Filed 5/16/16 P. v. Davis CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ROGER PAUL DAVIS,

Defendant and Appellant.

 B261044

 (Los Angeles County

 Super. Ct. No. MA060166)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Frank M. Tavelman, Judge. Affirmed as modified.

Richard M. Doctoroff, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. 

Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Appellant Roger Paul Davis appeals his conviction for driving under the 

influence (DUI), causing bodily injury and great bodily injury (GBI), contending 

the trial court erred in granting his request for self-representation without inquiring 

into his mental competence. He further contends his sentence of four years and 

four months in prison represented cruel and unusual punishment. Respondent 

contends the court miscalculated presentence custody credits. We amend to 

correct the custody credit miscalculation and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Appellant was charged with one count of DUI causing bodily injury (Veh. 

Code, § 23153, subd. (a).) It was further alleged that appellant refused a request to 

submit to chemical tests within the meaning of Vehicle Code sections 23577, 

23578, and 23538, subdivision (b)(2), and that in the commission of the charged 

offense he personally inflicted GBI upon Andras Balogh within the meaning of 

Penal Code section 12022.7, subdivision (a). 

B. Appellant’s Request for Self-Representation

Between July 2013 and January 2014, appellant was represented by the 

Public Defender’s Office. In January 2014, the Public Defender’s Office declared 

a conflict, and a member of the Alternate Public Defender’s Office was appointed 

to represent him. At a pre-trial hearing on February 19, appellant expressed the 

desire to represent himself with “legal help.” The court warned him that if he 

decided to represent himself, he would get no legal advice either from an attorney 

or from the court, and that he would be held to the standard of an attorney when 

arguing, making motions and objections, and questioning witnesses. He was also 

warned that if his propria persona status were to be revoked midtrial, “that attorney 
3

would have to jump in and take over the case at whatever stage it was [at] . . . stuck 

with whatever damage you’ve caused at that point . . . .” Appellant stated he 

understood the court’s warnings. The court gave appellant the necessary 

paperwork and scheduled a further hearing for February 21. After returning the 

completed paperwork and receiving additional warnings, including that his own 

incompetence and ineffectiveness would not be the basis for an appeal, appellant 

withdrew his request and continued to be represented by an alternate public 

defender in the hearings that followed. 

On May 1, 2014, appellant again asked permission to represent himself. The 

court gave appellant the necessary forms to fill out and reiterated its warnings of 

the drawbacks of self-representation, stressing that he would be up against an 

experienced prosecutor with extensive legal training. After appellant completed 

the four-page “Advisement and Waiver of Right to Counsel” form (CRIM 185 07-

08), the court questioned him concerning his understanding of the warnings 

contained in the documents, which included warnings that he would be required to 

follow the rules of criminal procedure and the rules of evidence, that he would not 

receive special consideration from the court, that he would not be given a 

continuance without good cause, and that he might encounter difficulty preparing 

his defense or obtaining access to resources while incarcerated. After receiving 

confirmation from appellant that he understood the dangers of self-representation, 

the court granted appellant propria persona status. The court’s order included the 

finding that appellant had been deemed competent to represent himself. The court 

also appointed standby counsel. 

Prior to trial, there were several hearings at which appellant presented, and 

the court granted, motions for discovery, for assistance from an investigator, and
4

for appointment of an expert.1 Appellant filed a Pitchess motion, which the court 

denied as being insufficiently specific,

2

and a Trombetta motion based on the 

destruction of his van, which was also denied.3 The matter was continued multiple 

times, at appellant’s request. Trial commenced in October 2014, nearly six months 

after appellant obtained propria persona status. 

C. Evidence at Trial

On May 5, 2013, at approximately 3:00 p.m., Henry Daniels was driving 

north on 47th Street East in Palmdale, approaching the intersection with Barrel 

Springs Road. There were stop signs for traffic on 47th Street, giving traffic on 

Barrel Springs the right of way. Daniels observed appellant’s Volkswagen van 

coming southbound on 47th as it approached the intersection. Appellant was 

driving erratically, off the road and onto the dirt shoulder. Appellant’s van did not 

stop at the sign, but entered the intersection, where it was hit by a black car 

traveling east on Barrel Springs. 

Andras Balogh was the driver of the black car. As a result of the accident, 

his car was deemed a total loss. He suffered broken bones in his right hand. The 

injuries left his grip strength permanently weakened and his hand sensitive to cold 

weather. Balogh also suffered a cracked rib and an injury to his right leg and knee 

that caused him pain and difficulty walking for several weeks. The knee continued 

to bother him at the time of trial, more than a year later. 

 

1 Appellant also moved to exclude evidence of a prior DUI and a statement he made 

to an officer at the scene of the accident. The court deferred ruling, explaining these were 

issues for trial. No evidence of appellant’s prior DUI was introduced at trial.

2

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

3 California v. Trombetta (1984) 467 U.S. 479.
5

California Highway Patrol (CHP) Officer Jason Wilber arrived at the 

accident shortly after it occurred. Officer Wilbur noticed a strong odor of alcohol 

emanating from appellant, and observed his eyes to be red and watery and his 

speech to be slurred. The officer conducted a series of field sobriety tests. 

Appellant exhibited nystagmus (involuntary jerking) of the eyes when asked to 

keep his gaze on a finger or pen. In addition, he was unable to stand on one leg or 

walk heel to toe in a straight line without losing his balance. Appellant told the 

officer he had consumed a 24-ounce “211” beer at approximately 8:00 a.m. 

Appellant also said that his steering was loose and that he had slowed, but not 

stopped, at the stop sign before continuing through the intersection. Officer Wilber 

concluded appellant was under the influence of alcohol. Appellant did not blow 

sufficient breath into the officer’s breathalyzer to produce a reading. When later

given the choice of a blood or breath test, appellant chose a blood test, but when 

taken to a medical center, refused to submit to it. 

Appellant did not testify but made an opening statement in which he argued 

his driving was erratic because a wheel on his van was loose, that Balogh’s black 

car was behind him and hit him from behind, and that he slowly ran the stop sign 

after making sure no one was approaching the intersection because Balogh was 

tailgating him. He gave a closing argument in which he questioned the severity of 

Balogh’s injuries, and claimed his destroyed van would have supported his version 

of the accident. Appellant cross-examined Daniels, Balogh and Officer Wilber, 

but did not call any defense witnesses. His proffered documentary evidence, 

including the CHP’s collision report, was excluded as hearsay. 

D. Verdict and Sentence

The jury found appellant guilty of DUI causing injury and found the special 

allegations of GBI and failure to complete a chemical test true. The court 
6

sentenced appellant to imprisonment for four years, four months consisting of the 

low term of 16 months for the Vehicle Code section 23153, subdivision (a)

violation, plus three years for the Penal Code section 12022.7, subdivision (a), GBI 

finding.

4

This appeal followed.

DISCUSSION

A. Appellant’s Competence to Represent Himself

In Faretta v. California (1975) 422 U.S. 806 (Faretta), the U.S. Supreme 

Court held that the Sixth Amendment gives criminal defendants the right to 

represent themselves, provided they “‘knowingly and intelligently’” forego the 

benefits of counsel after being made aware of the dangers and disadvantages of 

self-representation. (Faretta, supra, 422 U.S. at p. 835; see People v. Johnson

(2012) 53 Cal.4th 519, 525-526.) For many years, California courts interpreted

Faretta as precluding state courts from imposing on defendants seeking to waive 

counsel a standard of competence higher than that imposed in determining their 

competence to stand trial. (See, e.g., People v. Welch (1999) 20 Cal.4th 701, 732, 

overruled in part on another ground in People v. Blakeley (2000) 23 Cal.4th 82; 

People v. Blair (2005) 36 Cal.4th 686, 711, disapproved in part on another ground 

in People v. Black (2014) 58 Cal.4th 912; People v. Hightower (1996) 41 

Cal.App.4th 1108, 1111, 1116 [because trial court found defendant competent to 

stand trial, “it necessarily follow[ed]” that court erred in denying his motion for 

self-representation on ground of mental incompetence].) This understanding 

prevailed until the Supreme Court’s decision in Indiana v. Edwards (2008) 554 

 

4 Although the probation office’s pre-conviction report recommended probation, the 

court concluded appellant was ineligible for probation in the absence of a finding that his 

case was an “unusual” one, and “[did not] find anything that would justify this being an 

unusual case.” 
7

U.S. 164, 178 (Edwards), holding that “the Constitution permits States to insist 

upon representation by counsel for those competent enough to stand trial . . . but 

who still suffer from severe mental illness to the point where they are not 

competent to conduct trial proceedings by themselves.”5 

Appellant has never claimed to lack mental competence to stand trial. 

However, citing Edwards, he now claims he lacked sufficient mental competence 

to knowingly, intelligently and voluntarily waive his right to counsel, and that the 

court erred in failing to make an inquiry into his mental state prior to granting his 

request to represent himself. For the reasons discussed below, we disagree. 

As explained by our Supreme Court in People v. Taylor (2009) 47 Cal.4th 

850, Edwards permits, but does not mandate, the application of a dual standard: 

“The Edwards court held . . . that states may, without running afoul of Faretta, 

impose a higher standard” for gray-area defendants who wish to represent 

themselves at trial. (Taylor, supra, 47 Cal.4th at pp. 877-878.) “‘In other words, 

Edwards did not alter the principle that the federal constitution is not violated 

when a trial court permits a mentally ill defendant to represent himself at trial, even 

if he lacks the mental capacity to conduct the trial proceeding himself, if he is 

competent to stand trial and his waiver of counsel is voluntary, knowing and 

intelligent.’” (Id. at p. 878, quoting State v. Connor (2009) 292 Conn. 483 [973 

A.2d 627, 650].) Thus, the holding in Edwards “does not support a claim of 

federal constitutional error in a case . . . in which defendant’s request to represent 

himself was granted.” (Taylor, supra, 47 Cal.4th at p. 878.)6 

 

5

The Court called defendants deemed competent to stand trial but not to represent 

themselves “gray-area defendants.” (Edwards, supra, 554 U.S. at p. 174.)

6

In so holding, the Court affirmed the conviction of the defendant, who had been 

permitted to represent himself despite a long history of cocaine dependence and findings 

of low average intelligence and deficits in his reasoning and abstract thinking. (People v. 

Taylor, supra, 47 Cal.4th at pp. 860-861.)
8

Subsequently, in Johnson, supra, 53 Cal.4th 519, the Court upheld a trial 

court ruling denying self-representation to a defendant who appeared delusional 

and paranoid, but had been found competent to stand trial. The Court held that 

trial courts have discretion to deny self-representation to gray-area defendants “in 

those cases where Edwards permits such denial.” (People v. Johnson, supra, at 

p. 528.) The court went on to explain that “pending further guidance from the high 

court, . . . the standard that trial courts considering exercising their discretion to 

deny self-representation should apply is . . . whether the defendant suffers from a 

severe mental illness to the point where he or she cannot carry out the basic tasks 

needed to present the defense without the help of counsel.” (Id. at p. 530.) The 

court stressed that “[t]rial courts must apply this standard cautiously”: “Criminal 

defendants still generally have a Sixth Amendment right to represent themselves. 

Self-representation by defendants who wish it and validly waive counsel remains 

the norm and may not be denied lightly. A court may not deny self-representation 

merely because it believes the matter could be tried more efficiently, or even more

fairly, with attorneys on both sides. Rather, it may deny self-representation only in 

those situations where Edwards permits it.” (Id. at p. 531.)

Applying these authorities to the instant case, we find nothing to support 

appellant’s contention that he was a gray-area defendant, competent to stand trial 

but not to represent himself, or that inquiry into that possibility was required by 

information known to the trial court. At no point during the proceedings below 

was any question raised concerning appellant’s competence. He was represented 

by counsel for nine months, first by attorneys in the Public Defender’s Office and 

then by attorneys with the Alternate Public Defender’s Office. None of the 

attorneys representing him suggested appellant had difficulty understanding them 

or assisting in his defense. Nor did any express doubt as to his competence. (See 

People v. Gardner (2014) 231 Cal.App.4th 945, 953-955 [court denied appellant’s 
9

motion to discharge appointed counsel after a hearing initiated by counsel 

informing court she had doubts about his mental competence].) Nor did appellant

exhibit to the court the type of bizarre behavior or odd comments that might have 

suggested a mental illness or other deficiency.

7

 (See People v. Johnson, supra, 53 

Cal.4th at p. 524 [court expressed doubt about defendant’s competence due to 

unusual behavior and tone of letters written to court and others].) Appellant

satisfactorily completed the four-page form affirming his understanding of the 

dangers and disadvantages of self-representation. He confirmed this understanding 

at three separate hearings. Following the grant of his request, he filed multiple 

articulate motions, some of which were granted. During trial and pretrial, he

conducted himself appropriately in front of the judge and jury. He demonstrated 

his understanding of the charges, providing his own explanation for the accident 

that contradicted the prosecution’s theory and questioned the severity of Balogh’s 

injuries. Penal Code section 1369 provides that unless the preponderance of the 

evidence supports a different finding, it shall be “presumed that the defendant is 

mentally competent . . . .” (Pen. Code, § 1369, subd. (f).) Nothing in the record of 

the proceedings below contradicts that presumption.

Appellant contends the probation office’s pre-conviction report “revealed a 

long history of alcohol and drug abuse arrests and convictions” that should have 

prompted an inquiry into his competence. If a trial court is presented with 

evidence creating a reasonable doubt about the defendant’s competence to stand 

 

7

In Edwards, the U.S. Supreme Court quoted with approval the amicus curiae brief 

of the American Psychiatric Association, agreeing that a defendant who is marginally 

mentally competent may suffer from “‘[d]isorganized thinking, deficits in sustaining 

attention and concentration, impaired expressive abilities, anxiety, and other common 

symptoms of severe mental illnesses,’” impairing the “‘ability to play the significantly 

expanded role required for self-representation even if he can play the lesser role of 

represented defendant.’” (Edwards, supra, 554 U.S. at p. 176.) Appellant displayed 

none of these behaviors.
10

trial, it is “require[d] . . . to suspend proceedings and conduct a competency 

hearing . . . .” (People v. Blair, supra, 36 Cal.4th at p. 711.) However, no such 

rule applies to defendants in the gray-area seeking to represent themselves. “A

trial court need not routinely inquire into the mental competence of a defendant 

seeking self-representation.” (People v. Johnson, supra, 53 Cal.4th at p. 530; see 

People v. Miranda (2015) 236 Cal.App.4th 978, 988 [in the absence of evidence 

defendant lacked competence to stand trial, court had no obligation to interrupt 

trial to determine his competence to represent himself after hearing evidence 

indicating he suffered from mental illness].) As the Supreme Court stated in 

People v. Taylor, a trial court’s decision to permit a defendant lacking the mental 

capacity to represent himself at trial “does not support a claim of federal 

constitutional error . . . .” (People v. Taylor, supra, 47 Cal.4th at p. 878.) Here, 

the pre-conviction report showed that appellant had suffered a 2012 arrest for 

being under the influence of alcohol or drugs and a 2008 conviction for DUI. The 

only other substance-related conviction occurred in 1988, 25 years earlier, and the 

only other substance-related arrest occurred in 2004, nearly ten years earlier. This 

record does not support such extensive alcohol or drug use that permanent 

impairment should have been presumed. 

Appellant also points to a letter submitted by his father, post-trial, at the 

sentencing hearing, stating that appellant had been “labeled with schizophrenia.” 

The letter itself is not substantial evidence that appellant suffered a serious mental 

disorder. Moreover, “even a history of serious mental illness does not necessarily 

constitute substantial evidence of incompetence that would require a court to 

declare a doubt concerning a defendant's competence and to conduct a hearing on 

that issue.” (People v. Blair, supra, 36 Cal.4th at p. 714.) “[T]o be entitled to a 

competency hearing, ‘a defendant must exhibit more than . . . a preexisting 

psychiatric condition that has little bearing on the question . . . whether the 
11

defendant can assist his defense counsel.’” (People v. Rogers (2006) 39 Cal.4th 

826, 847, quoting People v. Ramos (2004) 34 Cal.4th 494, 508.) Even assuming 

appellant had been diagnosed with schizophrenia sometime in the past, his 

behavior during trial and pretrial proceedings established that nothing prevented

him from acting with the mental acuity necessary to represent himself. The trial 

court did not err by granting appellant’s motion to discharge counsel and proceed 

in propria persona without making inquiry into his competence.

B. Cruel and Unusual Punishment

The trial court imposed the low term of 16 months for the Vehicle Code 

section 23153, subdivision (a) violation, plus three years for the GBI finding.

Appellant contends his sentence of four years, four months constitutes cruel and 

unusual punishment under both the state and federal constitutions. As respondent 

notes, by failing to raise the issue in the trial court, appellant forfeited this claim on 

appeal. (People v. Em (2009) 171 Cal.App.4th 964, 972, fn. 5.) Although 

appellate courts generally address the merits “‘to prevent the inevitable 

ineffectiveness-of-counsel claim’” (ibid., quoting People v. Norman (2003) 109 

Cal.App.4th 221, 229), appellant is precluded from relying on his own 

ineffectiveness. (See People v. Lopez (1977) 71 Cal.App.3d 568, 574.) 

Moreover, on the merits, we find the sentence imposed constitutional. 

Appellant’s offense was a serious one. Balogh was badly injured, and he or 

appellant could easily have been killed. The punishment imposed was not 

“‘grossly disproportionate to the severity of the crime.’” (Ewing v. California

(2003) 538 U.S. 11, 20-21.) Nor did it “‘shock the conscience of reasonable 

men,’” which requires a showing, among other things, of disproportionate 

punishment for similar offenses in the same jurisdiction or the same offense in 

other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 424, 426-427.) Appellant 
12

suggests otherwise, but does not attempt to make the necessary disproportionality

showing. (See People v. Wingo (1975) 14 Cal.3d 169, 183 [defendant bears 

burden of demonstrating sentence is disproportionate and/or excessive].)

Claiming to be an alcoholic and schizophrenic, appellant contends that

imprisonment for any period was inappropriate, and that he should instead have 

been placed in a treatment program. We are aware of no authority for the 

proposition that a defendant who suffers from such disorders, but is fit for trial, 

should escape punishment after committing a crime.8 The decision to punish rather 

than treat those who drive a vehicle while intoxicated is a rational choice made by 

the Legislature.9 The multi-year sentence imposed on appellant for causing GBI 

while drunk driving is not overly severe. “The drunk driver cuts a wide swath of 

death, pain, grief, and untold physical and emotional injury across the roads of 

California and the nation. The monstrous proportions of the problem have often 

been lamented in graphic terms by this court and the United States Supreme Court. 

[Citations.] . . . Given this setting, our observation that ‘[d]runken drivers are 

extremely dangerous people’ [citation] seems almost to understate the horrific risk 

posed by those who drink and drive.” (Burg v. Municipal Court (1983) 35 Cal.3d 

257, 262, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 899.) In view of 

 

8

To the contrary, courts have consistently rejected the claim that it is 

unconstitutional to punish conduct occasioned by the compulsion of alcoholism or 

addiction. (See, e.g., People v. Kellogg (2004) 119 Cal.App.4th 593, 596.)

9

The contention that a defendant who drove under the influence of drugs was 

entitled to probation and enrollment in a drug treatment under Proposition 36 was 

rejected by our Supreme Court in People v. Canty (2004) 32 Cal.4th 1266, 1274.) The 

court recognized that the DUI offense “primarily is concerned not with the offender’s use 

of the proscribed substance, but with his or her use of a motor vehicle” and “concerns the 

driver’s activity as it actually or potentially affects or ‘transacts’ with other persons.” 

(Canty, supra, 32 Cal.4th at p. 1279.) “In proscribing driving while under the influence, 

the . . . legislative purpose is to protect the public and guard against the threat of injury to 

others.” (Ibid., italics omitted.)
13

the dangerousness of appellant’s conduct and his record of similar offenses, his 

claim that a low-term sentence totaling less than five years’ imprisonment was 

excessive, disproportionate, or otherwise unconstitutional must be rejected.

C. Calculation of Presentence Custody Credits

In imposing sentence, the trial court awarded appellant 778 days of 

presentence custody credit, consisting of 519 days of actual custody and 259 days 

(one-half of 519) of good time/work time credit. Respondent notes that under 

Penal Code section 2933.1, appellant’s conduct-based credits were limited to no 

more than 15 percent of his actual days in custody, or 77 days.10 As explained in 

People v. Delgado (2010) 181 Cal.App.4th 839, “the Attorney General may raise 

the sentencing error for the first time in connection with defendant’s appeal,” and 

appellate courts “may set aside an unauthorized sentence so a proper sentence may 

be imposed, even if the new sentence is harsher. [Citations.]” (Delgado, supra,

181 Cal.App.4th at p. 854; accord, In re Renfrow (2008) 164 Cal.App.4th 1251, 

1256.) Appellant does not dispute respondent’s calculation of the appropriate 

credits.

 

10 Penal Code section 2933.1, subdivision (a) provides: “Notwithstanding any other 

law, any person who is convicted of a felony offense listed in subdivision (c) of Section 

667.5 shall accrue no more than 15 percent of worktime credit . . . .” Penal Code section 

667.5, subdivision (c)(8) lists “[a]ny felony in which the defendant inflicts great bodily 

injury on any person other than an accomplice which has been charged and proved as 

provided for in Section 12022.7 . . . .”
14

DISPOSITION

The judgment is modified to reflect 596 days of presentence custody credit, 

consisting of 519 days of actual credit and 77 days of good time/work time credit. 

In all other respects the judgment is affirmed. The superior court is directed to 

prepare an amended abstract of judgment to reflect this modification and to 

forward a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.