Filed 7/17/14 P. v. Clayton CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B248951
                                                                        (Super. Ct. No. TA122981-01)
          Plaintiff and Respondent,                                         (Los Angeles County)

v.

CURTIS LEE CLAYTON aka CURTIS
GLENN CLAYTON

          Defendant and Appellant.



                   Curtis Clayton appeals from the judgment after a jury convicted him of
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battery with serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)) . In a bifurcated
proceeding, the trial court found that appellant had suffered a prior strike conviction
(§§ 667, subds. (b) -(i); 1170.12, subds. (a) - (d)), a prior serious felony conviction (§
667, subd. (a)(1)), and nine prior prison terms (§ 667.5, subd. (b)). The trial court denied
a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to strike
the prior strike conviction and sentenced appellant to 13 years state prison. Appellant
claims that he was coerced to withdraw his Faretta request for self-representation
(Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]) and that the trial court
miscalculated his presentence conduct credits. We modify the judgment to reflect that
1
    All statutory references are to the Penal Code.

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appellant was awarded 741 days custody credit (371 actual days and 370 conduct credit
days) and affirm the judgment as modified.
                               Facts and Procedural History
              On the night of April 25, 2012, Sam Ku was dispatched to repair an ATM
machine outside a Rite Aid. Francisco Medrano, an armed security guard, provided
protection while the repairs were made.
              Appellant approached and asked for spare change. Medrano told appellant
to step away and raised his arm to fend appellant off. Appellant punched Medrano,
knocking him out. Medrano hit his head and was hospitalized for a head laceration, three
broken ribs, and a cut lip.
              Before trial, appellant brought a Marsden motion (People v. Marsden
(1970) 2 Cal.3d 118) to replace his court appointed attorney which was denied.
Appellant argued that if he could not get another attorney, he would represent himself.
The trial court noted that appellant had an extensive history of convictions and asked,
"Have you represented yourself in the past?" Appellant said that he had. The trial court
responded: "It doesn't sound like it's been very successful in terms of beating any cases."
The following exchange occurred:
              "The Court: And so you're going to be able address all of that from a legal
point of view in terms of the evidence that would be coming before a jury?
              "[Appellant]: I don't know if I can do it all or not.
              "The Court: Well, that's my point, sir. Do you understand the rules of how
a trial works in terms of defending yourself [and] the rules of evidence?
              "[Appellant]: Do I have any choice?
              "The Court: Well, you're looking at -- your choice is on the right side of
you, someone who is experienced as a trial lawyer. That's my point. Do you want to
give - -
              "[Appellant]: Can I have another one?



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              "The Court: No. We've already been there. I know you objected to my
ruling, but why don't you give some thought about this, all right?
              "[Appellant]: All right.
              "The Court: Okay. You'll settle for her?
              "[Appellant]: No.
              "The Court: What?
              "[Appellant]: No.
              "The Court: Well, I know you're . . . not happy, but are you going to
withdraw your request for self-representation? I strongly recommend you . . . do that.
              "[Appellant]: Yeah, at this moment I withdraw my request."
                                           Faretta
              When presented with a request for self-representation, the trial court is
expected to make the defendant "aware of the dangers and disadvantages of self-
representation, so that the record will establish that 'he knows what he is doing and his
choice is made with eyes open.' [Citation.]" (Faretta v. California, supra, 422 U.S. at p.
835 [45 L.Ed.2d at p. 582]; see People v. Bloom (1989) 48 Cal.3d 1194, 1224-1225.)
Advising the defendant on the pitfalls of self-representation is not coercion. (People v.
Jenkins (2000) 22 Cal.4th 900, 961.) Coercion occurs when "the influences brought to
bear upon the accused were 'such as to overbear petitioner's will to resist. . .' [Citation.]"
(People v. Maury (2003) 30 Cal.4th 342, 404.) The trial court's dialogue with appellant
cannot be said to have overborne appellant's free will.
               In People v. Jenkins, supra, 22 Cal.4th 900, defendant brought a motion to
dismiss trial counsel and undertake his defense alone. Defendant claimed that the
attorneys appointed to represent him were incompetent and unprepared for the penalty
phase of trial. (Id., at p. 959.) The trial court informed defendant that the case involved
an overwhelming amount of work and " 'is one of the most serious cases that this county
has had in a long time.' The court acknowledged that defendant was bright, but warned
that his lack of legal training would stand in his way in conducting his own defense. The


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court stated: 'I could not advise you strongly enough of what an impossible situation that
would be for you' and that it would 'feel better' if defendant had what it considered to be
the best representation available. . . ." (Id., at p. 960.) Our Supreme Court concluded that
defendant was not coerced into withdrawing the Faretta motion. (Id., at p. 961.)
              The warning appellant received was similar to the warning in People v.
Jenkins. Appellant made the Faretta motion immediately after the trial court denied his
Marsden motion for substitute counsel. Appellant's comments suggest that it was a
tactical decision to rid himself of appointed counsel and force the trial court to appoint
new counsel. (See e.g., People v. Scott (2001) 91 Cal.App.4th 1197, 1205.) Appellant
asked, "Can I have another one?" which raised the "heads I win, tails you lose" Faretta-
Marsden paradox. (See Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1394
[a defendant either has an attorney or he is his own attorney].) The trial court reminded
appellant that he had an experienced trial lawyer and strongly recommended that
appellant withdraw the request for self-representation. On reflection, appellant said "at
this moment I withdraw my request."
              Appellant cites no authority where the withdrawal of a Faretta motion was
found to be "coerced" by the trial court's praise of defense counsel. The trial court simply
advised appellant of the dangers and disadvantages of self-representation. (People v.
Jenkins, supra, 22 Cal.4th at p. 961.) The fact that appellant faced a difficult choice of
options occasioned by the denial of his Marsden request does not mean that appellant's
decision to withdraw the Faretta motion was coerced. The right to Faretta self-
representation may be waived by abandonment and acquiescence in representation by
counsel, as was the case here. (People v. Stanley (2006) 39 Cal.4th 913, 929.) There is
no merit to the argument that appellant was coerced or involuntarily withdrew his request
for self-representation.
                               Presentence Custody Credits
              Appellant argues that the trial court erred in awarding 31 days presentence
conduct credits based on the implied finding that battery with serious bodily injury is a


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violent felony. (See People v. Hawkins (2003) 108 Cal.App.4th 527, 531-532 [battery
with serious bodily injury is not a violent felony and does not trigger a section 2933.1
custody credit limitation].) On May 12, 2014, the trial court granted appellant's motion to
correct the sentence (§ 1237.1) and awarded appellant 371 days actual custody credits
plus 371 days conduct credits for total credits of 742 days. We have taken judicial notice
of the May 12, 2014 minute order and May 13, 2014 amended abstract of judgment.
(Evid. Code, §§ 452, subd. (d); 459.)
              Appellant, in his opening brief, concedes that he should have been awarded
371 days actual custody plus 370 days conduct credits (§§ 2900.5, 4019, subd. (f)) for a
total of 741 days.
              The judgment is modified to reflect that appellant is to receive presentence
credits of 371 days actual custody credit plus 370 days conduct credit for total credits of
741 days. (See § 4019, subd. (f) [a term of four days is deemed to have been served for
every two days spent in actual custody]; Couzens & Bigelow, Awarding Custody Credits
(Feb. 2013) pp. 13-14 [discussing § 4019, subd. (f) half-time credit calculation].) The
superior court clerk is directed to issue an amended abstract of judgment to reflect that
appellant was awarded 371 actual days and 370 conduct credit days, and to forward a
certified copy of the amended abstract of judgment to the California Department of
Corrections and Rehabilitation.
              The judgment as modified is affirmed.
              NOT TO BE PUBLISHED.



                                          YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.


                                             5
                                Allen J. Webster, Judge

                        Superior Court County of Los Angeles

                         ______________________________


             Christian C. Buckley, under appointment by the Court of Appeal, for
Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E.
Mercer, Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.




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