Filed 4/20/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                   2d Crim. No. B292551
                                            (Super. Ct. No. VA144478)
     Plaintiff and Respondent,                (Los Angeles County)

v.

ALEJANDRO C. TORRES,

     Defendant and Appellant.




             Where, as here, the trial court factually finds that a
self-represented defendant has engaged in an attempt to
intimidate a witness, the constitutional right of self-
representation can, in the exercise of the trial court’s sound
discretion, be revoked.
             Appellant was convicted by jury, of two counts of
battery on an ex-girlfriend (Pen. Code, § 273.5) 1 with weapon use
(§ 12022, subd. (b)(1)) and great bodily injury (§ 12022.7, subd.
(e)) enhancements, assault with a deadly weapon (§ 245, subd.


        1 All
           statutory references are to the Penal Code unless
otherwise stated.
(a)(1)), possession of metal knuckles (§ 21810), possession of a
billy or blackjack (§ 22210), and kidnapping (§ 207, subd. (a)).
The trial court sentenced appellant to nine years eight months
state prison. We affirm.
                                Facts
              In April 2017, appellant tried to reconcile with his ex-
girlfriend, J.M., calling her more than 20 times. J.M. agreed to
meet with appellant on a street corner in Huntington Park.
Appellant was angry that J.M. was dating, punched her in the
face, choked her, cracked a beer bottle over her head, and took
her cell phone. A bystander saw appellant hit J.M. on the head
and knock her to the ground. Appellant pulled J.M. up and led
her to an alley where he pushed J.M against a wall and hit her in
the chest. Appellant then forced J.M. to walk down the street,
hitting her as they walked.
              The bystander called 911 and followed in his car.
When the police arrived, appellant dropped a pair of brass
knuckles and a small baseball bat to the ground. J.M. had
injuries to her head, face, mouth, and neck. Appellant was
arrested.
              Two days later, appellant called his mother from jail.
She chastised him for beating the victim. Appellant’s taped
phone conversation with his mother was played to the jury.
Mother said: “[S]he [the victim] should fucking put charges on
your ass. I swear to God.” Appellant admitted beating the victim
and that witnesses saw the assault, and said: “I know I’m
fucking up really bad, and I never even kn[e]w that, like, I was
capable of doing this.” Mother replied, “[W]hat is wrong with
you? . . . Fucking beating her in the fucking street. What is
wrong with you?” Appellant answered, “I know. It’s terrible. [¶]



                                  2
[¶] [¶] . . . But I want you to tell [the victim] that I am sorry. I
am very sorry.”
               After the preliminary hearing appellant requested
and was granted leave to represent himself pursuant to Faretta v.
California (1975) 422 U.S. 806 (Faretta). The superior court also
issued a protective order precluding any contact with the victim.
In a comprehensive four page “advisement and waiver of rights to
counsel,” appellant was expressly advised of the Faretta rules
and how his pro per status could be revoked. (Super. Ct. L.A.
County, Local Rules, rule 8.42, (a), (g).) The written waiver of the
right to counsel and election to represent himself recited that this
pro per status could be revoked if he attempted to “obstruct the
conduct and progress of the trial.” One month later, appellant
attempted to intimidate the victim with the goal of having her
not cooperate with the prosecutor. This was in violation of (1) the
Faretta oral and written agreements; (2) the Los Angeles
Superior Court rules; (3) the Protective order, and (4) Penal Code
sections 664, 136.1.
                Revocation of Appellant’s Pro Per Status
               Appellant contends that the trial court abused its
discretion in revoking his pro per status after appellant asked his
sister to contact the victim and have her say that she was coerced
by the police detective to “press charges.” The prosecutor advised
the trial court that appellant called his sister from jail “asking
her to speak to the victim, locate the victim and have her write a
statement indicating that she was coerced in[to] making the
statements.” The trial court factually found that appellant
violated a criminal protective order, attempted to dissuade the
victim from testifying, and tried to have a third person contact
the victim. It revoked appellant’s pro per status and reappointed



                                 3
the public defender to represent appellant. This was 11 months
before trial.
                  People v. Carson General Guidelines
              As indicated by the California Supreme Court: “One
form of serious and obstructionist misconduct is witness
intimidation, which by its very nature compromises the
factfinding process and constitutes a quintessential ‘subversion of
the core concept of a trial.’ [Citation.] ‘A defendant acting as his
own attorney has no greater privileges than any member of the
bar. He may not disrupt proceedings or intimidate witnesses.
[Citations.] . . . The trial court can stop harassment and abuse of
a witness by a threatening defendant and can terminate self-
representation by a defendant who engages in serious
misconduct. [Citations.]’ [Citation.] Threatening or intimidating
acts are not limited to the courtroom. [Citation.] When a
defendant exploits or manipulates his in propria persona status
to engage in such acts, wherever they may occur, the trial court
does not abuse its discretion in determining he has forfeited the
right of continued self-representation.” (People v. Carson (2005)
35 Cal.4th 1, 9 (Carson); see also People v. Becerra (2016) 63
Cal.4th 511 (Becerra).)
                     Abuse of Discretion on Appeal
              We review the trial court’s ruling for abuse of
discretion. (Carson, supra, 35 Cal.4th at p. 12.) “‘“The term
[judicial discretion] implies the absence of arbitrary
determination, capricious disposition or whimsical thinking. It
imports the exercise of discriminating judgment within the
bounds of reason. [Par.] To exercise the power of judicial
discretion all the material facts in evidence must be known and
considered, together also with the legal principles essential to an



                                 4
informed, intelligent and just decision.” [Fn. omitted.]’
[Citations.]. ‘The appropriate [appellate] test for abuse of
discretion is whether the trial court exceeded the bounds of
reason.’ [Citations.] [¶] A ‘. . . showing on appeal is wholly
insufficient if it presents a state of facts, a consideration of which,
for the purpose of judicial action, merely affords an opportunity
for a difference of opinion. An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the
judgment of the trial judge. To be entitled to relief on appeal
from the result of an alleged abuse of discretion it must clearly
appear that the injury resulting from such a wrong is sufficiently
grave to amount to a manifest miscarriage of justice . . . .’
[Citation.] ‘“A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error.” [Citations.]’ [Citation.]” (Estate of
Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449.)
             No Abuse of Discretion as a Matter of Law
             As indicated, it is well established that the trial court
may terminate a defendant’s Faretta status where the defendant
engages in serious and obstructionist misconduct or conduct that
threatens the core integrity of the trial. (Faretta, supra, 422 U.S.
at p. 834, fn. 46; Carson, supra, at p. 6.) Witness intimidation in
a domestic violence case is just that. (Id. at p. 9.) Such conduct
is more than an attempt to “obstruct the conduct and progress of
the trial.” (Ante, p. 3.) It is an attempt to stop the trial.
             While representing himself, appellant’s actions,
including the telephone attempt to intimidate a witness, are



                                   5
attributed to him in his self-represented status. He brazenly
violated a criminal protective order and asked his sister to
dissuade the victim from testifying. He had been warned and
knew that such conduct could result in the loss of his pro per
status and pro per privileges. Appellant complains that the trial
court did not consider less drastic sanctions. The record is silent
on this claim. Error may not be predicted on a silent record. (See
ante, p. 4.) And, we presume that the trial court did consider
“less drastic sanctions.” (See ante, pp. 4-5.) Appellant also
claims that there is no express finding that appellant’s
misconduct “‘impaired the integrity of the trial.’” This finding is
easily implied. Appellant is fortunate not to have been charged
with an additional offense.
              It does not matter whether the telephone used in the
“witness intimidation” attempt was dedicated to pro per use in
the jail library or whether it is some other telephone that can be
used by a jail inmate. The Carson “guidelines” do not require
that a dedicated pro per telephone be used to support termination
of pro per status. If this were the rule, a pro per could retain
such status while attempting to intimidate a witness on a non-
dedicated telephone. It does not matter whether the witness
intimidation is in person, on the telephone, by text message,
email, by legal or ordinary mail, or by carrier pigeon. Attempted
witness intimidation may show that the pro per defendant has no
intention of following other trial court rules. A pro per defendant
must be “able and willing to abide by rules of procedure . . . .”
(McKaskle v. Wiggins (1984) 465 U.S. 168, 173.) As long as the
conduct is reasonably related to pro per status, witness
intimidation may serve as the factual predicate for revocation. In
addition to the numerous violations previously articulated (see



                                 6
ante, p. 3) we must observe that appellant’s attempt to alter
evidence at trial strikes at the heart of the truth-seeking function
of the superior court.
              Appellant argues that it is “troubling” that the
prosecutor asked the trial court to terminate his pro per status.
The prosecutor, as an officer of the court, advised the trial court
about what transpired. She asked that the trial court to consider
the protective order, his phone privileges, and the use of the
sister as a legal runner. The prosecutor did not advocate a
particular result or overstep her role. (Carson, supra, 35 Cal.4th
at p. 11, fn. 1.) An attorney has a duty to report misconduct to
the trial court when it involves witness intimidation in a pending
case. (Cal. Rules of Prof. Conduct, rule 3.3(b).)
              Simply stated, a criminal defendant has no
constitutional right to intimidate or dissuade a witness. Nothing
in Becerra, supra, 63 Cal.4th 511 requires reversal. There, pro
per status in a death penalty case was revoked because the trial
court found that the defendant was “dilatory,” “stalling.” (Id. at
p. 516.) This conduct had nothing to do with the truth-seeking
process. And there, the trial court did not make an adequate
record for intelligent appellant review. Here, by contrast, the
trial court held two adversary hearings, allowed appellant to be
heard, and made an express factual finding that appellant
violated the salient rules and “attempted to dissuade a witness
from testifying.”
          Dueñas — Present Ability to Pay Fines and Fees
              Appellant argues that the trial court erred in
imposing a court operations assessment (§ 1465.8), a criminal
conviction assessment (Gov. Code, § 70373), and a restitution fine
(§ 1202.4, subd. (b)) without finding appellant had the present



                                 7
financial ability to pay. 2 (See People v. Dueñas (2019) 30
Cal.App.5th 1157.) Unlike the defendant in Dueñas, appellant
did not object to the fine and fees, or request a hearing on ability
to pay, thus forfeiting the issue. (See, e.g., People v. Torres (2019)
39 Cal.App.5th 849, 860; People v. Avila (2009) 46 Cal.4th 680,
729; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; People
v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
                              Disposition
            The judgment is affirmed.
            CERTIFIED FOR PUBLICATION.


                                                   YEGAN, J.

I concur:


            GILBERT, P. J.




      2  On December 14, 2018, the trial court modified the
sentence nunc pro tunc to reflect that $300 restitution and parole
revocation fines were imposed (§§ 1202.4, subd. (b); 1202.45), plus
a $240 court operations assessment (§ 1465.8), a $180 conviction
assessment (Gov. Code, § 70373), and a $500 domestic violence
fee (§ 1203.097). Appellant did not appeal from the nunc pro tunc
order or claim that the fines and fees were erroneously imposed.
Any theoretical “Dueñas” claim as to these fines and assessments
is also forfeited.


                                  8
TANGEMAN, J., Dissenting:
             The right of self-representation is guaranteed by the
Sixth Amendment. (Faretta v. California (1975) 422 U.S. 806,
819.) Accordingly, termination of that right “is a severe sanction
and [it] must not be imposed lightly.” (People v. Carson (2005) 35
Cal.4th 1, 7 (Carson).) Forfeiture should be found “only in those
rare cases of extremely serious misconduct . . . where it is
apparent that any lesser measures will be patently inadequate.”
(King v. Superior Court (2003) 107 Cal.App.4th 929, 944 (King)
[analogous issue of forfeiture of right to counsel].) The “principle
of applying the least burdensome measure that will provide the
necessary security should be applied when a defendant’s
fundamental right to counsel is at stake.” (Id. at p. 943.)
             There has been no showing here that termination of
Torres’s constitutional right of self-representation was “the least
burdensome measure” necessary to prevent compromising the
trial. The trial court applied the most severe sanction available
based on a phone call Torres made from jail, in which he asked
his sister to contact the victim and have her state that the police
coerced her into making statements against him. The court
concluded that this sanction was proper because Torres
attempted to dissuade the victim and violated his no-contact
restraining order. On that basis, it terminated his Sixth
Amendment right.
             The record does not support the court’s conclusion
that Torres’s conduct constituted dissuading (or attempting to
dissuade) a witness or victim. Penal Code section 136.1,
subdivision (a) precludes a person from attempting to, or
preventing or dissuading a witness or victim from, “attending or
giving testimony at any trial, proceeding, or inquiry authorized



                                 1
by law.” The restraining order similarly provides, “You must not
attempt to or actually prevent or dissuade any victim or witness
from attending a hearing or testifying or making a report to any
law enforcement agency or person.” On this record, no showing
has been made that Torres attempted to dissuade the victim from
attending a hearing, testifying, or giving a report.
             The restraining order did, however, prohibit Torres
from contacting the victim. Although the record discloses that
his effort was unsuccessful, he clearly attempted to violate the
order. The issue presented here is whether that attempt justified
the revocation of his constitutional right to represent himself. I
conclude that on this record it does not, for two reasons.
             First, Carson, supra, 35 Cal.4th 1, 6, holds that a
court may revoke a defendant’s right of self-representation based
on out-of-court misconduct under certain circumstances, but
those circumstances have not been established here. The
misconduct involved in Carson was that the defendant “had
taken advantage of the fact” that an inexperienced investigator
had given him an unredacted copy of discovery. (Id. at pp. 12-13.)
Possible intimidation of a witness was only tangentially
discussed. The prosecutor in that case “argued that [the]
defendant’s improper acquisition of discovery, when considered in
light of antecedent attempts to suborn perjury, fabricate an alibi,
and possibly intimidate a prosecution witness, warranted
termination of his Faretta rights.” (Id. at p. 13, fn. omitted.) In
response, Carson states, “One form of serious and obstructionist
misconduct is witness intimidation, which by its very nature
compromises the factfinding process and constitutes a
quintessential ‘subversion of the core concept of a trial.’
[Citation.]” (Id. at p. 9.)



                                 2
             But Carson concludes its discussion of witness
intimidation by stating, “When a defendant exploits or
manipulates his in propria persona status to engage in such acts,
wherever they may occur, the trial court does not abuse its
discretion in determining he has forfeited the right of continued
self-representation.” (Carson, supra, 35 Cal.4th at p. 9, italics
added.)
             The record below contains no showing or finding that
Torres “exploit[ed] or manipulate[d] his propria persona status”
when he asked his sister (who was not yet serving as his legal
runner) to contact the victim about her statements to police. Any
defendant with access to a telephone or other means of
communication could do the same thing, whether represented by
counsel or not. Carson cautions that some connection between a
defendant’s in propria persona status and the misconduct must
be established, but that essential ingredient is missing here.
             Second, even when a defendant has exploited their in
propria persona status to engage in out-of-court witness
intimidation, termination of the constitutional right of self-
representation can be too severe a remedy. In Carson, for
example, because the record was unclear on whether lesser
sanctions would suffice based on the discovery the defendant
actually accessed, our Supreme Court conditionally reversed the
conviction and remanded the matter for a hearing on whether the
termination of Faretta rights was the proper remedy. (Carson,
supra, 35 Cal.4th at p. 13.)
             In remanding, the Carson court listed factors that the
trial court should consider before terminating a defendant’s
Faretta rights. (Carson, supra, 35 Cal.4th at p. 10.) One factor is
the availability and suitability of alternative sanctions. (Ibid.)



                                 3
When, as here, out-of-court misconduct forms the basis for
terminating Faretta rights, “it is incumbent on the trial court to
document its decision to terminate self-representation with some
evidence reasonably supporting a finding that the defendant’s
obstructive behavior seriously threatens the core integrity of the
trial.” (Id. at p. 11.) “Such a record should answer several
important questions,” including “Were other sanctions available?
If so, why were they inadequate?” (Id. at pp. 11-12.)
              No such record exists here. Alternative sanctions
were not considered on the record, and the court had already
removed Torres’s sister as his legal runner as a consequence of
the phone call. There was no explanation why that was not an
adequate remedy, or whether some other sanction short of
termination of Torres’s right of self-representation would suffice.
              For these reasons, and on this record, no showing has
been made that this is one of “those rare cases of extremely
serious misconduct . . . where it is apparent that any lesser
measures will be patently inadequate.” (King, supra, 107
Cal.App.4th at p. 944.) I would therefore conditionally reverse
the conviction and remand for a hearing on whether termination
of Torres’s right of self-representation was appropriate based on
the factors set forth in Carson, supra, 35 Cal.4th 1.
              CERTIFIED FOR PUBLICATION.



                                     TANGEMAN, J.




                                 4
                   Lillian Vega Jacobs, Judge

             Superior Court County of Los Angeles

                ______________________________

            Lillian Hamrick, under appointment by the Court of
Appeal for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Acting
Snr. Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Analee J. Brodie, William
H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
