § 207, subd. (a); count 1), forcible rape in the course of a
burglary (§§ 261, subd. (a)(2), 667.61, subds. (a), (d)(4); count 2),
first degree burglary, person present (§ 459; count 3), and assault
to commit a felony during commission of a first degree burglary
(§ 220, subd. (b); count 4). On November 6, 2017, Wilson pleaded
no contest to forcible rape and admitted he had a prior strike and
a prior serious felony conviction (§ 667, subd. (a)(1)). Pursuant to
the negotiated plea, the trial court sentenced him to six years,
doubled to 12 years based on the prior strike, plus five years for
the prior serious felony, for a total of 17 years.
DISCUSSION
I. Faretta request
On the eve of trial, Wilson asked to represent himself. The
trial court denied the request, finding it equivocal. As we now
explain, the request was properly denied, but for another reason,
untimeliness.
A defendant in a criminal case has a Sixth Amendment
right to represent himself or herself. (People v. Marshall (1997)
15 Cal.4th 1, 20.) To invoke this right, the defendant must
unequivocally assert it within a reasonable time before trial
(People v. Windham (1977) 19 Cal.3d 121, 127–128), and the
request must be knowing and voluntary (People v. Doolin (2009)
45 Cal.4th 390, 453). A timely, unequivocal request for self-
representation must be granted, no matter how unwise the
request. (Windham, at p. 128.) Otherwise, untimely requests for
self-representation are addressed to the trial court’s sound
3 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
3
discretion. (Id. at pp. 127–129.) Also, an equivocal request must
be distinguished from a conditional one. A conditional request is
one, for example, where the defendant asks that counsel be
removed and, if not removed, that the defendant wants to
represent himself. (People v. Michaels (2002) 28 Cal.4th 486,
524.) Such a request is not equivocal. (Ibid.) To evaluate
whether a trial court erred by denying a Faretta request, we look
at the defendant’s words and conduct to determine whether the
defendant really wanted to give up the right to counsel.
(Marshall, at pp. 25–26.)
Here, Wilson’s words and conduct were clear that if he did
not get a different counsel, then he wanted to represent himself.
On the day set for trial, Wilson made a Marsden4 motion, which
was denied.5 He then asked to represent himself. The trial court
advised Wilson of the felony charges against him, that he faced
three different strikes and two life counts, and that self-
representation was a bad decision. When the trial court asked
Wilson if he really did not want help to understand the technical
and sophisticated legal principles, Wilson said, “It’s not what I
wish but,” “I wish I had counsel that I believe is going to fight on
my behalf.” The trial court found the request to be equivocal: “It
4 People v. Marsden (1970) 2 Cal.3d 118.
5 Wilson had previously made Faretta and Marsden
motions. When he made his first Faretta request, the trial court
asked Wilson if he really thought he could represent himself.
Wilson replied he could do a better job than his counsel, who was
not cooperating with him. After further discussion, Wilson said
he would rather have another public defender. The trial court
therefore held a Marsden hearing and denied the Marsden
motion.
4
has to be unequivocal. It’s clear to me you want counsel. It’s
clear you need counsel. And this is in response to a[n] adverse
ruling in another motion, sir.”
Wilson then asked if he could have cocounsel, and the trial
court told him no, this was not a way to get a different lawyer.
Wilson replied, “What I’m saying—I don’t need a lawyer to
represent me. A standby lawyer—I don’t need somebody that’s
going—” At that point, the trial court interrupted Wilson and
asked why he needed a standby lawyer. Wilson said, “just in case
if I have a question.” When the trial court explained that this
was not how a standby lawyer works, Wilson said he did not need
counsel, then. The trial court repeated that the request was
equivocal, and that Wilson was trying to get another lawyer,
recognizing he needed representation. Wilson repeated he didn’t
need another counsel. He said, “I’m not asking for another
counsel. You said this is my decision. [¶] . . . [¶] . . . This is not—
this is not what I want to do, but my counsel that’s representing
me left me no choice. I’m going in blind, not knowing what’s
going on, your Honor.” This, the trial court responded, was
exactly the equivocation that made it clear Wilson did not want
to represent himself. The trial court therefore denied the Faretta
request.
As this demonstrates, Wilson’s dissatisfaction with his
counsel prompted his Faretta request. But, a clearly stated
Faretta request motivated by dissatisfaction with counsel is not
equivocal. (Moon v. Superior Court (2005) 134 Cal.App.4th 1521,
1529–1530.) In People v. Weeks (2008) 165 Cal.App.4th 882, for
example, a public defender represented the defendant. The
defendant then was permitted to go pro se. After several months,
the defendant asked if his standby counsel could take over but
5
was told that if he lost his pro per status the original public
defender would be reappointed. The defendant made it clear that
if he had to choose between remaining in propria persona or
being represented by his original public defender, then he would
choose the former. (Id. at p. 885.) Finding the defendant’s
position to be equivocal, the trial court revoked his status and
reappointed the original public defender. Weeks held that
denying the request was error. (Id. at p. 887.) Like the
defendant in Weeks, Wilson clearly expressed he would rather
represent himself than continue being represented by his counsel.
Hence, his request was conditional.
And, had it been timely, it should have been granted. But
it was not timely. That is, a motion to represent oneself must be
made within a reasonable time before trial commences. (People v.
Windham, supra, 19 Cal.3d at p. 128.) Thus, a Faretta motion
made on the day of trial may be found to be untimely (People v.
Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four
days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th
1197, 1205). An untimely Faretta request requires consideration
of the quality of counsel’s representation, 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. (Windham, at p. 128.)
Although the trial court did not state it was also denying
Wilson’s Faretta motion on the ground of untimeliness, we can
independently review the record to determine whether it would
properly have been denied on this ground. (See People v.
Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15.) In People v. Dent
(2003) 30 Cal.4th 213, 218, for example, the trial court denied a
6
Faretta motion for an improper reason. However, Dent noted
that even if a request is denied for an improper reason, if the
record establishes that the request was nonetheless properly
denied on other grounds, it would uphold the trial court’s ruling.
(Dent, at p. 218; see People v. Scott, supra, 91 Cal.App.4th at
p. 1206 [sufficient reasons on record constitute implicit
consideration of Windham factors].)
The record here similarly shows that Wilson’s motion was
properly denied. Wilson made his Faretta motion on the day set
for trial. The next afternoon, the trial court swore in a
prospective panel. On its face, the motion was untimely. Also,
the trial court had the opportunity to evaluate the quality of
Wilson’s counsel, as Wilson made three Marsden motions, all of
which were denied. This shows that Wilson had adequate
representation. Also, counsel was ready to proceed to trial and
voir dire was about to begin. But the record supports a
reasonable inference that granting the motion would have
necessitated a continuance. When Wilson made his Faretta
request, he asked for standby counsel, said he was going “in
blind, not knowing what’s going on,” and noted that he had “no
paperwork. [He didn’t] have nothing.” Wilson’s own statements
show he was not ready for trial. Under the totality of these
circumstances, the Faretta motion was properly denied.
II. Waiver of right to jury trial
Wilson contends he did not knowingly and intelligently
waive his right to a jury trial on the strike and enhancement. We
disagree.6
6 Although we are remanding, as we discuss in the next
section, we address this issue because it would remain relevant
7
A criminal defendant’s guilty plea or inculpatory admission
requires personal waiver of the right to a trial by jury. (Boykin v.
Alabama (1969) 395 U.S. 238, 243.) The trial court accordingly
must advise a defendant of his or her rights and obtain a waiver
of them before taking a plea or admission. (In re Tahl (1969)
1 Cal.3d 122, 132.) A valid waiver is one that is knowing,
intelligent, and voluntary. (Boykin, at p. 242.) These
advisements also must be given before the trial court may accept
a defendant’s admission that he or she has suffered prior felony
convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.)
The plea bargain here required Wilson to plead no contest
to the substantive forcible rape charge and to admit a prior strike
and a prior serious felony. The prosecutor advised Wilson of the
substantive charges, and Wilson acknowledged he had discussed
them with his counsel and that he understood he would be
sentenced to 17 years in prison. The prosecutor then advised
Wilson of his right to a jury trial, and Wilson said he understood
and gave up that and other rights. After this advisement and
waiver, the prosecutor explained that Wilson’s prior strike could
subject him to life in prison on subsequent felonies. The trial
court repeated the offer: six years for forcible rape, doubled to
12 years based on the strike, plus five years, for a total prison
sentence of 17 years. Wilson then pleaded no contest to count 2,
forcible rape, and admitted he had a prior robbery conviction and
a prior first degree burglary conviction. The trial court accepted
the plea, finding that the waivers were made knowingly, freely,
and intelligently.
should Wilson decide not to seek relief under Senate Bill
No. 1393 in the trial court or should the trial court exercise its
discretion not to strike the enhancement.
8
However, because the prosecutor detailed only the
substantive charges before Wilson waived his jury trial right,
Wilson now argues he was never advised he had a right to a jury
trial on the enhancements; therefore, his waivers and plea were
not knowing and intelligent. People v. Forrest (1990) 221
Cal.App.3d 675 rejected a similar contention. The defendant in
that case argued that he had to be expressly and separately
advised of his right to a jury trial on prior convictions. (Id. at
p. 678 & fn. 3.) Forrest held that nothing in applicable case law
requires a separate advisement and waiver of rights where a
defendant “in a single proceeding” pleads to the substantive
charge and to the prior convictions. (Id. at pp. 679, 681.)
We agree. Here, as in People v. Forrest, supra, 221
Cal.App.3d at page 679, Wilson’s plea to the substantive offense
and to the prior convictions occurred in a single proceeding and
was not separate in time. The single, express advisement
adequately advised Wilson of his constitutional rights, including
the right to a jury trial on both the substantive offense and prior
convictions. Therefore, the trial court correctly found that
Wilson’s plea was knowing and intelligent.
III. Senate Bill No. 1393
When Wilson was sentenced in 2017, the trial court had no
discretion to strike a section 667, subdivision (a)(1),
enhancement. Senate Bill No. 1393 went into effect on
January 1, 2019. (Sen. Bill No. 1393 (2017–2018 Reg. Sess.).)
That bill amended sections 667, subdivision (a)(1), and 1385,
subdivision (b), to allow a court to exercise its discretion to strike
or to dismiss a serious felony prior for sentencing purposes.
(Stats. 2018, ch. 1013, §§ 1–2.) Wilson contends that remand is
required so that the trial court can exercise its discretion whether
9
to strike the enhancement. Under People v. Stamps, supra,
9 Cal.5th 685, he is correct.
In that case, the defendant in 2017 entered into a
negotiated plea that included an admission of one serious felony,
and his agreed-upon sentence included five years for that
enhancement. (People v. Stamps, supra, 9 Cal.5th at p. 693.)
The defendant appealed and, like Wilson, contended his case
should be remanded so that the trial court could exercise its
discretion whether to strike the enhancement under Senate Bill
No. 1393. The Court of Appeal agreed that remand was proper.
On review, the California Supreme Court affirmed the Court of
Appeal and found that the defendant did not need a certificate of
probable cause and that Senate Bill No. 1393 applies
retroactively to judgments not yet final.7 (Stamps, at pp. 698–
699.) Although the court further agreed that remand was proper,
it disagreed with the defendant’s argument that, on remand, the
trial court could consider striking the enhancement but otherwise
maintain the negotiated plea agreement. Instead, several things
could happen on remand. A trial court could decide not to strike
the enhancement, leaving the plea agreement wholly intact.
(Id. at p. 707.) Or the trial court could strike the enhancement.
In that case, if the prosecution declines to modify the bargain to
reflect the “downward departure in the sentence,” the prosecutor
is entitled to withdraw consent to the plea agreement. (Ibid.)
The trial court could also withdraw its approval of the plea
agreement. (Ibid.)
7 Wilson did obtain a certificate of probable cause.
10
Wilson’s situation is essentially indistinguishable from
Stamps. Wilson therefore must be given the opportunity to
request relief under Senate Bill No. 1393.
DISPOSITION
The judgment of conviction is reversed as to the sentence
only and remanded with the direction to allow Damion Wilson an
opportunity to seek relief under Senate Bill No. 1393.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.
11