Filed 4/22/15 P. v. Colquitt 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C074697

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F00604)

         v.                                                                      ORDER MODIFYING
                                                                                OPINION AND DENYING
SHAWNTROY COLQUITT,                                                                  REHEARING
                                                                                   [NO CHANGE IN
                   Defendant and Appellant.                                          JUDGMENT]




THE COURT:


         It is ordered that the opinion filed herein on March 24, 2015, be modified as
follows:
         Delete the last two sentences in the first full paragraph on page 11.
         This modification does not change the judgment.
         The petition for rehearing is denied.



                                                             1
THE COURT:




    NICHOLSON   , Acting P. J.




    MAURO       , J.




                                 2
Filed 3/24/15 (unmodified version)
                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C074697

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F00604)

         v.

SHAWNTROY COLQUITT,

                   Defendant and Appellant.




         Defendant Shawntroy Colquitt represented himself at trial (Faretta v. California
(1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)). He was convicted by a jury of corporal
injury resulting in a traumatic condition on the mother of his child (count one; Pen. Code,
§ 273.5, subd. (a)),1 and simple assault (§ 240), a lesser included offense of assault with a
deadly weapon (count two; § 245, subd. (a)(1)). In a bifurcated proceeding, he admitted



1        Undesignated statutory references are to the Penal Code.

                                                             1
serving prison terms based on four prior convictions, two of which were for domestic
violence. (§§ 667.5, subd. (a), 273.5, former subd. (e)(1) (current subd. (f)(1)).)
Sentenced to nine years in state prison, he contends that the trial court’s failure to provide
him with the means to find and subpoena witnesses violated his Sixth Amendment rights
to self-representation and compulsory process and his Fourteenth Amendment right to
present a defense. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The Complaint
       The original complaint, filed on January 29, 2013,2 alleged one count of domestic
violence occurring on or about January 27, and one prior conviction of the same offense.3
       The Preliminary Hearing
       At the preliminary hearing on February 19, the alleged victim, Nancy Simms,
testified she and defendant were in an “[o]ff and on” relationship and had an 11-year-old
daughter, over whom they shared custody. A court order gave defendant custody during
“school time” and gave Simms custody on weekends, holidays, and summer vacation; on
weekends, she would pick up the child on Friday after school and return her to defendant
on Sunday at 6:30 p.m.
       As of January 27, which was a Sunday, Simms and defendant had been living
together in an apartment in “the north area” of Sacramento since September 2012.4 They




2      All dates are in 2013 unless otherwise stated.
3      An amended information, adding count two, assault with a deadly weapon, and
alleging four prior convictions, was filed on April 22, the first day of jury trial. There
were thus five prior convictions alleged, all with prison terms. Sentence was imposed,
however, on but four of the prison terms.
4      Simms admitted that before that date she was incarcerated for felonies, including
assault.

                                              2
customarily attended services at Calvary Christian Center, a large church near their
residence.
         On January 27, at approximately 5:30 p.m., Simms told defendant she wanted to
take their daughter somewhere, but he objected because Simms’s “time was up.”5
Defendant threatened to call the police to enforce the terms of the custody order as he
understood them. Simms replied: “You call them, but I’m still leaving because it’s my
time.”
         After waiting for defendant to calm down, Simms tried to sneak their daughter out
of the apartment. Defendant blocked her way, and an altercation ensued. At some point,
defendant picked up a pole lamp and tried to hit her with it; she fended him off, but fell
and hit the side of her head. They pushed and shoved each other. She swung at him, then
slipped and fell. He got on top of her, grabbed her face, and bit her on the nose and chin.
Seeing that her nose was bleeding, she got defendant to let her go and she grabbed a
towel and applied pressure to stop the bleeding. She told defendant to leave her alone.
         Defendant left and went to the 7:30 p.m. church service. Simms left afterward
with their daughter and dropped her off at the children’s section of the church. Simms
then went to a different part of the church, borrowed someone’s cell phone, and called
911; her daughter was back with her by then. As they waited off to the side, Simms saw
defendant come out talking to another church member.
         A police officer contacted Simms around 9:25 or 9:30 p.m. Later, they went back
to Simms’s residence, where the police officers saw the bloody towel she had used on her
nose in the bathroom. The police took pictures of Simms.




5      It is not known why defendant and Simms thought the custody arrangements still
applied when they were living together full-time.

                                             3
       The trial court held defendant to answer, deemed the complaint an information,
appointed the public defender’s office to represent defendant, and set jury trial for April
11.
       Subsequent Pretrial Proceedings
       On Thursday, April 11, trial was continued to April 17, the following Wednesday.
On Friday, April 12, defendant requested pro per status. After giving Faretta
advisements, the trial court granted defendant’s request.6 The court then told defendant:
“We’ll notify what is called the pro per coordinator’s office. They have investigators that
will come and meet with you to coordinate any investigation requests, things like getting
your discovery. [¶] They will meet with you, explain the policies and procedures they
have and what they do for you. But they are the ones if you have any subpoenas you
need to serve or any investigation you need to do, especially of getting the discovery
from [the public defender’s] office, they will coordinate that for you, sir.” The court
added: “We will notify them right away this morning and I know your trial is set for
Wednesday. So we’ll put a rush on them coming to see you. [¶] I don’t know [if] they
will be able to see you today, but should see you on Monday for sure if not over the
weekend.”
       Defendant stated: “[T]he information that was given at the time, that’s not true. I
was arrested in church. [¶] Now, the information that was given to the cops was I never
attended church, I was never at church. But I have some people of the church who’s [sic]
going to testify for me.”




6     Defendant also received a written explanation of his pro per status and privileges,
which included his rights to receive visits from his court-appointed investigator, to
subpoena witnesses on forms to be furnished to him, and to have the investigator serve
them at county expense.

                                             4
       After warning defendant against discussing the substance of his case, the trial
court said: “The pro per coordinator will come see you and explain the privileges that
you have and then you can discover whatever you need to discover with [the prosecutor]
and talk about your case further at your trial date.”
       On April 22, the case came on for jury trial.7 Defendant submitted several in
limine motions, including one captioned “motion to dismiss for failure to preserve
matereial [sic] witness.” The motion states: “Defendant at the time of arrest was coming
out of Calvary Christian Center Church from attending 7:00 pm evening service talking
to fellow church member George Smith. Arresting Officer Galliano . . . exchanged a few
words with Smith befor[e] placing defendant in the back seat of police car. Going back
to speak with Smith to what regard still remains a mystery. When defend[a]nt was
questioned regarding his where abouts he responded ‘at the Church for the whole night.’
Defendant plead[ed] with Officer Galliano to speak to members of the congregation who
were present, which he denied. Defendant[’]s Six[th] Amendment rights has been
violated. Officer Galliano prevented defendant from preparing and presenting a
meaningful defense by failing to preserve a material witness who was aware of the
behavior between [defendant] & Simms, who’s credible testimony would have shed light
on the case in preliminary hearing. Many witnesses who where available had knowledge
of defendant[’]s whereabouts and alle[]ge vict[i]m deceptive behavior. Defendant[’]s
support of social engag[e]ments at the time of arrest can be found in police report.” (Sic.)
       The trial court asked defendant to explain this motion. Defendant stated: “Okay.
At the point of my arrest, it says in the police report, as well, is I was approached by




7      When the trial court asked whether there was a speedy trial issue, the prosecutor
answered: “We are on the 60th day today.” The trial court obtained defendant’s
agreement that they would be within the time limit even if they did not begin jury
selection until the next court day.

                                              5
officers. I was in church and I was with members of my church congregation, and they
were aware of a lot of things that had went on. And I asked the arresting officer can he
take the statements from my credible witnesses. [¶] He put me in the car, went and
talked to them, got back in the car and took me off. So I didn’t really think too much of it
until I got my motion of discovery and they were nowhere to be found. But it says in my
police report that I was talking to the people from my church, but he never took the
statements that he was supposed to take.” (Sic.)
       The trial court asked: “Now, you have had an opportunity, have you not, to meet
with the pro per coordinator . . . ?” Defendant answered: “I never had the opportunity
to sit down and talk to her. There was never -- they never -- they just told her about me
just now.” (Italics added.)
       The trial court reminded defendant that he had the right to subpoena witnesses.
Defendant answered: “I don’t know who they are. They’re lost.” The court noted: “[I]f
you wanted to take some time to discuss possibly, you know, going out and finding
witnesses and stuff with [the pro per coordinator], she would be the one to talk to.” The
court then deferred further argument on both sides’ in limine motions until the afternoon
session.
       During the afternoon session, defendant stated (irrelevantly to the motion then
under discussion): “Looking in the police report, [Simms] said something . . . took place
that never took place. She said the incident happened 30 minutes before police contact.
And then -- well, 30 minutes before police contact I was in church. [¶] Then she came
back at preliminary hearing and admitted that she lied, that I was in church.”
       When the trial court turned to defendant’s motion on material witnesses, the court
asked which witness was not secured. Defendant replied: “The person I was with . . .
George Smith.” The court asked what prevented defendant from subpoenaing Smith.
Defendant replied: “I don’t know where George Smith is at. I don’t know where George
Smith lives. He’s just a person who goes to church.” The court asked what the nature of

                                             6
Smith’s testimony would be; defendant answered: “That she lied.” Defendant admitted
that Smith did not see the alleged incident, but added: “[S]he said . . . it happened at a
specific time.”
         The trial court indicated it was still unclear why defendant thought Smith’s
testimony would be beneficial to defendant. Defendant answered: “[Defendant]
(myself), Nancy Simms, and [our daughter] have been here the whole night. There was
no fighting. There was no arguing. There was nothing.”
         When the trial court asked why “somebody’s observations at the church” were
material, defendant stated: “Because there is no blood. There’s no -- all the things that
led to me getting incarcerated. I woulda never went to jail. . . . If anything, we both
woulda went to jail. She woulda went to jail, too. But that didn’t happen. [¶] I was lied
on . . . in order to get me in jail. That’s why it is very important that the cop went and
talked with the guy. He went and talked to him, came back, never said nothing about it.”
(Sic.)
         Eventually, defendant asserted that Smith “knows” that what Simms said about the
alleged incident to the police and at the preliminary hearing is “not possible” because
“[s]he did this before. . . . She called the cops on me. She tried to get me arrested.”
Defendant claimed he had spoken with Smith at some time and Smith told him, “ ‘Look,
leave the girl alone;’ ” later that night defendant told Simms he could not deal with her
and she threatened him with jail; then he tried to have Smith act as a mediator between
them, but Smith said, “ ‘Talk to the pastor,’ ” and Simms walked off.
         The trial court asked if there were any other witnesses besides Smith that
defendant thought were critical to his defense; defendant said no.
         The prosecutor said he never heard Smith’s name before that day, any discussion
of Smith’s possible testimony was speculative, and defendant had not laid a foundation to
show Smith could testify as to any relevant facts.



                                              7
       The trial court asked whether defendant’s motion sought to dismiss the whole
case. Defendant said that it did. The court then ruled:
       “I’m going to deny the motion for a couple of reasons.
       “First of all, the police don’t have an obligation to talk to everybody at the scene
of an arrest.
       “You know, you say that the police talked to this person. The fact that apparently
the police didn’t find that person to be a witness worthy of writing a report on suggests
maybe that person didn’t really have much to say.
       “But clearly at that early stage in the proceeding, the police had no obligation just
to find a potential witness and preserve them for a defendant. We don’t even know
you’re going to be a defendant at that point. All we know is you’re going to be arrested.
       “Second, just from your own offer to the Court what this witness would say, this
witness would not in any way be truly an exculpatory witness because that person, as you
admit, did not observe the offense, or the alleged offense.
       “Third, you have given us no reason why, if you do think this is an important
witness, you can’t send an investigator out, attempt to find him, and bring him to court.
       “So for all of those reasons, the motion to dismiss will be denied.”
       The trial court also reiterated that defendant had the right to send out an
investigator to try to find witnesses at the church and suggested he talk to the pro per
coordinator about it -- “[a]lthough, at this late date, it’s going to be hard for you to get
that done.”
       Trial Evidence
       Simms testified on direct examination along the lines of her preliminary hearing
testimony. Defendant cross-examined her, citing supposed discrepancies in the accounts
she had given at different times, but did not ask any questions that suggested she had
fabricated the incident.



                                               8
       Sacramento Police Officer Sean Cunningham testified he responded to the 911
dispatch on January 27, contacted Simms and defendant at the church, detained
defendant, took a statement from Simms, and went to the apartment where the assault
occurred. Officer Cunningham observed a swollen reddish mark on the top left side of
Simms’s head, a bite mark on her nose, and another bite mark on the right side of her
face. He did not observe any injuries on defendant.
       The People called three witnesses under Evidence Code section 1109: Anita W.,
Kristina S., and S.G. Anita W. testified that in April and May 2011, while she and
defendant were in a domestic relationship, he battered her three times; during the second
incident, he bit her under her nose. Kristina S. testified that in February 2006, while she
and defendant were in a domestic relationship, he beat her with his fists. S.G. testified
that in August 2006, and again in May 2009, while she and defendant were in a domestic
relationship, he beat her; on the second occasion, when she was eight months pregnant
with twins, he knocked her down, jumped on top of her, and bit her in the face.
       Sacramento Police Detective Natalie Medeiros, who had five years of experience
in the domestic violence unit, testified as an expert witness on “battered women’s
syndrome.” Detective Medeiros opined that in domestic violence cases there is often a
“cycle of violence,” wherein tensions build within a relationship until an “abusive event”
occurs, followed by a “honeymoon period,” which induces the victim to stay in the
relationship; this cycle may recur over and over for years before the victim finally
decides to report the abuse and seek to prosecute the abuser.
       Defendant did not testify or call witnesses. His entire closing argument to the jury
was as follows: “Ladies and gentlemen of the jury . . . , I really don’t have too much of a
defense because I don’t have no evidence to show you. All I can say is, if you find
someone to have lied, don’t believe nothing they have to say because, obviously, they are
hiding something. And whatever it is they’re hiding will have changed the course of
actions. That’s it.”

                                             9
                                       DISCUSSION
       Defendant contends the trial court’s “failure to provide [defendant] with the means
to find and subpoena witnesses” violated his Sixth Amendment right to represent himself
at trial, a violation which is reversible per se. He also contends the court’s error violated
his Sixth Amendment right to compulsory process and his Fourteenth Amendment right
to present a defense, and these violations are not harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman).) We conclude
these claims lack merit. Defendant has adduced no evidence that the court failed to
permit him to represent himself or failed to provide him the means to obtain witnesses.
Even assuming the court erred in some vague fashion in the provision of pro per services,
defendant was not deprived of his right to represent himself or obtain witnesses. Any
error was harmless under Chapman.
       To begin with, the standard for per se reversal does not apply. It is true that if the
trial court erroneously refuses to permit a defendant to represent himself, the error is
reversible per se. (People v. Joseph (1983) 34 Cal.3d 936, 947-948 (Joseph).) But
Joseph addresses only the total denial of self-representation, not the granting of self-
representation with allegedly inadequate services. (Ibid.) Defendant cites no authority
holding that a grant of pro per status with pro per support services that may be inadequate
in some ill-defined way constitutes error reversible per se, and we know of none.
       “ ‘[T]he right to counsel guaranteed by both the federal and state Constitutions
includes, and indeed presumes, the right to effective counsel [citations], and thus also
includes the right to reasonably necessary defense services. [Citation.]’ [Citation.]”
(People v. Blair (2005) 36 Cal.4th 686, 732 (Blair).)
       “As for the Sixth Amendment, we have recognized that depriving a self-
represented defendant of ‘all means of presenting a defense’ violates the right of self-
representation. (People v. Jenkins [2000] 22 Cal.4th [900,] 1040 [(Jenkins)] [citation].)
Thus, ‘a defendant who is representing himself or herself may not be placed in the

                                             10
position of presenting a defense without access to a telephone, law library, runner,
investigator, advisory counsel, or any other means of developing a defense.’ (Jenkins,
supra, 22 Cal.4th at p. 1040.) . . . In the final analysis, the Sixth Amendment requires
only that a self-represented defendant’s access to the resources necessary to present a
defense be reasonable under all the circumstances. (See [] Jenkins, supra, 22 Cal.4th at
pp. 1040-1041.)” (Blair, supra, 36 Cal.4th at p. 733.)
       Defendant’s claim that the trial court failed to help him obtain and subpoena
witnesses is founded entirely on his own unsworn assertion -- on the last day to begin
trial, since he had not waived his speedy trial right -- that the pro per coordinator had not
yet contacted him. However, unsworn assertions are not evidence.8 And so far as
defendant claimed he had not even heard of the pro per coordinator until that moment, his
assertion was demonstrably false, because the court had taken pains to explain her role to
him 10 days earlier, when he went pro per. Thus, there is no evidence to support
defendant’s claim.
       But even assuming the pro per coordinator had not contacted defendant, the record
shows no reason why he could not have so informed the trial court sooner. Defendant
cites no authority, and we know of none, holding that the court must personally and
proactively monitor whether all resources theoretically available to a pro per defendant
are actually being provided. By explaining the pro per coordinator’s responsibilities to
defendant, the court sufficiently informed him of that means of obtaining and
subpoenaing witnesses. If defendant was not getting the benefit of that resource, it was
up to him to let the court know that in a timely fashion. Absent any evidence that




8      It is true the court did not challenge defendant’s assertion. But since the court still
had to rule on multiple in limine motions and select a jury before starting trial, it could
reasonably have decided time was too short to investigate defendant’s facially irrelevant
assertion.

                                             11
defendant did so, we conclude the court sufficiently honored defendant’s constitutional
rights to a level of “access to the resources necessary to present a defense” that was
“reasonable under all the circumstances.” (Blair, supra, 36 Cal.4th at p. 733; Jenkins,
supra, 22 Cal.4th at pp. 1040-1041.)
       For the same reasons, defendant has shown no denial of his right to compulsory
process.
       As to his final claim, the deprivation of his Fourteenth Amendment right to present
a defense, defendant fails to show how the absence of George Smith as a witness at trial
had this effect. When defendant argued his motion in limine concerning the allegedly
unavailable material witness, the trial court took great pains to try to grasp why Smith’s
testimony would be relevant to defendant’s theory of defense (whatever that might be).9
Having done so, the court concluded that because Smith’s hypothetical testimony would
be irrelevant, his absence would not deprive defendant of the opportunity to present a
defense. (Cf. Evid. Code, § 210 [only relevant evidence admissible].) Defendant fails to
show that the court’s conclusion was erroneous.
       In his appellate brief, defendant asserts: “[Defendant]’s argument at trial, while
inarticulate, was clear -- while he may have engaged in domestic violence in the past, he
did not do so in this case.” But defendant does not cite to any evidence presented at trial
to support this defense -- he cites only to one part of his argument in limine. And, as we
have noted, he failed to explain in the course of that argument how Smith could have
given any competent evidence to support his claim the alleged assault did not happen.




9      At times, defendant appeared to assert the alleged incident did not happen, but was
fabricated by Simms. At other times, defendant appeared to assert, even if the incident
happened, the parties’ history of strife somehow made them equally culpable and
vulnerable to prosecution. But it was entirely unclear how Smith, who according to
defendant did not witness anything that happened between himself and Simms except at
church, could have given any admissible evidence helpful to either defense theory.

                                             12
Nor does defendant explain, even on appeal, how a claim of fabrication by Simms could
have accounted for the fact that the investigating officer observed injuries on her face
shortly after the alleged assault which were consistent with her story that defendant
inflicted them by biting her, and with the testimony of defendant’s former cohabitants
that he had repeatedly injured them in the same way. Thus, even assuming for the sake
of argument that the trial court should have done something more than it did to help
defendant locate and subpoena Smith, any error was harmless under the Chapman
standard.
                                      DISPOSITION
       The judgment is affirmed.



                                                        NICHOLSON             , J.



We concur:



      BLEASE                , Acting P. J.



      MAURO                 , J.




                                             13
