Filed 4/29/14 P. v. Young CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135881
v.
BRIAN YOUNG,                                                         (Alameda County
                                                                     Super. Ct. No. C166752)
         Defendant and Appellant.


         Defendant Brian Young was sentenced to 23 years, eight months in state prison
after he was convicted of rape, second degree robbery, false imprisonment, and evading a
peace officer. He asserts three arguments on appeal, that the trial court (1) violated his
constitutional right to self-representation by denying his Faretta1 motion; (2) abused its
discretion by admitting evidence of his prior sex offenses over his Evidence Code
section 352 objection; and (3) erred in denying his motion to exclude evidence based on
the police failure to preserve potentially exculpatory evidence. Defendant’s arguments
lack merit.
         In their respondent’s brief, however, the People note a sentencing error.
Specifically, the trial court imposed two concurrent, one-year sentences for defendant’s
prior prison terms, but Penal Code section 667.5,2 subdivision (b) mandates consecutive
terms. They therefore ask that we remand the matter for the trial court to impose or strike


         1
             Faretta v. California (1975) 422 U.S. 806 (Faretta).
         2
             All statutory references are to the Penal Code except where otherwise noted.


                                                             1
the enhancements. Defendant concedes the error, also asking that we remand for the trial
court to exercise its discretion and either impose or strike the enhancements. We agree
this is the proper remedy.
       We therefore remand for the trial court to impose or strike the one-year
enhancements for defendant’s prior prison terms. In all other regards, we affirm the
judgment.
                                EVIDENCE AT TRIAL
       Jane Doe
       At approximately 10:00 p.m. on July 27, 2011, Jane Doe and her friend Asheia
Clemon went to a bar in Oakland called Apartment C. Doe lived in Sacramento but had
been staying with a friend while she was visiting Oakland. That night, Doe was planning
on staying at her ex-boyfriend’s place before returning to Sacramento the following day.
       After the two women had been at the bar for a little while, they went outside to
smoke a cigarette. They were talking about a book Clemon was reading when defendant,
whom neither had met before, joined in their conversation, surprising them both by
knowing about the book. Doe found defendant physically attractive, and when he asked
for her phone number, she gave it to him. He called her cell phone, which showed an
incoming call from “Dontay Masters.” The three conversed for about 15 minutes before
Clemon and Doe went back inside the bar.
       Doe went outside another time, where she again encountered defendant. They
engaged in further conversation, agreeing to get together sometime in the future.
According to Doe, defendant was “very flirty” during their interactions.
       As the evening progressed, it became too late for Doe to stay at her ex-boyfriend’s
place, so she made arrangements to stay with Clemon. By closing time, Doe had lost
track of Clemon, so she called her on her cell phone and learned that Clemon was not in
the bar. Defendant offered to walk Doe to her car, and she accepted. As they arrived at
her car, Clemon showed up. The two women began arguing because Clemon was going
to entertain male company at her place and no longer wanted Doe to stay overnight. Doe
decided to drive back to Sacramento that night, so she got in her car and drove away.


                                            2
       After driving a short distance, Doe stopped at a gas station and got out her laptop
so she could charge her cell phone. While at the gas station, she called Clemon, but
never got in touch with her. Around the same time, she received a call from defendant,
who told her Clemon was walking in an unsafe neighborhood and her phone battery had
died. Because Doe wanted to find Clemon, she agreed to pick up defendant, who was on
88th Avenue, so he could help her find her friend. Defendant directed her to where he
was, and after getting slightly lost, she found him in about 15 minutes. She pulled over to
let him in, moving into the passenger seat so he could drive. Does testified that “he
seemed like he was very nice, he was going to help me find my drunk friend who I knew
was drunk and he knew was drunk and he made a comment about it, her not being safe to
be over there. That showed to me he was concerned some kind of way . . . .”
       Rather than driving off, however, defendant pulled forward about 10 feet, stopping
behind a burgundy van that was parked on the side of the road. Taking Doe’s car keys
with him, defendant walked up to the van (purportedly to get some marijuana that he and
Doe were going to smoke) and opened one of the double doors on the passenger side.
While defendant was at the van, Doe finally got in touch with Clemon, telling her she
was with defendant and they were going to smoke some marijuana.
       Defendant returned to Doe’s car, telling her, “I want to talk to you.” He opened
her car door, again calmly telling her he wanted to talk. Defendant then “snapped,”
forcefully grabbing Doe with both hands—first by her shirt, then by her neck—and
“snatched” her out of the car. His demeanor became very aggressive, his voice
threatening, and he dragged her to the van. He threw her inside, climbed in behind her,
and locked the door.
       Doe was very shocked but was trying to remain calm, not screaming because she
was afraid defendant was going to kill her. He was very agitated and threatened to beat
her up several times. He also pulled a gun part way out from underneath one of the seats,
telling her it had recently been used to commit a murder.
       At some point, defendant calmed down, so Doe started asking him questions—
about his family, his upbringing, his children—to try to keep him calm. She asked if she


                                             3
could have a cigarette, hoping defendant would let her get cigarettes out of her car, but he
refused. Defendant asked if she had ever been punched in the face. When she
responded, “No,” he acted as if he were about to punch her, laughing when she flinched.
At another point, he reached over and choked Doe “real hard,” telling her “he could kill
[her] right here and [she would] just be another dead body.”
       Eventually, defendant began grabbing Doe, kissing her a couple of times and
putting his hand inside her shirt to grab her breasts. It became apparent he intended to
have sex with her, and she tried pushing him off, but he continued to grab at her. As she
resisted, defendant was getting angrier, pulling at her pants and ripping a hole in them.
Doe eventually gave in, removing one of her boots and pant legs. As she testified at trial,
“He had me back there for a number of hours. I was scared the whole time because I was
getting more like if he would just take what he want, he would leave me alone and not
beat me up.”
       Doe repeatedly told defendant “he didn’t have to do this,” but he nevertheless
climbed on top of her. She did not want to have sex with him, but she was ultimately
resigned to it happening so she decided she was “just going to give him what he wants so
he [would] leave [her] alone.” She asked him to use a condom, taking one out of her
purse, but he refused. Defendant then vaginally penetrated her, having difficulty at first
because Doe was menstruating at the time and was wearing a tampon. After a few
minutes, defendant ejaculated inside of her.
       After defendant raped Doe, he picked up her purse and emptied out its contents.
He took her phone and wallet, removing her I.D. from the wallet and threatening to come
find her if he needed to. He also took jewelry she was wearing. Defendant then left the
van, got into Doe’s car, and drove off.
       Doe got out of the van and ran down the street until she eventually found someone
who would help her. She was driven to a nearby police station, where she reported that
she had been raped. When she was describing what happened, she told the officer that
the assailant had pulled a gun on her at the gas station, grabbed her, and taken her to a
van where he sexually assaulted her. Doe, who had a criminal record herself, told this


                                               4
false story because she was worried the police would not believe she had been raped if
she told them she willingly drove with defendant to the location where the assault
occurred. As she explained at trial, “I just didn’t want anyone to think that I wanted what
happened to me.”
       The police drove Doe back to the location of the van, which was still there. She
was then transported to the hospital, where she underwent a lengthy sexual assault
examination. When she disrobed for the exam, she was still wearing the tampon that had
been in place when defendant raped her. After the exam, she called Clemon, who came
and picked her up. Doe later returned to Sacramento.
       Two days later, in the early morning hours, an Oakland police officer was on
patrol when he spotted Doe’s car parked in an East Oakland neighborhood. He observed
the car from a distance, and about an hour later, defendant approached it, got in, and
started the engine, before turning the engine off, getting out, and walking down the street.
Two minutes later, he returned to the car, this time driving off.
       The officer began a pursuit, with other units joining in. He attempted to make a
traffic stop by obstructing defendant’s route with his police car, but defendant was able to
get around his car, fleeing towards San Leandro. After a high speed chase, defendant
collided with a police car, finally coming to a stop when he crashed into a parked car and
a house. Following a struggle, defendant was eventually subdued and placed under
arrest. Doe’s car, which was totaled, was taken to a tow yard.
       A few days later, detectives came to see Doe at her home in Sacramento. She
repeated her story that defendant had abducted her from the gas station, again telling this
version because she did not want to give the police a reason not to take her seriously.
The detectives told her they had found her car and had a suspect in custody. Shown a
photo lineup, Doe identified defendant as the man who raped her.




                                              5
       Doe traveled to the tow yard where her car was being held.3 She saw her car but
was not permitted to touch anything in it. Instead, her personal belongings were put in a
bag and brought to her. She got most of her possessions back, including her wallet and
cell phone, but her laptop and jewelry were missing. Defendant’s cell phone was also
among the items given to her. The car was then destroyed.
       In August, as Doe prepared to testify at defendant’s preliminary hearing, she told
the prosecutor the truth about how she ended up with defendant. She did so because the
prosecutor told her to be truthful and “now that he had been caught it was serious and
[she] didn’t want to lie on the stand . . . .”
       At trial, defense counsel elicited the following inconsistencies in Doe’s story:
       Doe told the police on the morning of the sexual assault, the nurse at the hospital,
and the detectives who came to interview her in Sacramento that she had been carjacked
by defendant at a gas station.
       At the preliminary hearing, Doe testified that defendant orally copulated her, but
she testified at trial and told the nurse who performed the examination that there was no
oral sex.
       Doe told the nurse during the examination that defendant had a gun in the van but
she never saw it. At trial, Doe testified that defendant pulled a gun partially out from
underneath a seat and she saw its black grip.
       Robin Doe
       On November 16, 2000, Robin Doe drove a friend to a liquor store in Oakland.
Once at the store, she remained in the car while her friend went inside. As she was
waiting, defendant, whom she had never seen before, walked up to the car, opened the
door, got in, and ordered her to drive off, threatening that he had a gun. Defendant
allowed Robin to make a stop at her brother’s house, telling her that if she made one
mistake, he would kill her and her brother. Once there, Robin hoped to give her brother a

       3
        Doe was apparently not the registered owner of the car at the time of the assault.
After the assault, the owner transferred title to her, which enabled her to regain her
possessions at the tow yard.


                                                 6
clue as to what was going on, but he did not pick up on her hints. After Robin used the
restroom, she and defendant left, and he directed her to drive to a dark location where he
raped her. During the ordeal, defendant “was talking crazy out of his head, saying all
kind of things,” at one point saying he “hate[d] bitches” and at another threatening to kill
her and blow her head off. Defendant drove them to another location where he sexually
assaulted her again. Robin was finally able to jump out of the car and run off, and
defendant drove away in her car.
        Elizabeth Doe
        On the night of January 15, 2004, Elizabeth Doe, who lived in Sacramento,
stopped at liquor store on her way home from work. Defendant was outside the store and
followed her in. As she exited the store after making a purchase, defendant continued to
follow her, asking if she wanted to buy some marijuana. She declined because she
already had some at home. Defendant told her he was selling it so he could get to
Oakland to see his children and asked if she could give him a ride down the street. She
agreed, driving him to the area where he wanted to be dropped off and pulling over to let
him out. Rather than getting out, however, defendant made a reference to Elizabeth’s
supposed “baby daddy”—Jaray or Dray—having killed one of his friends. She told him
he must have her mixed up with someone else because that was not the name of her
children’s father. He then said he was going to kill her, ordered her into the back seat,
and drove to a different location. After pulling over, defendant told her he was going to
rape her. As he tried to climb into the back seat, Elizabeth was able to open one of the
car doors and escape. As she ran off, defendant grabbed at her, tearing her shirt off.
Defendant drove away in her car, and she was able to locate someone to help her. Her
car was recovered a week later “in two pieces.”
        As best as Elizabeth could recall at trial, defendant was convicted of grand theft
auto.




                                              7
                           PROCEDURAL BACKGROUND
       On August 2, 2011, defendant was arraigned on rape and other charges. At the
arraignment, he advised the court that he wanted to represent himself. The court granted
his Faretta request. Defendant also declined to waive time.
       Following a preliminary hearing, defendant was charged with the following six
counts: (1) forcible rape (§ 261, subd. (a)(2)) with a sex offense and kidnapping
enhancement (§ 667.61, subd. (d)(2)); (2) forcible oral copulation (§ 288a, subd.
(c)(2)(A)); (3) second degree robbery (§ 211); (4) kidnapping to commit another crime
(§ 209, subd. (b)(1)); (5) evading a peace officer (Veh. Code, § 2800.2, subd. (a)); and
(6) assaulting a peace officer (§ 245, subd. (c)). It was also alleged that defendant had a
prior serious felony strike conviction (§§ 667, subd. (a)/1170.12, subd. (c)(2)), three prior
prison terms (§ 667.5, subd. (b)), and a conviction for possession of a controlled
substance for which he received felony probation.
       On October 12, the court heard defendant’s motion to dismiss the information. It
granted the motion as to count 2 (forced oral copulation) and denied it as to the remaining
counts.4 The case was then continued to October 24 for a jury trial.
       On October 24, the matter was sent out for trial. The court began the session by
confirming with defendant that he had been representing himself and wished to continue
to do so. After the court advised defendant of the serious nature of the charges against
him and the potential exposure he was facing, and encouraged him to speak to a public
defender, defendant confirmed that he wished to continue in pro per. Defendant executed
another Faretta waiver, and proceeded under self-representation. He did, however, agree
to have advisory counsel appointed.
       Discussion ensued about various pretrial matters, including defendant’s clothing
for trial. Defendant told the court about an argument he had with his family over his
clothing, stating: “I feel like I haven’t had a fair—I’m not going to have a fair trial


       4
         The district attorney subsequently filed an amended information that eliminated
the forced oral copulation count.


                                              8
anyway, so I told them that I would rather just don’t even wear no clothes . . . . I just
received exculpatory material for my defense, and I have not been able to been provided
an investigator. So I already feel that I’m in a no-win situation.”
       The court responded: “All right. What you’re saying is going to compel me to
withdraw your Faretta. If that is the way you feel, then I’m considering withdrawing
your Faretta, ability to represent yourself and I’m referring you to the public defender.
You cannot go into this process with that attitude, Mr. Young. Simply not, not good for
you. Not good for the system. If you feel that you’re being railroaded, if you feel that
you have exculpatory information, you would need more time to look into that. And you
should have a lawyer looking into these records now.” The court advised defendant to
pull his no time waiver and consult with a lawyer. After considerable back and forth on
this, the court continued the matter to the following morning, advising defendant that if
he had not made any changes to his status, they would proceed with a jury trial. If, on the
other hand, he waived time, the trial would be continued.
       The following morning, defendant withdrew his no time waiver, and the court
appointed an investigator to assist him. The matter was then continued to allow
defendant’s investigator time to prepare.
       On January 26, 2012, the court heard motions in limine. It also heard lengthy
argument on a motion of defendant to exclude evidence due to the police failure to
preserve Doe’s car, the van, and defendant’s cell phone. The court denied the motion,
after which this exchange occurred:
       “THE DEFENDANT:              [M]y last request is, since I’m not going to be given a fair
trial, I just ask that my presence through the whole trial be waived.
       “THE COURT:            No, you have to be here. You have to be here.
       “THE DEFENDANT:              I’m going to say I’m not going to show up because I’m
not receiving a fair trial.
       “THE COURT:            You are receiving as fair a trial as everybody.
       “THE DEFENDANT:              Because the Supreme Courts—



                                                 9
          “THE COURT:       No. What happens is the trial court rules on what they see and
looks at the Supreme Court rulings. And just because the Supreme Court says it, it may
or may not apply to that particular situation. So in this situation the Court has made a
ruling. [¶] And you have to come in. You wanted to be in this situation and so you have
to come in and represent yourself. That’s the only way this is going to get taken care of.
          “THE DEFENDANT:           I would like to waive. I want to tell the officers I don’t
want to come in here. I will come to court but since I see that the Court’s—
          “THE COURT:       That doesn’t make any sense. It doesn’t make any sense. You
can just be here.
          “THE DEFENDANT:           I see that the Court is setting it up against me to be found
guilty.
          “THE COURT:       The Court’s not setting up anything against you.
          “THE DEFENDANT:           All the Supreme Court, even the 14th Amendment is
being denied to me. [¶] . . . [¶] . . . And like I said, I would just like to waive my
appearance and have nothing else to do with the trial.
          “THE COURT:       You cannot waive your appearance.
          “THE DEFENDANT:           I don’t have no more responses to anything that has to do
with the trial.
          “THE COURT:       Well, but you have to be here. You do whatever you please. If
you want to represent yourself, then we want you to represent yourself. And I’m helping
you as best I can. I’m not doing a lot, but I’m helping, trying to guide you and help so
that things aren’t too bad here.”
          In light of defendant’s statements, the prosecutor requested the appointment of
standby counsel, and the court acknowledged it as a reasonable request, stating, “We may
need standby. It appeared to me this morning that Mr. Young was quite capable of
handling the case and he was very articulate and doing everything he needed to do.” The
dialogue then continued:
          “THE DEFENDANT:           I would like to have standby because I’m refusing to
come into court.


                                                10
       “THE COURT:            Every time something doesn’t go your way as an attorney or
representing yourself, every time someone rules against you or what you think it should
be, you can’t just say, okay, I’m going to take my papers and go home and not show up.
You can’t do that.
       “THE DEFENDANT:              I’m just saying I understand that you’re more favorable
with the district attorney.
       “THE COURT:            I’m not in favor. I’m just trying to follow the law. [¶] . . . [¶]
So sometimes you may not know all of the intricacies of these cases. And I’m sure
everyone looks at the cases and sees that in the light that’s best for them, which I don’t
fault you for doing that. That’s very lawyer-like for doing that. [¶] So what we’ll do is
maybe we should call court-appointed and have someone here Monday morning as a
standby but make it clear that we’ve started the process.”
       The discussion turned to the issue of defendant’s clothes, with the court asking
defendant if his family brought his clothes. This exchange then occurred:
       “THE DEFENDANT:              They was going to bring it Monday but I’m going to let
them know I’m not getting a fair trial so I’m not dressing out. I’ll just stay in my regular
clothes.
       “THE COURT:            That’s not a good idea.
       “THE DEFENDANT:              I mean I don’t want to front in front of the jury like I’m
getting a fair trial when I’m getting railroaded.
       “THE COURT:            You’re not getting railroaded. All right. However you want to
do it, but we’ll put it on the record that if you decide Monday not to dress out.” The
matter was then continued to January 30 for trial.
       On January 30, the court began by expressing concern over defendant’s comments
at the prior session, inquiring whether he planned to continue representing himself.
Defendant responded affirmatively, also advising that he intended to remain silent
throughout the trial, not making an opening statement or closing argument or
cross-examining any witnesses. And he confirmed that he intended to wear his jail
clothing rather than street clothes.


                                                 11
       There followed extensive back-and-forth about whether defendant was being
treated fairly, defendant insisting that he was being railroaded and the court insisting that
he was being treated the same as the prosecutor and all other defendants. When
defendant maintained his position that he wanted to represent himself, the court
responded, “Well, you can if you represent yourself. You can continue if you’re going to
represent yourself. But if you’re going to sit in here and not ask any questions and not
participate, I can’t let that—that would be a travesty of justice, and I don’t feel that would
be right, so I’m trying to uphold your equal protection of the laws.” The court then gave
defendant a choice: “We’re here for you to get a fair trial. And that’s what I am trying to
assure of now. I’m not going to sit here and let you just sit here in that little, well, you
can sit there in the yellow suit but someone’s going to represent you. Either you’re going
to represent yourself or I’m going to refer you to the public defender’s office. If they can
represent you, they will represent you. If they can’t represent you, then we will send it
out to court-appointed. And we will not get started and we won’t be able to do this case
in the time constraints that we were talking about right now.” Defendant ultimately
agreed to meet with a public defender.
       Back on the record after that meeting, defendant consented to representation. In
order to afford his attorney time to prepare for trial, defendant withdrew his no time
waiver. The prosecutor lodged an objection that in requesting representation on the eve
of trial, which would likely necessitate a continuance, defendant was “simply stalling,
delaying, and frankly playing games with the procedure at this point.” The matter was
continued March 26 to afford defendant’s counsel to prepare for trial.
       At the March 26 hearing, defendant’s counsel informed the court that defendant
wanted to withdraw his time waiver. The court advised defendant against it, telling him
that the court and the prosecution were ready to commence trial, but that his counsel
needed time to make sure she was prepared. Defendant relented, and the matter was
continued to April 11.
       On April 11, the court and counsel discussed numerous scheduling matters, and
the matter was continued to April 16. What happened at that hearing will be described in


                                              12
detail below but, in short, defendant’s counsel advised the court that defendant wished to
represent himself. After the court confirmed that what defendant in fact wanted was a
new attorney, the court held a Marsden5 hearing and denied defendant’s request for new
counsel.
       Jury selection commenced on April 18, and a jury was seated on April 25.
Testimony was heard over the course of five days. After just over two days of
deliberations, the jury found defendant guilty of forcible rape (without the kidnapping
enhancement), second degree robbery, false imprisonment (a lesser included offense of
kidnapping to commit another crime), and evading a peace officer. It was unable to reach
a verdict on the charge of assaulting a peace officer, and a mistrial was declared on that
count. Defendant admitted the prior convictions, and the court found them to be true.
       On June 27, the matter came on for sentencing. Defendant began by making
another Marsden motion, which the court denied. He then stated that he would rather
exercise his right to self-representation than be represented by the public defender, and
the court granted his request to continue in pro per. Defendant then requested the
appointment of a new attorney to look over his claims of ineffective assistance of
counsel. The court denied that request, as well as his motion for new trial.
       Defendant was sentenced to 23 years, eight months in state prison, calculated as
follows: an eight-year upper term (doubled to 16 years) on count 1, a consecutive
one-year term (doubled to two years) on count 2, a concurrent eight-month term on
count 3, a consecutive eight month term on count 4, a consecutive five-year term for the
prior serious felony conviction, and three concurrent, one-year terms for the prior prison
term enhancements.
       This timely appeal followed.




       5
           People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


                                             13
                                       DISCUSSION
       I.    Defendant Was Not Deprived of His Sixth Amendment Right to
             Self-Representation
       Background
       As noted, at the outset of the April 16 hearing, defendant’s attorney advised the
court that defendant wished to invoke his right to self-representation. The following
exchange ensued:
       “THE COURT:       I’m not going through this again. I’m not going through this
again. This is just like game playing, Mr. Young, because when we started out, you were
representing yourself. You get upset every time something doesn’t go your way, then
you say you want to be represented by an attorney. [¶] We’re in the middle of trial now.
That’s it. I’m not going to deal with you as a pro per any more. It’s just too much. It’s
just too difficult. You change your mind every time things don’t go your way. It’s one
thing. You want to do it. Next minute you don’t want to do it. And it’s all a delay tactic.
No.
       “THE DEFENDANT:          Your Honor, I’m not going to delay. I’m ready for trial
right now.
       “THE COURT:       I don’t mean that. I mean all of this. Now we have
Ms. McNamara [defendant’s counsel]. We’ve waited all this time while you were saying
you wanted to be represented by the public defender’s office. You said that’s what you
wanted to do. You got mad the minute I ruled against you. [¶] Now what’s the problem?
       “THE DEFENDANT:          Well, I don’t want to argue the matter in front of the
district attorney. That’s why I don’t want to be represented by my attorney.
       “THE COURT:       You want a Marsden motion, is that what you want, or you want
to go pro per?
       “THE DEFENDANT:          A Marsden motion.
       “THE COURT:       All right. . . .”




                                             14
       The court then held a hearing on defendant’s Marsden request, which it denied. It
then went on to rule on pending motions in limine. The hearing concluded with this
exchange:
       “THE COURT:        The only other thing is on the issue of, the pro per issue, just for
the record, Mr. Young, the reason that you were wanting to go pro per is that you had
some issues with your attorney; is that correct, the issues that we had previously
discussed in the Marsden motion?
       “THE DEFENDANT:          Yes.
       “THE COURT:        All right. And at this juncture are you comfortable with your
attorney?
       “THE DEFENDANT:          No.
       “THE COURT:        All right. Well, at this juncture the Court, based on him wanting
to represent himself because he didn’t like the way the attorney was presenting the case,
but the Court made a ruling that the Marsden was denied in that situation. [¶] So in terms
of the pro per, the Court has made the inquiry. And the Court has denied this pro per
status because I think, No. 1, it was confused with the Marsden issue but it was also
something that we had dealt with previously, and that’s quite untimely.”6
       The Law
       The law governing a criminal defendant’s right to self-representation is well
established. As our Supreme Court has summarized it: “A criminal defendant has a right
to represent himself at trial under the Sixth Amendment to the United States Constitution.
[Citations.] A trial court must grant a defendant’s request for self-representation if three
conditions are met. First, the defendant must be mentally competent, and must make his
request knowingly and intelligently, having been apprised of the dangers of
self-representation. [Citations.] Second, he must make his request unequivocally.
[Citations.] Third, he must make his request within a reasonable time before trial.


       6
         Defendant unsuccessfully renewed his Marsden motion on April 26 and May 1,
8, and 9.


                                             15
[Citations.] Faretta error is reversible per se. [Citations.]” (People v. Welch (1999)
20 Cal.4th 701, 729; see also Faretta, supra, 422 U.S. 806, 835.)
       It has been said that in evaluating defendant’s request for self-representation, the
court applies a “stringent standard” for judging the adequacy of the defendant’s
invocation of the right because of the strong presumption against waiver of the right to
counsel. (United States v. Weisz (D.C. Cir. 1983) 718 F.2d 413, 425–426.) “[T]he court
should draw every reasonable inference against waiver of the right to counsel.”
(People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall); see also Brewer v. Williams
(1977) 430 U.S. 387, 404 [“courts indulge in every reasonable presumption against
waiver” of the post arraignment right to counsel].) “Unlike the right to representation by
counsel, ‘ “[T]he right of self-representation is waived unless defendants articulately and
unmistakably demand to proceed pro se.” ’ [Citation].” (People v. Dent (2003)
30 Cal.4th 213, 218.)
       Defendant’s Request to Proceed In Pro Per Was Equivocal
       Defendant contends that he unequivocally asserted his right to self-representation
at the outset of the hearing on pretrial motions. He is correct that the hearing commenced
with defense counsel’s declaration that defendant wanted to proceed without an attorney.
But that does not end the inquiry. As our Supreme Court stated in Marshall, supra,
15 Cal.4th at pp. 25–26, “[T]he court’s duty goes beyond determining that some of
defendant’s words amount to a motion for self-representation. The court should evaluate
all of a defendant’s words and conduct to decide whether he or she truly wishes to give
up the right to counsel and represent himself or herself and unequivocally has made that
clear.” Given defendant’s words and conduct here—most significantly, his confirmation
that what he actually wanted was a Marsden hearing—it cannot be said that he expressed
a clear and unambiguous desire to represent himself. (See id. at p. 25 [“When we
examine the record of the hearing at which defendant assertedly invoked his right of
self-representation, we conclude that the request was ambivalent in the context of that
hearing and also was made to delay and disrupt the proceedings.”].)



                                             16
       Defendant counters that the fact he indicated he wanted a Marsden hearing did not
negate what was initially an unequivocal Faretta request. It is true that a conditional
Faretta request—such as, “if I can’t have a new attorney, I want to represent myself”—
can constitute an unequivocal Faretta request. (See, e.g., People v. Michaels (2002)
28 Cal.4th 486, 524; United States v. Hernandez (2000) 203 F.3d 614, 621–622,
overruled on other grounds in United States v. Ferguson (9th Cir. 2009) 560 F.3d 1060,
1068, fn. 4.) But that is not what happened here. After the court inquired if defendant
was moving to relieve his counsel or to represent himself, he answered only that he
wanted a Marsden hearing. He did not indicate that if his Marsden request was denied,
then he wanted to proceed pro per. Likewise, after the court denied his Marsden request,
defendant did not then express a desire to proceed in pro per.
       Additionally, as the court noted in Marshall, supra, 15 Cal.4th at pp. 21–22,
several courts have held that a Faretta motion made on a whim or out of frustration is not
unequivocal. (See id. at pp. 21-22 and cases therein collected.) That was the situation
here. Defendant believed his attorney was neither communicating with him nor
conducting an adequate investigation. He felt she had a closer relationship with the
district attorney than she did with him. Defendant was clearly frustrated with her, and the
record suggests that defendant’s desire to proceed in pro per was borne out of that
frustration.
       Further undermining defendant’s claim is the fact that he knew how to make an
unequivocal Faretta request when he intended to do so, as he did on two other occasions.
And he clearly knew the difference between a Faretta motion and a Marsden motion, as
he made six separate Marsden motions over the course of the proceeding. Indeed, after
the denial of his June 27 Marsden motion, defendant then made a Faretta motion, which
the court granted. He could have done the same on April 16, should he have wished to
proceed in pro per. He did not.
       Finally, defendant suggests that the court treated him in such a manner as to
convey to him that a further Faretta request would have been futile. (See, e.g., People v.
Dent, supra, 30 Cal.4th at p. 219 [trial court’s instruction not to speak coupled with its


                                             17
categorical denial of the Faretta request “may well have convinced defendant the
self-representation option was simply unavailable, and making the request again would
be futile.”]; United States v. Hernandez, supra, 203 F.3d at p. 622 [trial court’s
“impatient resistance” towards defendant’s Faretta request suggested that further
requests were futile].) As defendant explains it, “Here, the trial court had threatened to
have appellant shackled if he acted out, which the court seemed to consider to have
occurred based on the Faretta request and the Marsden hearing, although appellant was
not disruptive nor disrespectful. It is not surprising that appellant would consider any
further requests to represent himself at that juncture to be both futile and to be met with
resistance and anger from the court.” The court did indeed advise defendant that he
would be shackled if he acted up but, as evidenced by the following colloquy, it was not
because it believed he acted up by making a Faretta or Marsden request:
       “THE COURT:          Marsden motion is denied.
       “THE DEFENDANT:            Can I just leave?
       “THE COURT:          No. And if you act up, we’re going to have you shackled in
here. Okay?
       “THE DEFENDANT:            What’s that going to do, shackle me?
       “THE COURT:          Keep you here. I’m not going to have any problems. Okay?
       “THE DEFENDANT:            I’m saying you want to shackle me like a dog by saying
I’m not going to be here.
       “THE COURT:          I’m not going to do it unless you do something to indicate I need
to do it. I’m just letting you know this, because I don’t want you in front of the jury
behaving a certain way. I don’t want the jury to think badly of you. I want you to be
dressed.”
       Clearly, the comment concerning shackling defendant was directed at maintaining
his presence at trial. Nothing suggests it was made in retaliation for his Faretta or
Marsden motion. And a review of the record reveals no other conduct by the court that
could reasonably be construed as having dissuaded defendant from making a further
Faretta request.


                                              18
       Because we have concluded that defendant’s Faretta request was equivocal—and
thus did not satisfy one of the three criteria for granting it—we need not consider whether
his request satisfied the remaining requirements.
       II.   The Trial Court Did Not Abuse Its Discretion In Admitting Evidence of
             Defendant’s Prior Sex Offenses
       Background
       On April 17, the court heard lengthy argument on a motion by the prosecution to
introduce evidence of defendant’s prior sexual assaults pursuant to Evidence Code
sections 1108 and 1101, subdivision (b). According to the prosecutor, the victims in four
separate incidents did not know each other, and the nature of the offenses, the type of
victim, and the manner in which offenses were committed were similar in that defendant
used verbal threats to intimidate strangers, take their cars, and commit sexual assaults.
And, according to the prosecutor, defendant’s “excuses” were similar in each case.
       Defendant objected to admission of the evidence. As to the incident involving
Robin Doe, defendant argued that the district attorney declined to prosecute based on
inconsistencies in the victim’s story as well as a statement by her brother that she did not
appear to have been held against her will. Further, according to defendant, the district
attorney indicated defendant knew too much about the victim to never have met her
before and believed there was more to the story than the victim was telling. Finally, the
tape recorded statements on which the district attorney relied had been destroyed.
       In response to defense counsel’s objection that the taped statements from Robin
Doe and defendant had been destroyed, the prosecutor pointed out that those statements
were summarized in the police report, and the police officer who took the statements was
available to testify. Further, the victim would be subject to cross-examination.
       As to Elizabeth Doe, defendant argued he was acquitted of carjacking, assault to
commit rape, robbery, and kidnapping to commit another crime. Thus, he contended, the
jury did not believe he attempted to strangle or rape Elizabeth or ripped off her shirt.
       Over defendant’s objection, the court admitted evidence regarding the assaults on
Elizabeth and Robin:


                                             19
       “As to the January . . . 15, 2004 incident [involving Elizabeth Doe], the Court
finds that this may come in under [Evidence Code] 1108 and 1101(b). In this case it’s
not as inflammatory as this particular case that we’re here on. I don’t see any probability
of undue confusion. It’s not too remote in time. His due process issues are certainly
going to be taken care of. We will not allow any—you’ll have ample opportunity to
cross-examine the victim.
       “It’s a very similar kind of offense here. It’s similar in character. It’s similar with
the way this whole incident in this case went about. I mean it wasn’t exactly the same,
but there were several similarities that the Court noted.
       “No two cases are going to be exactly alike but I don’t feel that the—I do feel that
probative value outweighs the prejudicial effect in this case, so the Court will allow the
January 15, 2004 case to be admitted in the case-in-chief, [Evidence Code] 1108 and
1101(b).
       “As to the November 16, 2000 case [involving Robin Doe], in that case it’s also
very similar as to this situation, the way things occurred here. And I understand the
concern about the material that has been lost. However, Sergeant Rullamas is available,
the victim is available, and there is a summary there. And again the level of proof is only
by preponderance of the evidence. But the Court finds that this, and that particular case,
November 16, 2000 case it’s no more inflammatory than this case that we’re here.
There’s no probability of confusion, it’s not too remote in time, the probative value
clearly outweighs the prejudicial effect here, and it goes to a—does go to intent. So the
Court will allow that under [Evidence Code] 1108 and 1101(b).”7
       The Law
       As a statutory exception to the general prohibition against the admission of
character evidence (see Evid. Code, § 1101, subd. (a)), Evidence Code section 1108

       7
        The court also allowed evidence of a third incident that occurred on September 9,
2007, although the prosecutor did not end up introducing that evidence at trial. And the
court excluded evidence of a fourth incident on January 20, 2002, finding that it would
cause an undue consumption of time.


                                             20
permits the admission of evidence of defendant’s prior sex offenses—even if
uncharged—in an action in which defendant is accused of a sex crime. It expressly
requires the trial court to conduct an analysis under Evidence Code section 352 before
admitting such evidence. (Evid. Code, § 1108, subd. (a).) In other words, the trial court
has the discretion to “exclude [the] evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of misleading the jury.” (Evid. Code, § 352.) The
court must carefully weigh the probative value of such evidence against the danger of
undue prejudice, considering its “nature, relevance, and possible remoteness, the degree
of certainty of its commission and the likelihood of confusing, misleading, or distracting
the jurors from their main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s other sex offenses, or
excluding irrelevant though inflammatory details surrounding the offense.” (People v.
Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) “[T]he probative value of ‘other crimes’
evidence is increased by the relative similarity between the charged and uncharged
offenses, the close proximity in time of the offenses, and the independent sources of the
evidence (the victim’s) in each offense.” (Ibid.)
       The Trial Court Did Not Abuse Its Discretion In Admitting Evidence of
       Defendant’s Prior Sex Offenses
       The testimony of Robin Doe and Elizabeth Doe was undeniably probative. As
noted by the prosecutor, the two incidents were remarkably similar to this case, all
involving defendant using threats to intimidate his victim, sexually assaulting (or
attempting to sexually assault) her in a vehicle, and then stealing her car. The evidence
was presented in a straightforward manner, with the victims testifying at trial. They were
subject to cross-examination, and the jury was able to evaluate their credibility. Neither
of the incidents was unreasonably remote: the incident involving Robin occurred 11
years before the trial, the assault on Elizabeth seven years before, with defendant


                                              21
incarcerated for a significant period between his 2004 assault on Elizabeth and his 2011
assault on Jane Doe. (See People v. Branch (2001) 91 Cal.App.4th 274, 284 [“No
specific time limits have been established for determining when an uncharged offense is
so remote as to be inadmissible.”]; People v. Ewoldt (1994) 7 Cal.4th 380, 405 [no abuse
of discretion in admitting 12-year-old evidence]; People v. Burns (1987) 189 Cal.App.3d
734, 738–739 [“A number of courts have considered the defendant’s subsequent conduct
a relevant consideration when the defendant seeks to exclude a prior conviction on the
basis of remoteness.”]; cf. People v. Harris (1998) 60 Cal.App.4th 727, 739 [a 23-year
gap, coupled with the fact that defendant had led an “unblemished life” during that
23-year period, militated against admission of the prior offense].)
       At the same time, the evidence was not unduly prejudicial. The testimony was not
likely to confuse, mislead, or distract the jurors, nor was it inflammatory. Additionally,
the trial court excluded evidence of a third incident, finding that it would lead to undue
consumption of time. To be sure, the evidence may have damaged defendant’s case, but
“[t]he prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is
prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is
“prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section 352,
“prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d
612, 638.)
       We thus conclude that the court did not abuse its discretion by allowing the
testimony of Elizabeth Doe and Robin Doe pursuant to Evidence Code section 1108.8 In



       8
         Defendant also raises a facial challenge to Evidence Code section 1108,
contending that the admission of prior conduct evidence to prove criminal disposition
violated his right to due process. He acknowledges, however, that the California

                                             22
light of this, we need not consider defendant’s alternative argument that the trial court
abused its discretion in admitting the evidence under Evidence Code section 1101,
subdivision (b).
       III. The Trial Court Did Not Err In Denying Defendant’s Motion to Exclude
            Evidence Based on the Police Department’s Alleged Failure to Preserve
            Potentially Exculpatory Evidence
       Background
       Defendant’s cell phone was in Doe’s car at the time of defendant’s arrest, and was
inadvertently turned over to Doe when she claimed her personal belongings at the tow
yard. At some point, Doe informed the prosecutor she had defendant’s phone, but when
the prosecutor later contacted her to ask for it back, she was unable to find it. In a
statement to a prosecution investigator, Doe explained that she had lived in different
locations after the incident, and when she retrieved her property from storage, she could
not locate the phone. The prosecutor made repeated requests that she continue to look for
it, but the phone never surfaced.
       Doe was not the registered owner of the car she was driving the night of the
incident. After the car was recovered, the owner transferred title to Doe, who was then
able to retrieve her belongings from the car. The car was subsequently destroyed, and
Doe received the $500 value of the car when it was scrapped.
       According to defendant, the police impounded the van. When his brother, who
apparently owned the van, went to retrieve it, the police would not release it to him.
Without further notice, the van was later released to the tow lot and destroyed.
       Defendant filed a motion to exclude evidence based on the police department’s
purported failure to preserve evidence in violation of his due process rights under
California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S.
51. The trial court denied defendant’s motion, finding he made no showing that the
evidence was exculpatory or that the police failed to preserve the evidence in bad faith.


Supreme Court rejected this argument in Falsetta, supra, 21 Cal.4th 903, 910–922, and
that we are bound by Falsetta. He asserts it merely to preserve it for federal review.


                                             23
       The Law
       “ ‘Law enforcement agencies have a duty, under the due process clause of the
Fourteenth Amendment, to preserve evidence “that might be expected to play a
significant role in the suspect’s defense.” [Citations.] To fall within the scope of this
duty, the evidence “must both possess an exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.” [Citations.] The
state’s responsibility is further limited when the defendant’s challenge is to “the failure of
the State to preserve evidentiary material of which no more can be said than that it could
have been subjected to tests, the results of which might have exonerated the defendant.”
[Citation.] In such case, “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a denial of
due process of law.” [Citations.] [¶] ‘On review, we must determine whether, viewing
the evidence in the light most favorable to the superior court’s finding, there was
substantial evidence to support its ruling.’ ” (People v. Carter (2005) 36 Cal.4th 1215,
1246; see also Arizona v. Youngblood, supra, 488 U.S. 51 at p. 56, fn. * [“[T]he presence
or absence of bad faith by the police for purposes of the Due Process Clause must
necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed.”]; California v. Trombetta, supra, 467 U.S. at p. 489
[government violates a defendant’s right to due process if unavailable evidence possessed
“exculpatory value that was apparent before the evidence was destroyed, and [is] of such
a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.”]; People v. Memro (1995) 11 Cal.4th 786, 831 [defendant
bears burden of showing bad faith on the part of the police].)
       Substantial Evidence Supports the Trial Court’s Conclusion That the
       Evidence Was Not Destroyed in Bad Faith
       We can readily dispose of defendant’s contention that his right to due process was
violated by the police department’s willful failure to preserve potentially exculpatory
evidence. Defendant presented no evidence demonstrating that the police had reason to


                                             24
believe that the items in dispute had any exculpatory value, or that they in fact held any
potentially exculpatory value. As to the phone, defendant alleges that the police
“routinely check cell messages and photographs on telephone [sic] and the failure to do
this and/or the failure to recognize the exculpatory nature of the evidence once done,
demonstrates bad faith participation in the destruction of this phone.” This argument
ignores the significant fact that the police were not responsible for the loss of the phone,
as it was inadvertently given to Doe at the tow lot, and she then misplaced it. That fact
aside, defendant does not identify what exculpatory material the phone possessed, other
than complaining that the phone records—made available to defendant in lieu of the
phone—“did not show the contents of [text] messages or other items on the phone [and]
he also lost the email and pictures from his phone.” None of this suggests that the police
had any reason to believe that the phone contained any potentially exculpatory evidence,
nor that they destroyed it in bad faith.
       Defendant claims Doe’s car held exculpatory evidence because Doe testified that
she let defendant drive in part because of the car’s mechanical problems when, in fact,
the car did not have mechanical problems. The sexual assault did not occur in the car,
and defendant made no showing that the police had reason to believe Doe’s testimony
regarding why she permitted defendant to drive her car would be subject to dispute.
       Finally, as to the van, defendant claims it possessed potentially exculpatory
evidence because pictures of the rear window “would have demonstrated that Jane Doe
made an unreliable report to the police officer when she said she had seen him drive
away.” The police retrieved, inventoried, and preserved the contents of the van and took
photographs of the vehicle. They thus attempted to preserve everything of value in the
van. They had no reason to believe that the view out the rear window was in anyway
relevant, nor has defendant established that it was, and there was no evidence that the
police acted in bad faith in releasing the van to the tow yard.




                                             25
       IV. The Trial Court Imposed an Unlawful Sentence When It Imposed
           Concurrent Sentences for Defendant’s Section 667.5, Subdivision (b)
           Enhancements, Rather than Consecutive Ones
       In their respondent’s brief, the People contend that the court imposed an unlawful
sentence, as follows: “The trial court imposed concurrent, one-year terms for two of [the]
prior prison term enhancements which [defendant] admitted. However, section 667.5,
subdivision (b) provides for mandatory consecutive terms for each prior.” They submit
that an unlawful sentence such as this can be corrected at any time, and ask that we
remand the matter for the trial court to impose or strike the prior prison term
enhancements. Defendant concedes the error, and he agrees with the proposed remedy.
So do we.
                                      DISPOSITION
       The matter is remanded for the trial court to impose or strike the one-year
enhancements for defendant’s prior prison terms. In all other regards, the judgment of
conviction is affirmed.

                                                  _________________________
                                                  Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




       *
        Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                             26
