People v. Jones-Bey CA2/8 ( 2014 )

Filed 11/20/14 P. v. Jones-Bey CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B253050
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA127004)
v.
SHAUN ANTONE JONES-BEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
John A. Torribio, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, James W. Bilderback II and Robert C. Schneider, Deputy Attorneys General, for
Plaintiff and Respondent.
__________________________
Defendant Shaun A. Jones-Bey appeals from his conviction of first degree
robbery, assault with a semiautomatic firearm, criminal threats. His sole contention on
appeal is that he was denied due process and the effective assistance of counsel as a result
of the trial court’s denial of his request for advisory counsel. We affirm.
FACTUAL AND PROCEURAL BACKGROUND
The nature of defendant’s contention makes a detailed recitation of the facts
unnecessary. It is sufficient to state that, in accordance with the usual rules on appeal
(People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that two
armed men wearing ski masks broke through the locked screen door of a home on the
9000 block of Main Street in the City of Bellflower on October 12, 2012. One of the
three residents was in the bathroom with her cell phone when the break-in occurred and
was able to call 911. Before the police arrived, a third masked man entered, forced the
two victims onto the ground and duct-taped their arms behind their backs. Not long after
the three men left the house, defendant and Steven Mitchell were discovered hiding in
nearby bushes. One of the two victims identified them as the intruders in a field
identification.
Defendant and Mitchell were jointly charged by amended information with first
degree robbery (counts 1 and 4), assault with a semiautomatic firearm (counts 2 and 5)
and criminal threats (count 3); enhancements were alleged for gun use and prior
convictions, including pursuant to the Three Strikes law (Pen. Code, § 1170.12,
subds. (a)-(d);§ 667, subds. (b)- (i)).1
Defendant represented himself at a dual jury trial. Defendant was found guilty on
the substantive charges and the jury found true the firearm enhancements. Following a
1 All future undesignated statutory references are to the Penal Code.
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bifurcated trial, the jury also found true the alleged priors. Defendant was sentenced to
41 years, 4 months in prison. He timely appealed.2
DISCUSSION
A. Denial of Defendant’s Request for “Advisory Counsel” Was Not Error
Defendant contends he was denied due process and the right to effective assistance
of counsel as a result of the trial court’s denial of his motion seeking advisory counsel.
He argues that the trial court’s comments at the hearing demonstrate that it erroneously
believed it lacked authority to appoint advisory counsel and its denial was therefore an
abuse of discretion. We disagree.
Criminal defendants who represent themselves at trial have no constitutional right
to advisory counsel. In fact, this is one of the warnings that must be given a defendant
considering self-representation. (See People v. Weber (2013) 217 Cal.App.4th 1041,
1057-1058 [defendants seeking to represent themselves should be warned, among other
things, that they have no right to advisory counsel]; People v. Phillips (2006)
135 Cal.App.4th 422, 428 [same].)
Although defendants have no right to advisory counsel, trial courts have authority
to appoint advisory counsel to a self-represented criminal defendant. (People v. Bigelow
(1984) 37 Cal.3d 731, 742.) In Bigelow, the court found it was an abuse of discretion to
deny advisory counsel given the defendant’s limited education, foreign nationality,
unfamiliarity with California law, and the complexities of defending a capital case. (Id.
at pp. 743–744.)
The court in People v. Garcia (2000) 78 Cal.App.4th 1422, 1429, held that, in
non-capital cases, Bigelow stands only for the proposition that trial courts have the right
to appoint advisory counsel. The Garcia court held a self-represented defendant “has no
2 Mitchell was also convicted on all counts. We affirmed Mitchell’s conviction
following our independent review of the record pursuant to People v. Wende (1979)
25 Cal.3d 436, 442 (People v. Mitchell (Sept. 19, 2014, B251620)[nonpub. opn.]).
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constitutional right to advisory or stand-by counsel or any other form of ‘hybrid’
representation. [Citations.] Indeed, the Supreme Court in McKaskle [v. Wiggins (1984)
465 U.S. 168, 183] specifically stated ‘Faretta[3] does not require a trial judge to permit
“hybrid” representation[.]’ ” (Garcia, supra,at p. 1430.) The Garcia court concluded:
“It would seem that if a defendant who waives the assistance of counsel is competent to
represent himself, he should do so, by himself; if he is not able to defend himself without
the assistance of advisory counsel, then he is not competent to represent himself. This is
not to say that we oppose the right of trial courts to appoint advisory counsel or stand-by
counsel as part of their inherent power to control the proceedings. However, where a
court does not exercise this right, a defendant who has competently elected to represent
himself should not be heard to complain that he was denied the assistance of advisory or
stand-by counsel.” (Id. at p. 1431; see People v. James (2011) 202 Cal.App.4th 323, 339
[citing Garcia for the proposition that there is no appellate review of a trial court’s ruling
denying advisory counsel in a non-capital case].)
Here, defendant was represented by counsel until a pre-trial conference on
January 18, 2013, when he elected to represent himself. At a pre-trial conference on
March 27, 2013, the trial court granted defendant’s request for stand-by counsel. On
March 29, 2013, defendant filed a motion seeking appointment of advisory counsel under
Bigelow, supra, 37 Cal.3d at page 742. In his declaration in support of the motion,
defendant states: “I am not trained in criminal law and lack the skill to defend the case
without an option for court appointed legal advice. [¶] I have never represented myself
in a court of law.”
The trial court denied the motion, stating: “I am familiar with the case of People
v. Bigelow. It’s my opinion that you do not have a right to advisory counsel as a matter
of law, so I am not going to appoint advisory counsel.” The trial court observed:
“. . . [Y]ou had a very, very skilled lawyer representing you at one point . . . and I
couldn’t have been more disappointed to see you leave him. But this is your choice.
3 Farretta v. California (1975) 422 U.S. 806.
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This is your path. You’re on it, but I am not going to appoint advisory counsel. I don’t
believe you have a legal right to.”
The only reasonable inference from the trial court’s comment that it was familiar
with the Bigelow case, but that it did not believe defendant had a “right” to advisory
counsel “as a matter of law,” is that the trial court correctly understood that it had
authority to appoint advisory counsel, but that defendant had no constitutional right to
advisory counsel. On this record, it is clear that the trial court exercised its discretion to
not appoint advisory counsel. Under Garcia, because defendant was given the choice to
appointed counsel or self-representation, and selected self-representation, he cannot claim
error arising from the trial court’s refusal to appoint counsel to assist him in representing
himself.
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
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