Filed 11/20/19
            CERTIFIED FOR PARTIAL PUBLICATION*


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION THREE


THE PEOPLE,                             B287272

       Plaintiff and Respondent,        (Los Angeles County
                                        Super. Ct. No. BA454306)
       v.

DAMION WILSON,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Jose I. Sandoval, Judge. Affirmed.
      Edward Mahler, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.

       *Pursuant to California Rules of Court, rules 8.1105 and
8.1110, this opinion is certified for publication with the exception
of parts I, II, and IV of the Discussion.
     Damion Wilson pleaded no contest to forcible rape and
admitted prior felony convictions after the trial court denied his
Faretta1 motion. On appeal, he contends that the motion should
have been granted and that he did not knowingly and
intelligently waive his right to a jury trial on his priors. We
reject these contentions. And, in the published portion of this
opinion, we reject his contention that he is entitled to remand for
resentencing under Senate Bill No. 1393. Where, as here, the
sentence resulted from a negotiated plea, a defendant is not
entitled to remand under that law.
                           BACKGROUND
      Wilson and the victim had a brief relationship. After it
ended, he forcibly entered the victim’s home and raped her. An
information therefore charged Wilson with kidnapping (Pen.
Code,2 § 207, subd. (a); count 1), forcible rape in the course of a
burglary (§§ 261, subd. (a)(2), 667.61, subds. (a), (d)(4); count 2),
first degree burglary, person present (§ 459; count 3), and assault
to commit a felony during commission of a first degree burglary
(§ 220, subd. (b); count 4). On November 6, 2017, Wilson pleaded
no contest to forcible rape and admitted he had a prior strike and
a prior serious felony conviction (§ 667, subd. (a)(1)). Pursuant to
the negotiated plea, the trial court sentenced him to six years,
doubled to 12 years based on the prior strike, plus five years for
the prior serious felony, for a total of 17 years.




      1 Faretta   v. California (1975) 422 U.S. 806 (Faretta).
      2 Allfurther statutory references are to the Penal Code
unless otherwise indicated.




                                   2
                            DISCUSSION
I.    Faretta request
       On the eve of trial, Wilson asked to represent himself. The
trial court denied the request, finding it equivocal. As we now
explain, the request was properly denied, but for another reason,
untimeliness.
       A defendant in a criminal case has a Sixth Amendment
right to represent himself or herself. (People v. Marshall (1997)
15 Cal.4th 1, 20.) To invoke this right, the defendant must
unequivocally assert it within a reasonable time before trial
(People v. Windham (1977) 19 Cal.3d 121, 127–128), and the
request must be knowing and voluntary (People v. Doolin (2009)
45 Cal.4th 390, 453). A timely, unequivocal request for self-
representation must be granted, no matter how unwise the
request. (Windham, at p. 128.) Otherwise, untimely requests for
self-representation are addressed to the trial court’s sound
discretion. (Id. at pp. 127–129.) Also, an equivocal request must
be distinguished from a conditional one. A conditional request is
one, for example, where the defendant asks that counsel be
removed and, if not removed, that the defendant wants to
represent himself. (People v. Michaels (2002) 28 Cal.4th 486,
524.) Such a request is not equivocal. (Ibid.) To evaluate
whether a trial court erred by denying a Faretta request, we look
at the defendant’s words and conduct to determine whether the
defendant really wanted to give up the right to counsel.
(Marshall, at pp. 25–26.)
       Here, Wilson’s words and conduct were clear that if he did
not get a different counsel, then he wanted to represent himself.




                                3
On the day set for trial, Wilson made a Marsden3 motion, which
was denied.4 He then asked to represent himself. The trial court
advised Wilson of the felony charges against him, that he faced
three different strikes and two life counts, and that self-
representation was a bad decision. When the trial court asked
Wilson if he really did not want help to understand the technical
and sophisticated legal principles, Wilson said, “It’s not what I
wish but,” “I wish I had counsel that I believe is going to fight on
my behalf.” The trial court found the request to be equivocal: “It
has to be unequivocal. It’s clear to me you want counsel. It’s
clear you need counsel. And this is in response to a[n] adverse
ruling in another motion, sir.”
       Wilson then asked if he could have cocounsel, and the trial
court told him no, this was not a way to get a different lawyer.
Wilson replied, “What I’m saying—I don’t need a lawyer to
represent me. A standby lawyer—I don’t need somebody that’s
going—” At that point, the trial court interrupted Wilson and
asked why he needed a standby lawyer. Wilson said, “just in case
if I have a question.” When the trial court explained that this
was not how a standby lawyer works, Wilson said he did not need
counsel, then. The trial court repeated that the request was


      3 People   v. Marsden (1970) 2 Cal.3d 118.
      4 Wilson had previously made Faretta and Marsden
motions. When he made his first Faretta request, the trial court
asked Wilson if he really thought he could represent himself.
Wilson replied he could do a better job than his counsel, who was
not cooperating with him. After further discussion, Wilson said
he would rather have another public defender. The trial court
therefore held a Marsden hearing and denied the Marsden
motion.




                                  4
equivocal, and that Wilson was trying to get another lawyer,
recognizing he needed representation. Wilson repeated he didn’t
need another counsel. He said, “I’m not asking for another
counsel. You said this is my decision. [¶] . . . [¶] . . . This is not—
this is not what I want to do, but my counsel that’s representing
me left me no choice. I’m going in blind, not knowing what’s
going on, your Honor.” This, the trial court responded, was
exactly the equivocation that made it clear Wilson did not want
to represent himself. The trial court therefore denied the Faretta
request.
       As this demonstrates, Wilson’s dissatisfaction with his
counsel prompted his Faretta request. But, a clearly stated
Faretta request motivated by dissatisfaction with counsel is not
equivocal. (Moon v. Superior Court (2005) 134 Cal.App.4th 1521,
1529–1530.) In People v. Weeks (2008) 165 Cal.App.4th 882, for
example, a public defender represented the defendant. The
defendant then was permitted to go pro se. After several months,
the defendant asked if his standby counsel could take over but
was told that if he lost his pro per status the original public
defender would be reappointed. The defendant made it clear that
if he had to choose between remaining in propria persona or
being represented by his original public defender, then he would
choose the former. (Id. at p. 885.) Finding the defendant’s
position to be equivocal, the trial court revoked his status and
reappointed the original public defender. Weeks held that
denying the request was error. (Id. at p. 887.) Like the
defendant in Weeks, Wilson clearly expressed he would rather
represent himself than continue being represented by his counsel.
Hence, his request was conditional.




                                  5
       And, had it been timely, it should have been granted. But
it was not timely. That is, a motion to represent oneself must be
made within a reasonable time before trial commences. (People v.
Windham, supra, 19 Cal.3d at p. 128.) Thus, a Faretta motion
made on the day of trial may be found to be untimely (People v.
Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four
days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th
1197, 1205). An untimely Faretta request requires consideration
of the quality of counsel’s representation, the defendant’s prior
proclivity to substitute counsel, the reasons for the request, the
length and stage of the proceedings, and the disruption or delay
which might reasonably be expected to follow the granting of
such a motion. (Windham, at p. 128.)
       Although the trial court did not state it was also denying
Wilson’s Faretta motion on the ground of untimeliness, we can
independently review the record to determine whether it would
properly have been denied on this ground. (See People v.
Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15.) In People v. Dent
(2003) 30 Cal.4th 213, 218, for example, the trial court denied a
Faretta motion for an improper reason. Nonetheless, because the
record established the request was properly denied on other
grounds, the court upheld the trial court’s ruling. (Dent, at
p. 218; see People v. Scott, supra, 91 Cal.App.4th at p. 1206,
[sufficient reasons on record constitute implicit consideration of
Windham factors].)
       The record here similarly shows that Wilson’s motion was
properly denied. Wilson made his Faretta motion on the day set
for trial. The next afternoon, the trial court swore in a
prospective panel. On its face, the motion was untimely. Also,
the trial court had the opportunity to evaluate the quality of




                                 6
Wilson’s counsel, as Wilson made three Marsden motions, all of
which were denied. This shows that Wilson had adequate
representation. Also, counsel was ready to proceed to trial and
voir dire was about to begin. But the record supports a
reasonable inference that granting the motion would have
necessitated a continuance. When Wilson made his Faretta
request, he asked for standby counsel, said he was going “in
blind, not knowing what’s going on,” and noted that he had “no
paperwork. [He didn’t] have nothing.” Wilson’s own statements
show he was not ready for trial. Under the totality of these
circumstances, the Faretta motion was properly denied.
II.   Waiver of right to jury trial
       Wilson contends he did not knowingly and intelligently
waive his right to a jury trial on the strike and enhancement. We
disagree.
       A criminal defendant’s guilty plea or inculpatory admission
requires personal waiver of the right to a trial by jury. (Boykin v.
Alabama (1969) 395 U.S. 238, 243.) The trial court accordingly
must advise a defendant of his or her rights and obtain a waiver
of them before taking a plea or admission. (In re Tahl (1969) 1
Cal.3d 122, 132.) A valid waiver is one that is knowing,
intelligent, and voluntary. (Boykin, at p. 242.) These
advisements also must be given before the trial court may accept
a defendant’s admission that he or she has suffered prior felony
convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.)
       The plea bargain here required Wilson to plead no contest
to the substantive forcible rape charge and to admit a prior strike
and a prior serious felony. The prosecutor advised Wilson of the
substantive charges, and Wilson acknowledged he had discussed
them with his counsel and that he understood he would be




                                 7
sentenced to 17 years in prison. The prosecutor then advised
Wilson of his right to a jury trial, and Wilson said he understood
and gave up that and other rights. After this advisement and
waiver, the prosecutor explained that Wilson’s prior strike could
subject him to life in prison on subsequent felonies. The trial
court repeated the offer: six years for forcible rape, doubled to
12 years based on the strike, plus five years, for a total prison
sentence of 17 years. Wilson then pleaded no contest to count 2,
forcible rape and admitted he had a prior robbery conviction and
a prior first degree burglary conviction. The trial court accepted
the plea, finding that the waivers were made knowingly, freely,
and intelligently.
       However, because the prosecutor detailed only the
substantive charges before Wilson waived his jury trial right,
Wilson now argues he was never advised he had a right to a jury
trial on the enhancements; therefore, his waivers and plea were
not knowing and intelligent. People v. Forrest (1990) 221
Cal.App.3d 675 rejected a similar contention. The defendant in
that case argued that he had to be expressly and separately
advised of his right to a jury trial on prior convictions. (Id. at
p. 678 & fn. 3.) Forrest held that nothing in applicable case law
requires a separate advisement and waiver of rights where a
defendant “in a single proceeding” pleads to the substantive
charge and to the prior convictions. (Id. at pp. 679, 681.)
       We agree. Here, as in People v. Forrest, supra, 221
Cal.App.3d at page 679, Wilson’s plea to the substantive offense
and to the prior convictions occurred in a single proceeding and
was not separate in time. The single, express advisement
adequately advised Wilson of his constitutional rights, including
the right to a jury trial on both the substantive offense and prior




                                 8
convictions. Therefore, the trial court correctly found that
Wilson’s plea was knowing and intelligent.
III.   Senate Bill No. 1393
       Alternative to his argument that his admission to the five-
year prior conviction must be reversed, Wilson argues that he is
at least entitled to a remand so that the trial court can consider
whether to strike the prior under Senate Bill No. 1393. When
Wilson was sentenced in 2017, the trial court had no discretion to
strike a section 667, subdivision (a)(1), enhancement. Senate
Bill No. 1393 went into effect on January 1, 2019. (Sen. Bill
No. 1393 (2017–2018 Reg. Sess.).) That bill amended
sections 667, subdivision (a)(1), and 1385, subdivision (b), to
allow a court to exercise its discretion to strike or to dismiss a
serious felony prior for sentencing purposes. (Stats. 2018,
ch. 1013, §§ 1–2.)
       Courts of appeal are divided as to the interplay between
Senate Bill No. 1393 and sentences arising from plea agreements.
The first area of disagreement concerns whether defendants like
Wilson whose sentences arise from plea agreements must obtain
a certificate of probable cause before raising on appeal Senate
Bill No. 1393, or its counterpart Senate Bill No. 620. (See, e.g.,
People v. Stamps (2019) 34 Cal.App.5th 117 [certificate
unnecessary], review granted June 12, 2019, S255843 (Stamps);
People v. Baldivia (2018) 28 Cal.App.5th 1071 [same]; People v.
Hurlic (2018) 25 Cal.App.5th 50 [same] (Hurlic); but see People v.
Alexander (2019) 36 Cal.App.5th 827, 843 (conc. & dis. opn. of
Needham, J.) [certificate necessary], review granted Oct. 16,
2019, S257190; People v. Galindo (2019) 35 Cal.App.5th 658
[same], review granted Aug. 28, 2019, S256568; People v. Fox
(2019) 34 Cal.App.5th 1124 [same], review granted July 31, 2019,




                                 9
S256298.) This issue is not before us, because Wilson has a
certificate of probable cause.
       The issue before us is whether Wilson is entitled to a
remand so that the trial court can exercise its discretion whether
to strike the five-year prior. As we have said, Senate Bill
No. 1393 gives trial courts discretion to strike a five-year prior,
and it applies retroactively to cases, such as Wilson’s, not final
when the bill took effect. (See People v. Garcia (2018) 28
Cal.App.5th 961, 973.) However, that does not mean Wilson is
entitled to a remand for resentencing. Rather, Wilson’s 17-year
sentence was negotiated. A negotiated or agreed-upon sentence
must be distinguished from an open plea. In an open plea, the
defendant pleads unconditionally to all charges, and is therefore
exposed to the maximum possible sentence. (People v. Cuevas
(2008) 44 Cal.4th 374, 381, fn. 4.) While the trial court may
indicate the sentence it will impose, there is no promise it will do
so. (People v. Clancey (2013) 56 Cal.4th 562, 570.)
       In contrast, a negotiated plea is one in which the defendant
pleads to specific charges and enhancements, and the trial court
plays no part except to approve or disapprove the plea and to
enter sentence thereon. (People v. Segura (2008) 44 Cal.4th 921,
931.) The People and the defendant negotiate the agreement.
The trial court is not a negotiating party to the transaction. Once
a trial court accepts a plea bargain, it is bound to impose
sentence within the limits of the bargain. If the trial court finds
the bargain to be unacceptable, it has no discretion to modify it.
Its remedy is to reject it, not to violate it directly or indirectly.
(Ibid.; see People v. Fox, supra, 34 Cal.App.5th at p. 1138, rev.
granted.)




                                 10
       Notwithstanding the limited discretion a trial court has
with respect to negotiated pleas, some courts have found that
Senate Bill No. 1393 gives trial courts discretion on remand to
modify a negotiated plea by striking a firearm enhancement or a
five-year prior. The court in Hurlic, supra, 25 Cal.App.5th at
page 53 did not publish its discussion regarding remand for
resentencing and instead merely stated in its introduction that
being “unable to say that there is no ‘reasonable possibility’ that
the trial court would decline to exercise its newfound sentencing
discretion, we vacate the judgment and remand for a new
sentencing hearing to decide whether to exercise that discretion.”
Stamps, supra, 34 Cal.App.5th at page 124, review granted,
similarly advised that on remand the trial court could consider
whether striking the five-year prior would be incompatible with
the agreement on which the plea was based. If the trial court
struck the enhancement, it could resentence defendant but could
not impose a term in excess of the negotiated term without giving
the defendant an opportunity to withdraw his plea. (Ibid.)
       Hurlic and Stamps give trial judges a power they have
never had, making them active players in plea negotiations.
Neither the law nor Senate Bill No. 1393 supports giving trial
judges such a role. Senate Bill No. 1393 does not empower “a
trial court to disregard the express terms of a plea agreement by
imposing a sentence that does not reflect an agreed-upon term for
a firearm enhancement.” (People v. Fox, supra, 34 Cal.App.5th at
p. 1138, rev. granted; accord, People v. Kelly (2019) 32
Cal.App.5th 1013, 1017, review granted June 12, 2019, S255145.)
Rather, the discretion afforded trial courts under Senate Bill
No. 1393 arises only when a defendant is sentenced or
resentenced under another law, and nothing in the bill disposes




                                11
of “existing limits on a trial court’s discretion when sentencing a
defendant convicted by plea.” (Fox, at p. 1137.)
       Our California Supreme Court decisions in Harris v.
Superior Court (2016) 1 Cal.5th 984 and Doe v. Harris (2013) 57
Cal.4th 64 do not support a contrary view. The defendant in
Harris v. Superior Court entered a negotiated plea that included
dismissal of a robbery charge and allegations. Thereafter, the
electorate passed Proposition 47, which reduced certain
nonviolent crimes to misdemeanors and created a petitioning
procedure for defendants to have their felonies reclassified. The
People moved to withdraw from the plea agreement and to
reinstate charges on the ground resentencing would deprive it of
the benefit of the bargain. The court, however, found that
Proposition 47 expressly applied to someone serving a sentence
“ ‘whether by trial or plea.’ ” (Harris v. Superior Court, at p. 991,
italics omitted.) Hence, the People were not entitled to set aside
the plea agreement when defendant sought to have his sentence
recalled. In contrast to Proposition 47, Senate Bill No. 1393 “does
not expressly mention convictions by plea but grants discretion to
the trial court to strike or dismiss such enhancements” and does
not have a procedural mechanism allowing defendants to reduce
their sentences. (People v. Galindo, supra, 35 Cal.App.5th at
p. 671, rev. granted.) Harris v. Superior Court therefore does not
help Wilson.
       Doe v. Harris, supra, 57 Cal.4th 64 also does not help him.
Doe said the general rule in California is that unless a plea
agreement contains a term requiring the parties to apply only the
law in existence when the agreement is made, parties to a plea
agreement are deemed to know and to understand that the state,
subject to constitutional limitations, may enact laws that will




                                 12
affect the consequences attending the conviction entered upon the
plea. (Id. at pp. 66–67.) “That the parties enter into a plea
agreement thus does not have the effect of insulating them from
changes in the law that the Legislature has intended to apply to
them.” (Id. at p. 67.) Even so, this general rule has no
applicability to Senate Bill No. 1393. There is “no language or
evidence to suggest the Legislature” in enacting Senate Bill
No. 1393 “intended trial courts to exercise discretion they do not
have for defendants sentenced pursuant to stipulated sentences.”
(People v. Galindo, supra, 35 Cal.App.5th at p. 672, rev. granted.)
Stated otherwise, nothing in Senate Bill No. 1393 indicates a
legislative intent to change the very nature of negotiated pleas.
       Permitting a trial court, under the guise of Senate Bill
No. 1393, to strike a five-year prior from a negotiated plea is thus
contrary to the real-world practicalities of plea bargaining. In
practice, what happens in negotiated pleas is the prosecution has
a number in mind. That number is not arbitrary. It is based on
numerous factors that may include policies of the district
attorney’s office, the charged crimes and enhancements, and
consultation with the victim or victims. The prosecution then
crafts an offer using the various options—high, mid or low terms
and enhancements—to reach that number.
       With this in mind, assume that a trial court acting in the
here and now, with the benefit of Senate Bill No. 1393, is
presented with a stipulated plea that includes a five-year term
under section 667, subdivision (a)(1). This, of course, means that
the defendant has agreed to the five-year term. But let’s indulge
the fanciful notion that the trial court refuses to take the plea if it
includes such a term because it would strike it. What would then
happen? The trial court could not modify the plea to reduce it by




                                  13
five years. The trial court would have to reject the plea. The
prosecution would then find another way to get to its number, or
the plea agreement would fall through. The point is this: what
the trial court thinks the number should be is largely irrelevant,
as this is not an open plea. A trial court must accept the
negotiated plea or reject the bargain outright, but it cannot come
up with its own number. The “whole point of a conditional plea,
as well as the expectation of the parties who negotiate them,” is
“that the court would not have such discretion” to change the
length of the sentence. (People v. Alexander, supra, 36
Cal.App.5th at p. 846.)
       Now consider the circumstances here. The prosecutor’s
pre-preliminary hearing offer was 21 years, which Wilson did not
take. Thereafter, the prosecutor offered 17 years but explained
that her unit almost never went below the pre-preliminary
hearing offer. To get the offer of 17 years, the prosecutor had to
consult the victim, investigating officer, assistant head deputy
and head deputy. So, the prosecutor informed defendant, “[i]t’s
not getting any better than this. I can’t do any better than this.
This is as good as it gets.” Wilson, who was facing multiple life
terms and decades more in state prison if convicted of all charges
and allegations, took the deal. We can infer that the trial court
found the plea bargain to be consistent with the interests of
justice, as the trial court approved it. Were we to find that the
trial court could on remand strike the five-year term and reduce
Wilson’s sentence to 12 years, this makes the plea more akin to
an open one, thereby flipping longstanding law on its head. (See
People v. Alexander, supra, 36 Cal.App.5th at p. 847.) The
general rule may be that pleas, even negotiated ones, are not
immune from changes in the law. But the change in law




                                14
specifically effected by Senate Bill No. 1393 has no bearing on the
negotiated plea in this case. Senate Bill No. 1393 is not a vehicle
to allow Wilson to “whittle down” his sentence but to otherwise
leave the plea agreement intact. (People v. Kelly, supra, 32
Cal.App.5th at p. 1018, rev. granted.)
       Wilson is not entitled to a remand.
IV.   Ability to pay hearing
       Without objection, the trial court imposed on Wilson a $300
restitution fine under section 1202.4, subdivision (b), a $30 court
facility assessment under Government Code section 70373, and a
$40 court operations assessment under section 1465.8. Under
recent authority holding that such a fine and assessments may
not be constitutionally imposed absent evidence of the
defendant’s ability to pay them, Wilson contends that the matter
must be remanded so that the trial court can conduct an ability to
pay hearing. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.)
       Unlike the defendant in Dueñas, Wilson did not object
below to the assessments on the ground of his inability to pay and
made no showing of indigence. Generally, where a defendant has
failed to object to a restitution fine based on an inability to pay,
the issue is forfeited on appeal. (See People v. Avila (2009) 46
Cal.4th 680, 729.) This general rule applies here. (People v.
Frandsen (2019) 33 Cal.App.5th 1126; but see People v.
Castellano (2019) 33 Cal.App.5th 485.)
       In any event, we agree with those cases finding that
Dueñas’s due process analysis is flawed. (See, e.g., People v.
Hicks (2019) 40 Cal.App.5th 320; People v. Caceres (2019) 39
Cal.App.5th 917; People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1039 (conc. opn. of Benke, J.).) As Hicks notes, Dueñas
improperly wove together two distinct strands of due process




                                15
precedent. The first secures a due process based right of access to
courts; but imposing fees, fines, and assessments does not deny a
criminal defendant access to the courts. The second strand erects
a due process based bar to incarceration based on failure to pay
criminal penalties when that failure is due to indigence, but mere
imposition of those penalties does not result in incarceration for
failure to pay due to indigence. Hence, neither strand prohibits
imposing assessments and fines.
       Further, not all defendants are similarly situated to
Dueñas, whose cerebral palsy rendered her unable to work and
whose inability to pay fines and fees was directly related to her
poverty. (See People v. Johnson (2019) 35 Cal.App.5th 134.)
Here, there was no evidence Wilson lacked income-earning
capacity. Also, Wilson is serving a 17-year sentence. Even if we
assumed he suffered a due process violation when the trial court
imposed a modest financial burden on him without taking his
ability to pay into account, he has ample time to pay it from a
readily available source of income while incarcerated, i.e., prison
wages.
                         DISPOSITION
      The judgment is affirmed.
      CERTIFIED FOR PARTIAL PUBLICATION.



                                     DHANIDINA, J.

We concur:



             EDMON, P. J.            EGERTON, J.




                                16
