Opinion
D068891
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC DELONZO FRANKLIN, Defendant and Appellant.
Siti Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Julie L. Garland, Quisteen S. Shum and Randall D. Einhorn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF32230) APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contreras, Judge. Vacated in part and remanded in part; affirmed in part. Siti Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Julie L. Garland, Quisteen S. Shum and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Eric Delonzo Franklin was convicted of criminally threatening his estranged wife and violating a protective order. On appeal, Franklin argues the trial court erred when it denied his request to represent himself. (See Faretta v. California (1975) 422 U. S. 806 (Faretta).). Franklin also argues the trial court erred in failing to give a unanimity instruction with respect to the allegation he violated a protective order. We find no error.
The record fully supports the trial court's finding that Franklin was not competent to represent himself, and that he would disrupt the trial if he were permitted to do so. As we also explain, a unanimity instruction was not required with respect to the allegation Franklin violated a protective order. We also agree with the People that the trial court imposed an unauthorized sentence when it imposed two one-year terms for prison priors, which were never alleged, rather than two five-year terms for serious and violent felonies which were alleged and found true. Accordingly, we remand for resentencing.
FACTUAL BACKGROUND
A. Assault & Rape
Franklin and his wife, T., were married for a number of years and separated in approximately 2001. They have two children who are now adults. At all material times, their son Eric, Jr. lived with T. Shortly after they physically separated, Franklin attacked T. on two occasions at her residence and raped her. He subsequently served time in prison for those offenses.
In 2011, Franklin filed for dissolution of the marriage.
B. Criminal Threat
On November 30, 2013, Franklin sent T. a series of threatening texts about one of her male friends, Mills. Franklin demanded Mills's address, and when T. refused to provide it, Franklin told her in a telephone conversation: "I'm on my way down there to fuck you up." This threat reminded T. of the prior attacks and she feared for her life. T. told Franklin not to come and she called the police.
At about 10:20 p.m., Franklin arrived at T.'s home. She called 911. T. heard a knock on her door and was scared; she did not open the door. A police officer arrived at T.'s home within minutes of her call. The officer saw Franklin walking towards his car. Franklin denied making any threats, but acknowledged saying he was going to "fuck up" T. Franklin explained he was joking and was only at T.'s house to deliver shoes to his son. The officer searched Franklin and found a large pocketknife.
Franklin was arrested but subsequently released. However, before Franklin was released law enforcement personnel obtained an emergency protective order on behalf of T., and served it on Franklin while he was still in jail. The order prohibited Franklin from contacting T. at her home or on her cell phone.
C. Violation of the Protective Order
On December 3, 2013, and again on December 9, 2013, Franklin called T.'s home repeatedly. In one call on December 3, he spoke to his son Eric, Jr. and once again threatened Mills.
Shortly thereafter, Franklin was charged with making criminal threats (Pen. Code, § 422), and disobeying a domestic relations order (§ 273.6, subd. (a)). The information also alleged Franklin had two prior strike convictions (§ 667, subds. (b)-(i)), and two prior serious felony convictions (§ 667, subd. (a)). At a July 2015 trial, all charges were found true.
All further statutory references are to the Penal Code, unless otherwise indicated. --------
DISCUSSION
I
In his principal argument on appeal, Franklin argues the trial court erred in denying his requests to represent himself. The record fully supports the trial court's determination that, while finally competent to stand trial, Franklin was not competent to represent himself.
A. Section 1368 Examinations
Franklin's mental capacity was in serious question throughout the proceedings in the trial court. Franklin was subject to four examinations under section 1368 between January 2014 and his trial in July 2015, when succeeding appointed counsel expressed doubt as to his competency to stand trial. The first examination was prompted when his first counsel expressed doubt as to his mental competence. Although following his first January 2014 section 1368 examination, psychological experts found Franklin competent to stand trial, in April 2014, counsel indicated for the second time that he had doubt as to Franklin's competence and experts who examined him for the second time found Franklin was not competent to stand trial.
Both experts diagnosed Franklin as suffering from bipolar disorder. One expert recommended administration of psychotropic medication and found Franklin's thought process illogical, circumstantial and slightly paranoid at times. The other expert found Franklin's thought process was logical and organized at times, but nonetheless "tangential and grandiose throughout . . . ;" the second expert found Franklin was unable to control his compulsion to elaborate unnecessarily on irrelevant points, unable to understand the charges and how to communicate with his attorney, and had an incoherent, inefficient and irrational communication style. The trial court found Franklin was not competent to stand trial and committed him to Patton State Hospital, where he was treated until September 2014, when experts there concluded he was competent to stand trial and the trial court reinstated proceedings.
However, on October 29, 2014, counsel again expressed doubt as to Franklin's competence to stand trial; Franklin was again examined by experts, who concluded he was competent and criminal proceedings were reinstated again in December 2014.
On December 29, 2014, the trial court granted Franklin's Marsden motion and appointed new counsel for him; however, the following day Franklin again asked to represent himself and his request was again denied.
On April 1, 2015, new counsel, like her predecessor, expressed doubt as to Franklin's competency to stand trial and the trial court ordered a fourth section 1368 examination. Thereafter, two experts found Franklin competent to stand trial, criminal proceedings were reinstated and trial commenced in July 2015. However at trial, at the sheriff's insistence, one of Franklin's hands was shackled. In arguing that both hands should be shackled, county counsel stated: "This particular defendant has over 110 rule violations at the facility. He has also been classified at the highest level. He's considered a threat to persons, officers, inmates at the facility."
Franklin was convicted of both making a criminal threat and violating a restraining order. However, at the time initially set for his sentencing, Franklin's counsel expressed doubt as to whether he was competent to participate at his sentencing. Counsel stated: "After yesterday and today, it's been made abundantly clear to me that Mr. Franklin doesn't understand what he has been convicted of." The trial court continued sentencing and determined, with the agreement of Franklin's counsel, that although Franklin's behavior was somewhat odd and less than coherent, he was competent enough to be sentenced.
B. Faretta Requests
On December 23, 2013, Franklin requested that he be permitted to represent himself and the trial court granted his request. However, on January 2, 2014, he agreed to be represented by counsel.
On March 26, 2014, Franklin again requested that he be permitted to represent himself. Prior to the March 26, 2014 appearance, Franklin filed a motion to dismiss, which the trial court had reviewed and which caused the trial court some concern about Franklin's ability to represent himself because the motion was fairly incoherent and confusing. During a lengthy colloquy with the trial judge, Franklin stated among other matters, that he planned to file a motion or subpoena to compel former Los Angeles District Attorney Gil Garcetti, who was the head of the college he attended, to assist him with his defense, and that he might also ask Garcetti's son, the mayor of Los Angeles, to help him.
In denying Franklin's Faretta request, the trial court stated: "I have no doubt you have . . . a general idea about what is going on with the case, but I don't think you can represent yourself . . . . I don't mean 1368 competent. I mean that you lack the ability to represent yourself. You just don't—I read your motion. It's convoluted. It makes no sense. I read the preliminary hearing transcripts as well. You are going to hurt yourself representing yourself. You are not competent to do so."
In response to the trial court's ruling on his request, Franklin asked that Garcetti be appointed to represent him.
As we have noted, Franklin made another Faretta request in December 2014, after his Marsden motion had been granted and he had waived his right to a speedy trial. He made the Faretta motion on the grounds that new counsel would need additional time to prepare for trial and he believed he was ready for trial. As we noted, the trial court denied his second Faretta request.
C. Analysis
In Faretta the court determined that the Sixth Amendment right to counsel, included the right of a criminal defendant to self-representation, provided the defendant makes a knowing and intelligent waiver of the right to counsel. (Faretta, supra, 422 U.S. at pp. 818-819.) The fact that a trial judge may have doubts as to the defendant's understanding of the law and the person's ability to conduct a criminal trial, does not permit a court to deny a defendant the constitutional right to self-representation. (Ibid.) However, Indiana v. Edwards (2008) 554 U.S. 164, 171, departed somewhat from Faretta's strict waiver standard and held that where a defendant, although competent to assist counsel, suffers from mental disability such that the person cannot competently represent him or herself, the state may deny self-representation.
In People v. Johnson (2012) 53 Cal.4th 519 (Johnson), our state Supreme Court considered the impact Indiana v. Edwards, supra, 554 U.S. 164 should have on California courts. The court there upheld a trial court's decision to deny self-representation to a defendant who was competent to assist counsel, but who the trial court found lacked the mental competency to handle a trial. (Johnson, at p. 525.) The court held the trial courts can, in the exercise of their discretion, deny self-representation. (Id. at p. 530.) "[T]he standard that trial courts considering exercising their discretion to deny self-representation should apply is simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel." (Ibid.) "Trial courts must apply this standard cautiously . . . . Criminal defendants still generally have a Sixth Amendment right to represent themselves. Self-representation by defendants who wish it and validly waive counsel remains the norm and may not be denied lightly. A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides. Rather, it may deny self-representation only in those situations where Edwards permits it." (Id. at p. 531.)
Importantly, "[a]s with other determinations regarding self-representation, we must defer largely to the trial court's discretion. [Citations.] The trial court's determination regarding a defendant's competence must be upheld if supported by substantial evidence. [Citation.] Such deference is especially appropriate when, as here, the same judge has observed the defendant on numerous occasions." (Johnson, supra, 53 Cal.4th at p. 531.) "[T]he trial judge, particularly one such as the trial judge in this case, who presided over . . . competency hearings and . . . two trials, will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." (Indiana v. Edwards, supra, 554 U.S. at p. 177.)
In Johnson, the court found no abuse of discretion in its order revoking the defendants' right to represent himself: "We see no abuse of discretion in this case. The trial judge, who had permitted defendant to represent himself for several months, revoked defendant's self-representation status following a very careful and thorough discussion. He cited and applied the precise standard stated in Edwards, supra, 554 U.S. 164. He had previously appointed three mental health experts to evaluate defendant's competence to stand trial and had heard their testimony at the trial competency hearing. Although he did not appoint a mental health expert specifically to evaluate defendant's competence to represent himself, we believe under the circumstances doing so was not necessary for the court to make a sufficiently informed decision." (Johnson, supra, 53 Cal.4th at p. 532.)
Here, the trial court denied Franklin's March 2014 request to represent himself shortly after his attorney had requested a section 1368 hearing, and after Franklin had filed an entirely incoherent motion to dismiss and had made bizarre references to the former Los Angeles County District Attorney and his son, the current Mayor of Los Angeles. The course of the proceedings after his request to represent himself entirely confirmed the trial court's initial determination: he was subject to three additional section 1368 examinations and at one point found incompetent to stand trial. We also note that at trial one of his hands was shackled because of concerns about his behavior expressed by the sheriff. In short, the trial court's concern about Franklin's ability to conduct his own defense was not the court's alone, but was shared over the course of the proceedings by his counsel and experts appointed to examine him. Given these circumstances, the trial court in no sense abused its discretion in requiring that Franklin be represented.
II
Next, Franklin contends the trial court erred in failing to provide a unanimity instruction with respect to his conviction of violating the protective order. We find no error.
The jury was instructed that the crimes occurred on or about November 30, December 3, and December 9, 2013, and that the People are not required to prove the exact date but only that it happened reasonably close to those dates. Without objection the prosecution presented evidence that Franklin called T.'s residence on December 3 and 9. Although Franklin did not testify, counsel argued to the jury that he only called to speak with his sons and that he was not attempting to contact T. or violate the protective order.
As the People note, a unanimity instruction is required so that there is agreement among the jurors as to the act or acts which would support a conviction for the charged offense. (People v. Diedrich (1982) 31 Cal.3d 263, 281-282; People v. Deletto (1983) 147 Cal.App.3d 458, 471-472.) "[T]he possibility of disagreement exists where the defendant is accused of a number of unrelated incidents . . . leaving the jurors free to believe different parts of the testimony and yet convict the defendant." (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791.) However, " 'where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the [unanimity] instruction is not necessary to the jury's understanding of the case.' " (People v. Beardslee (1991) 53 Cal.3d 68, 93; see also People v. Champion (1995) 9 Cal.4th 879, 932.) In particular, a unanimity instruction is not necessary where the same defense to multiple acts is offered. (See People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Winkle (1988) 206 Cal.App.3d 822, 826.) In such cases a guilty verdict indicates that the jury did not believe the only defense offered. (Winkle, at p. 826.)
Here, no unanimity instruction was required because Franklin offered only one defense to the two telephone calls and the jury plainly rejected that defense.
III
The information alleged that Franklin had two prior strikes (§ 667, subds. (b)-(i)), and two prior serious felonies (§ 667, subd. (a)(1)). No prison priors (§ 667.5, subd. (b)) were alleged. In a bifurcated court trial, the court found true the prior strike and serious felony convictions. Notwithstanding the information and true findings, the trial court sentenced Franklin, in addition to his three strikes sentence of 25 years to life, to a total term of two additional years for two prison priors rather than to a total term of 10 additional years for the two serious felony priors. On appeal, Franklin agrees this was a mistake, was unauthorized and is subject to correction. (See In re Renfrow (2008) 164 Cal.App.4th 1251, 1256.)
However, rather than directing the trial court to correct the abstract of judgment, he asks that we remand for resentencing. We agree that resentencing is appropriate. (See People v. Stofle (1996) 45 Cal.App.4th 417, 422.) Where, in a three strikes case correction of a sentence increases a defendant's total sentence, remand affords the trial court the opportunity to entertain application of its power under section 1385 as set forth in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-532. (Stofle, at p. 422.)
DISPOSITION
The imposition of two one-year enhancements is vacated and the case is remanded for resentencing with respect to the two serious felonies found true; in all other respects the judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.