Filed 10/15/14 P. v. Matthews 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                           B251898

         Plaintiff and Respondent,                                    (Los Angeles County Super. Ct.
                                                                       No. YA083230)
         v.
                                                                     ORDER MODIFYING OPINION
FREDERICK MATTHEWS,                                                   AND DENYING REHEARING
                                                                     [NO CHANGE IN JUDGMENT]
         Defendant and Appellant.




         It is ordered that the opinion filed herein on September 25, 2014, and not certified
for publication, be modified as follows.
         On page 2, footnote 3 should read: In a July 2, 2012 report, the psychiatrist
retained by the prosecution (Dr. Sharma) concluded defendant was competent to stand
trial. In an October 17, 2012 report, the psychiatrist retained by the defense (Dr.
Rothberg) concluded defendant was not competent to stand trial. The trial court
appointed a third psychiatrist (Dr. Dupee), who concluded on December 12, 2012 that
defendant was competent to stand trial.
         There is no change in the judgment. The petition for rehearing is denied.




________________________________________________________________________
      TURNER, P. J.           KRIEGLER, J.               MOSK, J.
Filed 9/25/14 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE



THE PEOPLE,                                                          B251898

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. YA083230)
         v.

FREDERICK MATTHEWS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C.
Taylor, Judge. Affirmed as modified.
         Jin H. Kim, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Nima
Razfar, Deputy Attorney General, for Plaintiff and Respondent.
                                     _____________________________
       A jury convicted defendant and appellant Frederick Matthews of second degree
robbery in violation of Penal Code section 211.1 The trial court sentenced defendant to
five years in state prison, imposed all mandatory fines and fees, and granted presentence
custody credits. Defendant contends reversal is required because the court denied his
request for advisory counsel. He also contends the court erred in calculating his custody
credits, and the Attorney General agrees. We affirm the judgment as modified.


                    FACTUAL AND PROCEDURAL BACKGROUND


       Defendant struck a 71-year-old female bartender and took her purse on November
4, 2011. The incident was captured by a surveillance camera, and a warrant was issued
for defendant’s arrest. Police arrested defendant on April 2, 2012, after finding him in
possession of a woman’s wallet with the victim’s identification inside.
       Defendant was initially represented by the public defender’s office. The court
denied defendant’s Marsden2 motion on June 20, 2012. On the same day, defense
counsel declared a doubt as to defendant’s competency to stand trial, and the court
suspended the criminal proceedings.
       Based on reports by three different psychiatrists,3 the trial court found defendant
competent to stand trial and reinstated the criminal proceedings on January 4, 2013. On
February 21, 2013, defense counsel informed the prosecution and the court that defendant
sought to represent himself. (See Faretta v. California (1975) 422 U.S. 806.) The court
asked defendant whether he could be ready in a month, and defendant said he would do
his best. The following colloquy took place next:



       1   All further statutory references are to the Penal Code, unless otherwise stated.

       2   People v. Marsden (1970) 2 Cal.3d 118.


                                               2
   Court:            So we’ll have you fill out the waivers. Have you represented
                     yourself in any other cases?
   Defendant:        No, I haven’t. Can I get an order on the consultation? I understand
                     I’ll be representing myself.
   Counsel:          He is asking for a stand-by attorney.
   The Court:        No, I won’t grant that either. You’re going to represent yourself or
                     you’re not.
   Defendant:        I will.


       After additional discussion, the court gave defendant the opportunity to review,
initial and sign the Faretta waiver form, and then reviewed the form with defendant
before granting defendant’s Faretta motion. The court permitted defendant to engage the
services of an investigator to assist with his defense, as well as $20 in funds for phone
calls. Ultimately, the court postponed the trial for five months to give defendant time to
obtain and consult with an investigator and to locate witnesses in preparation for trial.
On July 9, 2013, the court asked defendant if he was “ready to go,” and defendant
responded “yes.” Jury selection and the trial took place from July 10, 2013 through July
12, 2013. Defendant took part in jury selection, gave opening and closing statements,
and cross-examined the victim. Defendant’s theory was that he was retrieving the purse
for its rightful owner and acted in self-defense, but he did not present any evidence. The
jury convicted defendant of second degree robbery and found that the victim was over the
age of 60.


                                      DISCUSSION


Denial of Advisory Counsel


       We reject defendant’s contention that the trial court committed reversible error by
denying his request for advisory counsel. Instead we conclude the court did not abuse its


                                              3
discretion in denying defendant’s request, in light of the psychiatric reports regarding
defendant’s competency to stand trial, his repeated encounters with the criminal justice
system for minor crimes, his educational background, and the relative simplicity of the
case.
        Although the Sixth Amendment guarantees a criminal defendant both the right to
be represented by counsel and the right to self-representation, a defendant who chooses to
represent himself does not have a constitutional right to advisory counsel. (People v.
Blair (2005) 36 Cal.4th 686, 723, overruled on other grounds by People v. Black (2014)
58 Cal.4th 912, 919; see also People v. Hamilton (1989) 48 Cal.3d 1142, 1162 [“A
criminal accused has only two constitutional rights with respect to his legal
representation, and they are mutually exclusive. He may choose to be represented by
professional counsel, or he may knowingly and intelligently elect to assume his own
representation”].)
        The decision to appoint advisory counsel for a defendant who elects self-
representation is a discretionary one, and the court’s decision will not be set aside as long
as there is a “reasonable or even fairly debatable justification, under the law, for the
action taken . . .” (People v. Crandell (1988) 46 Cal.3d 833, 863 (Crandell), overruled
on other grounds in People v. Craytor (2002) 28 Cal.4th 346, 364-365 [internal
quotations and citations omitted].) “The factors which a court may consider in exercising
its discretion on a motion for advisory counsel include the defendant’s demonstrated legal
abilities and the reasons for seeking appointment of advisory counsel.” (Ibid.) A court
may also consider the defendant’s educational level and familiarity with the justice
system, the seriousness of the charges, the complexity of the matter, and whether it
involves novel issues. (See People v. Clark (1992) 3 Cal.4th 41, 111, abrogated on other
grounds as recognized in People v. Pearson (2013) 56 Cal.4th 393, 461-462; Crandell,
supra, at p. 863; People v. Bigelow (1984) 37 Cal.3d 731, 743 (Bigelow); People v.
Sullivan (2007) 151 Cal.App.4th 524, 554 (Sullivan).)
        Defendant initially contends that reversal is required because the trial court failed
to exercise its discretion in denying defendant’s request for either advisory or standby


                                               4
counsel. However, nothing in the record demonstrates that the court erroneously believed
it lacked legal authority to appoint such counsel. (Cf., Bigelow, supra, 37 Cal.3d at p.
742 [trial judge erroneously ruled that California law did not permit the appointment of
advisory counsel].) The issue is therefore whether defendant has shown, as a matter of
law, that the court abused its discretion in denying advisory or standby counsel, and
whether defendant can show prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.)
       We conclude the court did not abuse its discretion in denying defendant’s request
for advisory or standby counsel. Defendant requested legal assistance at the same time
he requested to represent himself, and the court reasonably decided against appointing
advisory counsel, particularly because there was a chance that defendant might change
his mind after being advised of the risks of self-representation. Knowing his request for
advisory counsel had been denied, and after a thorough explanation of the risks of self-
representation, defendant still elected to represent himself, knowingly and willingly
assuming the risks of doing so. Defendant did not renew his request for the advisory or
standby counsel thereafter.
       Defendant argues that the psychiatrist’s reports provided the court with evidence
he was not capable of proceeding without the assistance of advisory counsel. However,
the information in the reports supported the court’s findings that defendant was both
competent to stand trial and competent to voluntarily waive his constitutional right to the
assistance of counsel. Defendant’s attempts to analogize this case to Bigelow are entirely
unconvincing. (Bigelow, supra, 37 Cal.3d at p. 743 [failure to appoint advisory counsel
on the facts of the case would have been an abuse of discretion].) The defendant in
Bigelow faced the death penalty and the charges included special circumstances that had
not yet been judicially construed at the time of the trial. Bigelow was also a Canadian,
unfamiliar with California law, and had only a ninth grade education. (Ibid.) The present
case was a straightforward, simple robbery case with the alleged acts captured on
videotape. The court was aware that defendant had at least a high school education and
some amount of college education as well. He also had a familiarity with the criminal
justice system, with multiple arrests and multiple probation violations pending. Finally,


                                             5
the potential penalty of five years in prison is far less severe than the penalties faced by
defendants even in cases where the court has found no error in the failure to appoint
advisory counsel. (See, e.g., Sullivan, supra, 151 Cal.App.4th at p. 554 [defendant
sentenced to 210 years to life]; People v. Garcia (2000) 78 Cal.App.4th 1422, 1428-1431
[defendant sentenced to 54 years in prison].)
       Defendant has no shown an abuse of discretion, nor has he established that error, if
any, was prejudicial. (Cal. Const., art. VI, § 13.)


Custody Credits


       The court awarded defendant 478 days of actual custody credit and 72 days of
conduct credit for a total of 550 days of presentence custody credit. Defendant contends
that because he was incarcerated from his April 2, 2012 arrest date until he was sentenced
on July 24, 2013, he is entitled to 479 days of actual custody credit, not 478. (People v.
Bravo (1990) 219 Cal.App.3d 729, 735.) Defendant is entitled to an additional day of
actual custody credit as he contends.




                                              6
                                      DISPOSITION


       The judgment is modified to award defendant one additional day of actual custody
credit for a total of 551 days of presentence custody credits. The trial court is directed to
prepare an amended abstract of judgment consistent with this opinion and to forward a
certified copy to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P. J.




              MOSK, J.




                                              7
