Opinion
D056448 Super. Ct. No. SCD218652
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. DAMON BLACKMON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Charles Gill, Judges. Affirmed and remanded with directions.
A jury convicted Damon Blackmon of assault with a semi-automatic weapon (Pen. Code, § 245, subd. (b)), residential burglary (§§ 459, 460, 667.5, subd. (c)(21)), attempted first degree robbery (§§ 211, 664, 212.5, subd. (a)), and being a felon in possession of a firearm (§ 12021.1, subd. (a)). The jury also found true enhancement allegations that he personally discharged a firearm. (§ 12022.5, subd. (a).) In bifurcated proceedings, Blackmon admitted he had two prison priors, two serious felony priors and two strike priors. (§§ 211, 459/460, 667, 667.5, subd. (b), 668, and 1170.12.) The trial court sentenced Blackmon to prison for 38 years to life as follows: 25 years to life on the assault with semiautomatic firearm conviction, and 5-year terms for each of the two prior serious felonies, and 3 years for the section 12022.5, subdivision (a) enhancement allegation. The court stayed the sentence on the prison priors under section 654.
All statutory references are to the Penal Code unless otherwise stated.
Blackmon contends the trial court committed reversible, structural error by denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). In supplemental briefing, which we permitted, Blackmon contends the abstract of judgment should be amended to strike the two prison priors that the court stayed, because the court had treated those same enhancements as serious felonies and imposed 5-year sentences on them. We affirm and remand with directions.
PROCEDURAL BACKGROUND
We omit facts regarding the crimes because they are not relevant to the issue on appeal.
On January 30, 2009, Blackmon was arraigned on a felony complaint and a public defender was appointed for him. The first preliminary hearing was scheduled for February 25, 2009, but it was continued to March 17, 2009, when the court granted Blackmon's request to be relieved of a public defender and for a continuance to retain new counsel. The court rescheduled the preliminary hearing for April 20, 2009, and ordered out of town witnesses to appear for that "firm" date. On that date, the court allowed Pam Lacher, Blackmon's retained counsel, to represent him, and set the preliminary hearing for June 1, 2009.
At the scheduled preliminary hearing, Lacher informed the trial court the defense was ready to proceed, but Blackmon had just notified her he wished to represent himself. The court questioned Blackmon to determine if he understood his right to have counsel appointed, if he wanted Lacher removed, and whether he was ready to proceed with the preliminary hearing. The People objected to any further continuance because of the previous delays and inconvenience to the out of town witnesses.
In camera, the court discussed with Blackmon and Lacher the reason for the self-representation request. It found Blackmon's motivation was to further delay the
preliminary hearing. The court stated: "I have denied Mr. Blackmon's request to represent himself at this stage because he is not prepared to proceed with the preliminary exam, and I felt that the justification for his desire to represent himself today, in light of his inability to proceed, was for purposes of further delay of the preliminary exam. [¶] I also indicated to Mr. Blackmon that he obviously has the right at any point to have his retained counsel, either new retained counsel and/or have counsel appointed for him, provided that it's done in a timely manner." (Emphasis added.) The court proceeded with the preliminary hearing, during which Lacher represented Blackmon.
The record includes no copy of the transcript from the in camera discussion; however, in their briefs the parties quote from it to the effect that the court emphasized that Blackmon had an absolute right to represent himself but that it needed to determine whether his request was made solely for purposes of delay.
On June 29, 2009, the court granted Lacher's motion to be relieved as counsel and appointed a public defender, who represented Blackmon at various pretrial court appearances, at trial and at sentencing. At no point after the preliminary hearing did Blackmon renew his motion to be self-represented.
DISCUSSION
I.
" ' "[T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se.' " . . . In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo." (People v. Stanley (2006) 39 Cal.4th 913, 932; People v. Marshall (1997) 15 Cal.4th 1, 21, 24-25 (Marshall))
Blackmon does not challenge the trial court's ruling on the Faretta motion in the context of the preliminary hearing. He specifically states, "Instead of considering [his] request in relation to trial which was then five months off, the trial court focused solely on the timeliness of the motion in relation to the impending [sic] preliminary hearing. But nothing in [his] request remotely hinted that his request for self-representation was equivocal or otherwise restricted to the preliminary hearing." Therefore, we need not analyze the law governing the grant or denial of Faretta motions or the correctness of the trial court's ruling as applied to the preliminary hearing.
Blackmon's appellate contentions derive from his erroneous conclusion that at the preliminary hearing the trial court denied his self-representation request once and for all. He argues, "Because the trial court's decision conveyed to [him] that it would be futile for [him] to renew the motion at a later date, and allowed only that [he] could later renew his request to replace his trial counsel with either appointed or new retained counsel, the record does not reflect an abandonment of [his] Faretta rights." He also argues that his Faretta motion was timely because it was made six months before trial.
We disagree with Blackmon's strained interpretation of the limited scope of the trial court's ruling on his Faretta motion. He decouples the court's statement denying his self-representation request from its comments regarding his right to counsel, and erroneously contends that his self-representation right was definitively denied for the duration of trial, while conceding that his right to counsel of his choice was denied solely for the preliminary hearing. We conclude that the entirety of the court's ruling applied solely to the preliminary hearing; and, the trial court did not prohibit him from later reasserting either his right to self-representation or to representation by counsel.
But even parsing the ruling as Blackmon does to focus exclusively on his request for self-representation, our analysis remains unchanged. The trial court's decision, by its terms, was limited to the preliminary hearing. The court stated, "I have denied Mr. Blackmon's request to represent himself at this stage because he is not prepared to proceed with the preliminary exam," and it found that Blackmon sought to "represent himself today . . . for purposes of further delay of the preliminary exam." (Emphasis added.) The trial court's express language negates Blackmon's interpretation of the court's ruling as "an unqualified denial of [his] request for self-representation" and provides no basis for his claim that "any further supplications would be futile."
Accordingly, Blackmon's contention that he did not abandon or forfeit his right to self-representation at trial fails. " '[T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se.' " (Marshall, supra, 15 Cal.4th at p. 21.) "Tena held that Faretta error is waived when a defendant proceeds to trial with retained counsel, after a denial of a pro se request . . . [a] defendant who retains new counsel and proceeds through trial without objection demonstrates willingness to forgo pro se status in favor of proceeding with counsel. If defendant retains counsel only because the court would not permit him or her to proceed pro se, defendant or defense counsel must say something on the record to that effect." (People v. Weeks (2008) 165 Cal.App.4th 882, 888; see People v. Tena (2007) 156 Cal.App.4th 598, 611.)
Contrary to Blackmon's argument, the fact that the trial court here did not follow Tena, supra, 156 Cal.App.4th 598 and remind him of his right to renew the Faretta motion does not mean his right to self-representation was unconditionally denied. We conclude Blackmon abandoned his right to self-representation because he accepted appointed counsel one month after the preliminary hearing, and he never renewed his objection to the court's denial of his Faretta motion. (People v. Weeks, supra, 165 Cal.App.4th at p. 888.)
II.
The People conceded at oral argument, and we agree, that the abstract of judgment should be amended because the trial court stayed the two prison prior enhancements under section 667.5, although the trial court had also imposed five-year terms for those same prior serious felony convictions under section 667, subdivision (a). Under the authority of People v. Jones (1993) 5 Cal.4th 1142, 1152, the court should have stricken, rather than stayed, the prison prior enhancements.
DISPOSITION
The judgment is affirmed. On remand, the trial court is directed to strike the two prison prior enhancements relating to Blackmon's prior offenses under Penal Code sections 211 and 459/460, and forward an amended copy of the abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR:
HALLER, Acting P. J.
McDONALD, J.