Filed 9/29/15 P. v. Corona CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061580

v.                                                                       (Super.Ct.No. FWV1200093)

JESUS CORONA,                                                            OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

         Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald L. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Susan

Miller, Deputy Attorneys General, for Plaintiff and Respondent.




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                                     I. INTRODUCTION

        Defendant and appellant, Jesus Corona, appeals from his conviction of three

counts of robbery (Pen. Code, § 211)1 and three counts of assault with a semiautomatic

firearm (§ 245, subd. (b)), along with true findings on the allegation as to the robbery

counts that a principal personally used a firearm (§ 12022.53, subd. (b)), on the allegation

as to the assault counts that defendant personally used a firearm (§ 12022.5, subd. (a)),

and on the prior conviction allegation (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-

(d)).

        Defendant contends the trial court erred in revoking his right to represent himself

and in failing to properly evaluate his repeated requests for replacement of his appointed

counsel.2

        We find no error, and we affirm the judgment.

                     II. FACTS AND PROCEDURAL BACKGROUND

        On appeal, defendant challenges only the denial of his right to represent himself

and his requests to replace appointed counsel. We therefore set forth the facts of the

underlying crimes summarily.

        On January 8, 2012, defendant entered an Auto Zone store in Rancho Cucamonga

near closing time. After the last customer left, defendant approached the register, pulled

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

        2Defendant initially contended, and the People conceded, that he was entitled to
an additional five days of custody credit. The trial court has since corrected the error and
issued an amended abstract of judgment.

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out a semiautomatic gun, and demanded money from three store employees. When

defendant was arrested shortly after he left the store, deputies found an Auto Zone plastic

bag containing approximately $1,300 in cash nearby, and defendant was carrying a

loaded semiautomatic handgun.

       The jury found defendant guilty of three counts of robbery (§ 211) and three

counts of assault with a semiautomatic firearm (§ 245, subd. (b)), and found true the

allegations as to the robbery counts that a principal personally used a firearm

(§ 12022.53, subd. (b)), and as to the assault counts that defendant personally used a

firearm (§ 12022.5, subd. (a)). The trial court found true a prior conviction allegation.

(§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced

defendant to a total term of 51 years in prison.

       Additional facts are set forth in the discussion of the issues to which they pertain.

A. Self-representation

       Defendant contends the trial court erred in revoking his right to represent himself.

       1. Additional Background

       In September 2012, defendant had two cases pending: FWV1200093 (the current

case), which was designated the lead case, and FWV1200156, which was designated the

trailing case. Before the preliminary hearing, defendant requested propria persona status

in both cases. The trial court stated that defendant had filled out the appropriate

paperwork and advised defendant of the consequences of acting as his own attorney.

Defendant informed the court that he had dropped out of school in the 10th grade, and he


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acknowledged that he understood the consequences of representing himself. The trial

court granted the request.

       At the next reported appearance on November 15, 2012, M.J. De la Pena appeared

for defendant and informed the court that defendant had retained her to represent him in

both cases, but that he wished to remain as cocounsel so he could retain law library

privileges. The trial court stated that defendant would either act in propria persona or

not. Defendant informed the court that he had hired the De la Pena firm, and they could

speak for him. The trial court revoked defendant’s propria persona status, and the De la

Pena firm became counsel of record.

       On April 22, 2013, Ms. De la Pena informed the court that defendant again wanted

to go in propria persona in both cases. The trial court stated that it was “seeing a

disturbing pattern,” and that it could deny propria persona status if it appeared defendant

had delayed the process. The court stated that it would not entertain the Faretta3 motion

that day, but that defendant could bring the motion in superior court. The court

confirmed the preliminary hearing for the following Wednesday on the lead case and

repeated its concern that defendant’s Faretta motion was a delay tactic.

       Defendant acted as his own attorney at the preliminary hearing on the lead case;

however, no discussion regarding the trial court’s grant of propria persona status appears

in the record. The De la Pena firm continued to represent defendant in the trailing case.




       3   Faretta v. California (1975) 422 U.S. 806 (Faretta).

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       At a hearing on May 31, 2013, the court stated it had received a petition from

defendant for discovery in the lead case. The court found that the document did not

comply with the requirements for bringing a discovery motion, and the court denied the

petition without prejudice. The court explained that defendant had to follow specific

rules to bring a motion for discovery, and the court would not consider a motion that did

not comply with those rules.

       At a hearing on July 26, 2013, for pretrial and motions, the deputy district attorney

stated he had received a document labeled as an informal discovery request. The deputy

district attorney represented that all discovery obligations had been complied with. The

court stated it had read defendant’s document and did not know what defendant was

asking for. When the court asked defendant to explain his request, defendant repeatedly

demanded that the trial court state its full name and failed to respond to the court’s

questions about his request. The trial court stated it would deny defendant’s motion

because it made no sense. Defendant continued to insist that the trial court state its full

name for the record.

       At a pretrial hearing on December 20, 2013, defendant was still acting in propria

persona. He filed a document titled “letter Rogatory . . . opportunity to exhaust

administrative remedy statement of interest of admiralty . . . .” The trial court stated it

had attempted to read the document but was unsure what defendant was asking for, and

asked defendant to explain. Defendant asked: “What’s the claim filed against the legal

entity?” The following colloquy ensued:


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       “[Defendant]: What’s the claim filed against the legal entity? Was the claimed

[sic] filed against a legal entity?

       “THE COURT: Whether or not the Information was lawfully filed? Is that what

you’re asking?

       “[Defendant]: Yes. The legal entity.

       “THE COURT: It is lawfully filed at this point. It’s within the procedures of the

criminal law to file anything you want to. In terms of those procedures to change the

legality of the file—

       “[Defendant]: That still doesn’t answer my question.

       “THE COURT: This document to exhaust administrative remedies, we’re not in

administrative court, so this document is really nonsense.

       “[Defendant]: What jurisdiction are we under?

       “THE COURT: I’m sorry?

       “[Defendant]: What jurisdiction are we under?

       “THE COURT: I have jurisdiction as a judge of Superior Court. We’ve gone

through this before. I’m not going to argue it with you. You know, we need to move

forward on this matter. I’m beginning to wonder, sir, whether or not you do really

understand what’s going on.

       “[Defendant]: I just asked you a question. You didn’t answer. What—what

jurisdiction are we under?




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        “THE COURT: Under the jurisdiction of the state of California and I’ve told you

that before.

        “[Defendant]: You’re not answering my question.

        “THE COURT: I’m not he[re] to answer your questions. You’re here to tell me if

you’re ready for trial.

        “[Defendant]: Are you dishonoring my statement of interest?

        “THE COURT: I’m telling you I’m here today to find out if this matter is ready

for trial.

        “[Defendant]: I just asked you a question.

        “THE COURT: You have—you haven’t answered my question. I told you I’m

not going to answer your questions unless they have some legal relevancy to this case.

You tell me, are you ready for trial in this matter?

        “[Defendant]: Are you referring to a defendant?

        “THE COURT: I’m referring to you, sir.

        “[Defendant]: I’m asking are you referring to a defendant?

        “THE COURT: I’m referring to—

        “[Defendant]: Do you have the birth certificate of the defendant?

        “THE COURT: I’m referring to—

        “[Defendant]: I’m not a defendant, ma’am.

        “THE COURT: All right. I am prepared to find in this matter, [defendant], you

do not have the ability to represent yourself based on your refusal to talk about this case


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in a manner that makes sense and I will appoint counsel in this matter to represent

you. . . .”

        2. Standard of Review

        A ruling revoking a defendant’s propria persona status is reviewed for an abuse of

discretion and “‘will not be disturbed in the absence of a strong showing of clear abuse.’”

(People v. Welch (1999) 20 Cal.4th 701, 735.)

        3. Analysis

        A defendant who represents himself must be willing and able “to abide by rules of

procedure and courtroom protocol.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.)

The trial court may properly revoke a defendant’s propria persona status if the defendant

“‘deliberately engages in serious and obstructionist misconduct’” (Faretta, supra, 422

U.S. at p. 834) “that seriously threatens the core integrity of the trial” (People v. Carson

(2005) 35 Cal.4th 1, 6).

        The trial court stated that defendant “d[id] not have the ability to represent

[him]self based on [his] refusal to talk about the case in a manner that ma[d]e sense

. . . .” Defendant contends the trial court found either that he lacked the ability to act as

his own counsel or that he was deliberately refusing to make sense.

        Defendant argues that if the court found he lacked the ability, the ruling was in

error because there was no showing he was mentally incompetent. In People v. Johnson

(2012) 53 Cal.4th 519, the court stated that the standard for denying the right to self-

representation is “whether the defendant suffers from a severe mental illness to the point


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where he or she cannot carry out the basic tasks needed to present the defense without the

help of counsel.” (Id. at p. 530.) Although the trial court stated that defendant “d[id] not

have the ability” to represent himself, the trial court further explained that such inability

was based on defendant’s refusal to talk sensibly about his case. Thus, we interpret the

trial court’s statement to mean that the defendant was deliberately engaging in

obstructionist conduct. (See People v. Butler, supra, 47 Cal.4th at p. 825.)

       Defendant argues that if it found defendant was engaging in obstructionist

conduct, the trial court should have considered alternative sanctions before revoking his

right to self-representation. In People v. Carson (2005) 35 Cal.4th 1, the defendant’s out-

of-court conduct led the trial court to revoke his right to self-representation. Our

Supreme Court held that the trial court should have considered “the availability and

suitability of alternative sanctions.” (Id. at p. 10.) In our view, Carson is

distinguishable—in that case, the trial court revoked Faretta rights as a sanction for the

defendant’s out-of-court conduct. Here, in contrast, the trial court revoked self-

representation on the basis that defendant was, in effect, deliberately engaging in

obstructionist conduct.

       Defendant suggests that the trial court here could have offered the alternative

sanction of appointing advisory counsel to present motions while allowing him to act as

his own attorney during the evidentiary portion of the trial. However, the trial court had

previously denied defendant’s request for advisory or joint counsel. To offer that

alternative after finding defendant had deliberately engaged in obstructionist conduct


                                              9
would be to reward defendant for his own bad behavior. We find no abuse of discretion

in the trial court’s order revoking defendant’s self-representation.

B. Request to Replace Appointed Counsel

       Defendant contends the trial court erred in failing to properly evaluate his repeated

requests for replacement of his appointed counsel because the trial court did not assess

whether an irreconcilable conflict with counsel existed.

       1. Additional Background

       At the Marsden4 hearing, the trial court asked defendant to state his reasons for

requesting a change of counsel. Defendant stated: “We have a conflict of interest. I

gave her a piece of paper to accept charges for value. She said you’re not paying your

way out of this. You’re going to prison. Then she tells me I’m incompetent. Also, I tell

her what to do, she don’t want to do it.” The court stated it needed more information, and

defendant responded: “The issue is she—I asked her to do things, she won’t do it. She

said I was incompetent. She is representing me telling me I’m incompetent. So then we

have a report saying I was competent. She goes no she won’t do it.”

       Defendant’s counsel told the court she had more than 32 years of criminal defense

experience. She denied telling defendant he was going to prison. He had given her a

document to file, but she did not know what it meant. She had shown the document to

the court and the prosecutor, and they also did not know what it meant. She stated

defendant was not talking to her and was reporting her to the State Bar. The trial court

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

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asked if a report to the State Bar would affect her ability to represent him, and she

responded she was not concerned about it. She had asked to have his competency

evaluated because she had observed his prior conduct in court, and she was “fine with”

the report indicating he was competent. She believed his failure to communicate was

willful.

       The trial court found that defendant’s noncooperation was willful and denied the

Marsden motion. Defendant repeated to the court that he and his attorney had a conflict

of interest. “She’s not doing what I ask. I told her to accept the charge for value in

consideration. You say you understand what a UCC-1 is?” The trial court stated it

would not engage in a conversation with defendant and told defendant to talk to his

counsel.

       2. Analysis

       Under Marsden, a defendant must show that appointed counsel is not providing

competent representation or that there is an irreconcilable conflict such that ineffective

representation is likely to result. (People v. Dickey (2005) 35 Cal.4th 884, 917.) The

trial court must permit the defendant to explain his request for replacement of counsel

and to relate specific instances or purported inadequate performance. (Marsden, supra, 2

Cal.3d at p. 124.)

       “Once a defendant is afforded an opportunity to state his or her reasons for seeking

to discharge an appointed attorney, the decision whether or not to grant a motion for

substitution of counsel lies within the discretion of the trial judge. The court does not


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abuse its discretion in denying a Marsden motion ‘“unless the defendant has shown that a

failure to replace counsel would substantially impair the defendant’s right to assistance of

counsel.”’ [Citations.] Substantial impairment of the right to counsel can occur when the

appointed counsel is providing inadequate representation or when ‘the defendant and the

attorney have become embroiled in such an irreconcilable conflict that ineffective

representation is likely to result [citation].’ [Citations.]” (People v. Clark (2011) 52

Cal.4th 856, 912.) However, “[a] defendant ‘cannot simply refuse to cooperate with his

appointed attorney and thereby compel the court to remove that attorney.’ [Citations.]”

(Id. at p. 918.) A defendant does not have a “constitutional right to an attorney who

would conduct the defense of the case in accord with [his] whims . . . . Nor does a

disagreement between defendant and appointed counsel concerning trial tactics

necessarily compel the appointment of another attorney.” (People v. Lucky (1988) 45

Cal.3d 259, 281-282.) A conflict between a defendant and counsel will not be considered

irreconcilable “‘if the defendant has not made a sustained good faith effort to work out

any disagreements with counsel and has not given counsel a fair opportunity to

demonstrate trustworthiness.’” (People v. Barnett (1998) 17 Cal.4th 1044, 1086.)5

       Here, the trial court asked defendant to explain his request. Defendant indicated

he wanted his counsel to file motions that counsel considered to be meritless. Defendant

argues that he wanted his counsel to arrange a monetary settlement of the case, and the

       5 We note that the trial court had relieved defendant’s previous counsel based on
that counsel’s representation that the attorney-client relationship was irretrievably broken
and that defendant did not want counsel’s advice.

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breakdown in communication resulted from her failure to communicate his offer to the

prosecutor. However, counsel told the court defendant had given her a document to file,

but she did not know what it meant. She had shown the document to the court and the

prosecutor, and they also did not know what it meant.

      “A defendant does not have the right to present a defense of his own choosing, but

merely the right to an adequate and competent defense. [Citation.] Tactical

disagreements between the defendant and his attorney do not by themselves constitute an

‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional

counsel, that counsel is “captain of the ship” and can make all but a few fundamental

decisions for the defendant.’” (People v. Welch (1999) 20 Cal.4th 701, 728-729.)

      The trial court specifically found that any failure of communication between

defendant and his attorney was due to defendant’s willful noncooperation. The trial court

did not abuse its discretion in denying the Marsden request.

                                   III. DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               KING
                                                                                         J.
We concur:

McKINSTER
                Acting P. J.

MILLER
                          J.
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