Filed 5/31/13 P. v. Chestang CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061320

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD235702)

TYRECE RENE CHESTANG,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed as modified.

         Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.



         Tyrece Rene Chestang and a cohort robbed and beat two individuals while

Chestang was armed with a handgun and his cohort brandished a knife. An information
charged the men with two counts of first degree robbery (counts 1 and 2) and one count

of attempting to dissuade a witness (count 3). It was alleged that Chestang personally

used a firearm in the commission of both robberies and that his cohort personally used a

knife for the crimes. The information further alleged that Chestang was previously

convicted of two felonies that qualified as prison priors, serious felonies and strike priors.

       A jury found both men guilty as charged on all counts and enhancements.

Chestang admitted all prior conviction allegations. The trial court sentenced Chestang to

a total of 50 years to life, plus 23 years and four months in prison.

       Chestang timely appealed from the judgment claiming the trial court erred in

denying his pretrial motion to represent himself under Faretta v. California (1975) 422

U.S. 806 (Faretta). The Attorney General asserts the trial court did not abuse its

discretion in denying the motion and that Chestang received an unauthorized sentence

because the trial court did not impose a full strength term on the firearm use enhancement

attached to count 2. We agree with the Attorney General.

                                       DISCUSSION

                                I. Denial of Faretta Motion

A. Facts

       On the first day of trial, defense counsel informed the court that Chestang wished

to bring a motion for substitution of appointed counsel under People v. Marsden (1970) 2

Cal.3d 118 (Marsden). The trial court conducted a Marsden hearing outside the presence

of the prosecutor. Chestang complained that defense counsel continuously told him that

he had "a no-win case." He stated that counsel had a "nonchalant attitude to questions"

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he posed regarding the case, telling him, "[H]ow does that help[?] I don't see it, a jury

won't buy it, the jury won't agree to it." Chestang complained that counsel failed to

obtain photographs and fingerprint evidence. Chestang did not feel that counsel had

conducted a thorough investigation or that he had "an effective defense strategy."

Chestang believed that counsel had not "aggressively pursued anything as far as just

trying to get [him] off" and just pressured him to "take a deal" in the case.

       Defense counsel responded to Chestang's allegations, explaining that he visited

Chestang a couple of times, discussed the case with him, inquired about witnesses to

investigate, subpoenaed a witness that Chestang had asked about and canvassed the crime

scene. Counsel recently gave Chestang an opportunity to talk to him, but Chestang hung

up on him and refused to talk to him anymore. Counsel claimed he told Chestang about

deals and never pressured Chestang to take any deal, but was honest with Chestang about

the evidence and the chances of success at trial, which upset Chestang. After Chestang

reiterated his complaints, defense counsel told the court that he had possession of the

photographs and that to the best of his knowledge, the prosecutor never sought any

fingerprint analysis which was "advantageous to . . . Chestang at this point."

       The trial court denied the Marsden motion, explaining that counsel had obtained

discovery, investigated the case and followed up on Chestang's leads, but that strategy

and trial tactics were counsel's decisions to make. Defense counsel then indicated that

Chestang had told him earlier that "he may request a pro per status." The trial court

asked if Chestang was ready for trial "right now." Chestang replied, "Not just this

moment, no." The trial court replied, "Then it's not timely."

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B. Analysis

       A criminal defendant has the right under the Sixth Amendment of the federal

Constitution to conduct his or her own defense. (Faretta, supra, 422 U.S. at p. 819;

People v. Jenkins (2000) 22 Cal.4th 900, 959.) Accordingly, when a defendant

voluntarily and intelligently makes a timely, unequivocal assertion of the right to proceed

pro se, the court must honor that request regardless of how unwise the decision may

seem. (People v. Windham (1977) 19 Cal.3d 121, 127–128.) The right to self-

representation must be invoked within a reasonable time before the commencement of

trial and the trial court should consider the quality of counsel's representation of the

defendant, 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 that might

reasonably be expected to follow the granting of such a motion. (People v. Marshall

(1996) 13 Cal.4th 799, 827.)

       Chestang contends the trial court abused its discretion in denying his Faretta

motion without any inquiry into the circumstances behind the request solely because it

was brought on the first day of trial. Although the trial court could have conducted a

more thorough inquiry regarding Chestang's request, review of the entire record shows

that the request was untimely and equivocal. Accordingly, the court acted within its

discretion in denying it.

       On the first day of trial, Chestang moved to replace his counsel under Marsden.

The trial court conducted a thorough hearing on the issue, finding that defense counsel

had provided effective assistance of counsel, and explaining to Chestang that counsel was

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not required to discuss trial strategy with him and that "tactics change as the case moves

on" requiring counsel to "adjust on the fly." After the court denied Chestang's Marsden

motion, defense counsel indicated that Chestang "may request a pro per status."

Chestang, however, never formally made a Faretta motion. Chestang's conduct reflected

ambivalence about self-representation and supported the trial court's decision to deny the

motion. (People v. Marshall (1997) 15 Cal.4th 1, 23.)

       Moreover, the record created during the Marsden hearing indicated that Chestang

was frustrated with defense counsel because counsel rejected Chestang's suggestions

regarding how to defend the case and honestly communicated with Chestang regarding

his chances of success at trial. The record does not establish any deficiency in the quality

of counsel's representation. Additionally, the timing of the request would reasonably

cause disruption or delay in the proceedings. (People v. Marshall, supra, 13 Cal.4th at p.

827.) Our high court has "held on numerous occasions that Faretta motions made on the

eve of trial are untimely." (People v. Lynch (2010) 50 Cal.4th 693, 722.) Because

Chestang's request to represent himself was untimely and equivocal, the court acted well

within its discretion when it denied the motion.

                                II. Unauthorized Sentence

A. Facts

       The trial court sentenced Chestang to consecutive terms of 25 years to life for the

two robberies under the Three Strikes Law. (Pen. Code, §§ 667, subds. (b)–(i), 1170.12,

undesignated statutory references are to this code.) For the firearm use enhancement

(§ 12022.53, subd. (b)) attached to count 1, the court imposed an additional ten-year

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term. For the same firearm use enhancement attached to count 2, the prosecutor argued

that Chestang should receive a consecutive "full force" sentence. The trial court

disagreed. It imposed three years and four months, which constituted one-third of the

ten-year term specified under subdivision (b) of section 12022.53.

B. Analysis

       The Attorney General claims that Chestang received an unauthorized sentence

subject to correction on appeal for the firearm use enhancement attached to count

2. She asserts that the firearm use enhancement required the imposition of "an additional

and consecutive term of imprisonment in the state prison for ten years." (§ 12022.53,

subd. (b).) We agree.

       When a defendant is convicted of multiple offenses carrying determinate terms

and the trial court imposes consecutive sentences, the count carrying the longest sentence

is the "principal term" and the remaining counts are "subordinate." (§ 1170.1, subd. (a).)

Generally, the trial court may impose only one-third of the middle term on a subordinate

count and one-third of the term of any enhancement attached to a subordinate count.

(Ibid.) However, " '[t]he consecutive sentencing scheme of section 1170.1 does not apply

to indeterminate life terms, and therefore it has no application to sentencing calculations

for three strikes defendants' " such as Chestang. (People v. Williams (2004) 34 Cal.4th

397, 402, quoting People v. Nguyen (1999) 21 Cal.4th 197, 205.) Additionally, conduct-

based enhancements cannot exist separately from the underlying offense. (People v.

Lyons (1999) 72 Cal.App.4th 1224, 1228–1229 (Lyons).)



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       Where, as here, a firearm use enhancement is appended to a crime in which an

indeterminate term is imposed, it must be applied at full strength because the fact that the

enhancement is determinate does not render it subordinate within the meaning of section

1170.1. (Lyons, supra, 72 Cal.App.4th at p. 1229.) Accordingly, the abstract of

judgment must be amended to add a full-term firearm use enhancement to Chestang's

indeterminate term under the Three Strikes Law. (Id. at p. 1226; People v. Dotson (1997)

16 Cal.4th 547, 554, fn. 6 [unauthorized sentence may be corrected at any time].)

                                      DISPOSITION

       The judgment is modified to reflect a consecutive ten-year term for the Penal Code

section 12022.53, subdivision (b) allegation attached to count 2. As so modified, the

judgment is affirmed. The trial court is directed to prepare an amended abstract of

judgment reflecting this modification and forward it to the Department of Corrections and

Rehabilitation.



                                                            MCINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.




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