Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. NA071546, Tomson T. Ong, Judge.
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Haman aka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Anthony Monqualli Edwards (defendant) of second degree robbery (Pen. Code, § 211 ), forgery (§ 470, subd. (d)), and second degree commercial burglary (§ 459). In a court trial, the trial court found true allegations that defendant suffered six prior convictions within the meaning of sections 667, subdivisions (a)(1) and (b) through (i) and 1170.12, subdivisions (a) through (d), and that defendant suffered three prior convictions and served three separate prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to state prison for 66 years to life and, as relevant here, imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1).
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that trial court erred in denying his request to discharge his retained counsel and by failing to grant his request for a continuance to allow time for counsel to prepare for trial. We asked the parties to submit supplemental briefs addressing the issue of whether the trial court assessed the proper court security fee under section 1465.8, subdivision (a)(1). We further asked the parties to submit supplemental briefs addressing the issues of whether the trial court erred in failing to impose or strike two of defendant’s three section 667.5, subdivision (b) sentence enhancements and whether such error can be considered for the first time on appeal or forfeited. We affirm the judgment of conviction and order the abstract of judgment modified to reflect $60 in court security fees under section 1465.8, subdivision (a)(1). We remand to the trial court to impose or strike the two remaining section 667.5, subdivision (b) sentence enhancements.
BACKGROUND
About 9:55 p.m. on August 29, 2006, Maria Viteri parked her car across the street from her condominium complex in Long Beach. As Viteri walked to her building’s main entrance, she saw defendant running toward her. Viteri screamed.
Defendant grabbed Viteri’s arm and pulled her toward him. Viteri continued to scream. Defendant punched Viteri in the face and she fell to the ground. Viteri shook her left arm that was holding her purse, and her purse “flew away.” Defendant let go of Viteri, ran to pick up Viteri’s purse, and ran away. Among other items, Viteri’s wallet and checkbook were in her purse. Later that night, Viteri canceled her credit cards and closed her bank account at Washington Mutual.
Ann Marie Ashley, Viteri’s downstairs neighbor, heard yelling coming from the building’s main entrance or from the street. Ashley and her husband went out on their balcony that faced the street. Ashley saw a man running from the building’s main entrance with a purse in his hand. Ashley called 911. The man ran to a car parked near a streetlight and drove off in the car.
About 1:30 p.m. on September 1, 2006, defendant presented a $175 check to teller Dina Boaz at a Washington Mutual branch in Long Beach that he wanted to cash. Defendant told Boaz that he had towed a woman’s car and that the woman had paid him with the check. The check was written on Viteri’s account and made out to defendant. Viteri testified that she did not fill out the check or give defendant permission to fill out the check and cash it.
Defendant presented Boaz with his California Identification Card. Boaz wrote the number from the card on the check. Boaz also obtained defendant’s right thumb print on the check. City of Long Beach Detective Michael Dugan testified that he “ran” the California Identification Card number and the number came back to defendant. The parties stipulated that a qualified print comparison expert from the Long Beach Police Department compared the print from the check and formed the opinion that the print was made by defendant.
Boaz attempted to cash the check and learned that there was a notation on the account that the “customer’s” information might have been compromised. Boaz testified that she believed that “it said something like the customer had been robbed.” Defendant asked Boaz to return the check, saying that he wanted to contact the customer. Boaz did not return the check to defendant. Boaz testified that she believed that she told defendant that the customer’s account had been compromised and that the bank needed to “verify with her and hold onto the check.” Boaz gave the check to her supervisor, Bryan Grageda, who spoke with defendant thereafter.
Grageda testified that he believed he told defendant that the customer had requested to verify all of her transactions because she had reported her checkbook lost. Grageda told defendant that he would call and verify. At some point, defendant said to Grageda that “it wasn’t a big deal, that he was doing some work for her and that he could do it at some later point in time.” Defendant asked Grageda to return the check. Grageda told defendant that he had to hold on to the check until he could “verify with the maker.” Grageda explained that the process would not take long, and he would let defendant know shortly.
Grageda spoke with the “victim” on the telephone. Grageda wanted to make sure that the victim had not authorized the transaction before he declined it. The victim confirmed that she had not authorized the transaction. Grageda turned to go back to defendant, but defendant had exited the building. Defendant left without getting the check back.
Later that night, Los Angeles Police Department Officer Anthony Balderama conducted a traffic stop of a car defendant was driving. Officer Balderama “ran” the car’s “VIN” number and learned that the car was stolen. Defendant apparently was taken into custody for driving a stolen vehicle.
DISCUSSION
I. Defendant Did Not Request To Discharge His Retained Counsel
Defendant contends that he requested to discharge his retained counsel and that the trial court’s failure to properly address his request resulted in the denial of his constitutional rights to counsel, to effective assistance of counsel, and to due process. We disagree.
A. Procedural History
Beginning at the latest with the November 1, 2006, preliminary hearing, defendant was represented by the Public Defender’s Office. On December 6, 2006, the trial court, the Honorable Joan Comparet-Cassani, granted defendant’s request to represent himself. Defendant was arraigned, and pleaded not guilty to the charges and denied the special allegations.
On January 4, 2007, defendant withdrew his pro per status, and appeared with retained counsel, Charles Kilgore. Kilgore requested that the trial court set the matter for a pretrial hearing on January 30, 2007. Judge Comparet-Cassani granted Kilgore’s request. After additional continuances, the matter was set for trial on March 27, 2007.
Throughout the record Kilgore’s name is spelled in various ways. For consistency, we will adopt this spelling.
On March 27, 2007, Arlene Binder appeared in place of Kilgore. Binder informed the trial court that Kilgore’s father was dying and that Kilgore was in Kentucky. At Binder’s request, the trial court continued the trial date to May 15, 2007. In granting the continuance, Judge Comparet-Cassani stated, “No further continuances, do you understand?” Binder responded, “Yes.”
On May 15, 2007, Kilgore moved for a 20-day continuance. Kilgore’s motion indicated that one of his clients had been extradited from Los Angeles to South Carolina and that he had promised to represent that client. Kilgore apparently had returned just that morning and had not had time to prepare for trial in this case.
The trial court, the Honorable Tomson T. Ong, denied Kilgore’s motion for a continuance, finding that it was not supported by good cause. Judge Ong noted that defense counsel had had the case since January 4, 2007, that there was a notation in the file that no further continuances would be granted; that this case had priority over the South Carolina case due to this case’s age; and yet defense counsel had chosen to devote his time to the South Carolina case instead.
The trial court inquired of the prosecutor, “[A]re the People ready? You want me to trial [sic] this to 7 of 10 so Mr. Kilgore can have a week to prepare.” The prosecutor responded, “[W]hat I would ask is that we trail this to Friday, the 18th. I think it could be tried within a week, if we could pick a jury on that date and give counsel at least 1, 2, 3, 4, 5 days at least come up to speed and we could start testimony on the 21sst [sic].”
Kilgore advised the trial court that he was “slated for trial in Murrietta Hot Springs on the 18th and that case is older than this one.” The trial court explained to Kilgore, “[Y]ou are slated for trial here today. You are deemed engaged. You cannot start that case because this case will take priority.” The trial court ordered Kilgore to return on May 17, 2007, to begin jury selection.
On May 17, 2007, Kilgore and Binder appeared before Judge Ong. Kilgore informed the trial court that Binder would be trying defendant’s case. The trial court inquired of defendant, “I have to have your agreement, will you agree to have Ms. Binder represent you for the trial in this case?” Defendant responded, “Yes.” Binder informed the trial court, “I have seen Mr. Edwards in custody and initially became familiar with his case.” The trial court responded, “Sounds very fine. You are not new to this case, just jumping in for trial. You have prepared?” Binder responded, “Right.” The parties selected a jury on May 17, 2007, and testimony commenced on May 18, 2007, with Viteri’s testimony.
The court reporter’s notes indicate that the prosecutor and not Kilgore informed the trial court that Binder would be trying the case. In context, the ascribing of these and other statements to the prosecutor appears to be mistaken.
After Viteri testified, defendant requested to address the trial court. Defendant stated, “Well, your Honor, before we got started this morning, I wanted to address the court and let the court know for the record that I objected, I’m objecting to the whole procedure that’s been happening. The last couple of days, after I had a couple of times to, you know, sit down and absorb everything that’s been going on with me the last few days since Tuesday, and I have come to the conclusion that I need the record to reflect that I object and I’m in disagreement with all the proceedings that’s been going on.
“And, you know, I’m under – to me, I’m under the impression that it’s the court’s duty or obligation to protect my constitutional rights as far as jury trial and things of that nature. And I believe that the court are in violation of protecting my rights as far as not allowing my counsel to continue and do a full investigation, not only investigation of the material witnesses, but even have an interview with me about what the case is even about.
“You know, I understand that they have been detained for some time now, but my counsel still have not done a full investigation. And to me, from my understanding, according to the American Bar Association Rules, Regulations and Statutes of Lawyers, the Model Rule of Profession Conduct and responsibilities under diligence, competence and communication is all in violation because they have never interviewed me about my case whatsoever. [¶] And as far as Canon --”
At this point, the prosecutor interjected, “Your Honor, is this a Mars den?” The trial court responded, “No, it’s not. There can’t be a Marsden because this is privately retained.”
People v. Mars den (1970) 2 Cal.3d 118 (Mars den).
Defendant continued, “And the Canons Code of Professional Ethics that they never did anything in my case. I never had the opportunity to do this and, you know, I believe that the court is concurring with all of these violations by not giving me the opportunity to have my counsel do a full investigation and do all the things that it needed before we started trial.”
The trial court asked defendant if he had anything to add. Defendant responded, “And I just want the record to reflect that.” Defendant further responded, “I object to it. I’m in disagreement with it.”
The trial court responded, “Your objection is noted for the record. Now that you have had your say, let me just indicate for the record, the court’s record so that we have absolutely no misconception in this case.
“I am handling this case because Judge Cassani is on vacation. . . . This case came to me Tuesday day zero of ten. There is no time waiver because I did not invite one because there is no 1050 under the Penal Code filed. Well, there was, but there was no good cause. This court did not find good cause.
“The good cause that was expressed in that 1050 was that counsel, Mr. Kilgore, had a matter in South Carolina, but Mr. Kilgore has been in this case, in this court’s opinion, since at least January 4th of 2007, had an ample amount of time to prepare. And obviously there was an initial interview with the client in order for the case to go forward. But be it as it may, that is between you and your attorney, it’s privately retained. This court did not find good cause because counsel chose to want to handle one case over another, but otherwise is ready.
“In this particular case, everything has been done according to procedure in my courtroom in the trial. You have heard my voir dire questions. You heard me about my explanation of presumption of innocence. You – if you think that I’m unfair, that’s up to the court of appeals to decide. Insofar as I am concerned, counsel is effective in cross-examination, in examination of the witnesses. Has had plenty amount of time, at least over the past five months to be able to prepare, which I don’t think is a very complicated case. It’s only about five or six witnesses.
“Sometimes cases are not defensible. Sometimes they damage control cases, which this case may very well be, I don’t know, but in your particular case, those are tactical decisions for your counsel. That is for the reviewing court to decide.”
B. Analysis
“A defendant has a constitutional and statutory right to counsel of his choice, and his interest in discharging a retained attorney is included within the right to counsel of one’s choice. [Citation.]” (People v. Lara (2001) 86 Cal.App.4th 139, 152.) “In contrast to situations involving appointed counsel, a defendant may discharge his retained counsel of choice at any time with or without cause. [Citation.]” (Ibid.) A defendant’s request to discharge retained counsel must, however, be clear and unequivocal. (See People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8, [addressing the issue of the substitution of appointed counsel, the California Supreme Court stated, “We do not necessarily require a proper and formal legal motion, but at least some clear indication by defendant that he wants a substitute attorney”]; cf. People v. Marshall (1997) 15 Cal.4th 1, 22 [“requiring the defendant’s request for self-representation to be unequivocal is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation. Without a requirement that a request for self-representation be unequivocal, such a request could, whether granted or denied, provide a ground for reversal on appeal”].)
Defendant contends that his comments to the trial court should be construed as a request to discharge his retained counsel. Defendant contends that although he “did not specifically state that he wanted to discharge his attorney,” he made known to the trial court his dissatisfaction with Binder. Defendant contends that he complained that Binder was unprepared and had not discussed with him the case, strategy, or tactics. Defendant contends that he “specifically objected to proceeding with the trial with counsel who had no time to prepare nor had discussed the case with him,” and that his complaints “can only be considered a request to ‘fire’ counsel and have counsel replaced. At a minimum the court should have inquired to see what [defendant] wanted to do.”
Defendant’s comments to the trial court reasonably can be interpreted only as an objection to the trial court’s denial of Kilgore’s motion for a continuance or as a renewed request for a continuance. Defendant’s complaints about defense counsel’s efforts appear to have been made in the context of his complaint about the trial court’s denial of Kilgore’s motion for a continuance. Defendant stated to the trial court, “I believe that the court are in violation of protecting my rights as far as not allowing my counsel to continue and do a full investigation, not only investigation of the material witnesses, but even have an interview with me about what the case is even about.” When defendant complained about defense counsel’s failure to interview him or “do anything” in his case, he then stated that “I believe that the court is concurring with all of these violations by not giving me the opportunity to have my counsel do a full investigation and do all the things that it needed before we started trial.”
Defendant further contends that the trial court understood his objections to be a request to discharge his retained counsel. The trial court demonstrated this understanding, defendant argues, when it responded to the prosecutor’s inquiry about whether defendant was making a Mars den motion that “[t]here can’t be a Mars den because this is privately retained.” Defendant argues that the trial court’s comment that Binder had been effective in voir dire and in cross-examining Viteri was further evidence that the trial court understood defendant’s objection to the proceedings as a request to discharge retained counsel.
The trial court’s response to the prosecutor’s inquiry whether defendant was making a Mars den motion does not establish that the trial court understood defendant’s comments to the trial court to be a request to discharge retained counsel. Rather, the trial court was merely stating, correctly, that Mars den, supra, 2 Cal.3d 118 does not apply when defense counsel is retained. (See People v. Lara, supra, 86 Cal.App.4th at p. 155.) The trial court’s comment about Binder’s effectiveness at trial appears to have been made in the context of the difficulty of the case to prepare and whether defense counsel had had sufficient time to prepare. Thus, the trial court’s comment about Binder’s effectiveness can fairly be construed as stating that Binder was effective at trial because the case was not very complicated and she had had sufficient time to prepare.
Accordingly, because defendant did not make a clear and unequivocal request to discharge retained counsel the trial court did not err. (See People v. Lucky, supra, 45 Cal.3d at p. 281, fn. 8; cf. People v. Marshall, supra, 15 Cal.4th at p. 22.)
II. The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s Mid-Trial Request For A Continuance
Defendant contends that the trial court abused its discretion, interfered with his right to counsel, and denied him due process when it denied his request during trial for a continuance to allow Binder additional time to prepare for trial. We disagree.
A continuance of a criminal proceeding shall be granted only on a showing of good cause. (§ 1050, subd. (e).) “‘“‘The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’” [Citation.] In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. [Citation.]’ [Citations.]” (People v. Pan ah (2005) 35 Cal.4th 395, 423.) “[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]” (People v. Bea mes (2007) 40 Cal.4th 907, 920.) A defendant “bears the burden of establishing that denial of a continuance request was an abuse of discretion. [Citation.]” (People v. Pan ah, supra, 35 Cal.4th at p. 423.)
Defendant contends that he requested a continuance to allow Binder time to prepare for trial when, after Viteri’s testimony, he stated to the trial court “I believe that the court are in violation of protecting my rights as far as not allowing my counsel to continue and do a full investigation, not only investigation of the material witnesses, but even have an interview with me about what the case is even about.” In response to this and defendant’s other statements, the trial court stated that it had denied Kilgore’s motion for a continuance because it had found that Kilgore had not demonstrated good cause. The trial court also stated its belief that Binder had effectively cross-examined the prosecution’s witness (Viteri), that the case was not very complicated, and Binder had had time to prepare. Because we construe defendant’s above-quoted statement as a request for a continuance during trial, then, in turn, we construe the trial court’s statements about Binder’s effectiveness, the uncomplicated nature of the case, and the sufficiency of the time Binder had to prepare as the trial court’s grounds for denying defendant’s request for a mid-trial continuance.
The record demonstrates that Binder was prepared to try defendant’s case and did not need a continuance. After the trial court obtained defendant’s “agreement” to have Binder represent him at trial, Binder informed the trial court that she had “seen [defendant] in custody and initially became familiar with his case.” Binder then confirmed for the trial court that she was not new to the case, she was not “just jumping in for trial,” and that she had prepared. Notably, when defendant later made his request for a continuance for Binder to prepare for trial, Binder herself did not request a continuance or argue in support of defendant’s request. We can infer from the lack of such a request or argument that Binder did not believe that she needed a continuance to represent defendant through trial. Because the record demonstrates that Binder was prepared to try defendant’s case, the trial court did not abuse its discretion in denying a continuance for Binder to prepare. (People v. Pan ah, supra, 35 Cal.4th at p. 423; People v. Bea mes, supra, 40 Cal.4th at p. 920.)
III. Defendant’s Court Security Fees
We asked to parties to submit supplemental briefs addressing whether the trial court erred in imposing a single $20 court security fee pursuant to section 1465.8, subdivision (a)(1). The parties agree that the trial court erred, and defendant concedes that the trial court should have imposed a $20 court security fee for each of defendant’s three convictions for a total of $60 in court security fees. Defendant’s concession is well taken. (§ 1465.8, subd. (a)(1); People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Accordingly, the abstract of judgment is ordered modified to reflect a total of $60 in court security fees pursuant to section 1465.8, subdivision (a)(1).
Section 1468.5, subdivision (a)(1) provides,
Respondent argues that the trial court should have imposed a total of $40 in court security fees because one of defendant’s three convictions (the second degree commercial burglary conviction (§ 459)) was stayed pursuant to section 654. Section 654 does not operate to stay court security fees under section 1465.8, subdivision (a)(1), even when the sentence for the underlying offense has been stayed pursuant to section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)
IV. Defendant’s Section 667.5, Subdivision (b) Sentence Enhancements
We asked the parties to submit supplemental briefs addressing the issues of whether the trial court erred in failing to impose or strike two of defendant’s three section 667.5, subdivision (b) sentence enhancements and whether such error can be considered for the first time on appeal or forfeited. The parties agree that the trial court erred in failing to impose or strike the section 667.5, subdivision (b) sentence enhancements. The parties also agree that the trial court’s error can be considered for the first time on appeal and cannot be forfeited.
“The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Accordingly, we may review this issue even though it was not raised in the trial court or in the court of appeal.
The trial court found that defendant suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) in case number A022270; two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) in case number A027546; and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) in case number NA005925. With respect to the two convictions in case number A027546, the two convictions in case number NA005925, and the single conviction in case number NA035644, the trial court found that defendant had suffered a prior conviction for which he had served a prison term within the meaning of section 667.5, subdivision (b).
The trial court sentenced defendant to three consecutive five year sentence enhancements under section 667, subdivision (a)(1) for case numbers A022270, A027546, and NA005925. The trial court sentenced defendant to a consecutive one year sentence enhancement under section 667.5, subdivision (b) for case number NA035644. The trial court took no action with respect to the section 667.5, subdivision (b) violations as to case numbers A027546 and NA005925.
In our letter to the parties, we inadvertently stated that the trial court took no action with respect to the section 667.5, subdivision (b) violations as to case numbers A022270 and A027546 rather than as to case numbers NA005925 and A027546 and inquired if such inaction was error. As we had stated earlier in our letter that the trial court had found section 667.5, subdivision (b) qualifying convictions with respect to case numbers A027546, NA005925, and NA035644, we assume the parties were aware of our inadvertence in responding to our letter.
When the same prior conviction is found to violate both section 667, subdivision (a)(1) and section 667.5, subdivision (b), a trial court may impose only the greater enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) However, when a single prior prison commitment is served for two or more serious felony convictions, that prison commitment and those convictions may serve as the basis for sentence enhancements under both section 667, subdivision (a)(1) and section 667.5, subdivision (b). (People v. Medina (1988) 206 Cal.App.3d 986, 989, 992.)
Because defendant suffered two prior serious felony convictions for which he served a prison term in case number A027546 and two prior serious felony convictions for which he served a prison term in case number NA005925, the trial court erred in failing to impose or strike the section 667.5, subdivision (b) enhancements as to those cases. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 [a trial court must either impose sentence on, or strike a sentence enhancement under section 667.5, subdivision (b)].)
Defendant acknowledges that the trial court did not expressly exercise its discretion to strike either of the additional section 667.5, subdivision (b) enhancements as to case numbers A027546 and NA005925, but contends that we should strike those enhancements on appeal because we may infer from the trial court’s imposition of the 667.5, subdivision (b) enhancement as to case number NA035664 that the trial court was aware of and exercised its discretion to not impose the additional punishment. The record is silent as to the trial court’s intention to strike the section 667.5, subdivision (b) enhancements as to case numbers A027546 and NA005925. Faced with such silence, we remand this case to the trial court to impose or strike these sentence enhancements. (People v. Dominguez (1995) 38 Cal.App.4th 410, 426.)
Respondent requests an order that defendant need not be present for re sentencing if the trial court elects to strike the additional sentence enhancement under section 667.5, subdivision (b). We decline respondent’s request. Defendant has a right to be present at sentencing. (§ 977, subd. (b)(1).) Our ruling does not preclude defendant from properly waiving his right to be present.
DISPOSITION
The judgment of conviction is affirmed. The abstract of judgment is ordered modified to reflect a total of $60 in court security fees pursuant to section 1465.8, subdivision (a)(1). We remand to the trial court to impose or strike the section 667.5, subdivision (b) sentence enhancements as to case numbers A027546 and NA005925.
We concur: TURNER, P. J., KRIEGLER, J.
“To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”