Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI700123. John M. Tomberlin, Judge. Affirmed with modifications and remanded for further proceedings.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant Tyrone Layton was convicted of two counts of attempted premeditated and deliberate murder (Pen. Code §§ 187, subd. (a), 664), five counts of making criminal threats (§ 422), and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). In a bifurcated trial, the court found true the allegations that defendant suffered two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to state prison for two consecutive indeterminate life terms, five consecutive terms of 25 years to life, and 10 additional years for his two prior serious conviction enhancements. Defendant appeals, contending that the trial court erred in denying his request to withdraw his waiver of counsel and that the trial court committed sentencing error.
All further statutory references are to the Penal Code unless otherwise indicated.
In his opening brief, defendant challenged the sufficiency of the evidence to support a true finding that his prior Massachusetts’ conviction for assault with intent to commit robbery constituted a strike as alleged in the information. However, in his reply brief, he withdrew his challenge.
I. PROCEDURAL BACKGROUND AND FACTS
A. The Prosecution’s Case.
While working at a Santa Rosa Home Depot in September, 2006, as an on-site liaison, Susan Sloan (victim) met defendant and they became intimate after a week or two. Victim told defendant she had just broken up with her boyfriend but they would most likely get back together.
After a few weeks, defendant moved on to work at another Home Depot site. The couple continued to telephone each other. In the second week of November 2006, victim drove to Tehachapi to visit defendant. She spent the night with him, sleeping in a separate bed. Defendant wanted to continue their sexual relationship. On Thanksgiving, they drove to Big Bear for the day and then spent the night together in Apple Valley. They slept in separate beds because of victim’s health problems. A few days later, defendant was assigned to work at the Apple Valley Home Depot, where victim was working. He checked in the Red Roof Inn where victim was staying.
Victim told defendant that she had gotten back with her boyfriend, who was coming to visit her. Defendant was not happy. That day at the work site, defendant accused victim of having an affair with a coworker. Defendant began trailing victim at her work site, asking for the locations of parts and acting belligerent. After two days of harassment, victim asked her supervisor to arrange defendant’s move to another site. The supervisor talked to defendant and then assured victim everything would be all right. Victim tried to stay away from defendant.
Victim’s boyfriend visited her on Thursday, and then victim worked on Saturday and Sunday. On Sunday morning, victim went out to her car to get paperwork. Defendant was getting his tools out of his car. As defendant walked passed victim, he told her, “Watch your back, bitch. I am going to get you.”
Victim telephoned her supervisor from her car. The supervisor told victim to go back to the hotel and he would get defendant off the site that day. Seeing victim on the telephone, defendant ran across the parking lot and threw his coffee cup at victim’s car as she backed out of the lot.
That afternoon, defendant left messages on victim’s cell phone. In the first message, defendant said: “I’m coming after ya.” A second message came later in the day. Defendant said, “... I coming for your ass. You know what I’m saying? You better fucking hide Bitch. Man, and you can tell the cops, but I’m gonna tell ya something, check my records. I don’t care what you tell the fuckers.... You think I’m something to play with, bitch,... I’m the wrong motha fucker to play with, bitch.”
Feeling afraid and threatened, victim decided to leave the hotel. About 6:00 or 7:00 p.m., she packed her bag and Jeremy Haddad, a coworker, escorted her to her car. Haddad had shared a room with defendant during a portion of his stay at the Red Roof Inn. Victim was in the car and Haddad was loading the trunk of the car when victim saw defendant driving towards her.
Victim testified that defendant drove his car into her driver’s side door at 25 to 30 miles per hour. The collision prevented the door from opening and victim could not get out. Defendant backed up, and Haddad went to defendant’s car to talk to him in an attempt to settle things. When defendant said he wanted to talk to victim, Haddad would not allow defendant to do so. Haddad testified that defendant told him, “[I]f you want to get involved too, then I will kill you too.”
While Haddad and defendant were talking, victim called 911. As Haddad walked towards victim’s car, defendant drove towards the car, causing Haddad to jump out of the way to avoid getting hit. Haddad got into victim’s car. As victim was pulling out of the parking space, defendant “rear-ended” her car. As she was leaving the parking lot, defendant rear-ended her again, pushing her car into the street. Defendant continued to rear-end victim’s car as she was driving away. Haddad continued the 911 call.
Victim eventually drove into a Rite Aid parking lot to meet with police officers. The officers escorted victim and Haddad back to the Red Roof Inn to get their belongings. While at the hotel, victim heard a third message from defendant on her cell phone. In this message, defendant said: “I’m gonna find your ass in a minute, bitch. And I (inaudible), you think I’m someone to play with? You mother fucker think I’m someone to play with? And I’m coming for your ass. You know what I’m saying? I’m gonna catch up with ya in a minute. You know what I’m saying? So do your high, I’ll Getcha daughter. And so stop lying, you motha fucking, bitch.”
B. Defense.
According to defendant, his relationship with victim did not involve any sex or any conflicts. Victim called him, and he was told he was needed at the Apple Valley store. Shortly thereafter, defendant was told that he was needed in Las Palmas. He returned to the hotel to pack his bags. As he arrived at the hotel, defendant saw two people in victim’s car. As he pulled next to victim’s car, it pulled out, sideswiping his car. Defendant followed victim’s car. As his car got closer to victim’s car, defendant saw Haddad and another person defendant identified as “Timmy” inside. As defendant’s car got closer to victim’s car, the driver “abruptly hit the brakes,” causing defendant’s car to hit the tail end of victim’s car. Defendant noticed steam coming from his engine and pulled off the road, where he discovered that his radiator was damaged. While sitting in his car, two police officers came and “assaulted” him.
Defendant had sustained convictions in Massachusetts for armed robbery (1975), assault with intent to rob (1976), and possession of a controlled substance with intent to distribute (1988).
C. Rebuttal.
Sheriff’s deputies were dispatched to Rite Aid on December 3, 2006, in response to a 911 call made at approximately 5:45 p.m. Victim was crying and shaking, and Haddad appeared shaken also.
The deputies found defendant in his vehicle at approximately 7:14 p.m. Defendant appeared to be sleeping. Deputies tapped on the window. When defendant looked up, the deputies asked for him to open the door and show his hands. Defendant failed to comply, and one of the deputies smashed the driver’s side window to gain access. Defendant did not come out of the car willingly. The deputies had to use a Taser in order to get control over him. Defendant was belligerent and insulting, cursing at the deputies.
The driver’s side door handle was broken off on the outside and the deputies were unable to open the door.
The damage to the driver’s side of victim’s car was consistent with a moderate-speed collision and inconsistent with a slow-speed sideswipe.
II. DEFENDANT’S REQUEST TO WITHDRAW HIS WAIVER OF COUNSEL
Defendant contends the trial court abused its discretion in refusing his request for counsel prior to trial on his prior conviction allegations.
A. Procedural Background.
Prior to trial, defendant requested, and the trial court granted, the request to proceed in propria persona. After the verdict was announced in open court, defendant waived his right to a jury trial on the prior conviction allegations. A court trial was scheduled for the following day. That following day, defendant claimed he had not waived his right to a jury trial on his priors. The court continued the trial on the prior conviction allegations for the purpose of obtaining and reviewing a transcript of the proceedings regarding defendant’s waiver of jury trial. The next morning, the trial court indicated that it had reviewed the transcript and was satisfied that defendant had waived his right to a jury trial. In response, defendant stated that he needed two weeks to get an attorney because he was “not dealing with [the trial court] like this.” The court overruled the request and the defendant said that he was “not participating in this.” The following exchange then occurred:
Faretta v. California (1975) 422 U.S. 806 (Faretta).
“THE COURT: Perhaps you will remember, Mr. Layton, you don’t have to participate.
“THE DEFENDANT: All right. Whatever.
“THE COURT: Mr. Layton, you can’t speak
“THE DEFENDANT: I am speaking when you’re speaking. This is a people’s court. This ain’t your court. You’re running criminal activities here. It’s not your court. “THE COURT: All right, Mr. Layton, I
“THE DEFENDANT: I said I need time to get me an attorney, period.
“THE COURT: I find that untimely. You should have made the request before. I continued it to this morning, and you are not going to have time to get an attorney. I am going to simply say when you request time that I considered that to be a request for continuance. I find that to be an untimely request.
“THE DEFENDANT: Okay. [¶]....[¶]
“THE DEFENDANT: I am not participating in this, your Honor, period.
“THE COURT: That would be up to you, Mr. Layton.
“THE DEFENDANT: I am going to tell the bailiff to take me back to the cell.
“THE COURT: No.
“THE DEFENDANT: Okay.
“THE COURT: Do you have an opening statement, Ms. [Prosecutor]?
“[PROSECUTOR]: No, your Honor. I would like to proceed straight to the evidence then.
“THE COURT: Okay.”
B. Standard of Review.
While the right to counsel at a crucial stage of a criminal trial on charges punishable by imprisonment is absolute (Alabama v. Shelton (2002) 535 U.S. 654, 661-662; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345 [“in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”]), once a defendant has knowingly and voluntarily waived that right, he no longer has an absolute right to withdraw his waiver and reassert the right to counsel. (People v. Boulware (1993) 20 Cal.App.4th 1753, 1756; see Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 700 [“the right to counsel—once waived—is no longer absolute,...”].) When a defendant requests to withdraw his waiver of counsel, the trial court is vested with the discretion “to determine whether such a defendant may give up his right of self-representation and have counsel appointed for him.” (People v. Elliott (1977) 70 Cal.App.3d 984, 993, (Elliott); see People v. Gallego (1990) 52 Cal.3d 115, 164, [“‘[i]t is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.’”].) In exercising its discretion, the trial court should consider: “(1) defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.” (Elliot, supra, 70 Cal.App.3d at pp. 993-994.) Additionally, the court must “consider the totality of the circumstances in exercising its discretion. [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 149.)
C. Analysis.
The trial court denied defendant’s request to withdraw his Faretta waiver and to reassert his right to counsel because it was untimely. Defendant’s jury trial on his offenses had concluded, the jury had been excused, and the court was ready to proceed with trial on defendant’s priors. The record suggests that defendant was attempting to manipulate the right to counsel for an improper purpose. First, defendant sought to assert his right to a jury trial. The trial court noted that defendant had already waived such right, and the jury which had heard the charges against defendant had been excused. Defendant was unhappy with what he was told and disagreed with the court. In response, the trial court ordered a transcript of the proceedings from the prior day and proved defendant to be wrong. Defendant then claimed that he wanted a new trial. When the trial court would not allow a new jury to be impaneled, defendant then sought a two-week continuance to get an attorney. However, the trial court denied the request as untimely.
According to the People, defendant’s request “was part of an effort to thwart the bifurcated trial of the priors based on [his] mistaken belief that he had manipulated the trial court into depriving him of a nonexistent right to be tried by the earlier (and now discharged) jury.” According to defendant, the trial judge was a racist and justice was for hire. Based on the record before this court, we conclude that the trial court did not abuse its discretion in denying defendant’s request to withdraw his waiver of counsel. At no point following the jury’s verdict, and prior to the denial of defendant’s request for a new jury to hear the case involving his priors, did defendant bring up, discuss, or request representation by counsel. It was only after defendant realized he could not have a new jury impaneled that he made a request for counsel.
III. SENTENCING ERROR
Defendant contends the trial court erred in imposing a consecutive term for making a criminal threat to Haddad (count 7) under section 422 because the sentence violated the multiple punishment bar of section 654. Defendant argues that, because he made the threat to Haddad merely to facilitate the attempted premeditated and deliberate murder, the two shared the same intent and objective. In response, the People argue that defendant threatened Haddad after Haddad refused to allow defendant to talk to victim. Defendant then attempted to murder Haddad after he refused to heed defendant’s threat.
Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. (§ 654; People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Whether a defendant’s conduct constitutes a single act under section 654 depends on the defendant’s intent in violating penal statutes. If the defendant harbors separate though simultaneous objectives in committing the statutory violations, multiple punishment is permissible. (People v. Britt (2004) 32 Cal.4th 944, 952.) This question is one of fact for the trial court, and we uphold the trial court’s finding if it is supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Here, the evidence shows that when Haddad became involved with helping victim, defendant threatened him (Haddad) and carried out the threat. Specifically, Haddad testified that when he talked to defendant in an attempt to calm him down, defendant told Haddad that it was none of his business and that he (defendant) would kill Haddad if he got involved. Despite Haddad’s attempts to reason with defendant, defendant got back in his car, tried to get Haddad to walk in front of his (defendant’s) car, and kept telling Haddad that he was going to kill him. During argument, the People argued, “[Defendant] made it perfectly clear to [Haddad] as well that you want to get involved, I will kill you too. And then, no, you go first. No, you go first. No, [Haddad] you go in front of my car. Merry Christmas. I will fucking kill you too.” Given this record, and the prosecution’s argument, we conclude that defendant’s intent in attempting to murder Haddad was the same as defendant’s intent to threaten. Although the threat and the act of driving the car at Haddad were two separate acts, the evidence does not suggest any separate intent or objective. Defendant’s effort to run over Haddad was inextricably intertwined with his threat to kill Haddad if Haddad became involved. Accordingly, the consecutive sentence on defendant’s conviction for making a criminal threat against Haddad should be stayed under section 654.
IV. DISPOSITION
The 25 year-to-life prison term imposed on count 7 (making criminal threats (§ 422) against Haddad) is modified to stay the term pursuant to section 654. The superior court is directed to amend the abstract of judgment to reflect the modification and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: MCKINSTER, J., GAUT, J.