People v. Lamonte

Full title: THE PEOPLE, Plaintiff and Respondent, v. DANIEL JORDAN LAMONTE, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 15, 2017

No. E062102 (Cal. Ct. App. Feb. 15, 2017)

Opinion

E062102

02-15-2017

THE PEOPLE, Plaintiff and Respondent, v. DANIEL JORDAN LAMONTE, Defendant and Appellant.

Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

CODRINGTON J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1400878) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins and William S. Lebov, Judges.^* Affirmed. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

* Judge Lebov is a retired judge of the Yolo Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

I

INTRODUCTION

After a restaurant manager told defendant and appellant, Daniel Jordan Lamonte, he had to wear a shirt inside the restaurant, defendant cut the manager's face with a "work tool" or "utility knife" and threatened to kill the manager. Defendant then struggled with sheriff's deputies before he was handcuffed and placed in a patrol car.

A jury found defendant guilty as charged of assault with a deadly weapon, a knife, (Pen. Code, § 245, subd. (a)(1)),¹ misdemeanor resisting arrest (§ 148), a lesser included offense of the charge of felony resisting arrest (§ 69), and making a criminal threat (§ 422). The jury was instructed on reasonable self-defense and defense of others. Defendant admitted two prison priors (§ 667.5, subd. (b)) and was sentenced to six years in prison—the upper term of four years on count 1, a concurrent six-month term on count 2, a concurrent two-year term on count 3, plus two years for the two prison priors.

1 All further statutory references are to the Penal Code unless otherwise indicated.

Defendant represented himself at trial. On appeal, he claims his Faretta ² waiver of his right to counsel and election to represent himself was not knowing, voluntary, or unequivocal, and is therefore constitutionally invalid. He also claims the court abused its discretion in denying his request to withdraw his counsel waiver. Defendant made the request before opening statements, but after the jury was sworn and the court had heard extensive testimony under Evidence Code section 402. We conclude defendant's counsel waiver was valid, and the court did not abuse its discretion in denying defendant's untimely request to revoke his counsel waiver.

2 Faretta v. California (1975) 422 U.S. 806 (Faretta).

Defendant raises three additional claims of trial court error, namely, that the trial court (1) committed prejudicial judicial misconduct by disparaging him in front of the jury and suggesting that the court credited the prosecution's case over defendant's, (2) violated section 1368 and defendant's due process rights in failing to hold a competency hearing after "expressly declaring doubt" about defendant's competency, and (3) violated defendant's due process rights by requiring him to testify surrounded by five sheriff's deputies with six other deputies in the courtroom. Defendant claims the cumulative effect of these errors requires reversal. We find no merit to any of these claims.

We also reject defendant's additional claim that his concurrent three-year term for his criminal threats conviction in count 3 must be stayed under section 654. Defendant's final claim is that he is entitled to additional custody credits, for a total of 552 days, but that claim is moot. The augmented record shows that the court awarded defendant the additional credits he sought on April 22, 2016, after the parties filed their briefs on appeal. Accordingly, we affirm the judgment in all respects.

II

FACTUAL BACKGROUND

A. Prosecution Evidence

1. The Aggravated Assault and Criminal Threat Charges

Around 8:30 p.m. on Monday, February 4, 2013, defendant, his girlfriend, Melissa Perry,³ and their daughter S. were sitting at a table in the bar area at a restaurant in Palm Desert. Defendant was not wearing a shirt because he wanted to display his tattoos. A restaurant employee politely asked defendant to put his shirt on, and defendant refused.

3 At the time of trial, Melissa Perry's name was Melissa Perry-Lamonte. For ease of reference, we refer to Ms. Perry-Lamonte as Melissa.

Next, J.M., the general manager of the restaurant, approached defendant's table and asked him to put his shirt back on. Again defendant refused and calmly demanded to see a "rule book" that required him to wear a shirt. J.M. told defendant he did not have a rule book but had the right to refuse service to anyone. Defendant became "somewhat agitated." J.M. asked defendant to leave and told defendant that he, J.M., would take care of his bill.

Defendant stood up, told J.M., "This is my town. You don't know who you're messing with," and said he would take J.M. "out back" and "smoke" him. J.M. was standing by defendant's table with his hands on his waist, trying to keep his voice down. J.M. tried to diffuse the situation and again told defendant to leave. Defendant put his shirt on, then got close to J.M.'s face, pulled out what appeared to be a knife, pressed the blade to the left side of J.M.'s face, and threatened to kill J.M. J.M. calmly told defendant he was not afraid of him, and that he only wanted defendant to leave. Defendant put the blade down for a moment, then pressed it "hard" against J.M.'s face, causing J.M.'s cheek to bleed. J.M. felt the blade cross his face, took a step back, swung his fist, and hit defendant in the face, knocking defendant unconscious.

A video of the incident was captured on the restaurant's security camera. Using the camera on his cellular telephone, J.M. recorded the security video, and that recording was played for the jury.⁴ J.M. recorded the incident from the time he approached defendant's table. The "work blade" defendant used was retrieved from the restaurant floor.

4 J.M. was unable to retrieve the security video from the restaurant's system and place it on a hard disc or a flash drive.

Before defendant awoke, sheriff's deputies arrived and J.M. told them he had struck defendant very hard and that defendant hit his head on the table and chair as he fell to the floor. While defendant was still unconscious, J.M. was "in tears" because he thought he had killed defendant. J.M. had a 2006 conviction for felony domestic violence with great bodily injury. During the early 2000's, J.M. was convicted of two counts of misdemeanor embezzlement.

2. The Resisting Arrest Charge

Deputy Robert Ramirez arrived at the restaurant when defendant was unconscious, but breathing. Deputy Ramirez interviewed J.M. and defendant's girlfriend, Melissa. Melissa did not say that anyone had threatened her or her daughter. J.M. explained defendant had assaulted him with a knife. J.M. had a cut on his left cheek and was distraught.

When defendant awoke, he sat up on the floor "Indian style," pulled out his cellular telephone, and began playing music. He looked dazed and had trouble standing. Deputy Ramirez asked defendant whether he was okay and knew where he was, but defendant did not respond. Moments later the paramedics arrived, spoke with defendant, then left. Defendant apparently refused medical treatment.

When it appeared defendant was preparing to leave the restaurant, Deputy Ramirez told defendant to sit down because he was being detained for assault. Defendant responded, "Fuck you. I ain't going anywhere with you. I'm taking my daughter and going home." At that point, Deputy Ramirez told defendant to put his hands behind his back, but defendant refused. Deputy Ramirez threw defendant to the floor and yelled at him to put his hands behind his back. While another deputy held defendant's legs, Deputy Ramirez got on defendant's back and ordered defendant to put his hands behind his back and stop resisting. Defendant grabbed Deputy Ramirez's shirt, and the deputy kneed defendant in the face. Finally, defendant put his hands behind his back and was handcuffed. B. Defense Case

Defendant claimed he acted in self-defense and in defense of Melissa and S. when he sliced J.M.'s face with a knife. Defendant also claimed he was not conscious or did not understand what he was doing during his struggle with the deputies. He claimed the deputies used excessive force to detain him and he denied resisting the officers.

Riverside County Sheriff's Deputy Nicolas Lingle arrived at the restaurant after defendant was detained. Outside the restaurant, Deputy Lingle saw that defendant was hitting his head on the patrol car windows. At the hospital, defendant was hostile toward the sheriff's deputies and hospital personnel. He refused to be interviewed about the incident and was "slamming back and forth and all over the place" as Deputy Lingle tried to photograph him.

Melissa testified that defendant commonly carried his "work blade" on his person for construction or painting work. He was also a tattoo artist and commonly had his shirt off because it would "strike up conversations" about tattoo work. On February 4, 2013, defendant took his shirt off at the restaurant after he, Melissa, and S. sat down at a table to eat. The first man who approached the table used an "aggressive . . . tone" in asking defendant to put his shirt on. After the first man left and J.M. approached, J.M. "walked up somewhat aggressive" and was "an uncomfortable distance away, close to our daughter."

According to Melissa, defendant repeatedly asked J.M. to "[p]lease back up from my family," but J.M. did not comply. J.M. "continued to argue" with defendant even after defendant put his shirt on. Melissa did not hear defendant threaten J.M., but she saw defendant pull out his work blade and hold it up to J.M.'s face. Melissa saw that S. was frightened of J.M. S. was seven years old at the time of trial, and testified she was frightened of the man who punched defendant.

Melissa testified that after J.M. struck defendant and defendant awoke, defendant told one of the deputies that he "just want[ed] to go home," and Melissa was trying to tell the deputy that defendant did not understand what was going on. Defendant seemed "dazed and confused" the "whole time" after he awoke. He did not run from, threaten, or throw anything at any of the deputies.

Defendant testified that the first man who approached his table and asked him to put his shirt on verbally abused him and acted aggressively. When the man returned with J.M. and J.M. made the same request, J.M. used threatening and aggressive language, and got into defendant's personal space. J.M. said, "You looking for problems?" J.M. also made racial comments and twice "lung[ed]" at defendant and his family. Defendant displayed his work blade only to make J.M. and the first man back away. J.M. and the other man would not allow defendant and his family to leave the restaurant. Defendant, who is White, also suggested that J.M., who is Black, and the first employee confronted defendant because of his race, not because he was shirtless. Defendant had two prior felony convictions for resisting an executive officer with force or violence. In 2011, defendant was convicted of felony vandalism.

III

DISCUSSION

A. Defendant's Waiver of His Right to Counsel Was Valid

Defendant claims his Faretta waiver of his right to counsel and election to represent himself at trial was not knowing and intelligent, and is therefore constitutionally invalid, because neither the Faretta waiver form he signed nor the court, in accepting his counsel waiver, advised him of the maximum punishment he faced if convicted of all of the charges. He also argues his counsel waiver was equivocal, but not involuntary or coerced, because he was forced to choose between representing himself and waiving his right to a speedy trial. He does not claim, however, that he was deprived of his constitutional or statutory speedy trial rights.

1. Relevant Background

Defendant was arrested for the assault on February 4, 2013, and was released on bail on March 19, 2013, following a preliminary hearing. Defendant was still out on bail on August 29, 2013, when he was arrested and placed in custody on two unrelated felony driving under the influence (DUI) charges. On February 21, 2014, while defendant was still in custody on the DUI charges, his bail was exonerated and he was surrendered into custody on the assault charges. The assault and related charges were dismissed and refiled on April 4, 2014.⁵

5 The assault and related charges were originally filed under case No. INF1300333.

Following the June 18, 2014 preliminary hearing on the refiled charges, defendant was held to answer, an information was filed, and defendant was arraigned and pled not guilty on July 7, 2014. Also on July 7, 2014, defendant's privately-retained attorney, Melanie Roe, orally moved to be relieved as defendant's counsel. Roe was relieved, and Ronny Hettena from the public defender's conflict panel was appointed to represent defendant. Hettena had been representing defendant on the DUI charges, and defendant pled not guilty to the DUI charges.

On July 16, 2016, only nine days after Hettena was appointed, defendant made a Marsden ⁶ motion to relieve Hettena as his counsel in both the DUI case and the present case. Among other things, defendant said he had been in custody for nearly a year, he wanted a speedy trial, and he disagreed with the advice of Hettena and his former attorney Roe that he accept a plea deal. Defendant said he was never interested in accepting any plea deal, and he complained that Hettena was busy and had no time for his case. The court relieved Hettena as defendant's counsel in the DUI case and in the present case after finding there was an irremediable breakdown in the attorney-client relationship. The court observed that the relationship had broken down because of defendant's unreasonable expectations, not because of anything Hettena had done or failed to do.

6 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

Just after Hettena was relieved on July 16, 2013, defendant was again arraigned on the instant charges with the assistance of another attorney from the public defender's conflict panel, Johnson. The court set July 25, 2014 as the date to confirm the appointment of new counsel for defendant. At that point, defendant told the court that six attorneys had handled his cases and all of them had been ineffective. Defendant said: "I feel that the court is pushing me to go pro per as the only option, and it's very, very unfortunate that it's come to this; however, I haven't found an attorney, not one attorney that's been interested in upholding my constitutional rights for a speedy trial and handling my case with what it needs to be handled with." The court told defendant he needed to ask himself whether he was being reasonable and fair with the attorneys who had represented and conferred with him and to consider whether he could go forward in good conscience with whatever attorney might be assigned to represent him. Defendant indicated he did not wish to represent himself and he was "more than willing" to talk with another attorney.

On July 25, 2014, Brenda Miller was appointed to represent defendant. Miller then told the court that defendant wanted to address the court and might want to represent himself. Defendant said he had met with Miller that morning, he was upset that she told him he was "not going to be given [his] constitutional right to a speedy trial" and she "balked" when he said he wanted to go to trial. Defendant insisted he wanted a speedy trial and that he wanted to represent himself. The court admonished defendant that he had just met with Miller that morning, there would be a trial readiness conference on August 15, 2015, and defendant could renew his motion to relieve Miller at that time if he still wished to represent himself. Miller said she told defendant that "if he [was] so interested [in] his speedy trial rights, then he should go pro per because no attorney is going to be [prepared for trial] within his time limits."

On August 15, 2014, defendant appeared in court with Miller and moved to relieve Miller as his counsel and represent himself on all of his pending cases. The court instructed defendant to fill out and sign a Faretta form, or Petition to Proceed in Propria Persona (Riverside Superior Court form RI-OTSO8 [Rev. 11/29/11]), which explained his right to counsel and the responsibilities and risks of self-representation. Defendant signed the form and initialed each provision. Above his signature at the bottom of the form, he wrote "U.C.C. signed under distress." The court asked defendant what that meant, and defendant responded "[t]hat's the signature of a sovereign nation citizen that's free in this state and signed . . . under duress of the system. Part of the Universal Corporation Code, I believe." The court assured defendant that it had jurisdiction over him.

When the court asked defendant whether he had any questions about the Faretta form or the consequences of his decision to represent himself, defendant said he did not have any questions and understood the form. Defendant explained that he wished to represent himself because he did not want to waive his speedy trial rights. He complained he had gone "through about seven attorneys" and none of them were effective because none of them were willing to uphold his constitutional rights to a speedy and "effective" trial.

The court warned defendant he would be at an "extreme disadvantage" against the prosecutor, and defendant said he understood. When the court asked defendant about his education, defendant said he had some "college" but he did not take any law classes. He was familiar with the legal system, however; he had been to trial with legal representation before but he had never represented himself at trial. When the court asked defendant whether he felt comfortable giving up his right to counsel, defendant said: "As comfortable as I could be considering, sir. Absolutely." The court then warned defendant that if he changed his mind about representing himself on the day of trial, there was a "pretty good chance" the trial judge would deny his request to reappoint counsel. Defendant said he understood and had "no reservations" about representing himself. The court granted the Faretta motion and appointed an investigator to assist defendant with his case.

2. Legal Principles Governing Right to Counsel Waivers

The Sixth Amendment of the United States Constitution guarantees a defendant (1) the right to be represented by counsel at critical stages of the prosecution, and (2) the right to represent himself, if he so elects. (Faretta, supra, 422 U.S. at p. 819; People v. Koontz (2002) 27 Cal.4th 1041, 1069.) The federal Constitution requires assiduous protection of a defendant's right to counsel. (People v. Marshall (1997) 15 Cal.4th 1, 20.) Accordingly, the courts must indulge every reasonable inference against a defendant's waiver of that right. (Brewer v. Williams (1977) 430 U.S. 387, 404.)

"The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. [Citations.]" (People v. Koontz, supra, 27 Cal.4th at pp. 1069-1070, italics added.) In order to make a valid waiver of the right to counsel, a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation.]" (Faretta, supra, 422 U.S. at p. 835.) A right to counsel waiver must also be unequivocal. (People v. Boyce (2014) 59 Cal.4th 672, 703.) "No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case." (People v. Koontz, supra, at p. 1070; People v. Burgener (2009) 46 Cal.4th 231, 241.)

On appeal, we independently determine based on the entire record whether the defendant's counsel waiver was knowing and voluntary. (People v. Jackio (2015) 236 Cal.App.4th 445, 452 (Jackio).) When, as here, a defendant wages a collateral attack on his uncounseled conviction, it is the defendant's burden to prove he did not knowingly, intelligently, and voluntarily waive his right to counsel. (Iowa v. Tovar (2004) 541 U.S. 77, 92 (Tovar); People v. Sullivan (2007) 151 Cal.App.4th 524, 547.)

3. Defendant's Faretta Waiver Was Knowing and Voluntary

Defendant claims his Faretta waiver is invalid because neither the superior court nor the Faretta waiver form he signed advised him of the maximum punishment he faced if convicted of all of the charges and enhancements. He relies on two cases: the high court's 2004 decision in Tovar, supra, 541 U.S. 77 and the Third District Court of Appeal's 2015 decision in Jackio, supra, 236 Cal.App.4th 445. Based on Tovar, Jackio concluded that a defendant who wishes to waive his right to counsel and represent himself at trial must be advised of the maximum possible punishment he faces if convicted of all of the charges. (Jackio, supra, at pp. 454-455.) As we explain, Tovar does not support Jackio's conclusion, and we decline to follow Jackio.

(a) Tovar and Jackio

Tovar concerned the advisements which the court must give a defendant who says he wishes to waive counsel and represent himself in entering a guilty plea. (Tovar, supra, 541 U.S. at p. 81.) In the introductory portion of its opinion, the high court wrote that the Sixth Amendment is satisfied "when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." (Tovar, supra, at p. 81, italics added.)

This italicized portion of Tovar is dictum. Tovar did not consider whether a court must always advise a defendant who wishes to waive his right to counsel and plead guilty of the range of allowable punishments the defendant faces upon entering a guilty plea. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [cases are not authority for propositions not considered].) Instead, Tovar held that the Sixth Amendment does not require the court to specifically advise a defendant who wishes to plead guilty on two points: (1) that waiving his right to counsel entails the risk that a viable defense will be overlooked, or (2) that, by waiving his right to counsel, the defendant will lose the opportunity to obtain an independent opinion of counsel on whether it is wise to plead guilty. (Tovar, supra, 541 U.S. at p. 81.) No such "rigid and detailed" admonishments are necessary, in every case, to ensure that the defendant's counsel waiver is knowing and intelligent. (Id. at pp. 91-92.) "In prescribing scripted admonitions and holding them necessary in every guilty plea instance," the lower court "gave insufficient consideration" to the high court's "guiding decisions" and "overlooked" its observations that "the information a defendant must have to waive counsel intelligently will 'depend, in each case, upon the particular facts and circumstances surrounding that case.'" (Id. at p. 92.) The advisements at issue in Tovar were unwarranted under the facts and circumstances of the case, in part because Tovar "never claimed that he did not fully understand the charge or the range of punishment for the crime prior to pleading guilty." (Ibid.)

Tovar emphasized that a defendant who wishes to waive his right to counsel must be warned, "'specifically of the hazards ahead'" and "'of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing. . . .'" (Tovar, supra, 541 U.S. at pp. 88-89, citing Faretta, supra, 422 U.S. at p. 835.) A counsel waiver is intelligent when the defendant "'knows what he is doing and his choice is made with eyes open.'" (Tovar, supra, at p. 88, citing Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279.)

Jackio treated Tovar as holding that the Sixth Amendment is satisfied "'when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.'" (Jackio, supra, 236 Cal.App.4th at pp. 453-454.) As indicated, Tovar did not so hold. Still, Jackio declined to extend this principle to hold that a defendant who says he wishes to represent himself at trial must be advised of "the full range of possible punishments" he faces if convicted of all the charges and enhancements. (Jackio, supra, at pp. 454-455.) Jackio indicated that such a complex and potentially erroneous advisement would be impractical and unwarranted. (See ibid.) Instead, Jackio concluded that "the most reasonable solution consistent with case law and the United States Constitution is to require the trial court to advise a defendant desiring to represent himself at trial of the maximum punishment that could be imposed if the defendant is found guilty of the crimes, with enhancements, alleged at the time the defendant moves to represent himself." (Ibid., italics added.) As indicated, neither Tovar nor Faretta and its progeny support Jackio's holding.

The People point out that this court is not bound by Jackio and ask us not to follow its "formulaic rule" given that the California Supreme Court has repeatedly stated that no specific warnings or advisements are required for a valid Faretta waiver. (E.g., People v. Burgener, supra, 46 Cal.4th at pp. 240-241 [no particular form of warning is required as long as the record as a whole shows that the defendant understood the dangers of self-representation]; see also U.S. v. Lopez-Osuna (9th Cir. 2000) 242 F.3d 1191, 1199 [in determining whether a Faretta waiver is knowing and intelligent, "the focus should be on what the defendant understood, rather than on what the court said or understood."].) We respectfully disagree with Jackio and decline to follow it. Though it may be advisable or even necessary in some cases for the court to warn a defendant who seeks to waive his right to counsel of the maximum possible punishment the defendant faces, no such advisement is required in all cases. (People v. Bush (2017) 7 Cal.App.5th 457, 470-471 [criticizing Jackio's analysis of Tovar and declining to follow Jackio].) As we explain below, no such advisement was necessary here, in order to ensure that defendant knowingly and intelligently waived his right to counsel.

As our state courts have emphasized, "'"[t]he test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case."' [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 140; People v. Burgener, supra, 46 Cal.4th at p. 241; People v. Fox (2014) 224 Cal.App.4th 424, 433-434.) Accordingly, "[t]he failure to give a particular set of advisements does not, of itself, show that a Faretta waiver was inadequate. Instead, '[t]he burden is on appellant to demonstrate that he did not intelligently and knowingly waive his right to counsel. . . . [T]his burden is not satisfied by simply pointing out that certain advisements were not given.' [Citations]. Instead, the purpose of standardized advisements is prophylactic, 'to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a threshold of competency to waive counsel.' [Citation.]" (People v. Weber (2013) 217 Cal.App.4th 1041, 1058-1059.) These principles are consistent with Faretta and Tovar.

As the People point out, at least two California appellate courts have rejected the claim defendant raises here—that a specific advisal of a defendant's maximum penal exposure is necessary to make the defendant's Faretta waiver knowing and intelligent. (People v. Conners (2008) 168 Cal.App.4th 443, 455 (Conners); People v. Harbolt (1988) 206 Cal.App.3d 140, 149-151.) Conners noted that, in order for a Faretta waiver to be deemed knowing and intelligent, "the overriding principle" is whether the entire record shows the counsel waiver was knowing and intelligent. (Conners, supra, at p. 455, citing People v. Marshall, supra, 15 Cal.4th at p. 24 ["[e]ven when the trial court has failed to conduct a full and complete inquiry regarding a defendant's assertion of the right of self-representation, these courts examine the entire record to determine whether the invocation of the right of self-representation and waiver of the right to counsel was knowing and voluntary."].) Harbolt emphasized that no United States Supreme Court case or California case "requires the trial court to specifically advise a defendant seeking to represent himself of the penal consequences" he faces if convicted. (People v. Harbolt, supra, at p. 149.)

As noted in Conners, some courts have suggested that, in order to deem a Faretta waiver knowing and intelligent, the trial court "must or should ensure the defendant understands the possible penalties, as well as the nature of the charges and the dangers of self-representation." (Conners, supra, 168 Cal.App.4th at p. 455, citing People v. Sullivan, supra, 151 Cal.App.4th at p. 545 & People v. Noriega (1997) 59 Cal.App.4th 311, 319.) But Jackio is to date the only California case which requires the trial court to advise the defendant of the maximum penalties he faces if he represents himself at trial, as a condition to finding a knowing and intelligent Faretta waiver. Jackio did not acknowledge Conners or Harbolt, however. (Jackio, supra, 236 Cal.App.4th at pp. 451-456.)

(b) No Maximum Punishment Advisal Was Necessary Here

Based on our review of the entire record, we are convinced that the maximum possible punishment defendant faced if fully convicted⁷ had no bearing whatsoever on his decision to waive his right to counsel and represent himself at trial. Rather, it is clear that defendant wanted to represent himself for two reasons: (1) he was frustrated that his prior attorneys had advised him to accept a plea deal, and (2) he wanted to proceed to trial as soon as possible and did not wish to waive his constitutional right to a speedy trial to accommodate the work schedules of his defense counsel.

7 The probation officer's report states that defendant faced eight years four months in prison if convicted of the charged offenses of assault with a deadly weapon (§ 245, subd. (a)(4)), felony resisting arrest (§ 69), criminal threats (§ 422), and the three alleged prison priors (§ 667.5, subd. (b)). As noted, defendant was convicted of the lesser included offense of misdemeanor resisting arrest in count 2 (§ 148) and he admitted two prison priors. He was sentenced to six years in prison.

When defendant discharged his appointed attorneys, Hettena and Miller, he made it clear to the court that he wanted to proceed to trial as soon as possible. In moving to discharge Hettena on July 7, 2014, defendant said he was not interested in accepting any plea deal. And in moving to discharge Miller on August 15, 2014, and also waive his right to counsel and represent himself, defendant expressed frustration that Miller would not be ready for trial as soon as he desired. Defendant also stressed that he wanted to fight the charges and tell "his story" to the jury. He expressed a firm and sincere belief that he acted in self-defense and in defense of his family when he assaulted and threatened J.M. He also claimed he was not guilty of resisting arrest because he was too "unconscious" to understand what was happening when he struggled with the sheriffs' deputies. He repeatedly told the court that he "wanted to be a hero" to his daughter S. by showing her he was willing to stand up for what was right and fight the charges. He was also familiar with the criminal justice system. He had several prior convictions and had served time in prison, indicating he believed he knew what he was doing, and the risks he faced, in representing himself. (Parke v. Raley (1992) 506 U.S. 20, 37 [a defendant's prior experience with the criminal justice system is relevant to whether he knowingly waived constitutional rights].)

Moreover, on September 3, 2014, the first day of trial, the prosecutor and the court discussed defendant's maximum penal exposure, and agreed he was facing six to nine years in prison if convicted of the charged offenses and three prison priors.⁸ Defendant said nothing during this discussion, indicating he was aware of his maximum possible sentence. The nine-year maximum was essentially correct. As indicated in the probation officer's report, defendant faced eight years four months in prison if convicted of the charged offenses and the three alleged prison priors. Later that day, the court told defendant he could not mention penalty or punishment to the jury. Specifically, the court told defendant: "[Y]ou can't say, 'They're trying to give me nine years.'" Defendant indicated he understood.

8 The prosecutor conceded that one of the three alleged prison priors was based on two concurrent convictions, bringing the alleged prison priors down to two.

The counsel waiver in Conners was held valid based on substantially identical facts. (Conners, supra, 168 Cal.App.4th at p. 455.) Though the trial court in Conners did not advise the defendant of the maximum penalty he faced when the court accepted the defendant's Faretta waiver, the record showed the waiver was nonetheless knowing and intelligent because the defendant was advised of his maximum penalty shortly before trial, and he "still decided" to represent himself. (Conners, supra, at p. 455.) Here, too, defendant's Faretta waiver was knowing and intelligent in light of the entire record. Even if the court had advised defendant of the maximum sentence he faced at the time the court accepted his Faretta waiver on August 15, 2014, we are convinced that defendant would have continued to insist on representing himself.

In sum, defendant has not met his burden of showing his counsel waiver was not knowing and intelligent. (People v. Weber, supra, 217 Cal.App.4th at p. 1058.) "The record suggests no confusion on defendant's part regarding the . . . risks of self-representation, or the complexities of his case, much less that his election to represent himself was other than voluntary." (People v. Lawley, supra, 27 Cal.4th at p. 142.)

Finally, U.S. v. Erskine (9th Cir. 2004) 355 F.3d 1161 (Erskine) is of no assistance to defendant. In Erskine, the Ninth Circuit held that the defendant's Faretta waiver was not knowing and intelligent because the district court failed to ensure that "Erskine understood the possible penalty he faced at the time of his Faretta waiver." (Erskine, supra, at p. 1171.) Erskine faced a possible five-year sentence. At the time he waived his right to counsel, Erskine indicated he believed he faced a maximum one-year sentence, and the district court did not correct him. (Id. at pp. 1164-1165.)

Erskine did not consider whether the entire record showed that Erskine's Faretta waiver was knowing and intelligent notwithstanding his misunderstanding of the maximum penalty he faced if convicted. (Erskine, supra, 355 F.3d at pp. 1167-1171.) Instead, Erskine applied a categorical rule that no Faretta waiver can be knowing and intelligent unless the district court ensures that the defendant understands "the possible penalties" attendant to the charges, in addition to the dangers and disadvantages of self-representation, at the time the defendant seeks to represent himself. (Erskine, supra, at p. 1167, citing U.S. v. Balough (9th Cir. 1987) 820 F.2d 1485, 1487.)

Erskine is not binding on this court. (Jackio, supra, 236 Cal.App.4th at p. 456.) Moreover, its categorical rule is at odds with the high court's Sixth Amendment jurisprudence. (Tovar, supra, 541 U.S. at p. 92 ["the information a defendant must have to waive counsel intelligently will 'depend, in each case, upon the particular facts and circumstances surrounding that case . . . .'"].) Erskine is likewise at odds with decisions of our state Supreme Court, which require California appellate courts to determine, based on the entire record, whether a Faretta waiver was knowing and intelligent. (E.g., People v. Burgener, supra, 46 Cal.4th at p. 241.)

4. Defendant's Faretta Waiver Was Unequivocal

Defendant next claims his Faretta waiver was equivocal because it was ostensibly made "under the cloud of emotion." He argues he was forced to choose between self-representation and being represented by an attorney, namely, his most recently appointed counsel, Miller, who was unable to bring his case to trial "within speedy trial limits," and this dilemma he faced was known to the court at the time it accepted his Faretta waiver on August 15, 2014.

In his reply brief, defendant clarifies that he is not claiming he was deprived of his constitutional or statutory speedy trial rights. Nor is he claiming that his Faretta waiver was involuntary or coerced. Instead, he only claims his Faretta motion should have been denied because it "was not motivated by [his] true desire for self-representation." We disagree that defendant's Faretta motion or counsel waiver was in any way equivocal.

"[I]n order to protect the fundamental constitutional right to counsel, one of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. [Citations.]" (People v. Marshall, supra, 15 Cal.4th at p. 23.) In other words, the court must determine whether the defendant "'"genuinely means what he says"'" when he seeks to represent himself. (Ibid.) "Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion . . . may be denied." (Ibid.; accord, People v. Valdez (2004) 32 Cal.4th 73, 98-99.)

On August 15, 2014, when defendant asked the court to relieve Miller and allow him to represent himself at trial, defendant expressed no ambivalence about representing himself. Instead, he expressed frustration that all of his former attorneys had advised him to accept a plea agreement, and that his most recent attorney, Miller, could not be ready for trial within the 60-day statutory time limit (§ 1382, subd. (a)(2)), which expired on September 5, 2014, 60 days following his July 6 arraignment. Defendant was in custody on two unrelated DUI charges which were trailing behind this case. His frustrations with his custody status and attorneys did not render his Faretta waiver equivocal. He expressed no equivocation about his desire to represent himself. Nor did he ask the court to appoint counsel who could and would be ready to try the case by September 5, 2014. B. The Court Did Not Abuse Its Discretion in Denying Defendant's Request to Revoke His Counsel Waiver and Appoint Counsel to Represent Him at Trial

Defendant next claims the court abused its discretion in denying his midtrial request to revoke his counsel waiver. We disagree.

1. Relevant Background

As indicated, defendant successfully sought to discharge his last attorney, Miller, on August 15, 2015. Trial commenced on September 3, 2014, and the jury was selected and sworn on September 4. On the next trial date, September 8, the jurors were excused for the day due to road closures and flooding, but the court heard extensive testimony from J.M. and Deputy Ramirez pursuant to Evidence Code section 402.

On the morning of September 9, after the jury arrived and the parties were about to give their opening statements, defendant asked the court to revoke his counsel waiver and appoint his most recently-relieved attorney, Miller, or another attorney, to represent him at trial. The court said the request was untimely, but asked whether Miller was prepared to "jump in right now" and represent defendant without a trial continuance.

During this discussion, defendant admitted that "seven-plus" attorneys, including Miller, had been appointed to represent him, and he had "not been happy" with any of them. Defendant complained that he did not believe he could competently represent himself, and J.M. had testified during the Evidence Code section 402 hearing about information he was previously unaware of—an off-duty restaurant employee, Derek Brown, was seen in the background of the security video of the assault. The court noted that defendant had received a copy of the security video months earlier, on April 17, 2014, and that defendant had declined to cross-examine J.M. during the Evidence Code section 402 hearing. The video was also played during the June 18, 2014 preliminary hearing.

The court said it appeared defendant was attempting to delay the trial, but defendant said he had "changed attorneys and became pro per" so he could "speed up the proceedings." Defendant said his daughter's mother, Melissa, had spoken with Miller the day before. The court had the bailiff contact Miller, who promptly appeared and told the court that her circumstances had changed and she could not be ready for trial until February 2015. The court denied defendant's counsel revocation request as untimely, but indicated it would have granted the request if Miller had been able to proceed with the trial that afternoon.

2. Analysis

A midtrial request to revoke a counsel waiver is left to the sound discretion of the trial court, which must consider the totality of the circumstances in ruling on the request. (People v. Lawrence (2009) 46 Cal.4th 186, 188, 191-192.) The factors the court should consider include, but are not limited to, (1) the defendant's reasons for seeking to revoke his Faretta waiver, (2) the delay or disruption the revocation is likely to cause the court, the jury, and other parties, (3) the defendant's prior history, if any, of changing counsel and of changing from self-representation to counsel-representation, (4) the length and stage of the trial proceedings, and (5) the likelihood of the defendant's effectiveness in defending against the charges if required to continue to act as his own attorney. (People v. Lawrence, supra, at p. 192; People v. Gallego (1990) 52 Cal.3d 115, 164.) We review the trial court's ruling on a counsel waiver revocation request for an abuse of discretion (People v. Lawrence, supra, at p. 192) and find no abuse of discretion here.

As noted, defendant made his counsel revocation request midtrial—after the jury was sworn and two witnesses, J.M. and Deputy Ramirez, had given extensive testimony under Evidence Code section 402. The prosecutor was about to give her opening statements and present her case-in-chief. Miller was unable to "jump in" and represent defendant unless the trial was continued for several months, from September 2014 to February 2015. Appointing Miller or anther attorney would have meant excusing the jury, selecting another jury, and inconveniencing witnesses, including J.M. and Deputy Ramirez, who were in court and ready to testify when defendant sought to revoke his counsel waiver.

Finally, defendant's reasons for his revocation request—he said he did not believe he could competently represent himself and J.M. revealed information during his Evidence Code section 402 testimony that defendant was previously unaware of—were risks defendant should have understood when he signed his Faretta waiver. "Buyer's remorse may not be an illegitimate reason for wanting to revoke a Faretta waiver, but neither is it a compelling one." (People v. Lawrence, supra, 46 Cal.4th at p. 195.) By his own admission, defendant had had "seven-plus" attorneys and was unhappy with all of them. Based on the totality of the circumstances, the court did not abuse its discretion in denying defendant's request to revoke his counsel waiver. (Id. at pp. 194-195 [no abuse of discretion in denying defendant's midtrial request to reappoint counsel, where granting the request would have required a lengthy trial continuance and caused serious disruption to the administration of justice].)

The cases defendant relies on are distinguishable on their facts. In People v. Elliott (1977) 70 Cal.App.3d 984 (Elliott), the defendant sought to withdraw his Faretta waiver after the jury had been selected but before opening statements were made. (Elliott, supra, at p. 991.) Applying the factors later approved in Gallego (People v. Gallego, supra, 52 Cal.3d at pp. 163-164; People v. Lawrence, supra, 46 Cal.4th at p. 192), the Elliott court concluded that the trial court abused its discretion in denying the defendant's request to revoke his Faretta waiver (Elliott, supra, at pp. 994-995, 997). Elliott differs from this case in several critical respects. After the jury was sworn, the prosecutor was allowed to amend the information to allege two prior felony convictions, and the court also ruled it would allow the prosecutor to introduce evidence of an uncharged offense to show the defendant's identity as the perpetrator of the charged offenses. The defendant did not have the opportunity to consider these matters when he made his Faretta waiver, and the trial court did not consider the likelihood that the defendant could effectively defend against the prior conviction allegations and anticipated identity evidence. Further, a deputy public defender who was familiar with the case was ready to try it with only a 10-day continuance, and the prosecutor did not object to the proposed continuance. (Elliott, supra, at pp. 994-996.)

In contrast to Elliott, defendant should not have been surprised by anything J.M. testified to during the Evidence Code section 402 hearing. Defendant had access to the recording of the security video several months before trial, and had several attorneys and a defense investigator to assist him with his defense. Moreover, allowing defendant to revoke his Faretta waiver would have meant continuing the trial for several months. The Elliott defendant had only one attorney—the same attorney who was prepared to try his case in 10 days. (Elliott, supra, 70 Cal.App.3d at pp. 987-988, 995.)

People v. Cruz (1978) 83 Cal.App.3d 308 (Cruz) and People v. Hill (1983) 148 Cal.App.3d 744 (Hill) are similarly distinguishable. As in Elliott, the trial courts in Cruz and Hill abused their discretion in denying the defendants' requests to revoke their Faretta waivers. (Cruz, supra, at pp. 319-322; Hill, supra, at pp. 758-761.) But unlike defendant, the Cruz and Hill defendants did not make valid Faretta waivers in the first instance. (Cruz, supra, at pp. 315-319; Hill, supra, at pp. 752-756.) The Cruz defendant also sought to revoke his counsel waiver before his case was assigned for trial (Cruz, supra, at p. 320) and the Hill defendant sought to revoke his before jury selection (Hill, supra, at p. 760). And in Hill, there was no indication that reappointing the defendant's former attorney would have required more than a brief continuance of the trial. (Ibid.) C. Defendant's Judicial Misconduct Claims Lack Merit

Defendant claims the trial court made numerous remarks, both outside and in the presence of the jury, which gave the impression that the court credited the prosecution's case and did not credit defendant's case. We disagree with defendant's interpretation of the record. All of the court's complained-of comments were fairly made and properly directed at controlling the proceedings. (§ 1044.)

"A criminal defendant has due process rights under both the state and federal Constitutions to be tried by an impartial judge." (People v. Cowan (2010) 50 Cal.4th 401, 455.) "A 'trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression that it is allying itself with the prosecution.' [Citations.] Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. [Citation.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1233.)

Trial judges "should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other." (People v. Zammora (1944) 66 Cal.App.2d 166, 210.) A trial court's comments on the evidence must be "'"accurate, temperate, nonargumentative, and scrupulously fair."'" (People v. Monterroso (2004) 34 Cal.4th 743, 780.)

We review judicial misconduct claims on the basis of the entire record. (People v. Peoples (2016) 62 Cal.4th 718, 789.) We assess whether any judicial bias or misconduct was so prejudicial that it deprived defendant of a fair trial. (People v. Guerra (2006) 37 Cal.4th 1067, 1112.)

1. Comments Outside the Presence of the Jury

Defendant points to several comments the trial court made outside the presence of the jury which defendant claims "set the tone for the entire trial and reflected the trial court's firm and unshaken belief that . . . (cell phone camera recording of the security video) conclusively established [defendant's] guilt on all counts."

On September 8, the second day of trial, and after the jury was excused for the day, the court asked defendant about a report it had received that defendant had refused to come out of his jail cell that morning. When defendant denied the report, the court said: "So the sheriffs are lying to me, all part of a big conspiracy?" (Italics added.) After the court asked defendant what evidence he had to support his claims of self-defense and defense-of-others, defendant told the court he was not allowed to wear underwear when he dressed for court that morning, and accused the court and jail personnel of trying to "smack [him] down" by not allowing him to wear underwear. The court said: "So I'm going to thwart your defense because you couldn't wear your underwear?" (Italics added.)

Shortly thereafter, when the court and defendant were reviewing photographs that defendant wanted to introduce at trial, defendant pointed to one photograph which showed he had missing patches of hair and a "strange puncture wound," and claimed he was forcibly injected with drugs at the hospital because he asked to see his family. The court said: "So [J.M.] is conspiring against you, the police are covering it up, and the hospital injected you with drugs?" (Italics added.)

Later on September 8, defendant accused the court of denying him sufficient time to present his arguments to the court. After the court told defendant to "[g]o ahead," defendant complained that the court had "interrupted" him "enough" and had "jump[ed] subjects" enough, and had proven it was unwilling to give him a fair trial. The court said: "You told me that you were basically dazed from the moment you sat up to days later. What more did you want to tell me? That you were unconscious when . . . the officers arrested you?" (Italics added.) Finally, toward the end of the day, defendant told the court he was no longer ready to proceed with the trial now that the court was "inflicting an unfair trial." The court said: "Well, luckily we have a complete record of it. Just like we have a video of what happened."

None of these comments were unfair or showed a judicial bias against defendant. All of the comments were fairly made in response to defendant's remarks to the court, and were directed at controlling the proceedings and getting defendant to articulate an offer of proof to support his defense. Section 1044 requires the trial judge "'to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters.'" (See People v. Sturm, supra, 37 Cal.4th at p. 1237.) Moreover, all of these comments were made outside the presence of the jury. Though a trial judge's "behavior outside the jury's presence may provide context for his behavior in the jury's presence," as we next explain, "defendant offers no compelling examples of prejudicial behavior in front of the jury." (People v. Peoples, supra, 62 Cal.4th at p. 790.)

2. Comments Before the Jury

Defendant claims there are four instances of judicial misconduct which occurred in the presence of the jury, namely, during defendant's (1) cross-examination of J.M., (2) defendant's direct examination of Melissa, (3) defendant's testimony, and (4) defendant's closing argument. We find no judicial misconduct or indication of bias in any of these instances.

(a) Defendant's Cross-examination of J.M.

Defendant cross-examined J.M. concerning how close J.M. was to defendant and his family when J.M. approached their table. J.M. said he came within two feet of defendant's table, and the "common restaurant rule is the two-foot rule." Defendant then approached his defense investigator, Mr. McDonough, and asked J.M. whether that distance was within Mr. McDonough's "personal space." The prosecutor objected that the question called for speculation, but the court sustained its own objection on the ground the question called for improper opinion and was irrelevant.

When defendant asked the court how his question was not relevant, the court told J.M. he could answer the question, and "you also may answer in the video where we see the defendant leaning into you, do you consider that to be within your personal space?" J.M. responded: "If that was considered personal space in a restaurant, nobody would eat out. [¶] Do I consider when you were in my face, yes, I believe that we were too close to each other, yes."

Defendant claims the additional question "reflected the judge's view" that J.M. did not lean into defendant's personal space, which was the "essence" of defendant's defense-of-others claim, while defendant did lean into J.M.'s personal space. This argument reads too much into the additional question. Though the court could have allowed the prosecutor to ask J.M. the additional question during her redirect examination of J.M., simply having J.M. answer it during defendant's cross-examination did not "display overt bias" against defendant's defense. (See People v. Guerra, supra, 37 Cal.4th at pp. 1111-1112.) The court did not answer the question for J.M., as defendant suggests.

Furthermore, Evidence Code section 775, "'"confers upon the trial judge the power, discretion, and affirmative duty . . . [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions . . . ."'" (People v. Hawkins (1995) 10 Cal.4th 920, 947-948.) The additional question was fairly directed at ascertaining the truth and being fair to both sides. Whether J.M. considered defendant to be in his personal space was relevant to help the jury determine whether defendant was the aggressor, or acted in self-defense or defense of his family as defendant claimed.

(b) Defendant's Direct Examination of Melissa

During his direct examination of Melissa, defendant asked Melissa whether she believed J.M. did anything to "diffuse the situation," referring to the confrontation between J.M. and defendant at the restaurant table, and Melissa answered, "No." Next, defendant asked whether Melissa believed J.M. "was the accelerant to this situation." The court interrupted, saying, "I'm sorry, could you . . . lay a little more foundation? Because she's told us already that she couldn't hear what was being said. Lay a foundation as to her ability to perceive, hear, see, was she drinking, things like that." Defendant responded: "She's stating what her opinion of the situation, being there and being the closest person to [J.M.] and I. She visually saw things. She heard a couple [of] things here and there." Again, the court ruled that defendant had laid no foundation for Melissa's opinion.

Defendant continued to argue with the court, as he frequently did during the trial. Defendant said he "meant" Melissa "could see" that J.M. "didn't put his arms up. He didn't step back and remove himself." The court said: "[S]o when he stood calmly with his hands at his side as we saw in the video, that was an indication to her that he was doing nothing to diffuse the situation; is that what your're arguing? [¶] . . . [¶] . . . It's simple, just ask her, 'What could you hear,' and 'What is your opinion based on?'" (Italics added.)

Defendant claims the court's comment and "mocking" of his argument "signaled to the jury the court's disdain for the defense." The court's comment and its direction to defendant to lay the foundation for his question were appropriate. "When an attorney engages in improper behavior, such as ignoring the court's instructions or asking inappropriate questions, it is within a trial court's discretion to reprimand the attorney, even harshly, as the circumstances require." (People v. Guerra, supra, 37 Cal.4th at p. 1111.) As the court ruled, defendant laid no foundation to support testimony from Melissa that, in her opinion, J.M. was the "accelerant" to the situation. Defendant did not ask Melissa what J.M. did or did not do to "accelerate" the situation before he asked Melissa her opinion. Defendant made the matter worse for himself when, in arguing with the court, he said he "meant" that J.M. accelerated the situation by doing nothing, that is, by not putting his hands up or not walking away.

(c) Defendant's Testimony and Closing Argument

During his testimony, which he gave in narrative form, defendant launched into a profanity-laced tirade about several completely irrelevant matters, including the federal government, foreign wars, and the Riverside County Sheriff's Department. The court was exceedingly patient with defendant, up to a point. It stopped defendant after he said: "By the way, in case nobody has heard the news, the Riverside County Sheriff's Department has recently replaced every single one of their working radios with brand spanking new $4,000 radios . . . because they have some useless excuse to blow their budget and beg for more money saying they are in need. [¶] Our kids need arms. That is what the fuck is in need."

At that point, the court had had enough. It interrupted defendant by asking him whether these were the things that were going through his mind when "confronted with" J.M. (Italics added.) After defendant said, "Excuse me?," the court asked: "Is that what was going through your mind when you were in [J.M.]'s face? You were thinking all these things to try to intimidate about the United States and the sheriff's department?" (Italics added.) Defendant complains that the court's comments "left little doubt concerning the court's view of the merits of [defendant's] defense."

Likewise, during his closing argument, defendant wanted to discuss what he admits was "a prior unrelated incident" concerning a woman who was assaulted by a gang member. Defendant told the jury: "While defending her and standing up to him I was beat up by two of his homeboys." After the court repeatedly admonished defendant that the incident was irrelevant, and to "talk about the trial," defendant ignored the court and continued to talk about the unrelated incident. Finally, the court said: "Since you won't follow my . . . oral directive, what, do [you] want to see the policy, written policy, before you'll follow rules and procedure?" (Italics added.) Again, defendant continued to ignore the court and continued to talk about the unrelated incident. Defendant complains the court's comment was a "not-too-subtle reference" to defendant's question to J.M. about a no-shirt policy, and as with the court's other remarks, communicated to the jury that the court was on the prosecution's side.

The court's remarks during defendant's testimony and closing argument reflect the court's frustrations with defendant, and defendant's unrelenting refusal to focus on relevant evidence and his perpetual disregard of the court's instructions. The remarks, though sarcastic, fell far short of establishing judicial misconduct or a judicial bias in favor of the prosecution. (People v. Carpenter (1997) 15 Cal.4th 312, 353 [court's comments showing irritation with defense counsel fell "far short of establishing misconduct or 'betray[ing] a bias against defense counsel.'"].) Further, the remarks did not concern any disputed evidence. Defendant did not claim he did not "get in J.M.'s face," and the security video clearly showed he did. Instead, defendant claimed he was justified in striking J.M. in self-defense and in defense of his family. Defendant also did not dispute that he asked J.M. to see the restaurant's "no shirt" policy.

(d) No Prejudice

Even if any of the court's comments amounted to judicial misconduct or indicated a judicial bias against defendant, our review of the entire record convinced us that none of the court's comments, considered individually or cumulatively, requires reversal under the Chapman or Watson standards of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; see People v Harris (2005) 37 Cal.4th 310, 350 [applying Watson standard to judicial bias claim].) "'"Our role . . . is not to determine whether the trial judge's conduct left something to be desired . . . . Rather, [it is to] determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial."'" (People v Abel (2012) 53 Cal.4th 891, 914.) The court's comments did not deprive defendant of a fair trial.

Throughout the trial, the court went to great lengths to be fair to defendant and ensure he received a fair trial. At least twice, the court instructed the jury not to "take anything" the court said or did "as any indication of what I think about the facts, the witnesses, or what your verdict should be." The court also told the jury: "I've been a lot more interactive in this trial than usual, and I just want to make sure you understand that I'm trying to make sure both sides get a fair trial and the procedures are followed and evidence is trustworthy and reliable that you receive." Absent a showing to the contrary, we presume the jury followed the court's instructions. (People v. Simon (2016) 1 Cal.5th 98, 130.) There is no indication that the jury did not follow these instructions, or understand its duty to fairly and impartially decide the case.

Additionally, the evidence of defendant's guilt was strong, and "the weaknesses in defendant's assertions of innocence would have been apparent to the jury even absent" the court's complained-of remarks. (People v. Harris, supra, 37 Cal.4th at p. 350.) D. The Court Did Not Abuse Its Discretion in Not Holding a Competency Hearing

Defendant next claims the court violated section 1368 and his federal due process rights in failing to hold a hearing to determine his competency, after the court "expressed doubt that [defendant] was competent to stand trial." The court did not abuse its discretion in not holding a competency hearing, because the court did not declare a doubt as to defendant's competency, and there was insufficient evidence that defendant was incompetent to stand trial.

1. Relevant Background

After defendant testified about the sheriff's department radios, as discussed above, he continued to argue with the court and refused to focus on relevant testimony. The court excused the jury for a break and, outside the presence of the jury, asked the clerk: "Has he been 1368 before? Examined by doctors? Because I don't . . . think he's competent." The clerk replied that defendant had not been so examined in the present case or in any other case. The court then asked defendant whether he had ever been to Patton State Hospital. In response, defendant said he "underst[oo]d" what the court was "saying and doing" and he believed he could continue "without further disruption."

Next, the court asked the prosecutor whether the court should declare a mistrial, appoint counsel for defendant, and allow defendant to have a new trial. The court said: "Although he's not allowed to create his own mistrial by outburst . . . but if he had an attorney, maybe it would be more proper." Before the prosecutor could answer, defendant interjected, told the court he did not want a new trial and was "ready to move on" from the court's earlier denial of his request to withdraw his Faretta waiver and appoint counsel for him. Again, defendant said he was "ready to continue" and the court allowed him to resume his testimony.

2. Analysis

Both the federal Constitution and state law require trial courts to suspend criminal proceedings and conduct a competency hearing if the court is presented with substantial evidence that the defendant is incompetent to stand trial. (People v. Mai (2013) 57 Cal.4th 986, 1032.) A defendant is incompetent to stand trial if he lacks a rational as well as a factual understanding of the proceedings against him, or rationally assist in his defense. (People v. Rogers (2006) 39 Cal.4th 826, 846-847; § 1367, subd. (a).)

If the trial judge doubts the defendant's competency to stand trial, the judge is required to state that doubt on the record. (§ 1368, subd. (a).) "This is the first step in initiating formal proceedings to determine a defendant's competence to stand trial." (People v. Price (1991) 1 Cal.4th 324, 396.) But the judge's "expression of preliminary concerns about [a defendant's] competency" does not require the court to commence competency proceedings. (Id. at pp. 396-397.) Absent a showing of incompetence that is substantial as a matter of law, the trial court's decision not to order a competency hearing is entitled to great deference on appeal. (People v. Rogers, supra, 39 Cal.4th at p. 847.)

As an appellate court, we generally defer to the trial court's observations and assessments regarding the defendant's competency. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.) A defendant's disruptive conduct and outbursts do not necessarily show the defendant is unable to understand the proceedings or assist in his defense. (People v. Mai, supra, 57 Cal.4th at p. 1033, italics added.) Only when the accused presents substantial evidence of his or her incompetence does due process require a full competency hearing. (People v. Lawley, supra, 27 Cal.4th at p. 131; Bryan E. v. Superior Court (2014) 231 Cal.App.4th 385, 390.)

Defendant claims the court "had a due process obligation to make a formal competency determination" after it "made a declaration on the record that the court did not think" defendant was competent. (Italics added.) Defendant is incorrect.

The court did not declare a doubt as to defendant's competency. (§ 1368, subd. (a).) Instead, it asked the clerk whether defendant's competency had ever been evaluated by a doctor, and the clerk responded in the negative. The court was concerned that defendant was testifying at length about irrelevant matters. At most, the court expressed "a preliminary concern" about defendant's competency, and this did not require the court to order a competency hearing. (People v. Price, supra, 1 Cal.4th at pp. 396-397.)

Further, defendant does not point to any substantial evidence in the record that shows he was incompetent as a matter of law. His insistence on "testifying" at length about irrelevant matters did not show he was unable to understand the nature of the proceedings or the relevant facts he needed to present to support his defense. The record shows that defendant was trying to convey to the jury that he was justified in confronting J.M. at his table and in resisting the deputies when they were arresting him because they, like the federal and local governments, were the aggressors. E. No Excessive Security Measures Were Taken

Defendant next claims the court abused its discretion and violated his due process rights by requiring him to testify surrounded by five sheriff's deputies, with six additional deputies present in the courtroom. Defendant claims there is no evidence that such extraordinary security measures were necessary to preserve courtroom security.

The People claim the record does not support defendant's assertion that as many as 11 officers were present in the courtroom while defendant was testifying. We disagree. Defendant made a record of it, and the court did not disagree.

The record shows, however, that this extraordinary security measure was necessary due to defendant's continuing outbursts, his refusal to follow the court's orders, his two prior convictions for resisting arrest, and the evidence that he was resisting arrest as charged. There was no abuse of discretion or due process violation.

1. Relevant Background

On the first day of trial, the courtroom deputy told defendant to "[c]alm down" and "[s]top" after defendant swore at the court for excluding evidence that J.M. was charged with robbery in 1998 because the charge was dismissed. Defendant said, "[w]hat happens when I do" ask J.M. about the conviction, and there was "no fucking way" he was going to comply with the court's order. The court warned defendant it would exclude him from the trial because of his "disruptive behavior." Defendant told the court its ruling "ma[de] him sick" and "disgust[ed]" him, and continued to be aggressive toward the court.

Later that day, the prosecutor told the court she was not going to file paperwork to request that defendant be physically restrained during the trial, but she was concerned whether the trial would "proceed smoothly." The prosecutor said, "it does seem that he can conduct himself in court for the most part," but her concern was based on defendant's angry outburst that morning and a report that he had been written up in jail for refusing to obey a correctional deputy or jail staff member, engaging in a group demonstration, and insolence toward jail staff. The prosecutor also pointed out that defendant had "a minor outburst" during the preliminary hearing.

The court noted that defendant had two felony convictions for resisting arrest (§ 69) which indicated defendant had "some issue with authority," but the court was not going to order a "leg brace" or a "react belt" for defendant unless defendant "want[ed] to talk [the court] into it." Defendant said, "No, sir."

Later during trial, after defendant testified, the court asked defendant if he had any further witnesses. Defendant said he had something to put on the record. The court said it would "rather you didn't talk in front of the jury. I just want to know if you have any further witnesses . . . ." Defendant insisted, and the court allowed him to voice his concern in front of the jury.

Defendant said: "When I have five officers or deputies surrounding me here and another six in the courtroom, and surrounding me while giving my testimony on the stand, speaking, and I was told by an officer, 'stop,' I feel that my right to freedom of speech was infringed upon. My constitutional right was violated here today." The court said, "Okay," and defendant continued: "[I]t was by the Riverside County Sheriff's Department and while you [were] here and present. That's my position on it." The court responded: "Remember, you also remember before the trial started, that I told you what would happen . . . . [¶] . . . [¶] . . . if you couldn't keep yourself under control."

2. Analysis

A trial court has broad authority and discretion to maintain courtroom security and orderly proceedings. (People v. Hernandez (2011) 51 Cal.4th 733, 741; People v. Stevens (2009) 47 Cal.4th 625, 632.) For this reason, we generally review a trial court's decisions regarding courtroom security measures for abuse of discretion. (People v. Stevens, supra, at p. 632.) Some extraordinary security measures carry "an inordinate risk of infringing upon a criminal defendant's right to a fair trial," however, and must "be justified by a particularized showing of manifest need sufficient to overcome the substantial risk of prejudice they pose." (Ibid.)

Defendant claims that requiring him to testify while surrounded by five sheriff's deputies, with six additional deputies in the courtroom, violated his due process right to a fair trial because it made him look like "a very dangerous man" to the jury, and it was unjustified by any manifest need to maintain courtroom security. He also complains that the court failed to make a finding that such a large security presence was necessary to maintain courtroom security.

Defendant is correct that the court did not make a finding on the record that a large security presence during defendant's testimony was necessary. Nonetheless, the record shows that the large security presence was necessary to maintain courtroom security, was not an abuse of the court's discretion, and did not infringe on defendant's due process right to a fair trial. Defendant had two felony convictions for resisting arrest, and he was charged with felony resisting arrest in this case. Moreover, before and during trial, defendant often defied the court's orders, spoke aggressively, and indicated he might become physically aggressive. On this record, the large security presence during defendant's testimony was justified by a manifest need to maintain courtroom security. (People v. Ainsworth (1988) 45 Cal.3d 984, 1003-1004 [presence of four to six uniformed guards during pretrial proceedings and trial was reasonable given the nature of the charges]; People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1031-1032 [shackling justified based on credible reports that the defendant attacked another inmate and threatened to kill deputies].) F. No Cumulative Error

Defendant claims the cumulative effect of the trial court's multiple errors requires reversal. (People v. Hill (1998) 17 Cal.4th 800, 844.) As we have explained, however, there was no trial court error. As we have further explained, if it can be said that the court made any intemperate or sarcastic comments that amounted to judicial misconduct, or showed a judicial bias against defendant, those errors were harmless under the Chapman and Watson standards. G. Defendant's Three-year Sentence on Count 3 Is Not Required to Be Stayed

The trial court imposed a term of three years for defendant's criminal threat conviction in count 3, concurrent to his three-year term for the aggravated assault conviction in count 1, after finding that the criminal threats and the aggravated assault were "all part of one continuous act." Defendant claims his sentence on his criminal threats conviction should have been stayed under section 654, because, as the court found, it was based on the same "continuous act" as his assault conviction.

Section 654 proscribes multiple punishment for two or more convictions arising out of an indivisible course of conduct and committed pursuant to a single criminal intent and objective. (People v. Correa (2012) 54 Cal.4th 331, 336.) "A defendant cannot be punished multiple times for convictions that arise out of 'an indivisible transaction' and have a 'single intent and objective.'" (People v. Racy (2007) 148 Cal.App.4th 1327, 1336, italics added.) The purpose of section 654 is to ensure that the defendant's punishment is commensurate with his liability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

Here, substantial evidence supports an implied finding that defendant harbored a separate criminal intent and objective in (1) threatening to take J.M. "out back" and "smoke him" (count 3) and (2) in assaulting J.M. with a knife (count 1). The evidence shows that defendant's intent in threatening to "smoke" J.M. was to cause J.M. to suffer sustained fear. (§ 422.) Defendant then pulled a knife from his pocket, pressed it against J.M.'s face, and said, "Yeah, yeah, now you scared. I'll kill you." Next, defendant put the knife down for a moment, then raised it back up, and pressed it against J.M.'s face a second time, hard enough to break J.M.'s skin. Defendant's second act of pressing the knife against J.M.'s face—hard enough to make J.M. bleed—shows defendant intended to cause J.M. injury, in addition to intending to cause J.M. sustained fear. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1257 [when a defendant has an opportunity to reflect between offenses, his choice to continue a course of criminal conduct that creates a new risk of harm supports a finding that he entertained a new and additional criminal objective]; see also People v. Nguyen (1988) 204 Cal.App.3d 181, 191-193 [separate acts of violence warrant separate punishment].)

The court's finding that the criminal threats (count 3) and aggravated assault (count 1) convictions were part of "one continuous act" or that the crimes did not occur at separate times or in separate places, supported the court's decision to run the sentence on count 3 concurrent to count 1 (Cal. Rules of Court, rule 4.425), but it did not require the court to stay the sentence on count 3. For the reasons explained, section 654 did not require the court to stay the three-year sentence on count 3, and that separate three-year sentence is commensurate with defendant's criminal liability. (People v. Latimer, supra, 5 Cal.4th at p. 1211.) H. Defendant's Custody Credits Claim Is Moot

In his opening brief in this appeal, defendant claimed the trial court miscalculated his custody credits in awarding him only 468 in total custody credits, and that he is actually entitled to a total of 552 days' custody credits—276 days for time served plus 276 additional days. (§§ 2900.5, subd. (a)), 4019, subd (f).) In their respondent's brief, the People claimed defendant was entitled to 550 days of custody credits, but not 552.

The issue is moot. The augmented record shows that, on April 22, 2016, after the parties filed their opening and respondent's briefs, the court recalculated defendant's custody credits and awarded him the amount he is seeking—552 total days. The April 22, 2016 minute order also shows that the court ordered the abstract of judgment amended to reflect the additional custody credits.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J. We concur: RAMIREZ

P. J. SLOUGH

J.