People v. Lara

Full title: THE PEOPLE, Plaintiff and Respondent, v. MARIO LARA, Defendant and…

Court: California Court of Appeals, Fifth District

Date published: Nov 8, 2007

No. F050227 (Cal. Ct. App. Nov. 8, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. MARIO LARA, Defendant and Appellant. F050227 California Court of Appeal, Fifth District November 8, 2007

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. 5901429-1. James L. Quaschnick, Judge. (Retired Judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Ardaiz, P.J.

Appellant Mario Lara stands convicted, following a jury trial, of being an ex-felon in possession of a firearm (Pen. Code,¹ § 12021, subd. (a)(1); count 1), having a concealed firearm on his person after having previously been convicted of a felony (§ 12025, subds. (a)(2) & (b)(1); count 2), misdemeanor resisting arrest (§ 148, subd. (a)(1); count 4), and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364; count 5².) The jury further found he had suffered two prior “strike” convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)).³

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

2 Whether count 5 was properly charged will be discussed, post.

3 Appellant was acquitted of carrying a loaded firearm in a public place after having previously been convicted of a felony (§ 12031, subd. (a)(1), (2)(a); count 3). No findings were made with respect to the allegations appellant was on bail at the time he committed the offenses (§ 12022.1) or that he had served a prior prison term (§ 667.5, subd. (b)).

Appellant absconded before the verdicts were read. He was sentenced in absentia (§ 1193) to concurrent terms of 25 years to life on counts 1 and 2 after the trial court denied a request to dismiss one or more prior convictions, and was given credit for time served on the misdemeanors. Defense counsel filed a timely notice of appeal on appellant’s behalf. Appellant, who subsequently was returned to custody, now raises various claims of trial and sentencing error.⁴ For the reasons that follow, we will modify the sentence, but otherwise affirm.

4 Since, insofar as we can discern, appellant was apprehended before expiration of the time in which to file his opening brief, his appeal is not subject to dismissal based on his fugitive status. (See Ortega-Rodriguez v. United States (1993) 507 U.S. 234, 239, 244-246; People v. Kang (2003) 107 Cal.App.4th 43, 48.)

FACTS

I

PROSECUTION EVIDENCE

At approximately 8:00 p.m. on February 15, 2005, Fresno Police Officer Ramirez was dispatched to a disturbance call. The reporting party related that she had been trying to pick up some of her belongings from Mario Lara’s residence on Beechwood, near Blackstone and Herndon, and that Lara had been pushing on her. Although she did not know the exact address, she said there would be a U-Haul truck parked in the driveway.

Ramirez ran the name “Mario Lara” and learned there was a no-bail warrant locally for a person by that name, so he requested assistance. Upon arrival of Officers Vincent and Green, the residence with the U-Haul truck in the driveway was located. As the officers walked around the front of the truck, they saw appellant standing on the driver’s side. He identified himself as Mario Lara.

At this point, it was Ramirez’s intent to contact appellant to see if there was a disturbance at that location and to verify whether he was the person named in the warrant.⁵ Ramirez approached and told appellant that there was the report of a disturbance at that location. Appellant said there had been one earlier in the street, but everybody was gone. Ramirez advised that he needed to pat appellant down. This was standard procedure under the circumstances of a disturbance call involving someone with a matching name pushing on a female, possibly in a domestic violence situation (which can be very dangerous), and in a high crime area. Ramirez did not have time to tell appellant that he would be looking for weapons, however; as he went to grab appellant’s right arm, appellant pulled away, stepped back, became nervous, and asked why.

5 He was not.

Vincent, who immediately noticed appellant was wearing baggy clothing, heard Ramirez ask appellant if he had any weapons on him. As Ramirez started to approach him, appellant brought his hands up toward his waist area. Vincent saw appellant’s right hand grab his waist area. When he grabbed, he wrinkled up his shirt, leading Vincent to believe there was an object that he was either trying to keep there or to retrieve. This caused Vincent to fear appellant might have a weapon, so he immediately closed the distance between them and grabbed appellant’s right arm with both hands. Ramirez tried to grab the other arm. Appellant pushed Ramirez away and tried to pull away from Vincent. Appellant managed to move about 15 to 20 feet with Vincent hanging onto his arm, but then Vincent was able to take him to the ground, half in the driveway and half in the gutter.

Appellant continued to struggle, while Green and Ramirez tried to grab hold of him so Vincent could apply handcuffs. They told appellant numerous times to stop resisting and tried to get his arms behind his back, but he would not comply. During the struggle, appellant was able to push himself up on all fours, and he pushed Vincent and Ramirez up along with him. Vincent was still holding onto appellant’s hand to keep him from possibly retrieving a weapon or fleeing. Still fearing appellant had a weapon, Vincent kneed him once in the face. Appellant continued to struggle. The officers were able to get him onto his stomach, although he was still trying to pull away. Green then pulled out his Taser and threatened to “tase” appellant. Appellant finally submitted and was handcuffed.

During the struggle, Green felt a gun in appellant’s right rear pants pocket. Green started yelling that appellant had a gun on him, and he seized the weapon. It was a .25-caliber semiautomatic pistol, and was loaded with two rounds in the magazine and one in the chamber. Appellant said it was not his and that he had found it in the gutter. Green subsequently turned the gun, which was wet, over to Ramirez.⁶ A criminal history check on appellant revealed he was a convicted felon. He was not the registered owner of the weapon; officers obtained a name and address in Fresno, but were unable to make contact with the person. An intact glass pipe and a broken glass pipe were found in appellant’s front and rear pants pockets, respectively. Based on his training and experience, Ramirez believed them to be crack pipes.

6 According to Ramirez, it had been raining most of the day and there was water in the gutter where appellant was taken down. Appellant’s clothing was “very wet,” including the area of the rear pocket in which the gun was found.

All told, appellant fought with the officers for more than a minute. In Ramirez’s opinion, the force used was not excessive under the circumstances. He did not observe appellant to be injured, nor did appellant indicate he was hurt.

II

DEFENSE EVIDENCE

Appellant’s neighbors described a fight involving a group of young men that took place in the neighborhood a short time before appellant’s arrest. David Hamilton, one of those involved in the altercation, saw a gun fall into the street from someone’s pocket during the fight. Although the gun was dropped by one of Hamilton’s friends, Hamilton neither picked it up nor said anything about it.

Appellant’s neighbors also described seeing three men in dark rain slickers or trench coats, initially with no visual or verbal signs indicating they were police, surrounding appellant and beating and kicking him, even after he was handcuffed.⁷

7 Ramirez testified he was in uniform on the night in question and did not own a raincoat. Vincent testified he was in uniform and a buttoned-down black raincoat with an insignia on the chest and “police” in reflective lettering on the back. The raincoat was tucked in his belt so that his duty belt was visible, and he was also wearing a baseball cap that read “police.” Green was not asked about his mode of dress.

Javier Garcia, who lived next door to appellant, could hear appellant talking on a cell phone when the police approached. Arthur Lara, appellant’s brother, was on the phone to appellant when he heard scuffling and then appellant screaming. Concerned, Lara went to appellant’s residence to find appellant handcuffed and sitting on the sidewalk. When Lara asked an officer what they were doing to appellant, other officers pulled their guns on Lara. According to Norbert Villareal, Sr., one of the neighbors, there were probably five officers at the location at this point. Villareal did not see any weapons drawn until Arthur Lara drove up. Arthur Lara was cited for something like obstruction of justice.

Appellant testified that at the time of events, he was in the process of moving out of the residence. Appellant admitted being in trouble with the law beginning at a young age, and going to prison in 1993 or 1994. Since his release in 2000 or 2001, he had been working in construction as a carpenter. In addition, he and his wife, as tribal members, received $10,000 every two weeks from Table Mountain.

On the date in question, some of appellant’s friends were helping him move. The pizza appellant had ordered for dinner had just arrived when one of appellant’s friends started “talking crazy” to another person and they started fighting. Appellant was not involved. A short time later, a large group of men came running down the street, yelling. As appellant had been accosted and stabbed a couple of months earlier and did not know what was going on now, he went inside the house and locked the door.

After the disturbance ended, appellant went outside and telephoned his brother to come and help him finish moving. As he was talking, he walked to the front of the U-Haul and looked down, discovering a gun in the gutter. Appellant picked it up and put it in his pocket, planning to get rid of it either by having his wife call the authorities or by throwing it into a ditch. Appellant knew that someone with a felony conviction was not allowed to own or posses a handgun, but he had five children who lived at home with him (although none were there at that time) and could not leave the weapon where it was.

Appellant was about to back the truck up farther when he heard the noise of people approaching. Still talking to his brother, he walked to the front of the truck, where he was surrounded by three men dressed in black.⁸ One of the men asked where his little friend was; when appellant asked what he meant, the man reached for him. Appellant pulled away, whereupon another man struck him in the back of the head, propelling him forward. The man in front grabbed appellant’s arm and a second man also tried to grab hold; as appellant did not know what was going on, he started struggling and fighting. No one identified himself as a police officer. Appellant had been drinking a little that evening, and did not remember seeing any badges or indicia of police.

8 This occurred approximately six minutes after he picked up the gun. Appellant never thought about immediately going inside and contacting the authorities about the gun, or asking a neighbor to dispose of it for him.

During the fight, the men told appellant they were police officers, but appellant was leery that they were simply telling him that to get him to stop so they could try to kill him. The men never said they wanted to talk to him and just to calm down; instead, they “came up ready to fight.” Eventually, however, they took appellant to the ground and handcuffed him, at which time he realized they were indeed police. While he was on the ground, they found the gun, whereupon the handcuffs were tightened as much as possible. When appellant protested that they were hurting him, one of the officers responded that he had three children and appellant could have killed him. When appellant said he did not do anything, another officer kicked him in the face. In addition, he was tased at some point.

After appellant realized the men were police officers, he told them about finding the gun in the gutter. Appellant admitted that the two pipes were his; although he had found them while he was moving and was getting them out of the house, he was also using crack at the time.

DISCUSSION

I

REQUEST TO DISCHARGE RETAINED COUNSEL

A complaint was filed, charging the counts which are presently before us, on February 28, 2005. Appellant, who was released from custody on bail, requested and received at least four continuances to obtain private counsel. Frank Gash became attorney of record on June 21, 2005, and after three more continuances, the preliminary hearing was held on October 4, 2005. Arraignment was set for October 19, 2005, but was continued several times. The minute order for what appears to be October 25, 2005,⁹ reflects a defense request for withdrawal of attorney and a request for a continuance to hire new counsel, and that Gash was relieved. On November 21, 2005, arraignment was continued yet again; Frank Gash appeared on behalf of appellant. The clerk’s transcript does not contain minute orders for arraignment, trial confirmation, or any other pretrial proceedings, nor does it contain the original information. On February 2, 2006, however, a first amended information was filed that charged the five counts and special allegations upon which appellant was tried, as well as two counts arising out of events alleged to have occurred on June 2, 2004.

9 The captions of some of the minute orders, which include the dates of the hearings, are illegible, and the record on appeal does not contain a reporter’s transcript for these hearings.

On February 6, 2006, the case was assigned for trial. Both attorneys announced they were ready to proceed, but Gash then stated that appellant had informed him that he no longer wanted to have Gash as his attorney. After confirming that Gash was privately retained, the court – aware that appellant previously had had a conviction reversed on appeal because the trial court erroneously proceeded by way of a Marsden ¹⁰ hearing when appellant sought to discharge retained counsel (see People v. Lara (2001) 86 Cal.App.4th 139) – declined to hold a Marsden hearing. When appellant stated that he wished to dismiss Gash because they were not having a proper attorney-client relationship, the court asked what had changed since the preceding Thursday, February 2, when the matter was confirmed for trial. Appellant explained that he had had “a bunch of issues going on” that day, including getting “rushed” by the bailiff because he threw away syringes he was holding for his diabetic brother, and that he had not known what was going on because he was worried about everything else. When the court stated its impression that appellant was doing this for delay, appellant protested that no witnesses were subpoenaed, and Gash suggested they describe the problems in camera. When Gash noted that appellant had been arrested coming into court on Thursday, the court asked whether appellant told the judge at the trial confirmation hearing that he wanted to relieve Gash and hire a new attorney. Appellant said that he did not, but continued to assert that he was not trying to get a delay, but had simply been too busy thinking about the other things that were going on.

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

Gash explained that appellant, who had been extremely late for nearly every court appearance, did not keep appointments, and that Gash had not seen him for several weeks prior to trial confirmation. Consequently, although Gash had done as much as he could on his own to prepare for trial, not as much had been done as should have been. Appellant had informed him that he had contacted Mr. Kassis, a local attorney who worked for Table Mountain Casino, and that he was in the process of hiring Kassis to represent him. When the court inquired why Kassis was not present, appellant explained that there was to be a tribal meeting that day to determine whether Kassis would be allowed to represent the spouse of a tribal member. If not, appellant had contacted Eric Green, and was only asking for a couple of weeks’ time. When the court noted that the complaint was filed a year ago and that some of the allegations were a year and a half old, appellant responded that a motion to sever the cases should have been made, and that it was prejudicial to make him go to trial on everything at once. This ensued:

“THE COURT: You know, you created your own prejudice by not meeting with your attorney at appointed times. Now you come into this court on the day of trial which is untimely for you to do and ask for a different attorney, that you want to engage in [sic] another attorney.

“THE DEFENDANT: I’m only asking for a couple weeks, Your Honor. I’m not asking for –

“THE COURT: Your request is denied. We’re going to go to trial. [¶] … [¶]

“THE DEFENDANT: Okay. I just had this issue in appeal. You know that, right?

“THE COURT: That’s exactly why you’re doing this.

“THE DEFENDANT: No, it’s not, Your Honor. I’m asking for two weeks, I’m not asking for –

“THE COURT: You’re asking for this delay so that you can be out of – not go to trial.

The court elicited from Gash that he was ready for trial, but, after a break, announced that it had reconsidered and gave appellant until the next day to come to court with an attorney of his choice. The next day, February 7, appellant appeared with Attorney Brian Austin. Upon inquiry by the court, Austin explained that he was not presently retained; that he was retained by the family of appellant’s wife, who had contacted him the day before; and that he needed time to review the case to determine whether he would be proper counsel or to help find adequate counsel. Austin stated he would need two weeks to determine whether he would take the case. The court suggested Austin could make that determination in less than two weeks, and noted its prior finding that appellant’s motion was untimely and he was purposely delaying trial. The court expressed concern that no problem between appellant and Gash had been raised at the hearing the preceding Thursday, yet now appellant claimed there was a problem.

At Gash’s request, the trial court then held an in camera hearing to permit facts to be placed on the record as to the nature of the breakdown between Gash and appellant, although the court reiterated it would not proceed under Marsden. In camera, Gash related that appellant had been late to virtually every court hearing and, on Thursday, had arrived around 10:00 a.m. for the 8:30 a.m. trial confirmation hearing. Appellant was carrying hypodermic syringes that set off the metal detector, and was arrested when he disposed of them in view of a deputy sheriff. He was then brought into the trial confirmation hearing on bail, but in handcuffs. Gash had received what he believed to be a decent offer in the case prior to appellant’s arrival, but they were unable to discuss it because appellant was so flustered over what had just happened. Gash represented that appellant only came to see him when they had court, did not keep appointments, and did not assist Gash in preparing for the case or even provide him with a list of witnesses until February 6.¹¹ After the trial confirmation hearing, appellant asked why Gash had not filed a motion to sever counts and then said he was going to fire Gash. Gash told him to call the next day so that they could discuss things, but he did not hear from appellant until they went to court on February 6.

11 Even then, appellant did not give Gash any way to contact the witnesses, but simply said he would make them available.

After hearing from Gash, the court noted that appellant was aware that the court’s refusal to give him a continuance to obtain counsel of his choice was an appellate issue, and opined that appellant “deliberately set that up.” The court reiterated its belief that the motion was untimely and a delay tactic, as appellant had hired a family attorney with the idea of requesting a two-week continuance just to determine whether he would take the case and, if not, to advise appellant as to who else could represent him, which would require another two to four weeks. The court then permitted appellant to explain what had occurred the preceding Thursday. After further discussion about appellant’s coming to court late and missing appointments with his attorney, the court decided to continue the matter until Friday to determine whether new counsel would be coming into the case. It warned appellant that if not, appellant would go to trial on Monday.

Back in open court, the prosecutor objected to any continuance as untimely. The court then found appellant’s motion was untimely and deemed him “well experienced in delay tactics,” but continued the matter until Friday to determine whether Austin would be coming into the case. The court warned that if not, trial would proceed on Monday; if Austin was going to take the case, a future trial date would be discussed, “but it won’t be put off for weeks or months.”

On Friday, February 10, Attorney Woodrow Nichols was present in court. He related that he had spoken to appellant out in the corridor on Wednesday and had set up an appointment with him for Thursday, but that appellant had not shown up. Appellant’s wife had telephoned Thursday evening and told Nichols that she would be there in court with money to hire him, but she was not present. Nichols also stated that he would not be prepared to go to trial on the following Tuesday. In response to the court’s questions, Nichols confirmed that he had not been retained, had not reviewed the case file, had been given a brief sketch of the case by Gash, and would need a month to prepare. When appellant stated that he had money coming from “Frank” (presumably, Gash) and that his wife was coming with the rest of the retainer, the court responded that Nichols had said he could not be ready for a month, and reiterated that appellant was doing this for delay purposes, as evidenced by appellant’s prior case. After further discussion about the appellate opinion in that matter, Gash stated that he was growing frustrated with his representation of appellant and had been extremely inconvenienced, and was not sure how their communication was at that point or whether he felt effective with appellant. The court responded that it was because of his client’s attitude, and noted that he had had an appointment with Nichols, but had not shown up. The court found that appellant was using the tactic solely for the purpose of delay, that he was purposely delaying proceedings, and that his motion was untimely. Gash then requested, if he was going to stay on the case, to file a motion for severance of counts. The court agreed to hear the motion on the morning of trial. In light of its denial of appellant’s motion to discharge counsel, the trial court asked whether appellant wanted to represent himself. Appellant responded no, that he did not know enough law to do so. The case then proceeded to trial with Gash representing appellant.

Appellant now contends reversal is required because the trial court refused to permit him to discharge his retained counsel. Appellant acknowledges that the right to discharge retained counsel is not absolute, but says untimeliness alone is not enough to warrant denial of a substitution motion and there was no showing any unreasonable disruption would have resulted had the motion been granted. We conclude the trial court did not err.

The United States Supreme Court has held that an element of the right to counsel guaranteed by the Sixth Amendment to the United States Constitution “is the right of a defendant who does not require appointed counsel to choose who will represent him. [Citations.]” (United States v. Gonzalez-Lopez (2006) 548 U.S. ___, ___ [126 S.Ct. 2557, 2561].) Both the United States and California Supreme Courts have required trial courts “to protect a financially able individual’s right to appear and defend with counsel of his own choosing.” (People v. Courts (1985) 37 Cal.3d 784, 790.) A defendant must be given a reasonable opportunity to employ and consult with counsel; once retained, counsel must be given a reasonable time in which to prepare. “Failure to respect these rights constitutes a denial of due process. [Citations.]” (Ibid.)

The California Supreme Court has long recognized that the right to counsel of choice includes the right of a nonindigent criminal defendant to discharge his or her retained attorney, with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983; see Code Civ. Proc., § 284, subd. 2 [attorney may be changed at any time upon order of court, upon application of attorney or client & after notice].) Nevertheless, while “the state should keep to a ‘necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources’ [citation]” (People v. Ortiz, supra, at p. 982; People v. Crovedi (1966) 65 Cal.2d 199, 208), “[a] nonindigent defendant’s right to discharge his retained counsel … is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes or justice’ [citations]. … [T]he ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.”’ The trial court, however, must exercise its discretion reasonably: ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.]” (People v. Ortiz, supra, at pp. 983-984; People v. Crovedi, supra, at p. 207.)

We review the trial court’s ruling for abuse of discretion. (See People v. Ortiz, supra, 51 Cal.3d at p. 983.) “[T]he term judicial discretion ‘implies the absence of arbitrary determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.)

The trial court acted within its discretion here. Appellant’s request to discharge Gash was made on the day of trial, despite the fact the case had been pending for some time, numerous continuances of various proceedings had been granted upon defense request, and appellant could have raised the issue earlier, at trial confirmation. Appellant explained that he was too flustered by the events of that day to do so, but the trial court was not required to credit his explanation, especially in light of appellant’s failure to timely make his court appearances or to cooperate with counsel.

Moreover, the trial court was well aware of appellant’s prior appellate proceeding. In People v. Lara, supra, 86 Cal.App.4th 139, appellant retained David Roberts to represent him. Although trial was delayed over one and one-half years, appellant asked to discharge his attorney on the day trial was set to begin. We determined the trial court improperly treated his request as a Marsden motion and thus erroneously required him to establish good cause to replace his attorney, the showing applicable when an indigent defendant seeks to substitute appointed counsel. (People v. Lara, supra, at pp. 144, 151.) Because we could not say, given the trial court’s misunderstanding of the nature of appellant’s motion, that that court properly exercised its discretion, we reversed. (Id. at p. 166.)

In reaching our conclusion, we rejected respondent’s claim that appellant’s motion was necessarily untimely and would have resulted in prejudicial delay to prosecution witnesses and the disruption of the orderly process of justice. We reviewed a number of pertinent cases (People v. Lara, supra, 86 Cal.App.4th at pp. 159-162), then observed that the criminal proceedings had been pending for almost a year and a half, during which time the trial court repeatedly granted continuances upon both parties’ motions. When the matter was assigned for trial, appellant immediately expressed his dissatisfaction with retained counsel before the trial court considered any other motions or commenced jury selection. During the purported Marsden hearing, appellant expressed frustration with defense counsel’s failure to consult with him while he was in custody, despite the lengthy pendency of the proceedings. Moreover, while the law enforcement witnesses were from the Fresno Police Department, the victims had moved out of state and might have been en route to Fresno when appellant made his motion; however, we could only speculate concerning this aspect of the timeliness issue due to the trial court’s mishandling of the matter. Finally, we noted that the prosecutor never objected to the supposed Marsden motion as untimely, nor did the trial court make a finding of untimeliness. Accordingly, we lacked factual findings that appellant’s motion was necessarily untimely or would have disrupted the orderly process of justice. (People v. Lara, supra, at pp. 162-164.)

The present case stands in stark contrast to appellant’s previous appeal. Here, the bulk of the pretrial continuances were at the defense’s behest. During the course of the hearing on appellant’s request to discharge Gash, the prosecutor objected to any further continuance. It was appellant who failed to cooperate and consult with his attorney, not even providing Gash the names of defense witnesses until the date of trial and even then not giving counsel any information concerning how to contact those witnesses. Appellant did not inform the court of his concerns at the first possible opportunity, and the trial court made an express finding that his request was untimely.

Under the circumstances, the record overwhelmingly supports the trial court’s finding of untimeliness and conclusion appellant’s request to discharge retained counsel was made solely for purpose of delay. Regardless of appellant’s intent (or lack thereof) in his prior appeal, here he followed the same scenario that previously won him reversal of his third strike conviction (and, according to the probation officer’s report, subsequent dismissal of the entire matter), and he even reminded the court that he had had the same issue on appeal. Despite the fact his activities were not constrained by being in custody, appellant did not even attempt to consult with a new attorney until the very last minute (contrast People v. Courts, supra, 37 Cal.3d at p. 791) and, when the trial court gave him the opportunity to retain new counsel, did not even bother to go to his appointment. Notwithstanding the fact the prosecution’s witnesses were all members of a local law enforcement agency and had reports available to refresh their memories (see People v. Stevens (1984) 156 Cal.App.3d 1119, 1129), the trial court properly declined to allow appellant to manipulate the judicial process and frustrate the orderly administration of justice in order to keep his case pending for as long as possible.¹² (Cf. People v. Marshall (1997) 15 Cal.4th 1, 23 [discussing motion for self-representation]; People v. Horton (1995) 11 Cal.4th 1068, 1110-1111 [same].)

12 In light of our conclusion, we need not decide whether the trial court would have been required to grant Nichols the month’s continuance he purportedly would have needed to be ready for trial. (See People v. Stevens, supra, 156 Cal.App.3d at p. 1129.)

II

BATSON-WHEELER MOTION

Prospective juror F.W. was one of the first 12 prospective jurors examined during voir dire. In answer to the basic questions asked of all prospective jurors, he related that he had lived in Madera County and Fresno for the past 10 years; had been married for 10 years; had a son and daughter, ages 8 and 10, respectively; had a high school and some college education; had a college-educated wife who worked in administration for a health care provider; was a youth sports coach in his leisure time; and had previously served on a jury in a civil case.

During in limine motions, which were heard prior to jury selection, the prosecutor had moved to bifurcate trial on the prior conviction allegations, and to prohibit voir dire on the Three Strikes Law and to references to prior convictions as strikes. She had expressed concern that, because appellant was charged with relatively minor offenses, hearing about prior serious felony convictions could lead jurors to believe appellant was facing sentencing under the three strikes law and, accordingly, to not follow the court’s instructions if they believed appellant would be subject to harsh sentencing. Apparently reflecting this concern, the prosecutor questioned prospective jurors about whether they would be able to convict a defendant if the trial was about speeding, they were instructed the speed limit was 55 miles per hour, and the uncontroverted evidence showed the defendant was going 57 miles an hour. After several prospective jurors¹³ said they would not convict on those facts, the prosecutor changed the scenario to one in which the trial was about drug possession, the court instructed that possession was against the law, and the evidence showed possession, but nothing else such as selling drugs or being or driving under their influence. The prosecutor asked F.W. whether, in such a situation, he would have any issue convicting the defendant. When F.W. responded no, the prosecutor asked what the difference was to him between the speeding and possession charges. F.W. responded that someone could speed without realizing it, whereas someone in possession of drugs would know he or she was in possession. When the prosecutor said, “So you’re distinguishing between the seriousness of what we’re talking about?” F.W. responded, “Yeah.”

13 The record does not indicate whether F.W. was one of them.

The prosecutor subsequently asked whether everyone understood that it only takes one witness to prove a crime, and whether anyone disagreed with the notion that, if she put a witness on the stand and jurors believed that witness and there was no evidence contradicting that testimony, that was all that would be needed for a finding of guilt. She received no response. She then drew attention to the list of potential witnesses and asked whether anyone would require that she call all four of the witnesses from the Fresno Police Department, or whether it would be acceptable if she tried to shorten proceedings a little and only called those witnesses who were necessary. F.W. responded that he would like to hear from all four.

After the defense had twice passed, the prosecutor used her seventh peremptory challenge to excuse F.W. Defense counsel asked to approach the bench. After the remaining prospective jurors were excused for the evening, he made his Wheeler ¹⁴ motion, as follows:

14 People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

“MR. GASH: Yes, your Honor, I’d just like to place on the record that Mr. [F.W.] is a black man and other than Ms. [B.], I believe, that was excused [to care for her sick mother], I think he was – they were the only black folks in the courtroom.

“THE COURT: I think there was about 3 others. Three or four others.

“MR. GASH: Really?

“THE COURT: Yes, because I took notice anticipating –

“MR. GASH: Well, in any event, he, on the face of it, seemed like a fine upstanding young man. He’s a youth sports coach, his wife works for Kaiser, he’s married and a hard working guy. I did not see the other black or African-Americans in the room other than Ms. [B.] so I’ll submit it on those remarks.

“THE COURT: Well, I don’t see that you’ve made a prima facie case because answers may or may not have satisfied the District Attorney but I didn’t see that you’ve made a prima facie case for a [W]heeler motion. Therefore, your motion is denied.”

Appellant now says the totality of the circumstances, including F.W.’s answers and comments, do not support a non-racially motivated reason for the prosecutor’s challenge; hence, the trial court erred by finding no prima facie case of discrimination and denying the motion. We disagree.

“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at pp. 274, 276.) However, “‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias – that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds” – violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson v. Kentucky (1986) 476 U.S. 79, 86 (Batson); Wheeler, supra, 22 Cal.3d at pp. 276-277.)¹⁵

15 Citation to Wheeler, as in this case, is sufficient also to preserve claims under Batson. (People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2; People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)

“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) The California Supreme Court has “endorsed the same three-part structure of proof for state constitutional claims. [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.)

With these general principles in mind, we turn specifically to review of the trial court’s finding that appellant failed to make a prima facie case. “In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’¹⁶ [Citation.] The high court recently explained that ‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.”’ [Citation.]” (People v. Gray, supra, 37 Cal.4th at p. 186, quoting Johnson, supra, 545 U.S. at pp. 168, fn. 4, 169.)

16 African-Americans are a cognizable group for purposes of Batson and Wheeler. (People v. Alvarez (1996) 14 Cal.4th 155, 193.) The probation officer’s report reveals appellant is Hispanic. A defendant and prospective juror(s) alleged to have been wrongly excused need not be members of the same race in order for the defendant to complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.)

“Though proof of a prima facie case may be made from any information in the record available to the trial court, the [California Supreme Court has] mentioned ‘certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic – their membership in the group – and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, … the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 597.)

“[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court’s ruling.” (People v. Howard (1992) 1 Cal.4th 1132, 1155.) This standard of review is consistent with the United States Supreme Court’s reiteration in Johnson of the applicable rules, “which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the ‘totality of the relevant facts.’ [Citation.]” (People v. Gray, supra, 37 Cal.4th at p. 186; see Johnson, supra, 545 U.S. at p. 168.) “Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. [Citations.]” (People v. Howard, supra, 1 Cal.4th at p. 1155.)

The California Supreme Court has stated that a finding of no prima facie case will be affirmed “where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question” (People v. Farnam (2002) 28 Cal.4th 107, 135), and has employed this standard post-Johnson (People v. Guerra (2006) 37 Cal.4th 1067, 1101). Thus, we presume the standard is applicable to Johnson’s “inference of discrimination” requirement. In any event, “‘we have reviewed the record and, like the United States Supreme Court in Johnson … [we] are able to apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.’ [Citation.]” (People v. Guerra, supra, at p. 1101.)

We find no such inference here. The establishment of a prima facie case does not depend on the number of prospective jurors challenged (see People v. Moss (1986) 188 Cal.App.3d 268, 277) and can be made even where one or more members of the group remain on the jury (United States v. Wilson (8th Cir. 1989) 884 F.2d 1121, 1123)¹⁷ Nevertheless, the requisite showing is not made merely by establishing, as was done here, that the excused prospective juror was a member of a cognizable group (People v. Alvarez, supra, 14 Cal.4th at p. 198; United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698) or seemed like an upstanding, hardworking person. The prosecutor’s voir dire was not “desultory,” but instead was similar to what she conducted with respect to the other prospective jurors. (Compare People v. Turner (1986) 42 Cal.3d 711, 727.) Moreover, F.W.’s own answers clearly do not support an inference he was excused because of group bias. Indeed, his voir dire disclosed several reasons other than racial bias for any prosecutor to challenge him, including the suggestion, based on his answers concerning the speeding versus drug possession hypothetical and desire to hear from all officers listed as witnesses, that he might be disinclined to follow the court’s instructions on the law and/or harbor at least some bias with respect to the credibility of police officers. (See People v. Cornwell (2005) 37 Cal.4th 50, 70.)

17 The trial court here did not suggest otherwise, but simply stated its view of the venire’s composition.

Appellant seeks to bolster his claim by undertaking a comparative analysis between F.W. and other prospective and seated jurors. On the record before us, we, like the trial court, have been able to determine that appellant “made no prima facie case without hypothesizing permissible reasons that might have motivated the prosecutor’s challenges. [Citation.]” (People v. Bell, supra, 40 Cal.4th at p. 600.) Under such circumstances, the California Supreme Court has “found a comparison of the challenged prospective jurors and seated jurors neither necessary nor appropriate” at the first stage of a Batson-Wheeler inquiry, even in light of the United States Supreme Court’s approval, in Miller-El v. Dretke (2005) 545 U.S. 231, 241, of such analysis at the third stage of the inquiry. (People v. Bell, supra, at pp. 600-601.)

Assuming without deciding that comparative analysis is appropriate by this court at this juncture and with respect to the issue before us, however (see People v. Cornwell, supra, 37 Cal.4th at p. 71), appellant’s argument still fails. He has not identified prospective or seated jurors of other races or ethnicities who were not challenged but had a similar background and views, especially with respect to questions involving the ability and willingness to follow the trial court’s instructions. (See id. at pp. 71-72.) Indeed, his attempt at comparison consists of the bare observation that at least two seated jurors had experience with guns. This is manifestly inadequate where, as here, the defendant bears the burden. (See Rice v. Collins (2006) 546 U.S. 333, 338.)

Under the circumstances, appellant failed to produce evidence sufficient to permit the drawing of an inference that discrimination occurred. (Johnson, supra, 545 U.S. at p. 170.) It follows that the trial court’s ruling was correct.

III

CALCRIM NO. 226

The trial court instructed appellant’s jury in the language of Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 226 (Witnesses) as follows:

“You alone must judge the credibility and believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’ [sic] gender, race, religion or national origin. You may believe all, part or none of the witness’ [sic] testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness’ [sic] testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony and among the factors that you may consider are how well could the witness see, hear or otherwise perceive the things about which the witness testified.

“How well was the witnesses [sic] able to remember and describe what happened. What was the witness’ [sic] behavior while testifying. Did the witness understand the questions and answer them directly. Was the witnesses [sic] testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided. What was the witness’ [sic] attitude about the case or about testifying. Did the witness make a statement in the past that is consistent or inconsistent with his testimony or her testimony.

“How reasonable is the testimony when you consider all of the other evidence in the case. Did other evidence prove or disprove any fact about which the witness testified. Did the witness admit to being untruthful. What was the witness’ [sic] character for truthfulness. Has the witness been convicted of a felony. Has the witness engaged in other conduct that reflects on his or her believability.

“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event, yet see or hear it differently.

“If you do not believe a witness’ [sic] testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’ [sic] earlier statement on that subject. If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that that witness says. Or if you think the witness has lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (Italics added.)

Appellant contends the last paragraph of this instruction impermissibly lightens the prosecution’s burden of proof and diminishes a defendant’s ability to raise a reasonable doubt through his or her own testimony by (1) using the word “should” to create a pernicious permissible inference, and (2) short-circuiting the jury’s process of contrasting and comparing the evidence with the word “ignore,” thus allowing “an early discard of some portions of the evidence in the case.” He says the words “should” and “ignore” invited the jury, even more forcefully than would have been the case with CALJIC No. 2.21.2 (which uses the “relatively more neutral ‘may,’”) “to reject all of appellant’s testimony.”¹⁸

18 CALJIC No. 2.21.2 (witness willfully false) provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” (Italics added.)

Appellant candidly acknowledges the California Supreme Court’s consistent rejection of similar challenges to the analogous language of CALJIC No. 2.21.2. (See, e.g., People v. Cleveland (2004) 32 Cal.4th 704, 751; People v. Beardslee (1991) 53 Cal.3d 68, 94-95; People v. Lang (1989) 49 Cal.3d 991, 1023.) Nevertheless, he contends that CALCRIM No. 226 encourages the jury, even more than CALJIC No. 2.21.2 does, to reject a defendant’s entire testimony if it finds a material falsehood in only one portion thereof. He concludes that on the record here of “clear conflict in the evidence as to whether the charged conduct occurred,” and with “appellant’s own testimony provid[ing] his primary hope for raising a reasonable doubt on the pivotal question of possession of the gun,” CALCRIM No. 226 impermissibly lightened the prosecution’s burden of proof.

As a preliminary matter, respondent says the claim is waived because appellant requested the instruction at issue. The record shows both parties requested that the trial court give CALCRIM No. 226, and appellant did not object to, or seek modification or excision of, the language he now challenges. Although appellant cites authorities holding that a claim of instructional error is reviewable in the absence of an objection or when a party has merely acquiesced or concurred in the giving of an instruction (e.g., § 1259; People v. Collins (1992) 10 Cal.App.4th 690, 694-695), he does not address the effect, if any, of his affirmative instructional request. There is authority that such a request forfeits the ability to complain on appeal (People v. Raffington (1950) 98 Cal.App.2d 455, 462), at least where the record clearly reflects a deliberate tactical purpose for the request (People v. Hernandez (1988) 47 Cal.3d 315, 353). Although possible tactical purposes are readily apparent to us – for example, the potential application of the instruction to the testimony of the police witnesses, whose credibility was under strong attack from the defense, as well as a desire to have jurors understand they could accept portions of the testimony of defense witnesses, even if they found same parts of the testimony untrue – we cannot say the record clearly reflects a deliberate tactical purpose for the request. Accordingly, we turn to the merits of appellant’s claim.

There were conflicts in the evidence that justified giving the instruction. (See, e.g., People v. Millwee (1998) 18 Cal.4th 96, 159; People v. Allison (1989) 48 Cal.3d 879, 895-896 & fn. 7; People v. Reyes (1987) 195 Cal.App.3d 957, 965-966.) For instance, the inference to be drawn from the prosecution evidence was that appellant unlawfully possessed a gun. Appellant, by contrast, testified that he picked up the weapon for safety reasons with the intent promptly to discard it.¹⁹ Additionally, while the officers testified excessive force was not used against appellant, the defense witnesses testified to seeing appellant brutally kicked and beaten, even after he was handcuffed. Although not relevant to the firearm possession counts, whether excessive force was used was pertinent to count 4.

19 Jurors were instructed on the defense of momentary or transitory possession.

Our comparison of CALCRIM No. 226 and CALJIC No. 2.21.2 persuades us that both are facially neutral instructions that apply to all witnesses who testify at trial and that no more focus on a defendant’s testimony than on that of any other witness. (See People v. Millwee, supra, 18 Cal.4th at p. 159; People v. Allison, supra, 48 Cal.3d at p. 895.) The applicability to prosecution witnesses as well as defense witnesses and the defendant him- or herself is particularly apparent in this case, and we reject the notion CALCRIM No. 226 should not be given in cases in which the defendant testifies because the defendant “thus is the likely target” of the instruction. (See People v. Blassingill (1988) 199 Cal.App.3d 1413, 1418-1420.) The third sentence of the instruction mandates that jurors judge the testimony of each witness by the same standard; to the extent the jury here “could reasonably infer [appellant] was not testifying truthfully in whole or part, he was not entitled to a false aura of veracity. [Citations.]” (People v. Millwee, supra, 18 Cal.4th at pp. 159-160.)

CALCRIM No. 226 states that the jury “should consider not believing” – not that the jury should not believe – anything in the testimony of a witness who lied about something significant. (CALCRIM No. 226, italics added.) The authorization in CALJIC No. 2.21.2 that the jury “may reject the whole testimony of a witness who willfully has testified falsely as to a material point” (CALJIC No. 2.21.2, italics added) is analogous. So is that part of CALCRIM No. 226 that states, “[I]f you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (CALCRIM No. 226, italics added.) Since appellant fails to persuade us that the semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are material, let alone prejudicial, we reject his challenge to the former by deferring to the long line of California Supreme Court cases rejecting analogous challenges to the latter. (See, e.g., People v. Carey (2007) 41 Cal.4th 109, 130-131; People v. Maury (2003) 30 Cal.4th 342, 428-429; People v. Millwee, supra, 18 Cal.4th at pp. 159-160.)

IV

FAILURE TO INCLUDE COUNT 5 IN FILED INFORMATION

As of February 6, 2006, appellant was charged in the first amended information with seven counts, two of which allegedly occurred June 2, 2004, and the remaining five – including a violation of Health and Safety Code section 11364 (possession of a smoking device) – on February 15, 2005. The information bore two case numbers. During the hearing on his request to discharge counsel, appellant brought up the fact that the cases had not been severed. Once it was determined he would remain as appellant’s attorney, defense counsel asked for leave to file a severance motion. In the course of determining when the motion would be heard, the prosecutor offered to bring two different informations on the day of trial, and defense counsel stated he would be prepared to proceed however the court ruled.

On the morning of trial, the court determined that the counts were improperly consolidated and granted the motion to sever. This ensued:

“[THE COURT:] … I believe the District Attorney has filed an amended or is going to file a Second Amended Information?

“MS. DERMAN [prosecutor]: Correct, Your Honor. I have lodged that with the clerk and that Information is going to include all of the charges from February 15, 2005 in case number F05901429-1. I think the defendant needs to be arraigned on that Information.

“THE COURT: All right. Do you wish to arraign him at this time?

“MR. GASH [defense counsel]: Yes, your Honor. At this time I will acknowledge receipt of the Second Amended Information, Mr. Lara’s name is correctly set forth thereon, we waive a full reading of it, advisement of statutory and constitutional rights, enter pleas of not guilty, deny any prior allegations and addressing the count that is on Count Four, I note that we did have – or on page 4, an enhancement pursuant to Penal Code 667.5(b), I would take issue with the validity of that .…

“MS. DERMAN: And, Your Honor, I did have a chance to review Mr. Lara’s criminal history .… So I do think that there’s a valid allegation of 667.5.

“MR. GASH: I haven’t seen a 969(b) package but I’m just – I would ask that that be reserved, Your Honor.

“THE COURT: Well –

“MR. GASH: I guess they’ll just have to prove it. We’re pleading not guilty and denying –

“THE COURT: Now, I have two second amended informations and they are inconsistent with each other and I know you gave me one this morning.

“MS. DERMAN: The correct one should have five counts with the 5th count being an 11364.

“MR. GASH: I have that one, Your Honor, five counts.

“THE COURT: All right. The one you have signed only has four counts and the one –

“MS. DERMAN: I think I only signed one of them.

“THE COURT: All right. Count five. And then on page 4 is the 667.5(b) prior prison term. All right. The Second Amended Information is filed .…”

The clerk’s transcript contains a signed and file-stamped second amended information that charges only four counts, expressly states that it consists of four counts, and omits count 5, the violation of Health and Safety Code section 11364. Appellant now says the upshot of this is that count 5 was not validly charged, conviction of an uncharged offense violates a number of his constitutional rights, and his conviction on count 5 accordingly must be reversed. Calling the “clerical omission of one count in the clerk’s copy of the second amended information” harmless, respondent says the conviction should be upheld since count 5 was contained in the second amended information used by the court and counsel and upon which the jury was instructed. The record clearly shows the court and counsel were utilizing the five-count version of the information; evidence was presented with respect to, and jurors were instructed on, that count; and no objection was raised in the trial court to conviction on count 5.²⁰ Nevertheless, appellant disputes respondent’s claim of clerical error and says the omission of count 5 in the signed and filed information was jurisdictional and mandates reversal.

20 Indeed, in his argument to the jury, defense counsel conceded that the evidence of guilt was “overwhelming and uncontradicted” as to count 5, and so he suggested jurors “make that finding as to Count Five and move on to the ones where there is a legitimate dispute in the evidence.”

We cannot tell with any certainty from the colloquy between the court and counsel whether the prosecutor signed the five-count information when the trial court called her attention to the lack of a signature. We will assume, for the sake of our discussion, that she did not. Nevertheless, we conclude appellant was properly convicted on count 5.

With exceptions not pertinent here, “[e]very public offense must be prosecuted by indictment or information .…” (§ 682.) An “information shall be in the name of the people of the State of California and subscribed by the district attorney.” (§ 739.) An “accusatory pleading is sufficient if it can be understood therefrom: [¶] … [¶] 2. If … an information, that it was subscribed and presented to the court by the district attorney of the county in which the court was held.” (§ 959.)

“It is … elementary that a court has no jurisdiction to proceed with the trial of an offense without a valid indictment or information. [Citations.]” (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393.) The statutory requirement that an information be subscribed does not mean a lack of subscription automatically invalidates the accusatory pleading or renders the trial court without jurisdiction to proceed thereon, however. “It is undoubtedly the law that an information in this state must be subscribed by the district attorney [citation], and that the information must be set aside by the court in which the defendant is arraigned, upon his motion, if it be not so subscribed. [Citation.]” (People v. Fritz (1921) 54 Cal.App. 137, 138 (Fritz); cf. Brooks v. U.S. (9th Cir. 1926) 8 F.2d 593, 594.) Appellant quotes the first portion of the foregoing statement, which he represents as a complete sentence, for the proposition that an unsigned information is not operative. He conveniently ignores the next sentence: “But, if the motion to set aside the information is not thus timely made, and none was made in this case, the defendant will be held to have waived the objection, and is precluded from afterward taking advantage of the defect. [Citations.]” (Fritz, supra, at p. 138; cf. Brooks v. U.S., supra, at p. 594.) Fritz thus rejected the claim that, because the information before it was not subscribed by the district attorney or someone acting in his behalf, there was no valid information on file. (Fritz, supra, at p. 138.)

Nothing in the statutory changes that have occurred since Fritz was decided undermine that case’s reasoning or conclusion.²¹ The cases relied on in Jones v. Superior Court, supra, 96 Cal.App.3d at page 393, for the proposition that a court lacks jurisdiction to proceed absent a valid indictment or information, concern a commitment based wholly on inadmissible evidence (Rogers v. Superior Court (1955) 46 Cal.2d 3, 7) and an indictment returned without evidence of guilt having been presented to the grand jury (Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321). Both arose by means of a pretrial challenge to proceedings – the denial of a motion to set aside the information under section 995 (Rogers, supra, at p. 5) and a motion to quash, and demur to, the indictment (Greenberg, supra, at p. 320).

21 For example, when Fritz was decided, section 995 specifically provided for the setting aside of an information, upon motion of the defendant, for lack of subscription. Section 995a, subdivision (a) now permits the court to simply order that the information be subscribed.

“‘The jurisdictional power of a court to act is conceptually divided into subject matter and territorial jurisdiction.’ [Citation.] Every California superior court has subject matter jurisdiction to conduct felony trials and to impose sentences for felonies defined by California statutes committed within the state .…” (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 169-170.) Because subject matter jurisdiction involves a court’s power to hear a case, it can never be waived or forfeited, and defects in such jurisdiction may be raised at any time. (United States v. Cotton (2002) 535 U.S. 625, 630; People v. Gbadebo-Soda, supra, at p. 170.) Defects in an indictment or, by analogy, an information, however, “do not deprive a court of its power to adjudicate a case” and, accordingly, can be waived or forfeited. (United States v. Cotton, supra, at pp. 630-631.) A lack of subscription by the district attorney is such a defect. (See, e.g., People v. Barreras (1960) 181 Cal.App.2d 609, 613-614 [failure to object in trial court waived claim information was not subscribed by correct person]; People v. Rodriguez (1960) 180 Cal.App.2d 534, 536-537 [failure to move to set aside information on same ground waived claim defendant was improperly alleged to have suffered prior felony convictions because district attorney failed to subscribe sheet containing allegations]; In re Delgado (1930) 107 Cal.App. 688, 691 [where complaint not formally sworn, proceeding was irregular, but defect in form of complaint did not render judgment void]; Fritz, supra, 54 Cal.App. at p. 138.)

Here, it is undisputed that appellant did not object in the trial court to the apparent lack of subscription.²² This failure to object is fatal to his claim that he was not validly convicted on count 5 because the five-count second amended information was inoperative due to a lack of subscription. “A defendant may not be permitted to submit to a trial on the merits without objection, taking his chances of obtaining a favorable verdict, and reserve, in the event of an adverse judgment, any objection which he may have to mere irregularities in the form of indictment or pleading, for an attack in the appellate court for the first time. [Citations.]” (People v. Meraviglia (1925) 73 Cal.App. 402, 407.)²³

22 We express no opinion whether such a defect properly could be raised by means of a demurrer under section 1004.

23 People v. Ah Fong (1859) 12 Cal. 345, upon which appellant relies for the assertion he was indeed entitled to “proceed silently and wait until appeal to challenge the conviction,” deals with the inapposite situation of a trial court’s orally instructing the jury as to the law, without the defendant’s consent, in direct violation of the applicable statute.

An information must also be filed, as this is the only method of initiating a criminal proceeding in California. (See People v. Case (1980) 105 Cal.App.3d 826, 833.) We need not decide whether this requirement can be waived (although People v. Sandoval (2006) 140 Cal.App.4th 111, 132-133 [information may be orally amended under certain circumstances] suggests that it can, at least with respect to an amended pleading), because the record before us sufficiently establishes that it was the five-count second amended information that the trial court ordered filed, and the inclusion of the four-count pleading in the clerk’s transcript is a clerical error. The prosecutor stated that the correct pleading contained five counts, and defense counsel confirmed he had that version. The only reasonable inference is that appellant was arraigned on the five-count second amended information. Moreover, immediately before the trial court directed that the second amended information be filed, the court referred to the section 667.5, subdivision (b) allegation as being on page 4. That allegation appears on page 3 of the four-count pleading. In addition, the clerk read the five-count version to the jury. Accordingly, we are satisfied that the trial court intended the five-count second amended information to be the operative pleading, and that the four-count version was inadvertently, and erroneously, included in the clerk’s transcript on appeal. (See Bowden v. Green (1982) 128 Cal.App.3d 65, 71.)

Our conclusion that appellant was properly charged with, and convicted of, count 5 necessarily disposes of his claim that his rights to due process and a fair trial have been violated. (See In re Hess (1955) 45 Cal.2d 171, 174-175 [due process prohibits conviction of uncharged offense (other than necessarily included offense), regardless of whether evidence at trial showed defendant committed said offense]; accord, People v. Lohbauer (1981) 29 Cal.3d 364, 368; People v. West (1970) 3 Cal.3d 595, 612; but see People v. Toro (1989) 47 Cal.3d 966, 973 , [exception to rule barring conviction of uncharged offense exists where defendant expressly or impliedly consents to have trier of fact consider nonincluded offense] disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568-569, fn. 3.) “The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.] [¶] Thus, the right to defend has two related components, namely, the right to notice of the charges, and the right to present a defense to those charges.” (People v. Jones (1990) 51 Cal.3d 294, 317.) Appellant received notice of the charge contained in count 5 and the opportunity to present a defense thereto. Nothing further was required.²⁴

24 Even if we were to find that the five-count second amended information was not filed, we would be hard-pressed to find a resultant due process violation where the second amended information did not alter or add to the charges that were contained in the first amended information, but merely severed counts allegedly occurring on one date from those allegedly occurring on another; there was no claim the charge contained in count 5 (count 7 of the first amended information) was not shown by evidence presented at the preliminary hearing; defense counsel acknowledged possession of the five-count second amended information; defense counsel addressed that charge in his argument to the jury; and the trial court instructed on that count without objection.

V

ROMERO MOTION

The jury found appellant had suffered two prior convictions under the three strikes law, arising from two counts of residential burglary upon which appellant was convicted, under different case numbers, in 1993. According to the probation officer’s report prepared for purposes of appellant’s sentencing, in 1998, on the case that was reversed on appeal and is referenced, ante,²⁵ appellant was born in March 1971. His juvenile record dated back to April 1985 and included burglary from a garage and vehicle burglary and, either as the result of a violation of probation or commission of another second degree burglary, a commitment to the California Youth Authority. In addition to the two residential burglaries in 1993, appellant’s adult record consisted of a vehicle theft and escape from jail in 1993, for which appellant was sent to prison; a parole violation in 1997; and possession of a hypodermic syringe or needle in late 1997 or early 1998.

25 Only a “short form” report was prepared in advance of appellant’s current sentencing hearing, apparently because appellant had absconded.

Prior to sentencing, and despite appellant’s continued absence, defense counsel filed a written “invitation” to the court to exercise its discretion under section 1385 to strike one or both of the prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Counsel argued that appellant’s conduct and demeanor throughout proceedings indicated a substance abuse issue; that the strike convictions involved the taking of bicycles from a neighbor’s attached garage; that appellant had been crime-free between his release from custody in 2001 until his arrest for possession of a small amount of drugs in June 2004; that he was employed as a carpenter; and, because of his wife’s income from Table Mountain Casino, he now had the capability of seeking the long-term care he needed for his drug and alcohol problems. Counsel reiterated essentially the same argument at the sentencing hearing, and noted that, given the wife’s income, appellant was no longer a theft threat. The prosecutor countered that the three strikes law was made for a career criminal like appellant, who had an extensive record, possessed a firearm and was violent toward police officers in the present case, and showed complete disregard for the law and the consequences of his actions, with his willful absence from proceedings being noteworthy in that regard. The court denied the defense request, agreeing with the prosecutor that the three strikes law was enacted “to protect the citizens from people like” appellant.

Appellant now contends the trial court erred by not dismissing at least one of appellant’s strikes. Appellant claims the trial court failed to “recognize that appellant, although very close, had not yet fallen within the dark spirit of the” three strikes law, and he points to the fact his offenses, while numerous, have not involved violence; he did not attempt to use the gun and no one was injured in the scuffle that gave rise to the current offenses; he has a long-standing, serious drug problem; he is unlikely to steal again because of his wife’s substantial income; and he was crime-free from 2001 to 2004.

The trial court manifestly did not abuse its discretion, which is the standard under which we review its ruling. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) “[W]hen a defendant’s criminal conduct has been proven to be immune from ordinary modes of punishment, one of the duties of the judiciary is to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons. [Citations.]” (People v. Castello (1998) 65 Cal.App.4th 1242, 1250-1251.) Thus, when sentencing pursuant to the three strikes law, objectives include protection of public safety and punishment of recidivism. (See id. at p. 1251.) “Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, at p. 377.)

“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.) By establishing a sentencing norm, circumscribing the trial court’s power to depart from that norm, and requiring the court explicitly to justify its reasons for doing so, “the [three strikes] law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (Carmony, supra, 33 Cal.4th at p. 378.) These include situations in which the trial court was not aware of its discretion to dismiss, considered impermissible factors in declining to dismiss, or where the sentencing norms produce, as a matter of law, an arbitrary, capricious, or absurd result under the specific facts of a particular case. (Ibid.) They do not include situations in which reasonable people might disagree about whether to strike one or more prior conviction allegations. (Ibid.) “Because the circumstances must be ‘extraordinary … by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case – where the relevant factors described in Williams, supra, 17 Cal.4th 148 [], manifestly support the striking of a prior conviction and no reasonable minds could differ – the failure to strike would constitute an abuse of discretion.” (Carmony, supra, at p. 378.)

Appellant’s case “is far from extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378.) His criminal record is lengthy and consists of more offenses than just those constituting strikes. Except for periods when he was in custody, he appears never to have been able to remain crime-free for more than three years, from 2001 to 2004. Regardless of his ability to obtain work as a carpenter and his wife’s new-found fortune, this fact does not reflect well on appellant’s prospects for the future, especially in light of his virtually lifelong substance abuse.²⁶ There is no suggestion he ever sought help for this problem. While it is possible the family’s income might render it unlikely he would resort to theft or burglary in the future, his failure or refusal to address his substance abuse problem makes his ability to maintain a crime-free life for any length of time very questionable. Although it does not appear he has been violent in the past, and although he did not use the gun during the current offenses, it cannot be overlooked that he physically resisted arrest while having immediately available to him a gun with a round in the chamber.

26 According to the 1998 report of the probation officer, appellant related that he began consuming alcoholic beverages at eight or nine years old and began injecting heroin at about the same age. Subsequently, in addition to his use of heroin, he also abused methamphetamine and cocaine. By his own admission at trial, appellant was using crack during the period in which the present offenses occurred.

Under the circumstances, there is little or nothing about appellant’s present felony, his prior record, or his background, character, or prospects that is favorable to his position. (See Williams, supra, 17 Cal.4th at p. 163; People v. Philpot (2004) 122 Cal.App.4th 893, 906-907; People v. Gaston (1999) 74 Cal.App.4th 310, 321.) The pertinent factors were before the trial court; there is no indication in the record that it failed to consider them. (See People v. Philpot, supra, at p. 907.) The trial court did not abuse its discretion in concluding appellant was not outside the spirit of the three strikes law and, thus, refusing to dismiss one or more of his prior strike convictions.

VI

IMPOSITION OF CONCURRENT TERM ON COUNT 2

At sentencing, the trial court imposed concurrent terms of 25 years to life in prison on counts 1 and 2, the ex-felon in possession and carrying a concealed firearm charges, respectively. Appellant says the sentence on count 2 should have been stayed pursuant to section 654.²⁷ Respondent concedes the error. We will modify the sentence accordingly.

27 Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

DISPOSITION

The judgment is modified to stay execution of sentence on count 2 pending completion of sentence on count 1, such stay then to become permanent. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting said modification and to forward a certified copy thereof to the appropriate authorities.

WE CONCUR: Vartabedian, J., Dawson, J.