1

Filed 6/1/22 P. v. Surrell CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ALVON SHONER SURRELL,

Defendant and Appellant.

C090151

(Super. Ct. No. 16FE011674)

OPINION ON TRANSFER

After numerous prior attorneys for defendant were replaced, Alvon Shoner Surrell 

made a motion under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent 

himself. On the first day of trial, defendant asked the trial court to reappoint counsel. 

The trial court denied the request. Defendant represented himself at trial and the jury 

found him guilty of four robberies (Pen. Code, § 211),1 and found true a firearm 

enhancement as to each robbery (§ 12022.53, subd. (b)). On appeal, defendant contends 

1

 Undesignated statutory references are to the Penal Code.
2

the trial court abused its discretion by denying his untimely request for reappointment of 

counsel. In an unpublished opinion, we affirmed the judgment. (People v. Surrell (Dec. 

9, 2021, C090151) [nonpub. opn.].) 

Our Supreme Court granted review and transferred the matter back to us with 

directions to vacate our decision and reconsider the cause in light of section 1170 as 

amended by Assembly Bill No. 124 (Stats. 2021, ch. 695) and Senate Bill No. 567 (Stats. 

2021, ch. 731). The parties thereafter filed supplemental briefs. Defendant argues the 

provisions apply to him retroactively and require remand because he may be entitled to a 

lower term sentence because he might have experienced childhood trauma. The People 

agree the provisions apply retroactively to defendant but contend remand is unnecessary 

as the circumstances he cites do not qualify as trauma, and there is no evidence those 

circumstances contributed to the commission of the offenses. 

Upon reconsideration, we conclude defendant has not demonstrated that any of the 

circumstances listed in section 1170 contributed to the commission of the robbery and he 

is therefore not entitled to resentencing based on the amendments in Senate Bill No. 567 

and Assembly Bill No. 124. We affirm.

I. BACKGROUND

The substantive facts underlying defendant’s convictions are not recounted, as 

they are not relevant to the disposition on appeal.

On January 30, 2018, defendant was arraigned on two cases alleging a total of four 

robberies, accompanying firearm enhancements, and prior strike convictions. Public 

defender Allison Williams represented defendant at the arraignment. 

Approximately one month later, defendant made a Marsden2 motion to relieve his 

appointed counsel. Ashley Burg was the public defender assigned to represent defendant 

after his case proceeded past arraignment and was his attorney when defendant made the 

2

 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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Marsden motion. Defendant alleged that public defender Williams had continued the 

matter at the arraignment, against his wishes, as he had wanted to plead, go to 

preliminary hearing, and exercise his right to a speedy trial. He also stated that public 

defender Burg could have tried to contact him in the period when the matter was 

continued and inform him of what was happening in his case. Burg noted the seriousness 

of the charges defendant faced, the magnitude of discovery yet to be received, and 

defendant’s potential three strikes sentencing exposure. Given these circumstances, she 

did not believe anyone in the public defender’s office would have advised defendant to 

proceed to set the case for preliminary hearing at the first court appearance. She also 

indicated she had not met with defendant, as he had refused to meet with her. Defendant 

confirmed he had refused to meet with Burg, because once he had made up his mind that 

he did not need “present counsel” to be part of the case, he did not feel compelled to meet 

with her. The trial court denied the motion. 

On March 6, 2018, defendant pled not guilty. He was advised he faced a 

maximum exposure of 40 years, plus 100 years to life. Following a preliminary hearing, 

defendant was held to answer on a consolidated complaint alleging he committed four 

counts of robbery, personally used a firearm in each, and had two prior strike convictions. 

The court deemed the consolidated complaint an information. Defendant again entered 

pleas of not guilty. 

On June 25, 2018, defendant’s public defender, Melissa McElheney, declared a 

conflict, apparently based on the prior Marsden proceedings and defendant’s claims of 

misconduct by the public defender’s office. The court relieved the public defender’s 

office as counsel and appointed conflict counsel. 

One month later, defendant’s new appointed counsel, Alan Donato, advised the 

court he had put the matter on calendar, as defendant wanted to represent himself. 

Defendant wanted to represent himself because Donato refused to file motions defendant 

wanted him to file, which Donato had concluded were without merit. The hearing on the
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motion was continued to permit defendant and his attorney to complete the waiver forms. 

At the August 6, 2018 Faretta hearing, defendant was explicitly advised of his exposure 

to four 25 year to life terms, plus 40 years as a result of the firearm enhancement 

allegations. Defendant indicated he understood the potential sentence. Defendant also 

indicated he understood his right to an attorney, a speedy trial by jury, to subpoena 

witnesses and records, confront and cross-examine witnesses, against self-incrimination, 

and to self-representation. He indicated he was not a high school graduate, but he had 

obtained a GED and worked as a real estate consultant. He was advised of, and 

acknowledged, the dangers and disadvantages of self-representation, including that 

without an attorney, he would be required to: (1) follow the technical rules of substantive 

law, procedure, evidence, and courtroom protocol without the assistance of a lawyer; and 

(2) conduct his own trial, including making motions, selecting a jury, cross-examining 

witnesses, presenting and examining his own witnesses, making appropriate objections 

and motions, preparing jury instructions, and making post-trial motions. In addition, he 

would not receive assistance from the court and because of his custodial status, it would 

be difficult to contact witnesses, investigate his case, and he would have limited access to 

the telephone and law library. The court advised him he was going to be facing “an 

incredibly experienced prosecutor.” He was also advised a subsequent motion to give up 

his pro per status might be denied and he would still have to proceed without an attorney, 

and that he had no right to standby or advisory counsel. The court recommended 

defendant not represent himself and, instead, accept court-appointed counsel. Defendant 

stated he understood all of the advisements, and defendant still wanted to represent 

himself. 

After inquiring into defendant’s legal background, training, and knowledge, the 

court found defendant had the ability to act as his own attorney; and, had knowingly, 

intelligently, and voluntarily chosen to act as his own attorney, with full knowledge of the 
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risks and dangers of doing so. Accordingly, the court granted his Faretta motion and 

relieved appointed counsel. 

In the ensuing nine months, defendant filed numerous motions, including a motion 

to dismiss. The trial court denied these motions. Trial was originally set for 

September 27, 2018 and was continued as a result of defendant’s motions. The trial date 

was reset to November 14, 2018, and was continued to January 24, 2019, because of 

defendant’s motions. On January 24, 2019, defendant’s motion to continue was granted. 

Trial was reset for March 25, 2019. On March 25, 2019, the Sheriff’s Department 

advised the court that defendant refused to be transported from jail to court. Trial was 

reset to April 24, 2019. Defendant again refused to be transported to court. Trial was 

then set for May 9, 2019. 

On May 9, 2019, defendant made an oral motion to disqualify the judge under 

section 170.6 and a challenge for cause. The court denied these motions. As the 

discussions proceeded as to how trial would be conducted, including examination of 

witnesses and motions in limine, defendant asked the court if it was “too late for me to 

request counsel because this—at this point, it is a little intimidating. There’s a lot to 

remember. There are a lot of rules that need to be attended to. I want to give myself my 

best defense. I want to be able to do that. I believe I’m entitled to and I expect it even 

for myself. So I think that is a fair question for me to ask. Whether it’s too late or not, I 

don’t know.” He went on to state he had sought self-representation as he did not think he 

could get a fair trial with the available representation; “However, like I said—like the 

D.A. just said, this is a life case and it’s extremely technical, and it is, if I could be honest 

intimidating to have so much riding on every single detail that is going to be played out 

over the next two, three, four days.” The court asked the prosecutor for her thoughts, 

noting that reappointing counsel would require a delay. The prosecutor objected. She 

noted the crimes occurred in 2016, so were three years old. There were four victim 

witnesses and several other civilian witnesses who had been waiting to testify for quite 
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some time and were prepared to testify, and the matter was set to go to trial. She also 

argued defendant had been represented by three different public defenders and conflict 

counsel, and he had been conducting his own defense for months. Defendant summed up 

the reasons for his request, stating: “I learned enough about the law to find out that at 

this point I may be in over my head. The severity of the case requires a little more than I 

can offer. My hands are tied in terms of just my ability to access the law library, my 

ability to research materials, my ability to try to catch up to speed. [The D.A.] is 

qualified. . . . So I understand what I’m up against, and that is the reason why I ask for an 

attorney at this point.” 

The court noted that previously defendant had, and replaced, four attorneys and 

experienced significant conflicts with each. The court had no confidence that if it 

appointed another attorney, defendant would have a cooperative relationship with that 

attorney. Rather, the court expected there would be more problems and defendant would 

again request to substitute counsel or represent himself. The court also considered that 

the case was three years old, and the People also had a right to trial in a timely manner. 

The motion was made on the day set for trial, late in the proceedings, after defendant had 

brought many motions, and the matter had been continued several times. Defendant had 

repeatedly stated he was ready for trial. Accordingly, based on the totality of the 

circumstances, the court denied the motion. 

Following trial, the jury found defendant guilty of all four robbery counts and 

found all four firearm enhancements true. In bifurcated proceedings, the jury found the 

two prior strike allegations true. The court granted defendant’s Romero3 motion as to 

one of the prior strike convictions. The court sentenced defendant to an aggregate term 

of 32 years in prison, consisting of: the midterm of 3 years on count one, doubled 

because of the strike, plus a consecutive 10 years for the attendant firearm enhancement, 

3

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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a consecutive two years each for counts two, three, and four (one-third the midterm, 

doubled), plus a consecutive three years four months for each attendant firearm 

enhancement. 

II. DISCUSSION

A. Faretta Motion

Defendant contends the trial court abused its discretion by denying his motion to 

reappoint counsel after granting his request to represent himself under Faretta. He 

acknowledges his request, made on the first day of trial, was untimely, but contends the 

trial court was incorrect as to his history of substituting counsel. 

When a criminal defendant who previously waived his or her right to counsel and 

has elected self-representation seeks, during trial, to revoke that waiver, the trial court 

exercises its discretion under the totality of the circumstances. (People v. Lawrence

(2009) 46 Cal.4th 186, 188 (Lawrence).) In ruling on such a request, among the factors 

the court may consider are: “(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.” (People v. Elliott (1977) 

70 Cal.App.3d 984, 993-994 (Elliott).) These factors are not absolutely necessary for a 

court to consider, nor is any one factor necessarily determinative. (Lawrence, supra, at 

p. 196.)

Defendant had made multiple changes to his representation. After having refused 

to meet with counsel, defendant made a Marsden motion in which he complained about

the representation of the first two public defenders to represent him. He claimed that one 

had continued the arraignment against his wishes and the other had not been available to 

him and had not tried to meet with him. He claimed the public defender’s office had 
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engaged in misconduct. This misconduct allegation led the third public defender to 

declare a conflict and be relieved as counsel. He disagreed with conflict counsel about 

the filing of various motions, which conflict counsel refused to file as they were without 

merit. Based on conflict counsel’s refusal, defendant made a Faretta motion. Thus, 

defendant was represented by four different attorneys and had disputes with them all 

either about trial tactics or their office’s conduct in the proceedings. It was reasonable for 

the court to conclude that if counsel was reappointed, defendant would continue to have 

conflicts with counsel and would again seek to change his representation, causing further 

disruption and delay to the trial.

Defendant requested reappointment of counsel on the day of trial, just prior to jury 

selection. By that point, defendant had been representing himself for nine months and 

had filed numerous, voluminous motions. Trial was continued at least four times because 

of defendant’s motions. Defendant also refused to be transported to court at least twice 

on the date trial was set. On the day of trial, defendant also made two motions to 

disqualify the judge.

Defendant was charged with four separate robberies occurring on separate dates. 

There was significant discovery involved in the case and multiple witnesses. Defendant 

was faced with a possible sentence of 100 years to life, plus 40 years. The trial court 

could reasonably conclude a new attorney would need a continuance. In addition, the 

crimes were committed three years earlier, and defendant had been arraigned over 15 

months earlier. There were numerous witnesses who were prepared to testify and had 

been waiting to do so for some time.

Finally, we are not convinced that defendant’s claimed inability to effectively 

represent himself at trial warranted reappointment of counsel. Defendant “was told of—

and affirmed his understanding of—the risks and disadvantages of self-representation 

before” his Faretta waiver. (Lawrence, supra, 46 Cal.4th at p. 195.) “Because defendant 

had been fully advised before he chose self-representation, his later change of mind 
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properly bore less weight in the trial court’s discretionary decision on the revocation 

request.” (Id. at pp. 195-196.) Defendant had not suddenly learned on the day of trial 

that he was facing a “life case,” that there were “a lot of rules that need to be attended 

to,” that he had limited access to the law library and research materials, or that the district 

attorney had greater qualifications in trying a case than he did. He was explicitly advised 

of each of these facts before he entered the waiver. He had not just discovered that he 

might “be in over [his] head,” “he had simply reweighed the pros and cons of selfrepresentation and changed his mind as to the best course.” (Id. at p. 195.) Moreover, a 

“defendant’s asserted ineffectiveness at self-representation does not demonstrate an abuse 

of discretion. Defendant was untrained in the law and may not have been especially 

experienced in court procedures, but the same could be said of many, if not most, in 

propria persona criminal defendants. That defendant’s defense would have been more 

effectively presented (or a better sentence obtained through a negotiated plea) had he 

been represented is likely. But if that fact were determinative, virtually all selfrepresenting defendants would have the right to revoke their counsel waivers at any time 

during trial. That is not the law.” (Id. at p. 196.)

Based on the totality of the circumstances, we find no abuse of discretion in the 

denial of the belated request for reappointment of counsel.

B. Amended Section 1170

On transfer, the Supreme Court order directed us to reconsider this cause in light 

of section 1170, as amended by Senate Bill No. 567 and Assembly Bill No. 124. Senate 

Bill No. 567 amended section 1170. (See Stats. 2021, ch. 731, § 1.3, effective Jan. 1,

2022.) Assembly Bill No. 124 also proposed amendments to section 1170 and was 

signed by the Governor in 2021.4 (See Stats. 2021, ch. 695, § 5.) However, because 

Senate Bill No. 567 was the last bill signed by the Governor and bears the higher chapter 

4

 Assembly Bill No. 124 also amended section 236.23, and added sections 236.15, 236.24, 

and 1016.7. (Stats. 2021, ch. 695, §§ 1-4.) Those provisions are not relevant here.
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number, its amendments to section 1170 prevail over those specified in Assembly Bill 

No. 124. (Gov. Code, §§ 9510, 9605, subd.(b); In re Thierry S. (1977) 19 Cal.3d 727, 

738-739.)

Among other things, Senate Bill No. 567 sets a presumption that the trial court 

will impose the lower term under specified circumstances, including, as relevant here, 

when a defendant has experienced childhood trauma, including but not limited to abuse, 

neglect, exploitation, or sexual violence and that trauma was a contributing factor in the 

commission of the offense. (§ 1170, subd. (b)(6)(A), added by Stats. 2021, ch. 731, § 

1.3.) 

The parties agree that as an ameliorative statute, the amended provisions of section 

1170 apply retroactively to defendant’s nonfinal judgment. They disagree, however, as 

to whether remand for resentencing is necessary. Defendant argues the record 

demonstrates he may have experienced childhood trauma, which might entitle him to the 

lower term on his principal robbery conviction. Specifically, he was “primarily raised by 

his mother in Oakland. [Citation.] At the time, Oakland ‘was an environment where 

there was no opportunity for advancement due to extreme poverty, a drug epidemic, and 

prevalent racial prejudice.’ [Citation.] [Defendant] ‘and his brother basically raised 

themselves because their parents worked a lot.’ ” The People argue defendant has 

forfeited this claim by failing to explain how these circumstances amount to trauma 

within the meaning of the statute. The People also contend the circumstances do not 

amount to trauma under the statute, and even if they did, defendant has not demonstrated 

those circumstances from his youth contributed to his commission of these four armed 

robberies. 

“Issues do not have a life of their own: if they are not raised or supported by 

argument or citation to authority, we consider the issues [forfeited].” (Jones v. Superior 

Court (1994) 26 Cal.App.4th 92, 99; see also Badie v. Bank of America (1998) 67 

Cal.App.4th 779, 784-785; Cal Rules of Court, rule 8.204(a)(1)(B).) We will not develop 
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the argument for defendant. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10.) The 

absence of cogent legal argument or citation to authority allows us to treat the claim as 

forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) As the appellant, it is 

defendant’s burden on appeal to establish both error and prejudice. (Vaughn v. Jonas

(1948) 31 Cal.2d 586, 601; People v. Homick (2012) 55 Cal.4th 816, 861.) To meet this 

burden, defendant must establish both that he experienced childhood trauma within the 

meaning of the statute and that the trauma was a contributing factor in the commission of 

the offense. Defendant has done neither. Defendant has offered no argument that the 

circumstances of his youth qualify as trauma under the statute. He has not even alleged 

he was subjected to parental neglect.

5 Nor has he alleged he lived in extreme poverty, or 

was personally denied opportunity for advancement by the drug epidemic or racial 

prejudice in Oakland, California. To the extent he did experience childhood trauma, he 

has also not argued those circumstances contributed to the commission of the four armed

robberies committed when he was 46 years old, after over 10 years with no criminal 

convictions.

6

 Accordingly, we find that claim forfeited. 

5

 We note, having parents who “worked a lot” by itself is unlikely to constitute neglect. 

This is particularly true, where as here, defendant’s mother was employed by a school 

district and his father was a university professor who was active in his life. 

6

 We note, the record also shows in that period of no criminal convictions, defendant 

worked as a carpenter until he suffered a workplace injury, then as an executive assistant, 

then in real estate consulting. He also started two businesses. 
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III. DISPOSITION

The judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

KRAUSE, J.