Opinion
A151646
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANK JOSEPH MONTENEGRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H58636)
Defendant Frank Joseph Montenegro appeals from his conviction following a second trial of nine counts of committing a lewd and lascivious act on a child under the age of 14, and four counts of aggravated sexual assault on a child under the age of 14. He maintains the trial court erred in denying his Faretta motion prior to jury selection at the first trial. That trial, however, soon ended in a mistrial after opening statements. Although defendant indicates the trial court denied Marsden and Faretta motions he made at his second trial, he raises no claim of error as to these motions. Accordingly, the only Faretta issue defendant raises on appeal is moot.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
People v. Marsden (1970) 2 Cal.3d 118. --------
Defendant also claims, and the Attorney General concedes, he was entitled to 99 days of conduct credit. We agree and order the abstract of judgment corrected.
BACKGROUND
We set forth only the facts pertinent to the issues on appeal.
The day before jury selection was to begin when this case was first called for trial, defendant made a Marsden motion for new appointed counsel, which was denied. Defendant also made what the trial court considered an equivocal request to represent himself (a Faretta motion), which was also denied. Defendant made two subsequent Marsden and Faretta motions, one during jury selection and one prior to opening statements. Each request was denied.
After the prosecutor's opening statement, defendant moved for a mistrial, which the court granted.
Jury selection began in the second trial the following day. Defendant again made a Marsden motion, which was denied. He then made a Faretta motion which was denied as untimely.
Defendant was convicted of all 13 counts, and the enhancing allegations were found true. The court sentenced defendant to consecutive prison terms of 15 years to life as to each of the counts, for a total prison term of 195 years to life.
The court stated at sentencing that "[p]ursuant to the provisions of the Penal Code, the defendant is not entitled to any credits toward that sentence." The abstract of judgment indicates defendant had earned 660 days of actual custody credit.
DISCUSSION
First Faretta Motion
Defendant asserts the court erred in denying his first Faretta motion, made prior to jury selection in his first trial.
Faretta secured a criminal defendant's Sixth Amendment right to represent himself at trial. (Faretta, supra, 422 U.S. at p. 821.) "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.] Faretta error is reversible per se." (People v. Welch (1999) 20 Cal.4th 701, 729.)
We need not, and do not, decide whether the trial court correctly denied defendant's first Faretta motion. Even assuming the court erred, the remedy would have been reversal, allowing the People to retry the case. (See People v. Dent (2003) 30 Cal.4th 213, 222-224 (Dent).) The trial court's grant of a mistrial at the close of the prosecutor's opening statement effectively provided defendant with that relief. During the second trial, defendant had every opportunity to make new Marsden and Faretta motions and, in fact, did so. He makes no complaint on appeal that these motions were erroneously denied, and thus has forfeited any claim of error in that regard. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408.)
There is no justiciable controversy when "the question sought to be adjudicated has been mooted by subsequent developments." (Flast v. Cohen (1968) 392 U.S. 83, 95.) "[A] case that presents a true controversy at its inception becomes moot ' "if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character." ' " (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573 (Wilson).) Moot cases are " '[t]hose in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist.' " (Ibid.)
Wilson explicated the mootness doctrine. "A case is considered moot when 'the question addressed was at one time a live issue in the case,' but has been deprived of life 'because of events occurring after the judicial process was initiated.' [Citation.] Because ' "the duty of . . . every . . . judicial tribunal . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or . . . to declare principles or rules of law which cannot affect the matter in issue in the case before it[,] [i]t necessarily follows that when . . . an event occurs which renders it impossible for [the] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to formal judgment. . . ." [Citations.]' [Citation.] The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief." (Wilson, supra, 191 Cal.App.4th at p. 1574.)
Defendant maintains his claim is not moot because, even though he "receive[d] a second trial after the prosecutor committed error in the first trial, he did not receive a second trial where he was permitted to represent himself." (Italics omitted.)
Defendant cites no authority for the proposition that a defendant is bound by the representational status he had, or requested, during an earlier proceeding in an ongoing criminal case. Nor are we aware of any such authority. There is no limitation on the timing or number of Marsden and Faretta motions a defendant can make, and a defendant may seek to change his representational status at all stages of a criminal proceeding. A trial court may, of course, deny untimely and baseless efforts in this regard, but that certainly does not abridge a defendant's right to make a Marsden or Faretta motion at the outset of a new trial. As Justice Chin has observed, "At retrial, defendant may wish to be represented. If so, he will not be bound by the request to represent himself that elicited the trial court's error and won him this reversal." (Dent, supra, 30 Cal.4th at p. 224 (conc. opn. of Chin, J.).) The converse is equally true, particularly where a prior Faretta motion was denied on the ground it was equivocal. Such denial in no way forecloses, or dictates the outcome of, a clear and explicit request for self-representation on retrial.
In short, given that a second trial took place after the Faretta denial about which defendant complains, we conclude any error in denying his motion is moot.
Conduct Credit
Defendant maintains he was improperly denied 99 days of conduct credit under Penal Code section 2933.1. The Attorney General agrees.
Penal Code section 2933.1 provides in part: "(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." (Pen. Code, § 2933.1, subd. (a).) The offenses listed in subdivision (c) of Penal Code section 667.5, subdivision (c)(6) include lewd and lascivious acts under section 288, subdivision (a), of which defendant was convicted.
The parties do not dispute that defendant had accrued 660 days of actual credit. Accordingly, we agree defendant was entitled to 99 days of conduct credit (i.e., 15 percent of 660 days).
DISPOSITION
The court is ordered to issue an amended abstract of judgment indicating defendant is entitled to 99 days of conduct credit, and to forward a copy of that amended abstract of judgment to the Department of Corrections. In all other respects the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.