Filed 1/21/14 P. v. Gonzalez CA3
                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C068273

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. SF115347B,
                                                                                       SF115347C)
         v.

RICARDO GONZALEZ et al.,

                   Defendants and Appellants.



THE PEOPLE,                                                                                  C069071

                   Plaintiff and Respondent,                                      (Super. Ct. No. 115347A)

         v.

DYDISE DEMUHL TAYLOR,

                   Defendant and Appellant.




                                                             1
       Wearing masks and carrying weapons, Dydise Demuhl Taylor, his brother Larry
Charles Brice, and Brice’s acquaintance Ricardo Gonzalez, forced their way into the
apartment of a young pregnant woman. She shared the apartment with another woman
who was home with her new baby. Defendants demanded money, threatened to shoot the
women, and pistol whipped one woman in the head. One of the victims was able to
secretly call 911, and police apprehended defendants at the apartment a short time later.
       Defendants were charged with first degree residential robbery in concert (Penal
Code §§ 211, 213, subd. (a)(1)(A) [count one]; unless otherwise stated, statutory
references that follow are to the Penal Code), first degree burglary (§§ 459, 460 [count
two]), and false imprisonment by violence (§§ 236, 237 [count three]). Taylor and Brice
were also charged with possession of a firearm by a person previously convicted of a
felony. (Former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010, ch. 711,
§ 6)] [counts four and five, respectively].)
       For the robbery offense, it was alleged that Taylor and Brice were personally
armed with a firearm (§ 12022.53, subd. (b)) while Gonzalez was vicariously armed
(§ 12022, subd. (a)). For the burglary offense, it was alleged the dwelling was occupied.
(§ 667.5, subd. (c)(21).) It was further alleged that Taylor had two prior serious felony
convictions. (§§ 667, subds. (b)-(i) and 1170.12.)
       A jury convicted defendants of all charges and found the gun and occupied
dwelling enhancement allegations true. In subsequent proceedings, the court found
Taylor had two prior serious felony convictions within the meaning of the three strikes
law and the five year enhancement provision. (§§ 667, subds. (b)-(i) and 1170.12; 667,
subd. (a).) The court denied a motion under People v. Romero (1996) 13 Cal.4th 497, to
strike one of Taylor’s prior serious felonies.
       The court sentenced Gonzalez to six years eight months in prison. The court
imposed the middle term of six years for the robbery conviction, stayed the sentences on



                                                 2
the count one gun enhancement and the count two burglary conviction, and consecutively
sentenced Gonzalez to eight months for the false imprisonment conviction.
       Brice was sentenced to an aggregate term of 17 years four months, consisting of a
six-year middle term on count one, a consecutive 10-year term for the gun enhancement,
and consecutive one-third middle terms of eight months each for counts three and five.
The court imposed and stayed the sentence on Brice’s count two burglary conviction
under section 654.
       Taylor was sentenced as a third striker to 95 years to life. His sentence included
25 years to life on count one, plus a consecutive 10-year term for the firearm
enhancement, and two consecutive five-year terms for the prior serious felony
enhancements. The court imposed consecutive terms of 25 years to life for counts three
and four. The court stayed the sentence on the count two burglary conviction under
section 654.
       All three defendants appealed. We consolidated the appeals for purposes of oral
argument and disposition. Because we consolidated the separate appeals, we deny the
People’s request in People v. Gonzalez (case No. C068273) to take judicial notice of the
record on appeal and the briefs in People v. Taylor (case No. C069071).
       Defendant Gonzalez contends (1) insufficient evidence supports his count three
false imprisonment conviction on an aiding and abetting theory, (2) even if sufficient
evidence supports the false imprisonment conviction, the court should have stayed the
sentence under section 654, (3) the judgment should be modified to strike rather than stay
the count one gun enhancement, and (4) the abstract of judgment does not accurately
reflect his presentence custody credits. We reject Gonzalez’s first contention finding the
record contains sufficient evidence to support Gonzalez’s count three false imprisonment
conviction on an aiding and abetting theory, but agree the sentence should be stayed
under section 654. Given the stay of the count three sentence, we remand the matter for
resentencing so the trial court may reconsider whether to impose or strike the one-year

                                             3
gun enhancement on count one. We shall also order the abstract of judgment corrected to
reflect one additional day of presentence custody credit for Gonzalez. In all other
respects, we affirm the judgment as to Gonzalez.
       Defendant Brice contends (1) the court erred in failing to stay the sentences on
count three (false imprisonment) and count five (felon in possession of a firearm) under
section 654, (2) the abstract of judgment erroneously states he was sentenced to the
“upper term” on the count one robbery conviction, and (3) that he is entitled to an
additional day of presentence custody credit. We agree the sentence on count three
should be stayed, the abstract of judgment should be corrected to reflect a “middle term”
of six years for the robbery offense, and that Brice is entitled to one additional day of
custody credit, but otherwise affirm the judgment as to Brice.
       We reach a different conclusion as to defendant Taylor. Taylor presents several
claims of error but one is dispositive: the trial court erroneously denied Taylor’s request
to discharge his retained counsel prior to trial. This constitutional error compels reversal
of his convictions.

                                 FACTS AND PROCEEDINGS

       We recount the facts in the light most favorable to the judgment in accord with
established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
On July 14, 2010, Shanae Sahnhi lived in a two-story apartment in Stockton with her
sister-in-law, Loretto Cebreros, and Cebreros’s three week old daughter. Sahnhi was
eight months pregnant. That morning, Cebreros cashed her tax return check for
approximately $1,800, and she and Sahnhi, who had about $200, went shopping for baby
clothes. Sahnhi purchased about $25 worth of clothes. Around 10:30 p.m., Sahnhi left
the apartment to get medicine for Cebreros’s baby. Upon returning a short time later,
Sahnhi unlocked a security gate at the apartment complex’s entrance and walked to the
front door of her apartment.


                                              4
       Unbeknownst to Sahnhi, defendants followed her through the security gate and
into the apartment complex. Brice was wearing gloves and a black hooded sweatshirt
scrunched about his face. Taylor was wearing black clothing, a dark ski mask and
gloves. Gonzalez wore an ace bandage over his face as a make-shift mask; he also had
dark clothes and gloves. Brice and Taylor were both carrying guns.
       Sahnhi opened her apartment door and as she turned to close it, Brice pushed the
door open and shoved her into the apartment’s downstairs bathroom. Brice pointed a
silver semiautomatic gun at Sahnhi’s stomach. Surprised and terrified, Sahnhi screamed.
Defendants Taylor and Gonzalez followed Brice into the apartment and slammed the
door. Sahnhi, however, was not immediately aware of their presence.
       Brice demanded money from Sahnhi and she gave him approximately $175. Brice
then yelled, “ ‘[t]here has to be more.’ ” During trial it was suggested that perhaps
someone had seen the women at the bank earlier that day cashing Cebreros’s $1,800 tax
return check, although Cebreros did not recall seeing anyone in particular.
       Brice then ordered Sahnhi to lie down in the living room, which she did. Brice
kept screaming, “ ‘Where’s the money at?’ ” and pointed the gun at her. While lying on
the living room floor, Sahnhi saw another man’s feet near her and she heard a man with a
Latino accent alert the others that someone else was upstairs. It was then that she
realized three men were in her apartment.
       The person upstairs was Cebreros. She had been in her bedroom with her baby
when she heard Sahnhi scream. Cebreros stepped from her room and peered down the
stairs. She saw a man coming upstairs towards her. Cebreros ran back to her room,
closed the door and dialed 911. Police were immediately dispatched to the scene.
       Defendants ultimately forced Sahnhi upstairs. Brice and Gonzalez went first.
Sahnhi followed, with Taylor pointing a black semiautomatic gun in her back. Once
upstairs, a man with a Latino accent instructed Cebreros to open the door, not to call



                                             5
anyone and that everything would be okay. Cebreros, who was still connected with the
emergency operator, hid her phone under a pillow on her bed.
       Defendants pushed open the door and shoved Sahnhi into Cebreros’s bedroom.
Brice and Taylor followed Sahnhi into the room while Gonzalez remained close to the
bedroom door. Brice and Taylor continued to demand money. Cebreros told defendants
they did not have any money. Unsatisfied with the women’s response, Taylor pistol
whipped Sahnhi on the forehead. Sahnhi fell to the ground and began bleeding profusely.
Taylor threatened to blow Sahnhi’s head off if she did not give him the money. He began
counting down from five. Before reaching zero, Cebreros told the men she had money in
her purse. Taylor shoved Sahnhi into Cebreros’s closet and ordered her to look for
money. Either Brice, Taylor, or both also began looking through purses in Cebreros’s
closet; Gonzalez remained near the bedroom doorway repeatedly telling Brice and Taylor
“[w]e gotta go,” and to “hurry up.” Cebreros told defendants her purse with the money
was downstairs. At that point, all three defendants left the room and went downstairs.
Sahnhi crawled from the closet, closed the bedroom door, and hid with Cebreros behind a
dresser.
       Once downstairs, one or more of the defendants opened the front door, looked out
the windows, and saw police surrounding the apartment. A few minutes later, Taylor,
Brice and Gonzalez surrendered; they opened the front door and crawled out of the
apartment on their hands and knees. Defendants hid the ski mask, ace bandage, gloves,
guns and ammunition throughout the downstairs of the apartment. Brice had $165 on
him when taken into custody.
       Defendants were tried jointly before a single jury. Evidence at trial included
testimony from Sahnhi and Cebreros as well as prosecution witnesses who either heard
Sahnhi scream or saw three men enter the apartment complex. Defendant Gonzalez
testified on his own behalf, asserting he had been invited to the apartment and that he and
his codefendants had done nothing wrong. Defendant Taylor also testified, claiming he

                                             6
was looking for his brother Brice when he entered the apartment and that the police
showed up a short time later. He claimed none of the events described by Sahnhi and
Cebreros occurred while he was in the apartment. Brice did not testify.
       The jury convicted defendants on all counts and found all enhancement allegations
true. All three defendants timely appealed.

                                        DISCUSSION

                                              I

                              Appeal of Defendant Gonzalez

A.     Aiding and Abetting the False Imprisonment of Sahnhi

       During trial the prosecutor argued Taylor falsely imprisoned Sahnhi by shoving
her into the closet in Cebreros’s bedroom and that Gonzalez aided and abetted the crime
by acting as a look-out. On appeal, Gonzalez contends the record lacks sufficient
evidence to support his conviction for false imprisonment on an aiding and abetting
theory. Gonzalez argues his mere presence in the bedroom is insufficient to show he
knew Taylor intended to falsely imprison Sahnhi or that he encouraged or facilitated him
in doing so. We disagree with Gonzalez’s view of the evidence and conclude substantial
evidence supports Gonzalez’s count three false imprisonment conviction on an aiding and
abetting theory.
       “The substantial evidence rule is generous to the respondent on appeal . . . .”
(People v. Small (1988) 205 Cal.App.3d 319, 325.) When determining whether there is
substantial evidence to support a conviction, we view the record in the light most
favorable to the People, resolving all conflicts in the evidence and drawing all reasonable
inferences in support of the conviction. (People v. Campbell (1994) 25 Cal.App.4th 402,
408 (Campbell).) “ ‘We may conclude that there is no substantial evidence in support of




                                              7
conviction only if it can be said that on the evidence presented no reasonable fact finder
could find the defendant guilty on the theory presented.’ ” (Ibid.)
       “ ‘A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime.’ ” (Campbell,
supra, 25 Cal.App.4th at p. 409.) Although “neither presence at the scene of a crime nor
knowledge of, but failure to prevent [a crime], is sufficient to establish aiding and
abetting its commission,” a court may consider presence at the scene, companionship,
and conduct before and after the offense when determining whether a defendant is guilty
of aiding and abetting the perpetrator. (Ibid.)
       In this case, the record contains substantial evidence supporting Gonzalez’s
conviction. Gonzalez concedes, and the evidence shows, that he stood in the bedroom
doorway when Taylor pushed Sahnhi into the closet. Based on this evidence the jury
reasonably could have found, as the prosecutor argued, that Gonzalez was serving as a
look-out when the false imprisonment occurred since Gonzalez could see whether anyone
was coming up the stairs from the doorway. Acting as a look-out constitutes
quintessential aiding and abetting behavior. (Campbell, supra, 25 Cal.App.4th at p. 409
[blocking one’s view, diverting suspicion, and watching for others who might approach
are textbook examples of aiding and abetting behavior]; People v. Silva (1956)
143 Cal.App.2d 162, 169.)
       And, although denied at trial, Gonzalez also originally told police that his role was
to be the look-out. As the jury was instructed, it could consider Gonzalez’s prior
statement to police of being the look-out when assessing Gonzalez’s credibility as a
witness and the veracity of his subsequent inconsistent trial testimony.
       Gonzalez’s act of blocking the only doorway out of Cebreros’s bedroom further
supports the inference that Gonzalez aided and abetted Taylor in falsely imprisoning

                                              8
Sahnhi. Sahnhi testified that the closet door remained open after she was shoved inside.
Had Gonzalez not stood in the bedroom doorway, Sahnhi may have had a means of
escape. His actions undoubtedly helped Taylor keep Sahnhi in the closet against her will.
       The jury, as the trier of fact, was also entitled to disbelieve the inference that
Gonzalez’s pleas of “[w]e gotta go” amounted to attempts to persuade his codefendants
to stop. In addition to stating “we gotta go,” Sahnhi also testified that Gonzalez told
Brice and Taylor to “hurry up.” Although Gonzalez failed to cite Sahnhi’s “hurry up”
testimony, a jury reasonably could have found that, when considered in context, the
totality of Gonzalez’s statements encouraged Taylor to carry out his criminal endeavors
more expeditiously rather than cease them all together.
       Aiding and abetting, moreover, may be committed “on the spur of the moment.”
(People v. Eskew (1962) 206 Cal.App.2d 205, 207.) A person may aid and abet a
criminal offense without having agreed to do so prior to the act. (People v. Durham
(1969) 70 Cal.2d 171, 181; People v. Villa (1957) 156 Cal.App.2d 128, 134.) Thus, it is
not necessary that the perpetrator expressly communicate his criminal purpose to an
abettor since that purpose may be apparent from the circumstances. (People v. Butts
(1965) 236 Cal.App.2d 817, 836; People v. Stadnick (1962) 207 Cal.App.2d 767, 772 [“It
need not be shown that the direct perpetrator of a crime expressly communicated his
purpose to the accused in order to make the latter liable as an aider and abettor
[citation]”].)
       Given these concepts, the jury reasonably could have determined Gonzalez fully
understood and had advance notice of Taylor’s multiple criminal purposes that night,
which were plainly evident from the surrounding circumstances. The men, all wearing
dark clothing and gloves and covering their faces, followed Sahnhi into the apartment
complex. Brice and Taylor were carrying guns. Brice shoved Sahnhi into the apartment
and immediately into the downstairs bathroom. Gonzalez and Taylor followed, quickly
slamming the apartment door and essentially trapping Sahnhi inside. Based on these

                                               9
circumstances, Gonzalez’s claim that he did not know Taylor intended to falsely imprison
Sahnhi is meritless since the false imprisonment arguably began when defendants
slammed the apartment door. That Gonzalez may not have precisely known Taylor
intended to push Sahnhi into the closet does not mean he was unaware of the overarching
intent to somehow restrain her against her will inside the apartment. (People v. Reed
(2000) 78 Cal.App.4th 274, 280 [“It is the restraint of a person’s freedom of movement
that is at the heart of the offense of false imprisonment . . .”].)
       Sahnhi also testified that a man with a Latino accent went upstairs and alerted the
others that someone else was inside. Cebreros testified that a man with a Latino accent
ordered her to open the bedroom door and told her not to call anyone. The jury was
undoubtedly familiar with Gonzalez’s voice because he testified in his own defense at
trial. The prosecutor also played an audio recording of Gonzalez’s statement to police
after being taken into custody. After hearing Gonzalez testify and listening to the taped
audio recording of his police interview, the jury, as the trier-of-fact, reasonably could
have concluded that Gonzalez had a Latino accent. Based on this conclusion, the jury
reasonably could have inferred that Gonzalez was the individual who went upstairs as a
look-out, saw Cebreros and told Brice and Taylor that she was there. The jury also
reasonably could have determined that Gonzalez tried to gain access to Cebreros’s
bedroom and warned her not to call anyone, impliedly including the police. This conduct
shows Gonzalez was more than a passive bystander in the criminal acts taking place in
the apartment, including when Sahnhi was pushed into the closet as Gonzalez blocked the
bedroom door.
       The evidence, when viewed in the light most favorable to the judgment,
reasonably indicates that Gonzalez played an affirmative supportive role in falsely
imprisoning Sahnhi in the closet of the upstairs bedroom and was not simply an unwitting
bystander to the crime. His conviction for false imprisonment on an aiding and abetting
theory was proper. Because we conclude sufficient evidence supports Gonzalez’s false

                                               10
imprisonment conviction as an aider and abettor, we need not address the People’s
argument that sufficient evidence supports Gonzalez’s false imprisonment conviction
based on Sahnhi’s testimony that “they”--impliedly including Gonzalez--shoved her into
the closet.

B.     Section 654 Stay of the Count Three False Imprisonment Sentence

       The court sentenced Gonzalez to a consecutive eight month prison term on the
count three false imprisonment conviction. Gonzalez contends section 654 mandates that
the sentence be stayed because the false imprisonment was part of an indivisible course
of conduct with the robbery and defendants’ sole objective and intent during this course
of conduct was to commit a robbery. The People argue shoving Sahnhi into the closet
constituted a gratuitous act of violence against a helpless victim not subject to section
654’s constraints on multiple punishments. We agree with Gonzalez that his sentence on
count three should have been stayed under section 654 because shoving Sahnhi into the
closet was not a gratuitously violent act but rather was a means to perpetrate the robbery.
       Section 654 provides in pertinent part: “(a) An act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” The statute does not prohibit
multiple convictions for the same conduct, only multiple punishments. (People v.
Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper procedure is to
stay execution of sentence on one of the offenses.” (Ibid.)
       In any section 654 inquiry, the court must initially ascertain the defendant’s
objective and intent. (People v. Porter (1987) 194 Cal.App.3d 34, 38.) “ ‘If he
entertained multiple criminal objectives which were independent of and not merely
incidental to each other, he may be punished for independent violations committed in
pursuit of each objective even though the violations shared common acts or were parts of


                                             11
an otherwise indivisible course of conduct.’ ” (Ibid.) “Whether the defendant maintained
multiple criminal objectives is determined from all the circumstances and is primarily a
question of fact for the trial court, whose finding will be upheld on appeal if there is any
substantial evidence to support it.” (Ibid.)
       A “gratuitous” act of violence against a victim may be viewed as one so extreme
that it is not incidental to a robbery for purposes of section 654. (See e.g., People v.
Cleveland (2001) 87 Cal.App.4th 263, 271-272 [gratuitous beating of a feeble, 66-year-
old nonresistant robbery victim was not committed with the same objective as the
robbery].) Examples of such gratuitous violence include where a robber falsely
imprisons, assaults, or attempts to kill a victim after robbing him. (See e.g., People v.
Foster (1988) 201 Cal.App.3d 20, 27 [false imprisonment of victims by locking them in
store cooler occurred after robbers had obtained all of the money and therefore was not
necessary or incidental to committing the robbery]; People v. Nguyen (1988)
204 Cal.App.3d 181, 185 [section 654 did not bar separate punishment for attempted
murder committed following robbery]; In re Jesse F. (1982) 137 Cal.App.3d 164 [victim
assaulted after robbery while attempting to escape]; People v. Chapman (1954) 43 Cal.2d
385, 387 [assault following robbery]; People v. Williamson (1979) 90 Cal.App.3d 164
[victims assaulted after money already taken and gun put away].)
       According to the prosecutor, Sahnhi was falsely imprisoned when Taylor shoved
her into the closet. Taylor, however, did so only when Cebreros admitted she had money
in her purse after initially claiming she and Sahnhi had no money. Upon hearing
Cebreros say she had money in her purse, Taylor pushed Sahnhi into the closet and
ordered her to look through Cebreros’s purses for money. Either he or Brice, or both,
also got into the closet to find the money. Cebreros then clarified that the money--nearly
$1,800--was actually in her purse downstairs. The defendants immediately left the room
and went downstairs to locate the purse with the money. Thus, the evidence shows
defendants had not completed the robbery when Taylor falsely imprisoned Sahnhi by

                                               12
shoving her into the closet. On this record, we cannot say that pushing Sahnhi into the
closet and ordering her to look through Cebreros’s purses was a “gratuitous” act of
violence. Instead, it was a means of facilitating the robbery defendants intended to
commit.
       That the robbery was ongoing when defendants falsely imprisoned Sahnhi
distinguishes this case from those cited above. Because defendants had not fully robbed
the victims of all their money when Taylor pushed Sahnhi into the closet, and since
pushing her into the closet to look for a purse with money was not so extreme as to be
incidental to the robbery, imposing a consecutive sentence for the false imprisonment is
not factually supported by substantial evidence. Execution of Gonzalez’s sentence on
count three must be stayed under section 654.

C.     Count One Gun Enhancement

       For purposes of the count one residential robbery in concert offense, the amended
information alleged that Gonzalez was vicariously armed under the section 12022,
subdivision (a) gun enhancement provision. The jury found the enhancement allegation
true. At sentencing the People argued the one year gun enhancement should be imposed
while Gonzalez urged the court to stay the enhancement. Based on the totality of the
circumstances, including Gonzalez’s age and his prior history, the court stayed the
enhancement because it felt a total term of six years eight months was an appropriate
sentence.
       On appeal, Gonzalez contends the trial court procedurally erred in staying rather
than striking the gun enhancement when imposing a sentence the court believed was just.
(People v. Haykel (2002) 96 Cal.App.4th 146, 151; People v. Eberhardt (1986)
186 Cal.App.3d 1112, 1123 [trial court did not have power to “stay” imposition of
sentence on the enhancement]; People v. Jefferson (2007) 154 Cal.App.4th 1381, 1388




                                            13
[enhancement struck instead of stayed].) Rather than remanding for resentencing,
Gonzalez asks us to strike the enhancement.
       From the record, it is clear the trial court exercised its sentencing discretion and
decided six years eight months was an appropriate sentence for Gonzalez. But the court’s
determination was based in part on its erroneous belief that the sentence on count three
would be imposed and executed rather than imposed and stayed as we have ordered.
Given our conclusion that the sentence on count three must be stayed under section 654,
we agree with the People that the matter must be remanded for resentencing. Upon
remand, the trial court may reconsider its treatment of the one year gun enhancement in
light of the stay of the eight month sentence on count three. (People v. Haykel, supra,
96 Cal.App.4th at p. 151.)

D.     Presentence Custody Credits

       Gonzalez contends he is entitled to 307 days of custody credit rather than the 306
days reflected in the May 16, 2011, minute order and the abstract of judgment. Because
Gonzalez was arrested on July 14, 2010, rather than July 15, 2010, and sentenced on
May 16, 2011, the People agree. We accept the People’s meritorious concession and
shall order the May 16 minute order and abstract of judgment corrected to show 353 total
days of presentence credit, consisting of 307 days of actual custody credit and 46 days of
conduct credit. (People v. Smith (1989) 211 Cal.App.3d 523, 525-527 [defendant entitled
to credit from day of arrest to and including day of sentencing].)

                                              II

                                Appeal of Defendant Brice

A.     Section 654 Stay of the Count Three False Imprisonment Sentence

       Brice contends his sentence on count three must be stayed under section 654. Like
Gonzalez, Brice argues the act of shoving Sahnhi into the closet and ordering her to look



                                             14
through Cebreros’s purses for money merely facilitated the robbery and thus cannot be
separately punished under section 654. For the reasons stated above, we agree and shall
order the sentence on Brice’s false imprisonment conviction stayed pursuant to section
654.

B.     Section 654 Stay of the Count Five Felon in Possession Sentence

       Brice also contends his sentence on count five for being a felon in possession of a
firearm must be stayed under section 654 because he possessed the gun to carry out the
robbery. According to Brice, the act of possessing the firearm is indivisible from the
robbery committed using the firearm and cannot be separately punished under section
654. We disagree and find the record contains substantial evidence that Brice harbored
two separate intents to possess the firearm and commit the robbery, both of which are
individually punishable. (People v. Porter, supra, 194 Cal.App.3d at p. 38.)
       Former section 12021 forbids a person convicted of a felony from possessing a
firearm. (Former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010, ch. 711,
§ 6].) Whether a violation of former section 12021 “ ‘ “constitutes a divisible transaction
from the offense in which [a defendant] employs the weapon depends upon the facts and
evidence of each individual case.” ’ ” (People v. Jones (2002) 103 Cal.App.4th 1139,
1143 (Jones I).)
       Where substantial evidence shows a felon possessed a firearm prior to committing
a separate crime using that firearm, section 654 has been held not to bar punishments for
both the felon in possession conviction and the primary crime of which the defendant is
convicted. (Jones I at p. 1141 [defendant properly punished for being a felon in
possession of a firearm and for shooting at an inhabited dwelling where only reasonable
inference from evidence was that defendant possessed gun prior to shooting at house];
see also People v. Jones (2012) 54 Cal.4th 350, 363, fn. 3 (Jones II) [concurring opn.,
Werdegar, J.] [emphasizing that the Court was not calling the decision in Jones I into


                                            15
doubt].) This is so because “[w]hen an ex-felon commits a crime using a firearm, and
arrives at the crime scene already in possession of the firearm, it may reasonably be
inferred that the firearm possession is a separate and antecedent offense, carried out with
an independent, distinct intent from the primary crime.” (Jones I at p. 1141.)
       By contrast, section 654 has been held to bar multiple punishments where the
evidence shows a felon fortuitously came into possession of a firearm at the moment he
committed a separate crime. In People v. Bradford (1976) 17 Cal.3d 8, 22, the Supreme
Court held section 654 prohibited separate punishments for assault with a deadly weapon
upon a peace officer and possession of a firearm by an ex-felon where the defendant
wrested away the officer’s gun and shot at the officer after defendant was stopped for
speeding. The defendant’s possession of the officer’s revolver was not “ ‘ antecedent and
separate’ ” from his use of the gun in assaulting the officer. (Ibid.) In People v. Venegas
(1970) 10 Cal.App.3d 814, 820-821, the court held section 654 barred multiple
punishments for assault with a deadly weapon and felon in possession of a firearm
convictions where the evidence suggested the defendant obtained the gun during a
struggle in a bar moments before the shooting occurred.
       In this case, the record shows Brice committed two separate acts, each punishable
under section 654: arming himself with a firearm and robbing the victims. Unlike in
Bradford and Venegas, no evidence showed Brice fortuitously came into possession of
the firearm at the time he committed the robbery.
       Sahnhi testified that Brice already had the gun in his hands when he surprised her
from behind and forced her into the apartment. She also testified Brice’s firearm did not
belong to either her or Cebreros, and, prior to the incident, had never been in her home.
Another witness testified that he observed two men, at least one of whom was black
(Brice is African-American) sitting in a car for several hours before exiting the vehicle
and following Sahnhi into the apartment complex. A justifiable inference from this
evidence is that Brice possessed the gun in the car while waiting for Sahnhi to return

                                            16
home before robbing her. And when discussing applicable jury instructions on the felon
in possession charge, the court asked Brice’s counsel whether he intended to argue that
Brice had simply found the gun and was trying to give it to the police. Brice’s counsel
responded, “I don’t think there’s any facts there that I can even remotely attempt to do
that.”
         This case, then, is akin to Jones I where section 654 did not bar punishment for
both crimes. (Jones I, supra, 103 Cal.App.4th at p. 1145 [“section 654 is inapplicable
when the evidence shows that the defendant arrived at the scene of his or her primary
crime already in possession of the firearm”].) “ ‘Commission of a crime under [former]
section 12021 is complete once the intent to possess is perfected by possession. What the
ex-felon does with the weapon later is another separate and distinct transaction
undertaken with an additional intent which necessarily is something more than the mere
intent to possess the proscribed weapon.’ ” (Id. at p. 1146.)
         Brice’s reliance on People v. Jurado (1972) 25 Cal.App.3d 1027, 1033 (Jurado),
for the proposition that “a defendant may not be punished both for possession of a
weapon and for another offense in which the weapon is used,” is misplaced. There, the
defendant, who was not a felon like Brice, was convicted of first degree burglary and
carrying a concealed weapon. (Id. at p. 1029.) In finding the defendant could not be
sentenced concurrently for both crimes, the court noted that the weapon defendant
possessed in the burglary was the sole basis for elevating that offense to the first degree
and thus the defendant had been severely punished for possessing the gun already. (Id. at
p. 1033.) The court further noted that the record lacked any evidence showing defendant
possessed the gun before the burglary. (Ibid.)
         None of the facts which the court found compelling in Jurado are present here.
The record contains sufficient evidence that Brice possessed the gun before robbing the
victims. Furthermore, the robbery was elevated to first degree because Brice committed
it in an inhabited dwelling and not because he used a weapon. (§§ 212.5, subd. (a), 213,

                                              17
subd. (a)(1)(A).) We also note that Jurado did not consider former section 12021, but
instead addressed section 654’s application to other weapons charges such as carrying a
concealed weapon under section 12025. Cases are not authority for propositions not
considered. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
       A violation of former section 12021 differs from other weapons charges. (People
v. Ratcliff (1990) 223 Cal.App.3d 1401, 1409-1410.) Non-felons can be charged with
other firearms violations but not with a violation of former section 12021. Thus, former
section 12021 raises unique policy considerations not present with other firearms
violations. (Jones I, supra, 103 Cal.App.4th at p. 1145 [“The Legislature clearly
intended, in enacting section 12021, to minimize the danger to public safety arising from
free access to firearms, a danger presumed to be greater when the person possessing the
concealable firearm is an ex-felon”].) But even if Jurado’s reasoning could apply to
former section 12021 we respectfully decline to follow it. (See Jones I at p. 1149, fn.4
[disagreeing with Jurado]; Jones II, supra, 54 Cal.4th at p. 363, fn.3 [concurring opinion
stating the Supreme Court did not intend to cast doubt on Jones I].)
       Punishing defendant for possessing the firearm as a felon and for later robbing
Sahnhi and Cebreros was commensurate with his culpability even if the offenses occurred
relatively close in time. Brice was properly sentenced for both crimes.

C.     Middle Term for the Count One Residential Robbery in Concert Offense

       Section 213 proscribes the punishment for robbery in concert with two or more
persons as imprisonment in the state prison for either three, six, or nine years. (§ 213,
subd. (a)(1)(A).) The court sentenced Brice to the midterm of six years on the count one
robbery in concert conviction. The abstract of judgment, however, erroneously recites
that six years constitutes the “upper term” on count one. We shall order the trial court to
correct the clerical error in the abstract of judgment to show Brice was sentenced to the
“middle term” of six years for the robbery in concert offense. (People v. Mitchell (2001)


                                             18
26 Cal.4th 181, 185 [appellate court has the inherent power to correct clerical errors in an
abstract of judgment that does not accurately reflect the oral pronouncement of judgments
of sentencing courts].)

D.     Presentence Custody Credits

       Brice contends he is entitled to 314 days of presentence custody credit rather than
the 313 days listed on the abstract of judgment because the record shows he was arrested
on July 14, 2010, and was sentenced on May 23, 2011. The People agree. We accept the
People’s concession and order the abstract of judgment amended to show 361 total days
of presentence credit, consisting of 314 days of actual custody credit and 47 days of
conduct credit. (People v. Smith, supra, 211 Cal.App.3d at pp. 525-527.)

                                              III

                                Appeal of Defendant Taylor

       Defendant Taylor raises four claims in his appeal, two focusing on the propriety
under section 654 of imposing consecutive sentences for his convictions for false
imprisonment and being a felon in possession of a firearm, one for the trial court’s refusal
to strike at least one of his two previous strike convictions, and one for the trial court’s
denial of his request to dismiss his counsel, Mr. Platt, prior to trial. This latter contention
is dispositive.
       We agree with Taylor that his constitutional right to counsel was violated when
the court erroneously applied the stricter Marsden standard for dismissing appointed
counsel in denying Taylor’s request to discharge his retained attorney. (See People v.
Marsden (1970) 2 Cal.3d 118, 124-125 (Marsden); People v. Ortiz (1990) 51 Cal.3d 975,
987 (Ortiz) [trial court erred in requiring defendant to demonstrate incompetence of his
retained counsel before allowing him to discharge attorney].) His convictions must
therefore be reversed. (Ortiz at p. 988 [a criminal defendant need not demonstrate



                                              19
prejudice resulting from a violation of the constitutional right to counsel to have his
conviction reversed].)
       The day jury selection was scheduled to begin Mr. Platt informed the court that an
issue had arisen between he and Taylor and that Taylor refused to talk to him. Mr. Platt
said that Taylor, “want[ed] a Marsden.” After listening to Mr. Platt briefly describe the
conflict, the court responded, “a Marsden motion might be appropriate at this point.” The
court cleared the prosecutor and codefendants from the courtroom to conduct what it
considered to be a Marsden hearing. The sealed transcript of the hearing is labeled
“Marsden Hearing.”
       During the closed hearing, Taylor stated he was “tryin’ to relieve [his] counsel.”
The court informed Taylor that “If you want to relieve your counsel because you believe
he has either (a) done something that he shouldn’t have or (b) failed to do something that
he should have, then we can discuss that as a Marden [sic] motion.” Taylor responded,
“[i]f that’s what is needed.” After listening to Taylor’s complaints against Mr. Platt,
which included not filing a writ petition to challenge an adverse ruling the court made the
previous day and not filing a motion to “bring up past evidence,” the court denied
Taylor’s purported Marsden motion, finding no basis to relieve trial court at that juncture.
       As Taylor contends, the trial court here held what was in essence a Marsden
hearing to determine whether to permit Taylor to discharge Mr. Platt. The legal
principles governing a Marsden hearing are well settled. A defendant seeking to
discharge his appointed counsel “ ‘ “is entitled to relief if the record clearly shows that
the first appointed attorney is not providing adequate representation [citation] or that
defendant and counsel have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result [citations].” ’ ” (People v. Lara (2001)
86 Cal.App.4th 139, 150 (Lara).) What is equally well settled is that the standards
governing a defendant’s right to discharge appointed counsel do not apply where counsel
is retained. (Ortiz, supra, 51 Cal.3d at pp. 983-984.)

                                              20
       A criminal defendant’s right to discharge his retained attorney, with or without
cause, has long been recognized in this state. (Lara, supra, 86 Cal.App.4th at p. 152.)
Indeed, a defendant’s interest in discharging a retained attorney is included within the
constitutional right to counsel of one’s choice. (Ibid.) The right to discharge retained
counsel is not absolute, however. (Id. at p. 153.) A trial court may exercise its discretion
to deny such a request where the discharge would significantly prejudice the defendant
by forcing him to trial without adequate representation or if the request was untimely and
would unreasonably disrupt the orderly processes of justice under the circumstances of a
particular case. (Ortiz, supra, 51 Cal.3d at p. 982.)
       With these standards in mind, it is apparent from the record that a Marsden
hearing was not appropriate to evaluate Taylor’s request to discharge Mr. Platt. Based on
purportedly ambiguous clerk’s minutes, the People argue it is unclear whether Mr. Platt
was appointed or retained and thus we should reject Taylor’s contention on appeal. Yet,
the transcript of a later hearing to relieve Mr. Platt after the jury convicted Taylor but
before he was sentenced resolves any purported ambiguity regarding Mr. Platt’s status as
a retained attorney before and during trial. At that hearing, Mr. Platt conceded he had
been retained by Taylor, and that Taylor had the right to discharge him at any time. Mr.
Platt also conceded, and the court agreed, that the issue of whether Taylor could dismiss
him prior to trial was “technically not a Marsden” because he was not appointed.
               Thus, we deny as irrelevant the People’s request to take judicial notice of
various San Joaquin County documents relating to the Lawyer Referral Service for the
provision of court-assigned counsel since we find Mr. Platt was retained.
       The record, then, unambiguously demonstrates that Mr. Platt was retained and not
appointed when the trial court conducted the Marsden hearing. Applying the stricter
Marsden standard for dismissing appointed counsel therefore denied Taylor of his
constitutional right to counsel. (Ortiz, supra, 51 Cal.3d at p. 988.) The right to counsel
of choice is so basic a right to a fair trial that its infraction can never be treated as

                                               21
harmless error. (Ibid. [“a criminal defendant need not demonstrate prejudice resulting
from a violation of [the right to counsel] in order to have his conviction reversed”].)
       In finding the error reversible, we reject the People’s alternative argument that
even if Mr. Platt was retained the trial court had discretion to deny the motion as
untimely because Taylor raised the issue the day jury selection was set to begin.
Although a motion to discharge retained counsel may be denied as untimely (Ortiz,
supra, 51 Cal.3d at p. 982), nothing in this record shows the trial court made any such
finding. Instead, the trial court denied the supposed Marsden motion on the merits and
made no findings as to timeliness.
       The absence of an untimeliness finding means there is no way to determine
whether allowing Taylor to discharge his retained counsel and granting a continuance
would have prejudiced the prosecution and disrupted the orderly process of justice.
(Lara, supra, 86 Cal.App.4th at pp. 163-164 [erroneous application of Marsden standard
to retained counsel required reversal because appellate court could not conclude the
motion was necessarily untimely based on incomplete record]; compare People v. Lau
(1986) 177 Cal.App.3d 473, 477, fn.3 [citing trial court’s comments regarding concerns
over timeliness as support for upholding trial court’s decision to deny motion].)
       Here, all three defendants entered general time waivers and the trial had already
been continued several times. A reasonable inference from these facts is that an
additional continuance was unlikely to disrupt the orderly process of justice. And,
perhaps most telling, is that the prosecutor never objected to the supposed Marsden
motion as being untimely. By contrast, at the later hearing to relieve Mr. Platt prior to the
pronouncement of judgment, the prosecutor objected that the latter motion was untimely
and merely constituted a delay tactic.
       Like in Lara, we are left with an incomplete record upon which to conclude that
Taylor’s motion to discharge Mr. Platt was necessarily untimely. Reversal is therefore
mandated.

                                             22
                                        DISPOSITION

       The judgment as to Gonzalez is modified to stay the consecutive sentence on
count three. The trial court is directed to amend the abstract of judgment accordingly. In
light of the count three stay, the matter is remanded for resentencing so the trial court
may reconsider whether to impose or strike the count one gun enhancement. The trial
court is also directed to amend the abstract of judgment as well as the May 16, 2011,
minute order for the sentencing hearing to show Gonzalez is entitled to one additional
day of presentence custody credit for a total of 353 days of credit. The trial court is
directed to forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.
       The judgment as to Brice is modified to stay the consecutive sentence on the count
three false imprisonment conviction and to give Brice credit for one additional day of
presentence custody, for a total of 361 days of presentence custody credit. The trial court
is directed to amend Brice’s abstract of judgment accordingly and also to correct the
abstract of judgment to reflect that Brice was sentenced to the “middle term” of six years
on the count one robbery in concert conviction rather than the “upper term.” The trial
court shall forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.
       The judgment as to Taylor is reversed.



                                                         HULL                  , J.

We concur:


      NICHOLSON             , Acting P. J.


      DUARTE                , J.


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