Filed 3/4/14 P. v. O’Neal CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID JOHN O’NEAL,

Defendant and Appellant.

 B241850

 (Los Angeles County

 Super. Ct. No. KA096751)

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

Jack Hunt and Tia G. Fisher, Judges. Affirmed but remanded with directions.

Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and 

J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

David John O’Neal (O’Neal) appeals from the judgment on his conviction of 

unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 1) and 

receiving stolen property (Pen. Code, § 496d, subd. (a)) (count 2).

1

 He contends: (1) the 

trial court violated his constitutional right to self-representation when it ruled that he 

could not represent himself unless he agreed that there would be no continuances and he 

would proceed to trial in six days; (2) the trial court abused its discretion by refusing to 

continue the trial so that he could prepare his defense; (3) the trial court abused its 

discretion when it refused to reappoint his public defender in the middle of jury selection; 

(4) the trial court erred when it ruled that the prosecution had established that he suffered 

a prior strike conviction; and (5) the trial court erred in calculating the actual custody and 

good conduct credits. 

The People concede that there was insufficient evidence to prove the prior strike 

conviction, and also that the custody and good conduct credits must be sent back to the 

trial court for a redetermination. We remand the matter to the trial court for a new trial 

on the prior strike conviction and for a redetermination of the presentence credits in light

of section 4019 and People v. Bruner (1995) 9 Cal.4th 1178 (Bruner). In all other 

respects, the judgment is affirmed.

FACTS

Initial Proceedings; the Allegations

On March 7, 2012, the parties appeared for a preliminary hearing. Judge Jack 

Hunt held O’Neal to answer.

The Los Angeles District Attorney’s Office filed an information alleging unlawful 

driving or taking of a vehicle and receiving stolen property, and also alleged that O’Neal 

had suffered two prior convictions for which he served prison terms within the meaning 

of section 667.5, subdivision (b). At arraignment, O’Neal was represented by Deputy 

Public Defender Lashae Henderson (DPD Henderson). O’Neal pleaded not guilty and 

denied all special allegations. The prosecutor amended the information to allege that 

1 All further statutory references are to the Penal Code unless otherwise indicated.
3

O’Neal had suffered a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 

1170.12, subds. (a)-(d)).

2

O’Neal’s May 1, 2012, Faretta

3 Motion to Represent Himself

On Tuesday, May 1, 2012, DPD Henderson announced ready. When the 

prosecutor asked to trail the matter until the following Monday, DPD Henderson stated, 

“Then, your honor, my client is requesting to continue the matter a month to hire private 

counsel. And if that is denied, he wants to go pro per and he has the form.” Judge Hunt

asked O’Neal if he would be ready to go to trial on Monday. He said he needed three 

weeks, two at the most, for his family to save up enough money to hire a lawyer. Judge 

Hunt refused to continue the trail, stating, “This case goes back to February. Jury trial 

Monday, May 7.” In response, O’Neal stated, “Well, then I will go pro per and I will be 

ready to go.” When Judge Hunt pointedly asked if O’Neal would be ready, he said, “I’m 

going to have to be.” Judge Hunt stated, “Yes, you’re going to have to be. Don’t come 

in here on Monday and say you want a continuance. It’s denied. So let your conscience 

be your guide.” Subsequently, he admonished O’Neal that representing himself was 

unwise and he would probably lose. O’Neal told Judge Hunt that DPD Henderson “ain’t 

doing me no good” because he had asked her to file motions on his behalf and she had 

refused.

O’Neal was reminded that there was a plea deal of 32 months on the table, and 

that if he went to trial he was facing an exposure of eight years. At that point, O’Neal 

had DPD Henderson ask for a change of venue. Judge Hunt denied the motion. The 

ruling prompted O’Neal to explain that a deputy district attorney who had previously 

appeared in the case and that deputy district attorney’s family knew O’Neal and his 

family. O’Neal argued that there was a “conflict of interest.” Once again, Judge Hunt

denied the motion, stating “you have been talking to the brain trust back in the lockup.”

2

Specifically, it was alleged that O’Neal committed bank robbery on July 16, 1990, 

and was convicted in federal court.

3

Faretta v. California (1995) 422 U.S. 806 (Faretta).
4

According to O’Neal, he had been “reading law books.” After a morning recess, O’Neal

informed the trial court that he had read the pro. per. form and Faretta waiver. But he 

had not filled them out because the clerk “said that was his copy.”

When the parties reconvened in the afternoon, O’Neal stated that he had reviewed

and completed the pro. per. form and Faretta waiver. Judge Hunt tried, yet another time, 

to warn O’Neal that representing himself was not in his best interest. He replied: “I feel 

I have a better chance representing myself than the public defender.” He added that “they 

ain’t trying to do what I am asking” and that representing himself was “a chance I got to 

take[.]” At that point, Judge Hunt granted O’Neal’s Faretta motion.

Judge Hunt informed O’Neal that “your trial is Monday, May 7[, 2012]” and 

ensured that O’Neal was provided with all the relevant discovery. Henry Bastien was 

appointed as standby counsel.

O’Neal’s Request for a Continuance on the Day of Trial

On Monday, May 7, 2012, the parties appeared for trial before Judge Tia G. 

Fisher. When O’Neal requested a continuance, Judge Fisher stated that she had ordered a

jury panel and wanted to know why a continuance was necessary. O’Neal stated: 

“Because I just went pro per on Wednesday. They sent me to . . . a pro per module. I 

didn’t get my auxiliary funds. I needed time to look into my case so I could fight it 

properly. I [had] only been there less than five days.” He added that he wanted to hire an 

investigator.

Judge Fisher stated that she had contacted Judge Hunt and understood that O’Neal 

had been allowed to represent himself because he agreed he would be ready for trial on 

May 7, 2012, and there would be no continuances. O’Neal acknowledged as much, but 

stated that he did not receive his auxiliary funds and added: “I thought I would be able to 

postpone it so I could look into my case.” Judge Fisher explained that O’Neal’s position 

did not make any sense given that he had agreed to Judge Hunt’s condition for pro. per. 

status.

With Judge Fisher’s permission, O’Neal filed a motion to obtain auxiliary funds 

and the appointment of an investigator, and a motion for formal discovery. He asserted, 
5

inter alia, that he needed a private investigator so that he could “put on an adequate 

defense [and] . . . gather exculpatory evidence, [and] interview potential witnesses[] and 

alleged victims.”

Judge Fisher explained that there was “no need for formal discovery” due to the

“informal discovery.” She asked the prosecutor who the witnesses were, and he replied: 

“Most of them are law enforcement. We have three civilian witnesses because it’s a state 

car. So they were the ones responsible for the vehicle.” He explained that the civilian 

witnesses would “say they were the ones that had control over the vehicle at the time it 

was stolen.”

O’Neal was asked what he wanted to know that he did not already know, and he 

stated: “I feel I didn’t get all my motion discovery. I even got at the house a paper 

saying I was never charged with the case and I was released. That was never given to me 

in my motion. Because I was arrested for receiving stolen property then one of the 

detectives let me go with the paper saying I was never charged because he wanted me to 

tell him who stole the truck. And I was released two, three days after I was arrested. I 

got that paper at the house but it was never given to me.” After a short colloquy with 

Judge Fisher, O’Neal added: “So I feel I didn’t get all my motions when I asked for 

them. There’s a lot of stuff missing out of it. Because they said they had a voice 

recording of me talking to officers.”

Judge Fisher asked the prosecutor about the recording. He stated that an 

investigator taped his interview with O’Neal. Turning her focus to O’Neal, Judge Fisher 

asked if he received “some things” from DPD Henderson. O’Neal said that he received 

“them” from the bailiff. However, he said, “I don’t feel everything was there.”

After looking at the “motions,” Judge Fisher stated that she was “satisfied that 

discovery has been complied with.” To the degree O’Neal’s motion for formal discovery 

sought citizen complaints against officers, it was denied because it was untimely and 

lacked good cause. Judge Fisher stated that the motion to obtain an investigator was not 

timely. Then, also based on a lack of timeliness, she denied the motion for a continuance.
6

Still pleading his case, O’Neal stated: “But I figured I would have had time in the 

pro per module.”

Judge Fisher offered O’Neal the following thoughts. “. . . [W]hen I’m looking at 

this and making this determination, I evaluate everything very carefully in terms of your 

due process rights, in terms of . . . weighing and balancing the right to go pro per. But 

when you raised that issue and asked for it, it was not particularly timely and so it makes 

sense that the judge says, ‘If you are going to be ready to go, fine. But if you’re not, then 

I’m not going to grant it.’ And it put a court in a bind. It’s not really fair in terms of the 

overall administration of justice and it appears to be game playing. That’s the reality of 

it. When you come in here, you come back today and say, ‘I really didn’t mean what I 

said. I really want a continuance now. I’m really not ready. I just said that so I could get 

what I wanted.’ Game playing. And game playing with the administration of justice 

isn’t going to be tolerated. Jurors were ordered. They’re in the hall. Thirty people are 

missing work or coming in here taking the time and energy to come in here and be on this 

trial for you and the People.”

Continuing on, Judge Fisher said that it was “game playing, if you tell the judge 

one thing and then three, four days later say, ‘I really didn’t mean that. I really just 

wanted to go pro per. I figured I would get my continuance.’ Right?” In response, 

O’Neal said: “That seems fair.”

O’Neal’s Request for Reappointment of DPD Henderson.

Judge Fisher brought in prospective jurors and the parties engaged in voir dire for 

the rest of the morning.

Once the parties returned from a lunch break, O’Neal stipulated that a particular 

juror could be excused because the juror could not speak English. Following the 

stipulation, Judge Fisher explained to O’Neal the procedure by which he could challenge 

jurors. She then stated: “I [am] assuming you don’t want your public defender back; is 

that correct?” O’Neal said he wanted to be represented by DPD Henderson if he could 

get her back, explaining, “I wasn’t able to prepare anything and she already knows the

case[.]”
7

Judge Fisher stated: “. . . I must confess to being kind of mystified only because I 

was [not] down there in the calendar court but you’ve told me that you went pro per

because you thought you would get time.” O’Neal said: “Exactly.” Judge Fisher 

rejoined: “Even though the judge told you that you were going to have to be prepared 

and that was the only reason the judge let you go pro per and you told the judge you were

going to be prepared[?]” O’Neal said, “Yes,” but then explained that he thought he was 

going to have time to go to the law library during the week and prepare his “paperwork.” 

When Judge Fisher pointed out that O’Neal had filed motions, he replied that 

“[s]omebody down in the tier did that for me.” Judge Fisher asked: “What were you 

going to do in the law library[?]” O’Neal stated: “Look up on the computer stuff, look 

for motions and stuff so I could file them and go through all my paperwork. I didn’t have 

time to do none of that.”

Judge Fisher said it looked like O’Neal was playing games. After O’Neal was 

questioned further, he revealed that he originally wanted to be pro. per. because DPD 

Henderson would not file a motion for a change of venue based on a conflict of interest 

with a deputy district attorney who was no longer working on the case, nor would she file 

a motion for a continuance so that O’Neal’s family could hire a private lawyer. O’Neal 

said he also went pro. per. “[b]ecause I thought [DPD Henderson] wasn’t trying to help 

me. She kept trying to tell me to take the deal. She wasn’t actually trying to fight for 

me.”

Judge Fisher called DPD Henderson into court and asked whether she would 

accept a reappointment. She said she would accept reappointment only if the jury panel 

was discharged and the trial started over. Based on that, Judge Fisher declined to 

reappoint DPD Henderson.

Prosecution Evidence During the First Phase of Trial

A white Dodge Ram 2500 pickup truck (Dodge Ram) was stolen from a lot at the 

California Department of General Services over the Veteran’s Day weekend in midNovember 2011. Several weeks later, on November 30, 2011, two deputies from the 

Los Angeles County Sheriff’s Department, Tim Nakamura and Andrew Cruz, were 
8

driving in a marked patrol vehicle and saw the Dodge Ram. O’Neal was sitting behind 

the wheel with the driver’s door open. As the deputies approached in their patrol vehicle, 

O’Neal got out of the Dodge Ram and walked away. Deputy Nakamura and Deputy Cruz 

looked inside the Dodge Ram and saw that the cover to the steering column was missing, 

which exposed wires, and there was a screwdriver in the ignition. After checking the 

license plate number and vehicle identification number, they ascertained that the Dodge 

Ram had been reported stolen.

O’Neal was detained and searched. The deputies recovered a cell phone from 

O’Neal right front pocket. It contained a series of text messages indicating O’Neal’s 

guilt. 

On November 27, 2011, at 7:03 p.m., O’Neal sent a text asking the recipient, 

“know anybody who wants a hot Dodge Ram truck. Late 90’s early 2000’s.” On 

November 29, 2011, O’Neal texted: “I’ll be there in a while. [¶] . . . I can’t get this 

truck going. Ignition is fucking up. It broke. Have to figure out how to get it going.”

On November 29, 2011, at 10:41 a.m., he sent the following text: “Find out if the person 

you were talking about wants the truck.” At 4:08 p.m., he texted, “I have the truck 

sit[ting] here waiting for you. I can’t keep it parked here for too long on my street. Let 

me know what’s up. If you want it or not.” Then, at 4:14 p.m., he texted: “You asked 

your people about the truck yet? Let me know as soon as possible. I don’t want to have 

it for too long. And yes, you get a little some-some out of it if you help me get rid of it.”

On November 30, 2011, at 11:27 a.m., O’Neal texted: “You know anybody who 

might want to buy a Dodge Ram 2500-Magnum V10 truck year 2000? It even has the 

rotation back on the bed. Oh yeah, it’s a G-ride. 400. Good condition.” Later, at

11:32 a.m., he sent this message: “Well, I have a few people lined up. I have it parked 

on my street. If I get rid of it today, I’ll look out for you, okay. I’ll buy you something 

and send gas money—send gas money to you. Sound like a plan.” A few minutes later, 

at 11:37 a.m., he texted: “I’m going to make a few calls and probably take it to a shop on 

Valley right before you get on 605 freeway. [¶] . . . I’ll let you know what happens. 

Wish me luck.” Ten minutes later, at 11:47 a.m., he sent the following message: 
9

“What’s up, Big Dave? I need you to let me know as soon as you can what’s up on the 

truck. I need money so I got to get rid of it.” At 11:51 a.m., O’Neal texted: “You need

to wake up, Cora. What’s up on the truck situation?” At 12:06 p.m., he sent this text: 

“Find out if any one want to buy a G-ride, year 2000, Dodge Ram, 2500-Magnum V10 

truck with wrought iron rack. 400. Might go lower.”

A later text message on November 30, 2011, from “Kiki” asked, “What kind of 

truck do you have?” O’Neal’s texted back: “2000 Dodge Ram 2500 Magnum, V-10 and 

it’s got the rack on the bed.” He had a message from Tina/Sunshine a little later, stating, 

“No, just wait. [¶] . . . If you want, I’ll be back in 20 minutes. At parent conferences. 

Do you have a ride?” In response, O’Neal wrote, “Yeah, a stolen truck that I’m in right 

now that I really don’t want to be driving. But [yeah], I got a ride, sort of, kind of, in a 

way.”

One of the People’s witnesses read the text messages and opined that O’Neal had 

been trying to sell the Dodge Ram for $400.

Verdict; Second Phase of Trial; Sentence

The jury returned a guilty verdict. O’Neal waived his right to a jury trial on 

whether he had priors. After the bifurcated second phase of trial, Judge Fisher found the 

alleged priors to be true.4

O’Neal was sentenced to a total term of six years in state prison computed as 

follows. For the offense of unlawful driving or taking of a vehicle, he was sentenced to a 

mid-term of two years doubled pursuant to sections 667, subdivisions (b) through (i), and 

1170.12, subdivisions (a) through (d). He was then given an additional two years 

4

The People offered a federal prison packet into evidence. It contained a judgment 

and probation/commitment order stating that O’Neal had been convicted of “robbery of 

bank; robbery of Savings and Loan Association, in violation of 18 U.S.C. § 2113(a) as 

charged in count one of the Indictment.” A 1996 probation report filed in connection 

with a petty theft provided a description of the bank robbery purportedly taken from 

“federal files.” Judge Fisher relied on that probation report in finding the strike 

allegation true.
10

pursuant to section 667.5, subdivision (b). A four-year sentence for the offense of 

receiving stolen property was imposed but stayed.

Judge Fisher awarded O’Neal 86 days actual custody credit and 42 days good time 

credit for a total of 128 days of presentence custody credit.

This timely appeal followed.

DISCUSSION

I. The Ruling on the May 1, 2012, Faretta Motion.

O’Neal contends that his right to self-representation was violated when it was 

conditioned on the trial not being continued. 

We disagree. 

If defendant knowingly and intelligently waives the right to counsel, he has a 

constitutional right to conduct his own defense. (Faretta, supra, 422 U.S. at pp. 835–

836; People v. Lightsey (2012) 54 Cal.4th 668, 694–695.) This right is unconditional if 

the “defendant makes an unequivocal assertion of that right within a reasonable time 

prior to trial. [Citation.]” (People v. Wilkins (1990) 225 Cal.App.3d 299, 303 (Wilkins), 

citing People v. Windham (1977) 19 Cal.3d 121, 127–128 [“in order to invoke the 

constitutionally mandated unconditional right of self-representation[,] a defendant in a 

criminal trial should make an unequivocal assertion of that right within a reasonable time 

prior to the commencement of trial”].) When a defendant’s Faretta motion “is made on 

the eve of trial and is therefore untimely, the grant or denial of that request is within the 

sound discretion of the trial court after it has inquired sua sponte into the specific factors 

underlying the request. [Citation.]” (Wilkins, supra, 225 Cal.App.3d at p. 304; People v. 

Douglas (1995) 36 Cal.App.4th 1681, 1688–1689 (Douglas) [“Motions made on the day 

preceding or the day of trial have been considered untimely”].) “[I]f a court grants a 

defendant’s untimely Faretta request, it must also grant a reasonable continuance, if 

necessary, so that defendant may prepare for trial. [Citations.]” (Id. at p. 1689.) But “if 

the court determines the defendant’s request is merely a tactic designed to delay the trial, 

the court has the discretion to deny the continuance and require the defendant to proceed 

to trial as scheduled either with his counsel or in propria persona. [Citations.]” (Ibid., 
11

cited with approval by People v. Valdez (2004) 32 Cal.4th 73, 103 [“[T]he court acted 

within its discretion in concluding that defendant could represent himself only if he was 

ready to proceed to trial without delay”].)

Whether a Faretta motion is timely depends on the totality of the circumstances

that existed at the time that the trial court was asked to rule. (People v. Lynch (2010) 50 

Cal.4th 693, 724 (Lynch), overruled on other grounds in People v. McKinnon (2011) 52 

Cal.4th 610, 636–643.) The purpose of the timeliness rule is to prevent a defendant from 

using a Faretta motion to obtain an unjustifiable delay of the trial or obstruct the orderly 

administration of justice. (Lynch, supra, 50 Cal.4th at p. 724.) “[A] trial court may 

consider the totality of the circumstances in determining whether a defendant’s pretrial 

motion for self-representation is timely. Thus, a trial court properly considers not only 

the time between the motion and the scheduled trial date, but also such factors as whether 

trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or 

availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial 

proceedings, and whether the defendant had earlier opportunities to assert his right of 

self-representation.” (Id. at p. 726.) 

The record reveals that O’Neal was represented by DPD Henderson at the 

March 21, 2012, hearing scheduled for arraignment and could have made his Faretta

motion at that time. He chose not to. When the parties appeared on Tuesday, May 1, 

2012, DPD Henderson announced ready. Only after the prosecutor asked to trail the 

matter until Monday, May 7, 2012, did O’Neal ask to continue the matter a month so he 

could hire a private attorney. In the alternative, O’Neal made a Faretta motion. No one

indicated that there were ongoing pretrial matters. There were only six days between the 

day the motion was filed and the trial date. Notably, in People v. Hill (1983) 148 

Cal.App.3d 744, 757 (Hill), the court stated that a Faretta motion filed five days before 

the trial date could have been denied as untimely. Though O’Neal’s case was not 

complex—it involved unlawful use of a vehicle—O’Neal did not make his Faretta

motion sufficiently in advance of the original May 1, 2012, trial date to research and 

understand the issues he would face when trial commenced. Considering the totality of 
12

the circumstances, we conclude that Judge Hunt did not err when he impliedly concluded 

that the Faretta motion was untimely.

The next question is whether Judge Hunt erred when he conditioned O’Neal’s 

pro. per. status on the trial proceeding without a continuance. We take our cue from 

Douglas. The Douglas court concluded that the trial court did not abuse its discretion 

when, on the day trial was scheduled to begin, it ruled that it would allow the defendant 

to represent himself only if there was no continuance. At “no point did [the defendant] 

claim he and his counsel had not cooperated in preparing his defense or that they 

disagreed. [Citation.]” (Douglas, supra, 36 Cal.App.4th at p. 1689.) Here, O’Neal never 

claimed lack of cooperation or disagreement with DPD Henderson about the defense. At 

most, O’Neal claimed that DPD Henderson did not file unspecified motions. But it 

appears that she did make the motions O’Neal was concerned about when, at the May 1, 

2012, hearing, she orally made motions for a change of venue and a continuance. The 

Douglas court noted: “From the record it appears, as the trial court concluded, [the 

defendant] requested a continuance strictly as a delaying tactic and not because he needed 

time to prepare a defense.” (Id. at p. 1689.) Here, Judge Hunt impliedly found that 

O’Neal’s Faretta motion was a delaying tactic, and that finding is amply supported by 

the record. When the prosecutor stated that she wanted to trail the matter to Monday, 

O’Neal asked for a continuance so his family could obtain the services of a private 

attorney. Only in the alternative did O’Neal ask to represent himself. He did not state 

that he needed more time so that he could file motions, hire an investigator, review 

evidence or learn the law. 

We additionally observe that the record of the May 1, 2012, hearing suggests that 

O’Neal sought a continuance with the hope that he would have a private attorney by the 

time of trial. As explained in Hill, “the granting of an untimely request to discharge 

appointed counsel does not entitle a defendant to a continuance to allow a different 

attorney of his choice to prepare for trial. [Citations.]” (Hill, supra, 148 Cal.App.3d at 

p. 757, fn. 5.) Of course, O’Neal did not file a motion to discharge DPD Henderson 

pursuant to People v. Marsden (1970) 2 Cal.3d 118. However, O’Neal expressed 
13

dissatisfaction with DPD Henderson on May 1, 2012, and it is apparent from the record 

that his dissatisfaction was the primary prompt for his Faretta motion. Given his 

motivation, he should not be allowed to achieve a result under Faretta that is proscribed 

under Marsden.

II. The Ruling on the May 7, 2012, Motion to Continue the Trial.

Even if Judge Hunt did not err, O’Neal contends that Judge Fisher erred by not 

countermanding Judge Hunt’s May 1, 2012, order regarding O’Neal’s pro. per. status and 

granting a continuance. This contention lacks merit. Whether to continue a trial is 

committed to a trial judge’s sound discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 

1037.) Judge Fisher simply enforced Judge Hunt’s May 1, 2012, order denying any 

continuances, and for that reasons it cannot possibly be said that Judge Fisher exceeded 

the bounds of reason. (Biosense Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 

827, 834.) Further, O’Neal admitted that he thought he could postpone the trial even 

though he agreed to Judge Hunt’s condition that there be no continuances. Thus, there 

was support for Judge Fisher’s finding that O’Neal was playing games. Judge Fisher 

inquired why O’Neal needed a continuance, and he essentially said he wanted to obtain 

discovery. At that point, Judge Fisher examined the discovery and concluded that 

O’Neal had been given all the evidence. Consequently, O’Neal’s stated reason for 

needing a continuance evaporated. For this additional reason, Judge Fisher did not err 

when she denied a continuance.

III. The Ruling on O’Neal’s Request for the Reappointment of DPD Henderson.

O’Neal argues that Judge Fisher erred when she failed to reappoint DPD 

Henderson. Upon review, we cannot concur.

When a defendant seeks to revoke his pro. per. status and have counsel appointed, 

a trial court must analyze the totality of the circumstances when exercising its discretion 

to grant the defendant’s request. (People v. Lawrence (2009) 46 Cal.4th 186, 192–193, 

196 (Lawrence).) Some of the factors that may be considered, as set forth in People v. 

Elliott (1977) 70 Cal.App.3d 984, 993–994, are: “(1) [a] defendant’s prior history in the

substitution of counsel and in the desire to change from self-representation to counsel-
14

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.” (Ibid.) 

A trial court need not review each factor on the record, and no one factor is controlling. 

(Lawrence, supra, 46 Cal.4th at p. 196 [“The standard is whether the court’s decision was 

an abuse of its discretion under the totality of the circumstances . . . . , not whether the 

court correctly listed the factors or whether any one factor should have been weighed 

more heavily in the balance”].)

Judge Fisher conducted an extensive hearing on O’Neal’s request while two 

witnesses and the jury panel were waiting. She observed that if DPD Henderson was 

reappointed and the trial was started anew, the jury panel would be lost and the matter 

would have to be returned to the master calendar court. Though O’Neal explained that he 

wanted DPD Henderson back because he “wasn’t able to prepare anything and she 

already knows the case[,]” the case was not complicated. The only issues were whether 

he unlawfully took a vehicle, and whether he received that vehicle knowing that it was 

stolen. Impliedly, Judge Fisher concluded that O’Neal would be effective acting as his 

own counsel. The record establishes that he filed motions and otherwise appeared 

sufficiently intelligent to defend himself. In addition, the record established that O’Neal 

had been playing games with the court, admitting that he believed he would get a 

continuance after agreeing there would be no continuances. Given the totality of the 

circumstances, Judge Fisher acted well within her discretion when she declined to 

discharge the jury panel, restart the trial and reappoint DPD Henderson to represent 

O’Neal.

IV. The Finding that O’Neal Suffered a Prior Strike.

The parties agree that the prosecution failed to offer sufficient and/or admissible 

evidence establishing that O’Neal’s 1990 conviction in federal court for bank robbery 

qualified as a robbery under section 211, and that it therefore qualified as a strike under 

sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). 
15

However, they disagree on the remedy. According to O’Neal, Judge Fisher should not 

have doubled the mid-term sentence of two years on count 1, and his six-year sentence 

should be reduced to four years. The People, on the other hand, contend that the matter 

should be remanded to the trial court so that it can be retried.

Regarding the remedy, we agree with the People. Both the United States Supreme 

Court and the California Supreme Court have held that the prohibitions against double 

jeopardy do not apply to proceedings in noncapital cases to determine the truth of prior 

conviction allegations, sentencing enhancements, or penalty allegations. (Monge v. 

California (1998) 524 U.S. 721, 734; People v. Seel (2004) 34 Cal.4th 535, 542; People 

v. Barragan (2004) 32 Cal.4th 236, 240–242.) Thus, retrial of an alleged prior conviction 

is permissible. (Id. at p. 241.)

V. Custody Credits.

The sentencing hearing was held on June 8, 2012. The record established that 

O’Neal had been in custody since February 14, 2012. Judge Fisher awarded O’Neal a 

total of 128 days of presentence credit consisting of 86 actual days and 42 days of good 

conduct credit.

According to O’Neal, Judge Fisher erred by failing to properly award good 

conduct credit pursuant to the current version of section 4019, subdivision (f). The 

People agree. O’Neal committed his crimes on November 30, 2011, which was after the 

effective date of Assembly Bill No. 109, which was part of the criminal justice 

realignment legislation. (People v. Garcia (2012) 209 Cal.App.4th 530, 539.) 

“Assembly Bill No. 109 authorized conduct credit for all local prisoners at the rate of 

two days for every two days spent in local presentence custody.” (Ibid.; § 4019, subd. 

(f).) Thus, under the current law, O’Neal should have received two days for every two 

days he spent in actual custody. 

Next, O’Neal argues that Judge Fisher failed to accurately calculate his actual days 

of presentence custody. Instead of 86 day, he contends that it should have been 118 days 

because he was in custody from November 30 to December 2, 2011, and then from 

February 14 to June 8, 2012.
16

There is a wrinkle. The record indicates that while the present case was pending, 

O’Neal was on probation for driving with a suspended or revoked driver’s license in case 

No. ORI01262. The March 21, 2012, hearing was not only for O’Neal’s arraignment in 

the present case, it was also a probation revocation hearing. Regarding the latter, Judge 

Hunt stated: “Probation revoked. 120 days county jail [to run] consecutive to any other 

sentence. [¶] And there’s another one for suspended or revoked license. Probation is 

revoked. 120 days county jail to run consecutive to any other sentence.”5 She then told 

DPD Henderson, “You explain to your client he’s no longer getting credit on the felony. 

He gets sentenced because he’ll be a sentenced prisoner.” The parties dispute the impact 

of the sentence in case No. ORI01262. O’Neal opines that because the record shows that 

he was not awarded any presentence custody credit in case No. ORI01262 and did not 

start serving his sentence in that case until after being sentenced in the current case, he 

should be given full credit for his actual days in custody prior to sentencing on June 8, 

2012. He asserts that the issue need not be remanded. The People, on the other hand, 

argue that the case should be remanded for a determination under Bruner as to whether 

O’Neal’s probation in case No. ORI01262 was revoked because of his current offenses. 

(Bruner, supra, 9 Cal.4th at pp. 1193–1195 [under section 2900.5, a convicted defendant 

shall receive credit for all days spent in custody, but only to the extent that the custody to 

be credited is attributable to proceedings related to the same conduct for which the 

defendant was convicted].)

The record is insufficient for us to determine why O’Neal’s probation was 

revoked, and also when he began serving his 120 day sentence. The matter must be 

remanded for a redetermination of O’Neal’s actual days of credit and, additionally, his 

good conduct credits.

5

It is unclear from the record what Judge Fisher meant when she said there is 

“another one” and revoked probation a second time.
17

DISPOSITION

That matter is remanded for a retrial on the strike conviction, and for a 

redetermination of presentence credits in light of section 4019 and Bruner. In all other 

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.*

FERNS

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.