Filed 5/4/16 P. v. Glover CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                     SECOND APPELLATE DISTRICT

                                                    DIVISION SIX

THE PEOPLE,                                                                   2d Crim. No. B257085
                                                                           (Super. Ct. No. TA128535-01)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

ARBRY FRANK GLOVER,

     Defendant and Appellant.



                   Arbry Frank Glover appeals a judgment following conviction of assault
with a deadly weapon, with findings that he suffered two serious felony convictions and
two felony strike convictions, and served six prior prison terms. (Pen. Code, §§ 245,
subd. (a)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd.
(b).)1 We reverse the findings of the serious felony conviction and felony strike
conviction based upon Glover's 1980 Tennessee rape conviction, reverse and remand for
further sentencing proceedings, but otherwise affirm.
                                FACTUAL AND PROCEDURAL HISTORY
                   Shortly after midnight on June 4, 2013, Kenneth Hermosillo was at the
Artesia Transit Center in Los Angeles awaiting a bus ride. As he ran to catch a bus,
Hermosillo heard Glover say, "Hey, you. . . . You heard me. Come closer." When
Hermosillo approached Glover, who was in a wheelchair, Glover swung a knife at him

1
    All further statutory references are to the Penal Code unless stated otherwise.
two or three times. Hermosillo jumped back so that the knife would not cut his hip or
thigh. Hermosillo telephoned for police assistance and then walked away. He later
explained that he approached Glover because he "was just trying to help somebody out
who . . . was asking for help."
              On June 6, 2013, Los Angeles County Sheriff's Detective Larry Savedra
interviewed Glover. After advising Glover of his rights pursuant to Miranda v. Arizona
(1966) 384 U.S. 436, 444-445, he admitted that he swung his knife at "a Mexican" who
had approached him. Glover stated that the victim had not threatened or harassed him,
but that people in general harass him.
              Prior to trial, the court granted Glover's request to represent himself,
pursuant to Faretta v. California (1975) 422 U.S. 806.2 Glover represented himself
throughout trial, with standby counsel present, until trial of the sentencing
enhancements and sentencing. During the latter proceedings, appointed counsel
represented Glover at Glover's request.
                                  Conviction and Sentencing
              The jury convicted Glover of assault with a deadly weapon. (§ 245, subd.
(a)(1).) In a separate proceeding, the trial court found that Glover suffered two serious
felony and strike convictions and served six prior prison terms. (§§ 667, subd. (a), 667,
subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) At sentencing, the court struck
one of the two felony strike convictions as well as all six prior-prison-term findings.
(§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The
court then sentenced Glover to 18 years imprisonment; imposed a $300 restitution fine,
a $300 parole revocation restitution fine (suspended), a $40 court security assessment, a
$30 criminal conviction assessment; and awarded Glover 768 days of presentence
custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)




2
 Glover had represented himself in two prior jury trials regarding unrelated criminal
charges.
                                             2
              Glover appeals and contends that the trial court erred by: 1) not
conducting a Marsden inquiry (People v. Marsden (1970) 2 Cal.3d 118, 123-124); 2)
permitting him to be handcuffed as he was brought into the courtroom, and 3) finding
that his 1980 Tennessee conviction for rape is both a serious felony and a strike
conviction pursuant to California law.
                                      DISCUSSION
                                            I.
              Glover argues that he was denied the assistance of counsel pursuant to the
Sixth Amendment of the United States Constitution and article I, section 15 of the
California Constitution because the trial court did not conduct an inquiry pursuant to
People v. Marsden, supra, 2 Cal.3d 118, 124 [abuse of discretion to deny a defendant
who seeks substitution of attorney an opportunity to explain the reasons for his request].
He points out that he informed the court on several occasions that he was "forced to be
pro. per." because he was not receiving "proper representation" from his court-
appointed attorney. Glover asserts that his Faretta demand was only an expression of
dissatisfaction with his appointed attorney, thereby requiring the court to conduct a
Marsden hearing.
              When a defendant requests substitute counsel, the trial court must provide
him an opportunity to state grounds for his dissatisfaction with his current appointed
attorney. (People v. Sanchez (2011) 53 Cal.4th 80, 90.) If the defendant makes a
showing that his right to counsel has been substantially impaired, substitute counsel
must be appointed as attorney of record for all purposes. (Ibid.) The trial court is
obligated to conduct a hearing, however, only when there is "some clear indication" that
defendant wants a substitute attorney. (Id. at pp. 89-90; People v. Martinez (2009) 47
Cal.4th 399, 418.)
              A defendant's request to represent himself does not require the court to
hold a Marsden hearing. (People v. Crandell (1988) 46 Cal.3d 833, 854-855.) "Nor is
it the rule that whenever a defendant makes a motion to represent himself on the basis of


                                            3
dissatisfaction with counsel, the court automatically should inquire whether he would
like to make a motion for substitution of counsel." (People v. Burton (1989) 48 Cal.3d
843, 855 [Marsden and Faretta motions are fundamentally different; one concerns
defendant's competency to waive his right to counsel, and the other raises the question
of existing counsel's competency].)
              The trial court did not err by not holding a Marsden hearing. Although
Glover's statements implied dissatisfaction with appointed counsel, the statements were
not a sufficiently "clear indication" warranting a Marsden inquiry. (People v. Sanchez,
supra, 53 Cal.4th 80, 89-90.) During arraignment, the court explained the Faretta and
Marsden motions to Glover, who was then represented by "stand-in counsel." The court
recommended that Glover wait until his next court appearance to make the appropriate
motion – to "run a Marsden motion, and depending what happens on that, [make] your
request to be pro. per. again."
              At the next court hearing, Glover's attorney informed the trial court that
Glover intended to represent himself. Glover stated, "I want pro. per. then. I'm going to
get it. I want pro. per." Shortly thereafter, Glover demanded a Marsden hearing. The
trial judge questioned Glover whether he was seeking to represent himself or demanding
a Marsden hearing. On four occasions, the judge asked Glover whether he wanted a
Marsden hearing. Glover responded, "I just said I want[] my Faretta right. You keep
asking me the same thing over and over."
              Under these circumstances, the trial court was not required to conduct a
Marsden hearing. The record reflects that the court repeatedly explained the differences
between the Faretta and Marsden hearing and asked Glover which hearing he was
requesting. Indeed, when counsel represented Glover during trial regarding the
sentence-enhancement allegations, Glover requested a Marsden hearing. Glover was
thus aware of the differences and able to make his wishes clear.




                                            4
                                             II.
              Glover contends that he was denied a fair trial, trial by an impartial jury,
and equal protection of the law because he was brought into the courtroom each day by
wheelchair in handcuffs. He also complains that he was dressed in jail garb on the
second day of trial. Glover asserts that the errors deny his constitutional rights pursuant
to the Sixth and Fourteenth Amendments to the United States Constitution and article I,
section 16 of the California Constitution.
              We reject Glover's contentions. Visible restraints outside the courtroom
are not inherently prejudicial. (Wharton v. Chappell (9th Cir. 2014) 765 F.3d 953, 964.)
"[A] due process violation occurs only if the criminal defendant demonstrates actual
prejudice." (Ibid. [citing decisions].) Restraints during transportation do not affect the
defendant's ability to assist during trial nor do they have any effect on the dignity of the
courtroom. (Id. at p. 965.) "Prejudicial error does not occur simply because the
defendant 'was seen in shackles for only a brief period either inside or outside the
courtroom by one or more jurors or veniremen.'" (People v. Tuilaepa (1992) 4 Cal.4th
569, 584.) Our Supreme Court has long held that a defendant may be restrained in
transit between the jail and the courtroom without a particularized showing of need.
(People v. Cunningham (2015) 61 Cal.4th 609, 632.)
              Glover also did not establish that a juror or jurors saw him in custody-
identifying circumstances more than briefly. (People v. Rich (1988) 45 Cal.3d 1036,
1085 ["even assuming the jurors at times briefly saw defendant being escorted in
shackles and handcuffs to the courtroom or the restroom, defendant was not prejudiced
thereby"].) Glover did not request a hearing regarding the matter nor did he request the
trial court to inquire if any juror saw him in handcuffs. (People v. Tuilaepa, supra, 4
Cal.4th 569, 583 [failure to object to use of physical restraints and make a record below
forfeits the claim on appeal].)
              Moreover, the trial court did not compel Glover to wear jail garb. On the
second day of trial, he stated that he decided not to wear street clothing because he had


                                             5
"been pulled out in handcuffs and rolled out in front of [jurors] everyday." Glover's
clothing choices reflect his own decisions and not an order by the court. (Estelle v.
Williams (1976) 425 U.S. 501, 512-513.) "[A]lthough the State cannot, consistently
with the Fourteenth Amendment, compel an accused to stand trial before a jury while
dressed in identifiable prison clothes, the failure to make an objection to the court as to
being tried in such clothes, for whatever reason, is sufficient to negate the presence of
compulsion necessary to establish a constitutional violation." (Ibid.)
                                            III.
              Glover argues that the trial court erred by finding that his 1980 Tennessee
rape conviction is also a serious felony as well as a felony strike conviction pursuant to
sections 667, subdivision (a), 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-
(d). He relies upon Descamps v. United States (2013) - U.S. -, - [133 S.Ct. 2276, 2288]
[serious Sixth Amendment concerns are implicated by a sentencing court's finding of a
predicate offense that goes beyond merely identifying a prior conviction, e.g., what the
jury in a prior trial must have accepted as the theory of the crime].)
              Rape is an enumerated serious felony in California and a prior conviction
for rape causes a mandatory five-year enhancement pursuant to section 667, subdivision
(a) and a strike conviction pursuant to sections 667, subdivisions (b)–(i) and 1170.12,
subdivisions (a)-(d).
              In 1979, when Glover committed rape in Tennessee, the criminal statute
punished rape committed 1) by force or coercion, 2) under circumstances where the
actor knows or has reason to know the victim is mentally incapacitated or helpless, or 3)
under circumstances where the actor accomplishes sexual penetration by fraud.3 (Tenn.
Code Ann., § 39-2-604.) Tennessee law further defines "fraud," as used in the rape
statute, as including, but not limited to, "deceit, trickery, misrepresentation and
subterfuge." (Id., § 39-2-602.)


3
  We grant Glover's request to take judicial notice of portions of the record, including
jury instructions and the jury verdict form, of his 1980 rape conviction in Tennessee.
                                             6
              During trial of Glover's prior conviction allegations, the prosecutor
introduced evidence of the grand jury indictment in the Tennessee rape case and the trial
jury's verdict form, among other documents. The 1979 grand jury indictment charged
"aggravated rape," and stated that Glover sexually penetrated D.G. with force and
coercion, while armed with a knife. At the rape trial, the court instructed regarding
aggravated rape (involving force, coercion, weapon use, or infliction of personal injury),
and rape (involving force, coercion or "sexual penetration by fraud"). The jury verdict
form states that the jury convicted Glover of "rape," obviously a lesser offense to
aggravated rape. In so doing, the jury may have rejected the weapon use allegation.
              Pursuant to our Three Strikes law, a defendant's sentence may be
enhanced upon proof that he has been previously convicted of a "strike" – a violent
felony as defined in section 667.5, subdivision (c) or a serious felony as defined in
section 1192.7, subdivision (c). (People v. Denard (2015) 242 Cal.App.4th 1012,
1024.) In order for a prior conviction from a foreign jurisdiction to qualify as a strike, it
must involve the same conduct as would qualify as a strike in California. (People v.
Woodell (1998) 17 Cal.4th 448, 453; Denard, at p. 1024.) The statutory elements of the
foreign crime must include all the elements of the California strike offense. (People v.
Warner (2006) 39 Cal.4th 548, 552-553.) If the foreign law can be violated in different
ways, and the record does not disclose any of the facts of the offense actually
committed, the court will presume that the prior conviction was for the least offense
punishable under the foreign law. (People v. Rodriguez (1998) 17 Cal.4th 253, 262,
superseded by statute on other grounds as stated by People v. Luna (2003) 113
Cal.App.4th 395, 397; Denard, at p. 1024.)
              At the time Glover committed the present crime, June 4, 2013, California's
rape statute did not punish sexual penetration committed by fraud, other than by a
person pretending to be the victim's spouse or pretending that the sexual penetration
served a professional purpose. (§ 261, subd. (a)(4)(D), (5).) Pursuant to the least
adjudicated elements test, Glover's Tennessee rape conviction does not qualify as a


                                              7
serious felony or felony strike conviction pursuant to California law as it existed on
June 4, 2013.
                At sentencing, the trial court indicated that it intended to sentence Glover
as a second-strike defendant. Thus, we reverse the serious felony and felony strike
allegations arising from the Tennessee rape conviction but remand for further
sentencing proceedings. The judgment is otherwise affirmed.
                NOT TO BE PUBLISHED.




                                            GILBERT, P. J.
We concur:



                YEGAN, J.



                PERREN, J.




                                              8
                               Drew E. Edwards, Judge

                        Superior Court County of Los Angeles

                         ______________________________


             Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.




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