Opinion
E065381
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ROY EZELL, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, Kimberley A. Donohue, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1405025) OPINION APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed in part, reversed and remanded with directions in part. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, Kimberley A. Donohue, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Roy Ezell guilty of first degree burglary (Pen. Code, § 459; count 1) while another person, other than an accomplice, was present (§ 667.5, subd. (c)), and unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 17 years in state prison, consisting of 12 years on the burglary count (the upper term of six years doubled due to the strike prior), plus a consecutive five years for the prior serious felony conviction. The sentence on count 2 was imposed but stayed pursuant to section 654. The trial court also imposed a concurrent one-year sentence on one of defendant's prior prison term enhancements.
All future statutory references are to the Penal Code unless otherwise stated.
The clerk's minute order and the abstract of judgment indicate that sentence on count 2 was to run concurrent to the sentence on count 1 and that the sentences on the two prior prison term enhancements were stayed. However, the reporter's transcript reflects that the trial court intended to stay the sentence on count 2 and that the trial court never imposed a one-year term on defendant's second prior prison term, or struck that prior prison term pursuant to section 1385.
On appeal, defendant contends (1) the trial court erred in failing to grant his motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), and (2) the abstract of judgment and the court's minute order should be modified to reflect the sentence on count 2 was stayed pursuant to section 654. The People also argue that the matter should be remanded for the limited purpose of allowing the trial court to resentence defendant on his prior prison term enhancements. We reject defendant's first claim of error because the record reveals defendant abandoned his request to represent himself. However, we agree with the parties that the abstract of judgment and the court's minute order should be modified to accurately reflect the trial court's oral pronouncement of judgment on count 2. We also conclude the case must be remanded for the trial court to resentence defendant on his prior prison term enhancements. In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
In the early morning hours of November 8, 2014, defendant and an accomplice burglarized a home in Rancho Cucamonga while the occupants (the Downeys) were sleeping. Defendant and his accomplice stole approximately $25,000 worth of the Downeys' property and their Mercedes-Benz ML350 vehicle. There was no sign of forced entry into the home, but both the front door and a door in the garage were left open.
A neighboring residence had surveillance cameras pointing partially toward the Downeys' residence. The cameras recorded both video and audio, and included a timestamp that reflected time of the recording. An investigating officer obtained video and photographic stills of the timeframe during which the burglary was believed to have occurred. The video and photographic stills depicted two figures in a vehicle coming and going from the area. The body shape of the vehicle was similar to that of a Dodge Charger.
Later that morning, Officer McLean was patrolling in the city of Covina when at approximately 4:39 a.m., he observed a 2006 Dodge Charger parked in an alley. The Dodge Charger's passenger door was open and the occupant, later identified as defendant, was sitting in the passenger seat with his legs positioned outside of the vehicle. Defendant was discarding pieces of paper onto the ground.
Officer McLean drove into the alley and parked, at which time defendant stood up and exited the Dodge Charger. Officer McLean ordered defendant to remain seated in the vehicle. However, defendant failed to comply with the officer's orders and attempted to flee. Defendant was eventually detained and arrested. Pursuant to a search of defendant's person and his vehicle, officers located all of the Downeys' stolen property. Shortly thereafter, officers found the Downeys' vehicle approximately a quarter of a mile away.
III
DISCUSSION
A. Faretta Motion
Defendant argues the trial court erred when it failed to grant his request to represent himself under Faretta after the court thoroughly advised defendant of the risks and defendant intelligently confirmed his request. The People respond that the trial court never denied defendant's Faretta motion and that after defendant requested more time to think about his request, ultimately defendant abandoned the motion.
1. Additional Background
On Wednesday, July 15, 2015, immediately after the trial court scheduled defendant's preliminary hearing for the next Monday morning, defendant announced, "Your Honor, I'd like to dismiss counsel and go pro per." After clarifying that defendant's request was a Faretta request, the trial court recessed to allow defendant time to fill out an Advisement and Waiver of Right to Counsel form. Once the trial court received the completed form, the court went through each paragraph of the form with defendant, asking defendant in open court if he understood the waiver of each right.
Upon reviewing with defendant each specific waiver and advisement contained in the form, the trial court asked, "So you read all this and you still want to act as your own lawyer?" Defendant responded, "Yes." The trial court then asked, "You want some more time to think about it?" Defendant replied, "Yes." When asked how much time he wanted, defendant requested a week, and the trial court, based on its calendar, continued the matter for six days.
After discussing the scheduling of the next court appearance, the trial court stated, "Okay. Well, you still have a lawyer. I didn't grant you the right to do it because you're not saying right this minute 'I want to be pro per.' You still want to have a little more time to think about it. No one is forcing you into this. I'm not pushing you, believe me. If anything, like I said, the seriousness of your case, what's involved, you'd be better off with a good lawyer. But it's up to you." The court then again asked defendant, "So you want a little more time to think about it; am I correct?" Defendant again stated, "Yes." The trial court, for a third time, again asked defendant if he wanted more time, stating, "Do you want some time to talk . . . to Ms. Howard [defendant's attorney]?" Defendant replied for a third time, "Yes." The trial court then indicated that it would keep defendant's waiver and advisement form in the court file. It also kept in the court file its signed Faretta order, which specifically stated: "The Court has made inquiry into the defendant's educational background, training and knowledge, and based on that inquiry and the advisement to the defendant of all of the above initialed statements, finds that the defendant knowingly, intelligently and voluntarily gives up his/her right to counsel and may represent himself/herself in all proceedings in this case." As to why the court was retaining defendant's waiver and advisement form and the Faretta order in the court file, the court explained, "Okay. Now, here's what I'm going to do. You spent a lot of time going through the form. We spent a lot of time talking, you and I. I'm going to keep the form in the file. We will come back next Tuesday." The court concluded by stating, "on Tuesday [the scheduled next court hearing] we'll talk about whether you for sure want to represent yourself or whether you want to keep Ms. Howard. . . ."
At defendant's next court appearance, on July 21, 2015, no one raised the issue of the Faretta request—not the trial court, defense counsel, prosecutor, or defendant. On July 28, 2015, defendant's trial counsel advised the trial court, "[m]y client informs me that he is retaining private counsel . . . ." Upon questioning by the trial court, defendant confirmed his intention of retaining private counsel. Defendant ultimately never retained private counsel, and he continued accepting the assistance of appointed counsel. His appointed counsel continued representing defendant up through and including trial and sentencing. Defendant never again requested to represent himself.
Defendant argues that the trial court should have granted his request to represent himself after the court confirmed he unequivocally understood the nature of his decision and the risks associated with self-representation. Defendant also asserts that the court should not have inquired into whether he needed more time to think about his decision because he had timely, unequivocally, knowingly, and intelligently made his request for self-representation. The People respond, despite defendant's arguments to the contrary, defendant abandoned his Faretta motion.
2. Standard of Review
"In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo." (People v. Dent (2003) 30 Cal.4th 213, 218 (Dent).) An erroneous denial of a valid request for self-representation is reversible per se. (People v. Boyce (2014) 59 Cal.4th 672, 702 (Boyce); People v. Williams (2013) 58 Cal.4th 197, 253.)
3. Right to Self-Representation
" '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. [Citations.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 931-932 (Stanley); see Faretta, supra, 422 U.S. at p. 835 [effective invocation of the right to self-representation requires a defendant to waive the right to counsel knowingly, intelligently, and voluntarily]; Boyce, supra, 59 Cal.4th at p. 702 [A trial court must grant a self-representation request if the defendant knowingly and intelligently makes a timely and unequivocal request]; People v. Valdez (2004) 32 Cal.4th 73, 97-98 [same].) However, a defendant's ability to represent himself is not a proper consideration under Faretta. (People v. Welch (1999) 20 Cal.4th 701, 733.) "[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." (Godinez v. Moran (1993) 509 U.S. 389, 399, fn. & italics omitted.)
In determining whether a defendant's request is unequivocal, a court should take into consideration not only a defendant's request, but also his words and conduct to decide whether he or she truly wishes to give up the right to counsel. (People v. Marshall (1997) 15 Cal.4th 1, 25-26 (Marshall).) "Courts must 'indulge every reasonable inference against waiver of the right to counsel.' [Citation.]" (Stanley, supra, 39 Cal.4th at p. 933; accord, Brewer v. Williams (1977) 430 U.S. 387, 404; Marshall, at p. 20.)
Even after effective invocation, the right to self-representation can be waived or abandoned. The standard for waiving or abandoning the right to self-representation is "substantially less stringent than it is for waiving the right to counsel." (People v. Fedalizo (2016) 246 Cal.App.4th 98, 104.) The right to self-representation may be waived or abandoned expressly or impliedly through conduct that is inconsistent with the assertion of the right. (McKaskle v. Wiggins (1984) 465 U.S. 168, 183 ["Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced"]; accord, People v. Trujeque (2015) 61 Cal.4th 227, 262-263 [the right to self-representation, " 'once asserted, may be waived or abandoned,' " and such "abandonment may be inferred from a defendant's conduct"]; People v. D'Arcy (2010) 48 Cal.4th 257, 285 ["a waiver or abandonment of the Faretta right to self-representation may be inferred from a defendant's conduct"]; Marshall, supra, 15 Cal.4th at p. 22 ["[s]ome courts have held that vacillation between requests for counsel and for self-representation amounts to equivocation or to waiver or forfeiture of the right of self-representation"]; People v. Dunkle (2005) 36 Cal.4th 861, 909-910 (Dunkle), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [Observing that "the Faretta right, once asserted, may be waived or abandoned," the Supreme Court held that the defendant's later disavowal of any desire for self-representation cured any error in denying the Faretta motion.]; People v. Weeks (2008) 165 Cal.App.4th 882, 887 (Weeks) [a defendant may, by his conduct, indicate abandonment or withdrawal of a request for self-representation]; People v. Rudd (1998) 63 Cal.App.4th 620, 631 ["the Sixth Amendment self-representation right does not exist when a defendant prior to or during trial acquiesces in the assignment or participation of counsel in the defense"].)
The federal courts have applied this standard as well. (See, e.g., Wilson v. Walker (2d Cir. 2000) 204 F.3d 33, 39 [the defendant's failure to reassert Faretta right after denial of motion and appointment of new defense counsel abandoned any Faretta claim]; Munkus v. Furlong (10th Cir. 1999) 170 F.3d 980, 984 ["[A] waiver or a termination of the right to self-representation may occur without the defendant's knowledge or consent. In fact, a waiver or termination may result merely from the defendant's equivocation"]; U.S. v. Singleton (4th Cir. 1997) 107 F.3d 1091, 1096 [" 'the right to self-representation can be waived by failure timely to assert it, or by subsequent conduct giving the appearance of uncertainty' "]; Williams v. Bartlett (2d Cir. 1994) 44 F.3d 95, 100 (Williams) ["Once asserted, however, the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one's request altogether"].) --------
Indeed, "[n]umerous courts have held that after a defendant invokes the right to self-representation, a waiver may be found if it reasonably appears that the defendant abandoned the request. [Citations.]" (People v. Tena (2007) 156 Cal.App.4th 598, 609-610 (Tena).) For example, in Stanley, supra, 39 Cal.4th 913, the defendant made a Marsden motion one year before the preliminary hearing in a capital case. During the Marsden hearing, defendant said he wanted to represent himself. The court explained the hazards of representing himself in a capital case. The defendant said he would just ask the court to appoint an attorney if he had any trouble during trial. The court denied the defendant's Faretta motion and found he was not making a knowing and unequivocal request to represent himself. The defendant then renewed his Marsden motion and it was also denied. The defendant accepted appointed counsel and never again requested to represent himself. (Stanley, at pp. 930-931.) Stanley held that the defendant's subsequent conduct established he had abandoned his desire to invoke his Faretta rights. He made a later Marsden motion that was granted, and accepted appointment of another attorney who represented him at the preliminary hearing. (Stanley, at pp. 932-933.) "[O]nce defendant's request for self-representation was denied, he never renewed it. . . . In light of defendant's subsequent acceptance of several appointed counsel to represent him without ever renewing his request for self-representation, we conclude he must further be found to have ultimately abandoned his desire to invoke his Faretta rights . . . . [Citation.]" (Ibid.)
In Tena, supra, 156 Cal.App.4th 598, the defendant appeared before the court three weeks before the preliminary hearing, complained that his court-appointed attorney failed to subpoena witnesses for the preliminary hearing, and asked to " 'go pro per.' " The court denied his request without further explanation. (Id. at p. 605.) When the defendant later appeared for the preliminary hearing, he immediately made a Marsden motion. During the hearing on the motion, the defendant said he wanted to " 'fire' " his appointed attorney and hire private counsel, said his attorney failed to subpoena witnesses, and repeatedly said he did not want that attorney. The defendant asked for a continuance for a private attorney to assume representation. The court denied the Marsden motion and found the defendant failed to state good cause to substitute counsel. The court further stated that it would conduct the preliminary hearing, but advised the defendant that he could hire private counsel afterwards. The defendant became upset and demanded to represent himself at the preliminary hearing. The court denied the motion because it was not timely. After the preliminary hearing, the defendant appeared at subsequent hearings with retained counsel, who represented him through the remainder of the proceedings. The defendant never again moved to represent himself. (Tena, at pp. 605-607.)
Tena held that the defendant did not make an unequivocal request to represent himself under Faretta. (Tena, supra, 156 Cal.App.4th at p. 607.) Instead, the defendant's remarks "were impulsive reactions to his frustrated attempts to secure an attorney who would subpoena the witnesses that he desired, rather than unequivocal Faretta requests. His statements and conduct establish that his goal was a defense based on these witnesses but presented by counsel, rather than by himself. . . . [The defendant] made a single remark about self-representation, apparently born of frustration at his public defender's decisions" and the court's denial of his Marsden motion. (Tena, at pp. 608-609.)
Tena further held that even if the defendant's request was unequivocal, "he waived this request through abandonment after the preliminary hearing . . . ." (Tena, supra, 156 Cal.App.4th at p. 607.) The defendant did not renew the request to represent himself, and the court never made any findings that would have made such a request futile. (Id. at p. 612.) The defendant proceeded to trial with retained counsel, and his conduct after the preliminary hearing demonstrated that he "abandoned any desire he may have harbored to represent himself . . . ." (Ibid.)
Tena also held that while the erroneous denial of a defendant's request to represent himself at trial is reversible error per se, "the denial of self-representation at the preliminary hearing, like the denial of counsel at the preliminary hearing, is subject to harmless error analysis" pursuant to Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Tena, supra, 156 Cal.App.4th at p. 614, italics added.) Tena concluded any Faretta error was harmless under Chapman since the defendant continued to trial with retained counsel, and he failed to demonstrate how the subsequent proceedings were impaired by his inability to represent himself at the preliminary hearing. (Tena, at p. 615.)
4. Analysis
Applying the relevant waiver standard, we conclude that defendant has not demonstrated that he was denied his right to self-representation. Even if defendant's statements were an unequivocal and unmistakable invocation of his right to represent himself, like in Tena, defendant waived his request through abandonment after the preliminary hearing. (Tena, supra, 156 Cal.App.4th at p. 607.) Defendant also abandoned his request by not seeking a specific ruling from the trial court at a later time or raising the request to represent himself again. Abandonment may be found where a trial court does not rule on a Faretta motion and the defendant does not raise the issue again. (Dunkle, supra, 36 Cal.4th at p. 909; People v. Skaggs (1996) 44 Cal.App.4th 1, 7-8 (Skaggs); People v. Kenner (1990) 223 Cal.App.3d 56, 69 (Kenner).)
For example, in Kenner, the defendant made a timely and unequivocal request to represent himself. (Kenner, supra, 223 Cal.App.3d at p. 58.) The trial court set a hearing on the defendant's motion, but the defendant did not appear at the hearing because he was in custody in another county. (Id. at p. 58.) The defendant missed several more hearings for the same reason. (Id. at pp. 58-59.) The defendant eventually appeared, was appointed counsel (who said the Faretta motion could be "reserve[d] . . . at the present time"), went through pretrial proceedings, and was convicted following a jury trial. (Kenner, at p. 59.) No further mention was made of the Faretta motion. (Kenner, at p. 59.) On appeal, the reviewing court held that the defendant had not shown error under Faretta. The court explained, "Defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion. Therefore, we hold that on this record, where [the defendant] had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion." (Kenner, at p. 62.) Similarly, in Skaggs, the reviewing court found abandonment where the defendant made an equivocal request to represent himself, which the court did not rule on, and never mentioned the request again. (Skaggs, supra, 44 Cal.App.4th at p. 8.) The court explained, "[The defendant] made a single ambiguous comment about his desire to represent himself. Even if we were to interpret that comment, made in the context of a Marsden motion, as an unequivocal request (which we do not), it is clear from the record that the request was never ruled upon. [The defendant's] failure to request such a ruling or to raise the issue again and his silent acceptance of defense counsel's assistance for the remainder of the proceedings in the trial court constitute a waiver or abandonment of any right to self-representation [the defendant] arguably asserted." (Ibid.) Both Kenner and Skaggs were cited with approval by our Supreme Court in Dunkle, supra, 36 Cal.4th at page 909.
In this case, contrary to defendant's appellate counsel's contention at oral argument, the trial court did not explicitly rule on defendant's request to represent himself. In fact, at the Faretta hearing, the court specifically stated that it "didn't grant" defendant's request to represent himself. Furthermore, although the record contains a signed Faretta order granting defendant's request to represent himself, the court explained that it was retaining defendant's waiver and advisement form and the Faretta order in the court file for time purposes in case defendant continued his desire to represent himself at the next hearing after thinking about his decision. The oral statements by the trial court at the hearing on the Faretta motion show defendant sought more time to think about his request and the court did not explicitly grant defendant's request. As in Kenner and Skaggs, at subsequent hearings, defendant did not pursue a ruling on his request to represent himself both before and after the trial court gave him an opportunity to think further about whether he wanted to represent himself or have appointed counsel. The trial court heard defendant's request to represent himself. The court went through the necessary procedures, short of explicitly granting or ruling on the motion, including conducting a colloquy with defendant about his request and made findings defendant had made the request to represent himself knowingly and voluntarily. And, when defendant repeatedly acknowledged he desired additional time to think about the Faretta motion, the court granted defendant a one-week continuance, rather than ruling on the motion, and indicated to defendant its findings defendant had knowingly and voluntarily waived his constitutional right to counsel and the Faretta waiver form would remain in the court's file. At defendant's next court appearance a week later, defendant did not raise the Faretta motion again. Instead, defendant requested a continuance to allow him time to retain private counsel, and he never again raised the issue of self-representation in pretrial or trial proceedings. Under these circumstances, even if defendant had unequivocally invoked his right to self-representation under Faretta, he voluntarily waived or abandoned it by his subsequent actions. (Skaggs, supra, 44 Cal.App.4th at pp. 7-8; Kenner, supra, 223 Cal.App.3d at p. 59; see Dunkle, supra, 36 Cal.4th at p. 909; Weeks, supra, 165 Cal.App.4th at pp. 887-890 [abandonment of Faretta claim found where the defendant later appeared with retained counsel who asked to substitute for appointed counsel]; Tena, supra, 156 Cal.App.4th at p. 607 [waiver of Faretta request through abandonment after preliminary hearing].)
Defendant cites United States v. Arlt (9th Cir. 1994) 41 F.3d 516 (Arlt), Dent, supra, 30 Cal.4th 213, United States v. Hernandez (9th Cir. 2000) 203 F.3d 614 (Hernandez), and Williams, supra, 44 F.3d 95, to argue that the trial court's purported impediment to his Faretta motion precludes a finding of abandonment. However, those cases are distinguishable from defendant's case. In each of those cases, the trial court denied the defendant's Faretta motion on improper grounds or made it clear to the defendant a renewed request would be futile. Here, as discussed previously, the trial court made findings that defendant knowingly and voluntarily waived his constitutional right to counsel, but did not rule on defendant's Faretta request.
Furthermore, unlike in Arlt, Dent, Hernandez, and Williams, where a defendant's renewed request to represent himself would have been futile, defendant had the benefit of knowing the trial court was likely to grant his Faretta motion if he raised it again. (See Arlt, supra, 41 F.3d at p. 522 ["[t]he district judge had made absolutely clear that [the defendant's] first choice, self-representation, was not an available option"; the Ninth Circuit held the defendant's conduct did not constitute an abandonment of the request, reasoning that the trial court's denial precluded self-representation, and forced the defendant to pursue his remaining alternatives]; Dent, supra, 30 Cal.4th at pp. 217, 219 [the trial court summarily rejected defendant's request for self-representation, stating that it was " 'not going to let him proceed pro. per.' . . . 'Not in a death penalty murder trial' "; the Supreme court concluded that the trial court had denied the Faretta request for an improper reason, and that the trial court's instruction not to speak except through counsel, coupled with its firm 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."]; Hernandez, supra, 203 F.3d at pp. 623-624 [the Ninth Circuit reasoned that the district court's ground for denying the request was unlikely to change, and thus the defendant reasonably viewed the option of self-representation as foreclosed, notwithstanding the district court's remark that he could renew his motion]; Williams, supra, 44 F.3d at pp. 97-98, 101 [the Second Circuit concluded that the trial court erred in denying defendant's self-representation request on the ground that the defendant lacked legal training, and the defendant failed to renew his request].) There is nothing in the trial court's actions here to find an impediment to defendant's self-representation.
Had defendant still desired to exercise his right to self-representation and to obtain an explicit ruling from the trial court on that request, it was his responsibility to raise the issue again. Defendant had sufficient opportunity to seek an explicit ruling granting his request to represent himself. Defendant also had ample opportunity to renew his request for self-representation. However, he did neither. Under these circumstances, we conclude defendant waived or abandoned his request, even if he had unequivocally invoked his right to self-representation under Faretta.
At oral argument, defendant's appellate counsel also asserted that the trial court erred by inducing or "aggressively coercing" defendant's abandonment of his Faretta right. Although the court inquired of defendant several times whether defendant desired more time to think about his request to represent himself, there is no indication in the record to suggest the court induced or coerced defendant to abandon his right to self-representation under Faretta. Rather, the court properly advised defendant of the pitfalls of self-representation, and due to those pitfalls, the court wanted to make certain defendant truly desired self-representation as he was facing a lengthy second strike sentence. The court did not suggest that if defendant persisted in representing himself he would face a hostile court. In fact, defendant was very vocal during the hearing on his Faretta request, and could have told the court that he did not need more time to consider his request. We are unpersuaded that the court coerced defendant into abandoning or waiving through abandonment his motion for self-representation by allowing defendant more time to consider his request. The record establishes that defendant was satisfied that a continuance would provide adequate time for him to consider his Faretta request. It appears it was defendant's consultation with defense counsel or private counsel rather than the court's comments that persuaded defendant to abandon his motion for self-representation.
Defendant's appellate counsel also argued that the trial court improperly vouched for defense counsel during the hearing on defendant's Faretta request by stating defendant's trial counsel "is an excellent lawyer." Specifically, the court stated: "And I'm going to emphasize you're entitled to a lawyer. And [defense counsel], in the court's opinion, is an excellent lawyer. Now, you don't have to believe that. I could just tell you I'm not saying it just to hear myself talk or because she's sitting in front of me. I've seen her do legal trials in front of me and things. She's really good. But you're going to give up that right to have her and she's not going to help you. You can't get her to assist you."
In the context of a Faretta motion, we disagree with defendant's appellate counsel's suggestion that the trial court improperly vouched for defendant's appointed trial counsel. Appellate counsel's assignment of error takes the trial court's comment out of context and ignores the entirety of the trial court's previous discussion of defendant's Faretta motion. Before the challenged comment, the trial court engaged defendant in a lengthy dialogue to make certain he understood what a Faretta request entailed.
Moreover, even if the court erroneously denied defendant's Faretta motion, any error is necessarily harmless. Defendant's motion was made immediately before the preliminary hearing. As explained in Tena, the erroneous denial of a Faretta motion during the preliminary hearing stage is subject to harmless error analysis under Chapman. In this case, after the court impliedly denied defendant's Faretta motion and provided defendant additional time to consider his request, defendant proceeded with the preliminary hearing with his appointed defense counsel without renewing his right to self-representation. Defendant has failed to demonstrate how the subsequent proceedings were impaired by his inability to represent himself at a preliminary hearing.
B. Correction of Abstract of Judgment and Clerk's Minute Order
Defendant contends the record should be corrected to reflect the trial court's finding at the time of sentencing that section 654 applied to count 2 for the vehicle theft offense. The People concede the abstract of judgment should be corrected accordingly. We find the abstract of judgment and the court's minute order of the resentencing hearing must reflect the trial court's oral pronouncement of judgment as to count 2.
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294 (Hester); People v. Centers (1999) 73 Cal.App.4th 84, 98 (Centers).) The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (Centers, at p. 98.) " 'The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant's intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.' [Citation.]" (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
A conviction and punishment for burglary, the crime of entry into an inhabited location with the intent to commit a felony, ordinarily precludes a court from imposing a separate punishment for the conviction of the underlying felony if the underlying felony is part of an indivisible transaction. (People v. Jaramillo (1962) 208 Cal.App.2d 620, 628-629 ["[w]here a person enters a house to commit theft, and does commit theft, he may be guilty of both burglary and larceny, but under the 'one objective' test he may be punished for only one offense"]; People v. Moore (1965) 234 Cal.App.2d 29, 32 [section 654 "forbids multiple punishment for separate indivisible crimes arising out of a single act which were the means and were incidental to the accomplishment of a single objective"]; see Hester, supra, 22 Cal.4th at p. 294; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.)
In the present matter, the trial court properly imposed but stayed the sentence on count 2 for the vehicle theft offense pursuant to section 654. However, the abstract of judgment failed to reflect the sentence on count 2 was stayed pursuant to section 654. The court's February 3, 2016, minute order—both the original and the corrected minute order—also failed to reflect the sentence on count 2 was stayed. Where there is a discrepancy between the oral pronouncement rendering judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.) The abstract of judgment and the court's minute order of the resentencing hearing should, therefore, reflect the oral pronouncement of judgment.
C. Sentence on Prior Prison Terms
The trial court found true that defendant had sustained two prior prison term enhancements, to wit, a 2003 possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1) and a 2005 robbery conviction (§ 211), under section 667.5, subdivision (b), as alleged in the amended information. The trial court imposed a one-year concurrent sentence on the drug conviction prior prison term enhancement, but failed to impose any sentence on the robbery conviction prior prison term enhancement. The court's minute order of the sentencing and the abstract of judgment reflect that the trial court imposed but stayed sentence on two prior prison terms.
The People argue that the sentence was unauthorized and that the matter should be remanded for a limited resentencing hearing. We agree with the People.
"The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal." (People v. Bradley (1998) 64 Cal.App.4th 386, 391 [trial court erred by failing to indicate disposition of one of four prior prison term enhancements].) It is well established that the enhancements for prison priors pursuant to section 667.5, subdivision (b), must be either imposed consecutively or stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241 ["[s]ection 667.5[, subd. ](b) provides for an enhancement of the prison term for a new offense of one year for each 'prior separate prison term served for any felony[.]'. . . Once the prior prison term is found true within the meaning of section 667.5[, subd. ](b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken"]; accord, People v. Campbell (1999) 76 Cal.App.4th 305, 311; People v. Savedra (1993) 15 Cal.App.4th 738, 746-747 (Savedra) [trial court erred by imposing concurrent terms on prior prison term enhancements because these must be either stricken or imposed consecutively].) If striking the enhancements, the record must show the trial court found mitigating circumstances justifying its action. (Savedra, at p. 747.)
Here, the record is clear that the trial court erred in imposing a concurrent one-year term on the drug conviction prior prison term, and failing to impose or strike the term on the robbery conviction prior prison term. Accordingly, the matter must be remanded for resentencing. (Savedra, supra, 15 Cal.App.4th at p. 747.) On remand, the trial court must either strike defendant's prior prison terms pursuant to section 1385, with stated reasons for doing so, or impose the enhancements consecutively to the other and to the principal count as required by section 667.5, subdivision (b).
IV
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to resentence defendant on his two prior prison term enhancements. Following resentencing, the trial court's new minute order of the defendant's hearing and the amended abstract of judgment should reflect that the sentence imposed by the court on count 2 is stayed pursuant to section 654. The trial court is further directed to send the amended abstract of judgment reflecting the modification as to count 2 and the resentencing on the prior prison term enhancements to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.