Filed 10/17/13 P. v. Thomas CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F063867
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF135794A)
                   v.

DEONTRAY DESHON THOMAS,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.

         Donn Ginoza, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       Following a plea to a violation of Penal Code1 section 273.5, subdivision (a) and
the imposition of a four-year sentence, defendant Deontray Deshon Thomas appeals his
conviction. He argues the trial court abused its discretion when it granted his motion
made under Faretta v. California (1975) 422 U.S. 806 (Faretta) because it failed to
consider whether he lacked the mental capacity to represent himself at trial. Defendant
also contends that failure resulted in an invalid waiver, thus, denying him his
constitutional right to counsel. We affirm the judgment.
                          BRIEF PROCEDURAL SUMMARY
       In an information filed April 14, 2011, it was alleged defendant committed the
following violations: count 1—assault with a deadly weapon (§ 245, subd. (b)); count
2—willful infliction of corporal injury upon a cohabitant (§ 273.5, subd. (a)); count 3—
criminal threat (§ 422); count 4—unlawful taking of a vehicle (Veh. Code, § 10851, subd.
(a)); count 5—unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1));
and count 6—active participation in a criminal street gang (§ 186.22, subd. (a)). A gang
enhancement was also alleged (§ 186.22, subd. (b)(1)) as to counts 1, 2, 3, and 5. A
firearm enhancement was alleged (§ 12022.5, subd. (a)) as to counts 1, 2, 3, and 4.
Additionally, it was alleged defendant had a prior strike (§§ 667, subds. (c)-(j), 1170.12,
subds. (a)-(e)) and a prior serious felony conviction for attempted first degree burglary
(§ 667, subd. (a)). Finally, it was also alleged defendant had served two prior prison
terms. (§ 667.5, subd. (b).)
       On April 22, 2011, defendant pled not guilty to all counts and denied all
allegations.
       Subsequently, the trial court granted defendant’s motion to set aside the section
186.22, subdivision (b)(1) enhancement as to counts 1, 2, 3, and 5.



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




                                               2.
       Thereafter, a series of Marsden (People v. Marsden (1970) 2 Cal.3d 118) motions
made or filed by defendant were heard and denied.
       Jury trial commenced August 18, 2011, with motions in limine argued and
considered over two days. On the second day of trial, defendant made yet another
Marsden motion; it was denied. Defendant’s subsequent Faretta motion was granted.
       On August 23, 2011, the trial court granted defendant’s request for a 30-day
continuance, but denied his request for cocounsel. Later that same morning, defendant
entered a conditional plea: that he serve no more than four years in prison in exchange
for pleading no contest to a violation of section 273.5, subdivision (a).
       After denying defendant’s motions to withdraw his plea, the trial court eventually
sentenced defendant to four years in state prison.
                             BRIEF FACTUAL SUMMARY2
       On February 27, 2011, Toya Tarkington reported she had been assaulted by
defendant. More particularly, she indicated her boyfriend punched her in the head, face,
chest and back. At one point, he produced a handgun, pointed it at Tarkington’s head,
and told her he was going to kill her. The assault continued briefly before defendant took
Tarkington’s keys and left in her car. Although Tarkington declined medical assistance,
law enforcement personnel noted bruising to her face and shoulder.
                                       DISCUSSION
The Faretta Motion
       Defendant contends the trial court erred in granting his Faretta motion because it
employed an incorrect standard in assessing his ability to conduct himself during trial.
He argues the trial court’s reference to People v. Nauton (1994) 29 Cal.App.4th 976
during the hearing meant it was unaware of the rules of Indiana v. Edwards (2008) 554
U.S. 164 and People v. Johnson (2012) 53 Cal.4th 519 applicable to Faretta motions.


       2The factual summary is taken from the probation officer’s report.




                                               3.
The People assert the trial court exercised its sound discretion in allowing defendant to
represent himself and, thus, no error occurred.
       The Relevant Proceedings Below
       On the morning of August 22, 2011, the trial court noted defendant’s appearance
and, particularly, the fact he was not dressed out for trial. When defense counsel was
asked about the issue, he indicated defendant refused to speak with him, but that the
bailiff had advised him defendant was refusing to dress out for trial. The following
colloquy then occurred:

             “[THE COURT:] [S]ir, I know you did have clothes available at
       Lerdo. Was there a mix-up or a problem in terms of getting dressed out this
       morning or what is the reason that you’re not dressed out this morning, sir?

               “THE DEFENDANT: Because I felt like, you know, I no longer can
       proceed with [defense counsel] on a caseload with me, and I’m not going to
       sit here and act like me and [defense counsel] get along and we really don’t.

              “It’s always been a break in communication and lack of
       communication and trust, and I’m not—I’m not going to proceed with
       [defense counsel] on my caseload. If I got to go pro per, I go pro per. Just
       ain’t no trust there.

              “THE COURT: For the record, without getting into the details of it,
       because it is a closed hearing and is sealed and [the prosecutor] is present
       with us at the present time, there was a Marsden motion brought and heard
       on Friday, I believe it was, first thing in the afternoon shortly after lunch, if
       I’m not mistaken. And, obviously, I will not go into the details of that at
       this point in time.

              “As I understand it, what you’re telling me is that, because you’re
       not happy with your current representation, that’s why you have chosen not
       to dress out. Is that correct, sir?

              “THE DEFENDANT: Yes, your Honor.

             “THE COURT: I’m not sure I understand the connection between the
       two. Can you maybe explain that to me, because I’m not quite following
       why one would have anything to do with the other.

            “THE DEFENDANT: I mean [defense counsel]—he disrespectful to
       my mom.


                                              4.
       “THE COURT: I know how you feel about [defense counsel], and I
don’t want you to be in a position of having to get into that too much in
front of the Deputy DA. [¶] Why is not dressing out connected to [defense
counsel]’s representation, whatever you may feel?

        “THE DEFENDANT: I don’t trust [defense counsel] whatsoever. I
feel like I can’t proceed on this case.

       “THE COURT: There is one comment that, for purposes of the
record, I need to follow-up on at this point in time.

       “[Y]ou said something about you’re not going to proceed with
[defense counsel] as your attorney at this point and made a comment about
going pro per. [¶] Are you—not inviting anything you’re not asking me to
you do, [sic] because—

       “THE DEFENDANT: Whatever.

        “THE COURT: Wait a minute. One has a constitutional right to do
so. It is generally—it is, frankly, almost always unwise for someone to
represent themselves, but are you asking the Court to discharge your
attorney and proceed representing yourself—

       “THE DEFENDANT: That’s what—

       “THE COURT: —at this point?

       “THE DEFENDANT: If that’s what I got to do to get him off my case,
that’s what I want to do.

       “THE COURT: I only want you to do that if that’s what you want to
do as far as your case and if that’s what you think is in your best interest.

       “THE DEFENDANT: Be in my best interest. Maybe I feel I can win a
case or maybe I feel I got a better chance. I feel like he working with the
DA anyways.

        “THE COURT: Before proceeding with that request, … you
understand that this matter is in trial now? [¶] We have a jury panel which
is reserved and which we’re going to bring over to begin jury selection on
the case later on this morning. So if you do discharge your counsel or seek
to do that and represent yourself on the matter, then you would be expected,
and need to be prepared, to proceed on the matter immediately, because it’s
prejudicial to the People to go forward or to basically have this stalled at
the last moment when they have done everything they can in good faith to
become prepared to proceed.


                                      5.
       “You have counsel who is prepared to proceed. And we’ve already
spent basically—though we have not yet selected a jury, we’ve spent the
better part of two whole days already conducting motions in limine on this
case. Do you understand that? [¶] I need you to answer out loud.

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: I want to make sure just that the answer is clear for
the record. I can see you nodding the head one way or the other, but it’s
hard for the court reporter to take down.

        “Mr. [Prosecutor], I haven’t asked the People to provide any input
on anything because, up to this point. Obviously dealing with the issue of
representation, to the extent that it presents a conflict or Marsden-type
issue, that is between counsel and the defendant, and no disrespect but it
isn’t the People’s business.

        “And, in addition, with regards to [defendant] being dressed out or
not being dressed out, that’s entirely a matter of his choice. Though I think
it wise for him to be dressed in civilian clothing, he’s not obligated to do
that if he doesn’t wish to do so.

      “However, with regards to the issue of self-representation, it does
appear to me there is a request being made for that at this point in time.

       “Your comments, if any, with respect to that at this point?

       “[PROSECUTOR]: I would object to timeliness.

       “THE COURT: All right.

       “[PROSECUTOR]: And I would object to any continuance.

       “THE COURT: So you understand … that the People are going to
be—if you proceed with that request, the People are going to be objecting
to the motion, number one, on the grounds that it’s untimely, that is being
made too late in the proceedings, and in connection with that they’re going
to be objecting to any continuance of the trial because they are ready,
prepared to proceed and have their witnesses available and so forth. Do
you understand that?

       “THE DEFENDANT: Yes, your Honor.

        “THE COURT: Okay. At this point we’re going to go off the record
for just a couple of minutes. I am going to—while we’re off the record
we’re going to do two things.


                                     6.
               “Number one, we have a written advisal and waiver form regarding
       self-representation or so-called Faretta motion. We are going to get a copy
       of that for you … and give you an opportunity to read over that, review
       that. [¶] And then when we go back on the record we’ll proceed with your
       motion. You can state the reasons for it.

              “I also want to take the time to go over that form and make sure
       you’re fully advised with regards to any potential pitfalls or dangers to your
       case, of which there are some being involved in representing yourself. I
       want to make sure before you proceed with the motion and I hear it that
       you’re fully advised. Okay?

             “So we’ll do that during the recess and give you an opportunity to
       review that.”
When the proceedings resumed following recess, the court reviewed the “Faretta Waiver”
form with defendant. It made specific inquiries based upon defendant’s selections or
responses on the form:

               “THE COURT: Okay. Turning to the second page, the advisal in
       number seven[3] at the top of the page states, quote: Do you understand
       that if you are in custody you will receive no more library privileges than
       those available to other persons representing themselves?

              “You will receive no extra time for preparation, and you will have
       not have a staff of investigators at your disposal. [¶] … [¶]

              “You circled the answer no to that and placed the initials DT.

               “What I want to make sure is that you understand what’s stated in in
       [sic] that. If you are in custody, you will receive the same library privileges
       as all other individuals who are representing themselves and will not
       receive any additional or extra time for preparation nor will you have a staff
       of investigators at your disposal.

              “Do you understand those things?

              “THE DEFENDANT: Yes, your Honor.

              “THE COURT: Okay. Why did you circle no in response?

       3Later in the proceedings, the trial court again clarified number seven on the waiver form.
Defendant acknowledged number seven was the only portion of the form he had any difficulty
with.



                                               7.
              “THE DEFENDANT: Because I’m up in D pod, and like before
      officers, you know, I be really like having a rough time and I ask for the
      law forms and requests to go to the law library, they be slow dragging. So
      like, you know, I—basically—the officers—the officers time—and it’s like
      when we ask for law forms, we can request to the law library. I guess they
      be forgetting sometimes.

             “Basically they be like slowing us down to get the forms. We
      request those at the law library.

              “So if I be behind on going to the law library to study and read and
      stuff is basically because I be on they time.

              “THE COURT: If you have any problems with the speed of the
      access, bring that to the Court’s—initially bring it to the attention of the
      officers in that pod and let them know that you’re representing yourself in
      an effort to speed that up. If that does not suffice, bring that to the Court’s
      attention, and I’ll address the matter. Okay?

             “THE DEFENDANT: All right.

             “THE COURT: However, you do need to understand that while the
      Court will see that you get the same access as far as library privileges, time
      for preparation and so forth as all other individuals representing
      themselves, you’re not going to receive anything extra above and beyond
      what anybody else in that same situation gets.

             “Do you understand that?

             “THE DEFENDANT: Yes, sir. I understand, your Honor.

              “THE COURT: Next, I wanted to ask you with respect to question
      eight, because that is not filled in. That question eight would normally list
      the various charges in this particular case.”
The court then reviewed with defendant each count alleged,4 including enhancements.
Defendant indicated he understood. The court then addressed the issue central to this
appeal:

             “THE COURT: Now, … in the form you indicate in answer to
      question number ten that your formal education includes high school
      education. Is that correct, sir?

      4The judge completed this portion of the form.




                                             8.
       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: Okay. Did you—where did you attend high school,
sir?

       “THE DEFENDANT: At West High School.

       “THE COURT: Did you graduate from West High School?

       “THE DEFENDANT: No, your Honor.

       “THE COURT: How far did you go?

       “THE DEFENDANT: Eleventh grade.

       “THE COURT: You completed the eleventh grade?

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: So essentially, from a credit standpoint, you’re
basically one year short of high school graduation; is that correct?

       “THE DEFENDANT: Yes, your Honor.

      “THE COURT: You indicated in the form that English is your
primary language. Is that correct?

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: All right. And, sir, in answer to question number 12 I
need to ask you a question with respect to that so I understand your answer.

       “You state in answer to that—it states, quote, the question, have you
been treated for any emotional or mental illnesses? In answer to that you
circled and stated and initialed that, and explaining that in detail you state I
was on SSI for being slow as a kid. Is that correct?

       “THE DEFENDANT: Yes, your Honor.

         “THE COURT: Can you explain to me what that means to you in a
little bit more detail?

       “THE DEFENDANT: I mean base everything—explain it right there.

      “THE COURT: Do you know if you were found to be
developmentally disabled?



                                       9.
         “I know they use various terms for things sometimes, and that’s why
I ask.

         “THE DEFENDANT: Yeah.

         “THE COURT: Okay. You said that you received SSI for that.

       “Did you at any point in time, either while you were growing up or
since you’ve been an adult, receive any kind of treatment—or not sure the
treatment is exactly the right word—but assistance for that or any special
education facilities?

         “THE DEFENDANT: Yeah.

         “THE COURT: Or assistance while you were in school?

         “THE DEFENDANT: I had—I was in special ed.

      “THE COURT: Can you tell me—that was while you were in school.
Can you tell me a little more about that?

      “THE DEFENDANT: I was—I kind of had like reading problems,
comprehending, catching on. That was basically it. I never had no
treatment or medication.

      “THE COURT: So it’s basically kind of a—sounds like, correct me if
I’m wrong, some sort of a disability or difficulty with reading and
comprehending written information. Is that correct?

         “THE DEFENDANT: Yes, your Honor.

       “THE COURT: Now, in this particular case, obviously, as in most
cases, a lot of what we’re doing in court proceedings take place as far as
speaking orally and everything.

        “Have you had any difficulty understanding what we’ve discussed in
court during the course of the pretrial motions over the last couple of days
as it’s been spoken in court?

         “THE DEFENDANT: A little bit.

         “THE COURT: Okay.

         “THE DEFENDANT: Just a little bit.

      “THE COURT: Does that apply to just what’s been going on
generally or does that happen when we—because sometimes in court


                                     10.
proceedings lawyers and the judge will use legal terminology or kind of
lawyer shorthand for things. We’ll refer to something as, for example, a
Marsden motion or a motion to bifurcate, things like that, using legal
terminology or shorthand, and we use it because we know what it refers to.

       “Has that been the situation where you’re having difficulty what’s
being said in court or has it been a little bit broader from that [sic]?

        “THE DEFENDANT: Yes.

        “THE COURT: Using the kind of terminology or things like that?

        “THE DEFENDANT: Yes.

       “THE COURT: If at any point in time during the proceedings either
[the prosecutor] or I use legal terminology that you do not understand, stop
me and let us know, and I will—although the Court, obviously, cannot
conduct your defense for you or assist you with the conduct of the
defense—just as I would with a witness, it is important that all parties
understand what is being said during the proceedings. If we at times slip
into legal shorthand or terminology that you don’t follow or understand,
please politely tell me that, and we’ll stop, and I’ll make clear what we’re
talking about. Fair enough?

        “THE DEFENDANT: Yes, your Honor.

      “THE COURT: Other than that have you had any difficulty
understanding what’s been said in court?

        “THE DEFENDANT: No, your Honor.

       “THE COURT: I do want to focus a little bit on the reading issue for a
moment, because you did indicate that during school, what you
characterized as being slow, was to some extent a difficulty with
comprehending written material and reading. Is that correct?

        “THE DEFENDANT: Yes, your Honor.

       “THE COURT: You may not know the answer to this, sir, but if you
do—do you know what your—when you left or finished school what your
reading level was assessed at?

        “Were you at grade level for eleventh grade or above that, below
that?

        “THE DEFENDANT: Below that.


                                     11.
      “THE COURT: Okay. Do you know how much below? [¶] Again,
you may not know.

       “THE DEFENDANT: I don’t remember my test. I couldn’t remember
what it was.

       “THE COURT: So little bit below eleventh grade level, but you’re not
sure exactly how much?

      “I need you to answer out loud.

      “THE DEFENDANT: Yes, your Honor.

       “THE COURT: I could see the nod of the head. It’s hard for the court
reporter.

       “[S]ir, with respect to this proceeding now, a lot of the—obviously,
necessarily, because of much of what we do in the law is based on words.
We, obviously, discuss things in court, but there also a lot of the
information is contained in written documents such as police reports,
transcripts of previous proceedings or recorded interviews, written motions
and things of that nature. [¶] … [¶] … With respect to any documents that
you may have read, have you had any difficulty understanding those?

      “THE DEFENDANT: No. Have no difficulty.

       “THE COURT: With regards to the reading issue when you were in
school, was that a question of you could—comprehension of a question,
you could understand things so long as you had sufficient time but you
perhaps read slower than perhaps other people or did you have difficulty
understanding what was in writing even if you had enough time to read
through it?

      “THE DEFENDANT: I had like difficult [sic].

       “THE COURT: So you had some difficulty even reading the materials
even if you had essentially unlimited time to read them?

      “THE DEFENDANT: Yes, your Honor.

      “THE COURT: … I want you to answer this for me based solely on
whether or not, on the basis of your question of your ability to represent
yourself, do you—strike that.




                                    12.
              “Do you, sir, believe that you are able to read sufficiently well to be
       able to read and understand what is in court documents and any police
       reports and other documents you need to read in this case?

              “THE DEFENDANT: Yes, your Honor.

              “THE COURT: Okay. Now, in answering question 13, it asks: Have
       you had any difficulties reading and understanding this form? You wrote
       yes but circled no. In reading the form, have you understood the form?

              “THE DEFENDANT: Yes, your Honor.

              “THE COURT: Okay. All of the advisals and the questions in the
       form, do they make sense to you?

              “THE DEFENDANT: Yeah, they do.

              “THE COURT: Okay. And do you understand the form itself?

              “THE DEFENDANT: Yes, your Honor.”
       In making its ruling, the trial court stated that defendant made a knowing and
intelligent waiver of his constitutional rights and, specifically, that while defendant
indicated he has some “difficulty in digesting reading materials, he has been able to read
and comprehend and understand the form in this particular case …. I will characterize
the form as, frankly, being written at a level that at least requires a high school education
to be able to fully comprehend it.” Thereafter, defense counsel was relieved from further
representation of defendant and was directed to provide defendant with all materials.
       Analysis
              The Law at the Time of Trial
       In Faretta, supra, 422 U.S. 806, the United States Supreme Court held the Sixth
Amendment to the United States Constitution gives criminal defendants the right to
represent themselves. Before Faretta was decided, the law in California had been that a
criminal defendant had no constitutional or statutory right to self-representation except, in
noncapital cases, the trial court had discretion to grant a defendant’s request for self-
representation. (People v. Sharp (1972) 7 Cal.3d 448, 459, 461, 463-464.)



                                             13.
       “In the wake of Faretta’s strong constitutional statement, California courts tended
to view the federal self-representation right as absolute, assuming a valid waiver of
counsel.” (People v. Taylor (2009) 47 Cal.4th 850, 872.) Thus, a trial court had to grant
a defendant’s request for self-representation if the defendant voluntarily and intelligently
elected to do so, even if the defendant, though competent to stand trial, was not
competent to serve as his or her own attorney. (Id. at pp. 872-873.)
       In Godinez v. Moran (1993) 509 U.S. 389, the United States Supreme Court
appeared to confirm that a separate competence requirement for self-representation did
not exist under federal law. In Godinez, the defendant sought and was allowed to waive
assistance of counsel and pleaded guilty to murder charges in state court. (Id. at pp. 391-
393.) During habeas corpus proceedings, the federal appeals court held that even though
the defendant was competent to stand trial, he was not competent to waive counsel and
plead guilty. (Id. at pp. 393-394.) The Supreme Court reversed, rejecting the argument
that federal law required a higher standard of competence for waiving counsel or
pleading guilty than is required to stand trial. (Id. at p. 402.) California courts, including
the California Supreme Court, generally interpreted Faretta and Godinez as holding the
required degree of competency to stand trial and the required degree of competency to
waive the right to counsel were the same. (People v. Taylor, supra, 47 Cal.4th at pp.
874-876.)
       In 2008, the United States Supreme Court decided Indiana v. Edwards, supra, 554
U.S. 164. In that case, the Indiana state trial court had denied the defendant’s request for
self-representation and found that, while the defendant was competent to stand trial, he
was not competent to represent himself at trial. (Id. at p. 169.) An Indiana appellate
court ordered a new trial, and the Indiana Supreme Court affirmed the appellate court on
the ground Faretta and Godinez required the trial court to permit the defendant to
represent himself. (Indiana v. Edwards, supra, at p. 169.) The United States Supreme
Court reversed, holding:



                                             14.
          “[T]he Constitution permits judges to take realistic account of the particular
          defendant’s mental capacities by asking whether a defendant who seeks to
          conduct his own defense at trial is mentally competent to do so. That is to
          say, the Constitution permits States to insist upon representation by counsel
          for those competent enough to stand trial under Dusky [v. United States
          (1960) 362 U.S. 402] but who still suffer from severe mental illness to the
          point where they are not competent to conduct trial proceedings by
          themselves.” (Indiana v. Edwards, supra, 554 U.S. at pp. 177-178.)
The court called those defendants who are competent to stand trial but not to represent
themselves “gray-area defendants.” (Id. at pp. 172-173.)
          Indiana v. Edwards did not hold that due process requires a higher standard of
mental competence for self-representation than is required to stand trial with counsel.
Rather, “[t]he Edwards court held only that states may, without running afoul of Faretta,
impose a higher standard ….” (People v. Taylor, supra, 47 Cal.4th at pp. 877-878.) In
Taylor, the California Supreme Court upheld the trial court’s decision to grant the
defendant’s request for self-representation. (Id. at pp. 856, 868, 878-879.) Because
Edwards did not mandate the application of “‘a dual standard of competency for mentally
ill defendants,’” that case “does not support a claim of federal constitutional error in a
case like the present one, in which defendant’s request to represent himself was granted.”
(People v. Taylor, supra, at p. 878.)
          The Taylor court also rejected the defendant’s argument the trial court should have
exercised its discretion, recognized in Edwards, to apply a higher standard than
competence to stand trial. (People v. Taylor, supra, 47 Cal.4th at p. 879.) “We reject the
claim of error because, at the time of defendant’s trial, state law provided the trial court
with no test of mental competence to apply other than the Dusky standard of competence
to stand trial [citation], under which defendant had already been found competent.”
(Ibid.)
          Such was the state of the law in this case when defendant requested self-
representation. Here, as in Taylor, the trial court’s decision to grant the request for self-
representation did not support a claim of federal constitutional error. At the time of


                                               15.
defendant’s trial, California state law did not provide a standard of competence for self-
representation different from the standard required to stand trial. As defendant does not
deny he was competent to stand trial, he likewise met the competency standard to
represent himself at trial.
              The Law Posttrial
       In 2012, after defendant pled guilty and shortly after he filed his notice of appeal,
the California Supreme Court decided People v. Johnson, supra, 53 Cal.4th 519. In that
case, the trial court revoked the defendant’s self-representation. (Id. at p. 525.) The
Supreme Court had to decide “whether California courts may accept Edwards’s invitation
and deny self-representation to gray-area defendants.” (Id. at p. 527.) That court
concluded that California trial courts have discretion to deny self-representation to gray-
area defendants. The court reasoned:

       “Indeed, to refuse to recognize such discretion would be inconsistent with
       California’s own law. In People v. Floyd [(1970)] 1 Cal.3d 694, we upheld
       the denial of a capital defendant’s request for self-representation citing,
       among other factors, his youth, his low level of education, and his
       ignorance of the law. [Citation.] Certainly, a defendant who could be
       denied self-representation under Edwards, supra, 554 U.S. 164, could also
       have been denied self-representation under People v. Sharp, supra, 7 Cal.3d
       448, and People v. Floyd. Denying self-representation when Edwards
       permits such denial does not violate the Sixth Amendment right of self-
       representation. Because California law provides no statutory or
       constitutional right of self-representation, such denial also does not violate
       a state right. Consistent with long-established California law, we hold that
       trial courts may deny self-representation in those cases where Edwards
       permits such denial.” (People v. Johnson, supra, at p. 528.)
The Johnson court considered several standards by which to measure competence and
concluded: “[P]ending further guidance from the high court, we believe the standard that
trial courts considering exercising their discretion to deny self-representation should
apply is simply whether the defendant suffers from a severe mental illness to the point
where he or she cannot carry out the basic tasks needed to present the defense without the
help of counsel.” (People v. Johnson, supra, 53 Cal.4th at p. 530.)



                                             16.
       Here, defendant contends he met that standard, i.e., he suffered mental illness to
the point he could not carry out the basic tasks to defend himself without counsel.
Johnson was decided after defendant was to be tried, and after he entered a guilty plea.
Therefore, its holding does not apply retroactively. Changes in the law—either through
legislation or court opinion—that govern the conduct of trials apply prospectively only.
(People v. Johnson, supra, 53 Cal.4th at p. 531.) “‘[A] law governing the conduct of
trials is being applied “prospectively” when it is applied to a trial occurring after the
law’s effective date, regardless of when the underlying crime was committed ….’”
(Ibid., quoting Tapia v. Superior Court (1991) 53 Cal.3d 282, 289.) Application of a
change in law that occurred after the crime took place is retroactive only if it changes the
legal consequences of a defendant’s past conduct. (Tapia v. Superior Court, supra, at p.
298.) In this case, the Johnson decision did not change the legal consequences of
defendant’s past conduct. He pled no contest to a violation of willful infliction of
corporal injury to a cohabitant; the legal consequences of that conduct were not affected.
       Moreover, even under the Johnson standard for competence, the trial court did not
err by granting defendant’s request for self-representation. “As with other determinations
regarding self-representation, we must defer largely to the trial court’s discretion.”
(Johnson, supra, 53 Cal.4th at p. 531.) “The trial court’s determination regarding a
defendant’s competence must be upheld if supported by substantial evidence.” (Ibid.)
       Here, substantial evidence supported the trial court’s decision permitting
defendant to represent himself. The trial court had observed defendant during two full
days of pretrial motions and also had the chance to observe and assess defendant during
the Marsden motion heard August 19, 2011. The trial court very thoroughly and
meticulously reviewed the waiver of counsel form with defendant. On the form,
defendant indicated he had received assistance as a child for being “slow,” but after an
extensive inquiry, the trial court concluded that, despite defendant’s mild reading and
comprehension deficits, he was capable of representing himself at trial. The trial court
did not abuse its discretion in so finding. Contrary to defendant’s assertion, the trial court

                                             17.
was not required to obtain an expert’s opinion regarding defendant’s ability to represent
himself at trial. This record does not indicate defendant “‘suffer[s] from severe mental
illness to the point where’” he cannot “‘carry out the basic tasks needed to present [a]
defense without the help of counsel.’” (People v. Johnson, supra, 53 Cal.4th at p. 530.)
The trial court took a realistic account of defendant’s mild—not severe—reading
difficulty and determined defendant was capable of representing himself despite the mild
deficit. We perceive no error.
       In explaining its decision, the trial court stated, in relevant part, as follows:

              “THE COURT: At this point in time the Court has no further inquiry
       in making a determination as to whether or not the defendant is capable of
       representing himself.

               “While the Court may inquire as I have to determine if the defendant
       has sufficient—I don’t mean it to sound derogatorily, because it isn’t meant
       to be that way or critical—the Court needs to make a determination the
       defendant has sufficient intelligence and mental capacity to represent
       themselves, the Court does not and cannot inquire as to the technical
       knowledge of the law or ability to litigate a case.

               “The relevant inquiry from the Court’s perspective pursuant to the
       Faretta versus California decision at 422 US 806 page 835, and People
       versus Nauton, N-a-u-t-o-n, at 29 Cal.App.4th 976, is does the defendant
       have the mental capacity to make a knowing and intelligent waiver of his
       right to be represented by counsel in this case.”
       Defendant asserts the trial court’s reference to the Nauton decision is evidence the
trial court did not understand its discretion. However, the trial court stated the correct
general standard for determining whether a defendant may represent himself. It noted a
defendant must knowingly and voluntarily elect self-representation. Although the court
did not reference the authority that followed Faretta pertaining to consideration of a
defendant’s request where that request was accompanied by the presence of or a
presumption of mental illness, it did consider defendant’s purported reading and
comprehension deficits. Those deficits factored into its determination of whether
defendant would be able to represent himself at trial and whether he was knowingly and



                                              18.
intelligently giving up his right to be represented by counsel at trial. On appeal, we
presume the court was aware of the applicable standards and applied them to the facts in
this case. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another
ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [reviewing court
presumes trial court knew and applied correct statutory and case law]; Ross v. Superior
Court (1977) 19 Cal.3d 899, 913 [in absence of contrary evidence, reviewing court
presumes trial court properly followed established law]; People v. Woods (1993) 12
Cal.App.4th 1139, 1152 [reviewing court presumes trial court knew and properly applied
the law; appellant’s burden to rebut presumption by affirmative showing]; People v.
Nance (1991) 1 Cal.App.4th 1453, 1456 [reviewing court presumes trial court knew and
applied the correct statutory and case law in exercise of its discretion]; People v. Mack
(1986) 178 Cal.App.3d 1026, 1032; see also Evid. Code, § 664.) The trial court’s
reference to Nauton—a case recently cited by the California Supreme Court in People v.
Taylor, supra, 47 Cal.4th at pages 875-881—does not affirmatively establish the court
was unaware of its discretion pursuant to Edwards.
       A review of this record strongly suggests defendant was “playing ‘the Faretta
game’” and was able to delay the trial “by juggling his Faretta rights with his right to
counsel interspersed with Marsden motions.” (People v. Williams (1990) 220
Cal.App.3d 1165, 1170.) As the court noted at a hearing on defendant’s motion to
withdraw his plea:

              “THE COURT: I’m not buying it …. [¶] Right now the blunt fact of
       the matter is that it’s pretty clear to me you didn’t want [defense counsel] to
       represent you.

              “Multiple Marsden motions have been denied. Frankly, at this point
       in time, if one looks at the whole record of this case, it appears to me that
       the reason you made a Faretta motion and are now seeking to try to
       withdraw your plea was basically as an end run to get around multiple
       previous denials of that Marsden motion. You clearly understood what we
       were discussing in court on the previous occasions when you were here
       representing yourself and you did during the proceedings last week and



                                            19.
         during the earlier proceedings now. [¶] I’m flat out finding at this point in
         time that this is an attempt to deceive the Court.”5
         In sum, the trial court did not err in granting defendant’s Faretta motion.
Defendant knowingly and voluntarily waived his constitutional right to the assistance of
counsel. Further, the trial court properly considered defendant’s mild reading and
comprehension deficits before determining he was capable of representing himself at
trial.
                The Validity of the Waiver
         Defendant asserts that because the trial court did not “conduct[] an adequate
inquiry” as to his mental capacity, placing him in a “position where he immediately
realized that he was incapable of proceeding on his own” and he “suddenly reverses to a
conviction by plea,” his Sixth Amendment rights to the assistance of counsel and the
presentation of a defense have been violated. He contends a proper inquiry would have
led to expert reports “pointing precisely to the types of functional impairments the
Edwards court cited ….”
         We have already determined the trial court did not err in granting defendant’s
Faretta motion. Therefore, the basis upon which defendant’s second argument rests is
invalid. The argument lacks merit and is largely a restatement of the earlier argument.
         We do not agree defendant’s unsuccessful request for advisory counsel6 in the
wake of the trial court’s decision to grant his Faretta motion results in “a legitimate
inference that his election to resume plea negotiations was the result of his recognition
that he was incapable of representing himself.” Rather, on this record, the legitimate

         5We note defendant also tried, unsuccessfully, to delay proceedings further following the
trial court’s comments by disingenuously claiming he did not understand the court’s questions
regarding a waiver of time for purposes of sentencing.
         6Once a defendant elects self-representation, the defendant does not have the
constitutional right to appointment of advisory or standby counsel to assist in his or her defense,
and the trial court has the discretion to grant or deny such a motion. (People v. Sullivan (2007)
151 Cal.App.4th 524, 553-554.)



                                                20.
inference is that defendant was simply out of alternatives. He succeeded in getting his
defense counsel removed as his attorney, and his request to represent himself was
properly granted. Notably too, defendant was granted a 30-day continuance, despite the
fact the trial had already commenced and a jury panel had been assembled. He had but
two choices: proceed to trial or accept a plea. Defendant elected the latter.
       Moreover, it is pure speculation for defendant to assert that “expert reports would
likely have been generated pointing precisely to the types of functional impairments the
Edwards court cited ….”

               “‘… A defendant seeking to represent himself “should be made
       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, supra, 422 U.S. at p. 835.) “No
       particular form of words is required in admonishing a defendant who seeks
       to waive counsel and elect self-representation.” (People v. Koontz (2002)
       27 Cal.4th 1041, 1070.) Rather, “the test is whether the record as a whole
       demonstrates that the defendant understood the disadvantages of self-
       representation, including the risks and complexities of the particular case.”
       (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140; People v.
       Marshall (1997) 15 Cal.4th 1, 24.)’ (People v. Blair (2005) 36 Cal.4th 686,
       708.) Thus, ‘[a]s long as the record as a whole shows that the defendant
       understood the dangers of self-representation, no particular form of warning
       is required.’ (People v. Pinholster (1992) 1 Cal.4th 865, 928-929; accord,
       U.S. v. Lopez–Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [‘the focus
       should be on what the defendant understood, rather than on what the court
       said or understood’].)

               “On appeal, we independently examine the entire record to
       determine whether the defendant knowingly and intelligently waived the
       right to counsel. (People v. Doolin (2009) 45 Cal.4th 390, 453.)” (People
       v. Burgener (2009) 46 Cal.4th 231, 241.)
       After ensuring that defendant understood he faced a potential of 41 years in prison
were he to be convicted of all counts, the following colloquy occurred regarding
defendant’s waiver:

              “THE COURT: [I]n answer to that you stated that you wish to
       represent yourself because, quote, because I been effectively by [defense
       counsel] who never—I’m not sure what the word s-u-m-e-n-t—discover on


                                            21.
my case and did nothing in my defense. [¶] I know that you have not been
satisfied with [defense counsel]’s representation.

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: Without going into the details as far as the Marsden
motion is concerned, is it because of your dissatisfaction with that
representation that you’re seeking to represent yourself?

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: Again, without going into detail, all you need to do is
tell me yes or no, is it your desire to conduct your defense differently than
[defense counsel] feels or has indicated he feels it is appropriate to conduct
that defense? [¶] I don’t want you to go into detail, because [the
prosecutor] is present. That’s just a yes or no.

       “THE DEFENDANT: Yes.

       “THE COURT: Okay. So there’s not necessarily a conflict of interest,
but there is a disagreement or conflict as far as strategy between [defense
counsel] and yourself. Is that correct?

       “THE DEFENDANT: It’s both. It’s all.

       “THE COURT: So you feel that there is a conflict in strategy, but also
you feel just generally there is a conflict in terms of his representation?

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: Fair enough. Okay.

       “Now, … I’m going over a couple of these because, like I said, I
want to make sure you understand the consequences of representing
yourself. [¶] You understand that, assuming that you are capable of making
a knowing and intelligent waiver of your right to a lawyer, that you do have
a constitutional right to represent yourself. Do you understand that?

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: I do want to make doubly sure, though, that you
understand you also do have the constitutional right, even if you cannot
afford one, to be represented by a lawyer. Do you understand that?

       “THE DEFENDANT: Yes, your Honor.




                                     22.
              “THE COURT: Okay. Although there are many—I won’t say many,
      but there are folks who represent themselves in criminal proceedings when
      they are charged with a crime. Sometimes those proceedings wind up in a
      result they’re satisfied with. Although many times, perhaps more often,
      they don’t.

             “Generally speaking it is virtually always unwise for someone,
      frankly even if they are a lawyer, to represent themselves when they are
      charged with a crime. [¶] Do you understand that?

             “THE DEFENDANT: Yes, your Honor.

             “THE COURT: Part of the reason for that is that while certainly, as in
      many cases, that person is unfamiliar with and untrained in the law, even in
      the case of a lawyer it is very often unwise for the lawyer to represent
      themselves, because being personally involved in a proceedings [sic]
      charged with a crime sometimes makes it difficult for one to objectively
      evaluate the evidence against them and what would be in their best
      interests. [¶] Do you understand that?

             “THE DEFENDANT: Yes, your Honor.

             “THE COURT: Does that make sense?

             “THE DEFENDANT: Yes.

              “THE COURT: Okay. You understand that while I certainly will stop
      and clarify to make sure that you understand any legal terminology that is
      used, and we’ll do our best to conduct the proceedings in a manner where
      you follow along and understand what’s going on in court and are able to
      articulate your case and your defense to the jury, you understand you’re not
      entitled to special treatment or privileges?

             “When I rule on questions that are asked or answers that may be
      giv[en], when I instruct the jury to the law, I have to follow the law with
      respect to all of those. I can’t, if you will, put a thumb on the scale in your
      favor or give you anything [in] that regard. [¶] Do you understand that?

             “THE DEFENDANT: Yes, your Honor.”
      In this case, defendant was made aware of the dangers and disadvantages of self-
representation. The record as a whole demonstrates defendant understood the
disadvantages and associated risks. One of those risks involved the potential of a 41-year




                                            23.
prison sentence. We think it likely that after defendant realized his machinations had all
but come to an end, he opted to take the guaranteed four-year prison term.
       In conclusion, following our independent review, we have determined defendant
knowingly and intelligently waived his right to counsel. The waiver is valid and no error
occurred.
                                     DISPOSITION
       The judgment is affirmed.
                                                         __________________________
                                                                            PEÑA, J.
WE CONCUR:


 ________________________________
CORNELL, Acting P.J.


 ________________________________
FRANSON, J.




                                            24.
