Filed 5/21/15 P. v. Gomez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
CHRISTIAN GOMEZ,
Defendant and Appellant. B254039
(Los Angeles County Super. Ct. No. BA402230)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Gail Ruderman Feuer, Judge. Affirmed as modified. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Steven E. Mercer and William N. Frank, Deputy Attorneys Gene ral, for Plaintiff and Respondent.2 INTRODUCTION A jury convicted defendant and appella nt Christian Gomez of second degree robbery (Pen. Code, § 211 1 ) and dissuading a witness by forc e or threat (§ 136.1, subd. (c)(1)). It further found that defendant co mmitted the robbery and dissuading offenses for the benefit of, at the direction of, or in association with a criminal street gang as provided in section 186.22, subdivisions (b )(1)(C) and (b)(4), respectively. The trial court found true the allegations that defenda nt suffered a prior conviction charged under the “Three Strikes” law (§§ 6 67, subds. (b)-(i); 1170.12, su bds. (a)-(d)) and section 667, subdivision (a). The trial court sentenced defendant to 19 year s to life in state prison. On appeal, defendant contends that th e trial court abused its discretion in admitting evidence consisting of statements and testimony refe rring to his gang moniker, erred in instructing the jury on the dissuading a w itness offense, abused its discretion in denying his post-trial Faretta 2 motion to represent himself, should have stayed the sentence for his robbery conviction under se ction 654, and abused its discretion in denying his motion to strike the alternate punishment prescribed by section 186.22, subdivision (b)(4)(C) (section 186.22(b)(4)(C)) for his dissuad ing a witness conviction.
We order defendant’s sentence for his robber y conviction stayed un der section 654 and his abstract of judgment modified to reflect the section 654 stay. We otherwise affirm the judgment.

BACKGROUND About on September 1, 2012, Maria Me jia heard a noise that sounded as if someone was attempting to force open the door of her apartment. Mejia unlocked the door, and looked outside. She saw defendant sitting on the ground. Before she closed the door, she noticed that “the handle was broken outside.”

1 All statutory citations are to th e Penal Code unless otherwise noted.

2 Faretta v. California (1975) 422 U.S. 806.3 About 5:15 p.m. on September 4, 2012, Me jia returned to he r apartment from the market. She was unable to enter her apartm ent because her roommate was not home and she did not have a key. Me jia waited near the apartment building’s mailboxes for her
roommate to return. As sh e waited, she saw defendant wa lking up the stairs from the underground parking lot. Defendant walked over to Mejia. Me jia asked defendant if he knew who had broken the door handle three days earlier. Defendant did not respond to the inquiry. Instead, he approached Mejia in a “very harsh way” and to ld her, “I don’t want you here.” Defendant said, “Go away, get out of the building.” He told Mejia, “You have to leave, this is my barrio. This is my nei ghborhood.” Defendant al so said, “Breed’s my
barrio.” Defendant’s tone was “v ery aggressive.” “Breed” was a name of a street next to Mejia’s apartment building. Defendant approached Mejia, and she back ed up against a wall. Mejia said that defendant was not the building’s manager and he could not kick her out. She said that if defendant did not stop bothering her, she woul d call the police. Defendant told Mejia that he wanted her to “get out of the building” and that “thi s is my neighborhood.” He said that if Mejia and her roommate did no t leave, they would “get fucked up.”
Defendant said the word “Breed” many times. Mejia attempted to remove her cell pho ne from her pants pocket with her right hand. Defendant grabbed Mejia’s hand and th e phone. He twisted her right hand and pulled her thumb “all the way back,” injuring her thumb. Defendant took Mejia’s cell phone from her. Mejia yelled that she needed help and called for someone to call 911. Her shouts drew some of her neighbors outside. Mejia did not receive any help from her first floor neighbors and started to go upstairs. Befo re she was able to go upstairs, defendant punched her in the face. The punch hurt “a lot,” and Mejia was afraid. Defendant said, “If you don’t get out of here, you’re going to— it’s going to be bad for you. And if you rat on me . . . you’re going to get fucked up.”4 Mejia asked Luis Hernandez, who manage d the apartment build ing with his wife Reyna, to call 911. Defendant continued to te ll Mejia, “[T]his is my barrio, I don’t want you here.” Ms. Hernandez heard Mejia yelling for help . She looked out of her apartment, and saw defendant near Mejia. Ms. Hernandez recognized defendant because he previously had been a tenant in the build ing. She had talked with defendant before, and he responded to her when she referred to him by the name “Suspect.” Defendant told
Ms. Hernandez that he was a member of the Breed Street gang.
Ms. Hernandez called 911. She told the 911 operator, “[T]he guy’s name is ‘Suspect’ he’s still out there. [¶]-[¶] [T]hey ca ll him ‘[S]uspect’ he’s from Breed Street.” The police arrived within about five or si x minutes. Defendant ran when the police
arrived. Mejia told the police that her assaila nt was known in the neighborhood as “Suspect.” The police asked Mejia to go to the police station while they searched for defendant. At the police station, Mejia identified defendant, the person she knew as “Suspect,” from a photographic lineup. Unde r defendant’s photograph, Mejia wrote that the person in the photograph wa s the person who hit her in th e face and stole her phone. Los Angeles Police Department officers arrested defendant at his home. While there, a police officer dialed the number for Mejia’s cell ph one. At that time, another officer heard a phone ringing in the attic in the hallway just outside of defendant’s apartment. The officer en tered the attic and recovered Mejia’s cell phone. The prosecution’s gang expert testified that defendant was a member of the Breed Street gang whose gang moniker was “Suspect .” The expert opined, based on a set of hypothetical facts matching the facts in this case, that such robbery and dissuading offenses would have been performed for th e benefit of, at the direction of, or in association with the Breed Street gang. According to the expe rt, defendant committed the robbery and dissuading offenses for the benefit of the gang.5 DISCUSSION
I. Admission of Evidence of Defe ndant’s Gang Moniker (“Suspect”) In identifying Mejia’s assa ilant, Ms. Hernandez told the 911 operator, “they call him Suspect.” Defendant contends that the trial court erred in admitting that evidence over defendant’s objection because it was he arsay. Mejia testified that when she
identified her assailant to the police she told them that in the neighborhood “they call him Suspect.” Defendant contends that the tr ial court erred in ad mitting that testimony
because it lacked foundation. We need no t discuss the admissib ility of the evidence
because even if the trial court erred in adm itting the challenged eviden ce, any such errors
were harmless.

A. Background Defense counsel made a hearsay objectio n to the admission of Ms. Hernandez’s 911 call in which she identified Mejia’s assa ilant by saying, “[T]hey call him ‘Suspect’” and sought to redact that statement. Th e trial court admitted the evidence under the
spontaneous statement excep tion to the hearsay rule. (Evid. Code, § 1240. 3 ) After identifying defendant in court as her assailant, Mejia testified that she had
identified her assailant to the police as “Suspect,”—“th ey call him Suspect” in the neighborhood. Defense counsel objected that the testimony was without foundation. The trial court overruled the objection, subject to th e prosecutor laying a proper foundation. Mejia testified that she had liv ed in the area for two years and that any time she heard someone “call” or “yell” at her assailant that person used the name “Suspect.” The trial court ruled that the prosecutor had laid a proper foundation, but limited the testimony’s

3 Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: “(a) Purports to narrate, describe, or e xplain an act, condition, or event perceived by the declarant; and “(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”6 admission to whom Mejia identified and not wh ether “Suspect” was in fact defendant’s

name.

B. Harmless Error “Absent fundamental unfairness, state law error in admitting evid ence is subject to
the traditional Watson test: The reviewing court mu st ask whether it is reasonably probable the verdict would have been more fa vorable to the defendan t absent the error.” ( People v. Partida (2005) 37 Cal.4t h 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836; People v. Reed (1996) 13 Cal.4th 217, 230-231 [applying the Watson test to the admission of hearsay evidence]; People v. Lucas (1995) 12 Cal.4th 415, 468 [applying
the Watson test to the admission of ev idence without sufficient foundation].) In this case,
even if the trial court erred in admitti ng evidence in Ms. Hernandez’s 911 call and Mejia’s testimony that Mejia’s assailant was called “Suspect” by others, any such errors were harmless. Mejia identifie d defendant from a photographic lineup and at trial as her
assailant. Ms. Hernandez also identified defendant at tria l as Mejia’s assailant. The police recovered Mejia’s stolen cell phone in the attic just outside of defendant’s apartment. Given that eviden ce, it is not reasonably probable that the verdict would have
been more favorable to defend ant if the trial court had no t admitted Ms. Hernandez’s 911 call and Mejia’s challenged testimony. ( People v. Partida, supra, 37 Cal.4th at p. 439; People v. Reed, supra, 13 Cal.4th at pp. 230-231; People v. Lucas, supra, 12 Cal.4th at p. 468.)

II. The Dissuading a Witness In struction (CALCRIM No. 2622) Defendant was convicted of dissuading a witness from reporting a crime by force
or threat in violation of s ection 136.1, subdivision (c)(1). 4 He contends that the trial

4 Section 136.1 provid es, in relevant part, “(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the vi ctim of a crime or who is witness to a7 court violated its sua sponte du ty to instruct the ju ry on the crime and the elements of the crime he was alleged to have dissuaded Me jia from reporting. Because defendant failed to request that the trial c ourt modify CALCRIM No. 2622, 5 the relevant instruction, he
forfeited review of this issue.

crime from doing any of the follo wing is guilty of a public offense and shall be punished by imprisonment in a county jail for not more th an one year or in the state prison: “(1) Making any report of that victimiz ation to any peace officer or state or local law enforcement officer or probation or paro le or correctional officer or prosecuting agency or to any judge. “[¶]-[¶] “(c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: “(1) Where the act is accom panied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.”

5 The trial court instructed the jury with CALCRIM No. 2622 as follows: “The defendant is charged in count 2 with dissuading a w itness from reporting a crime by force or fear in violation of Penal Code section 136.1(c)(1). “To prove that the defendant is guilty of this crime, the People must prove that: “1. The defendant maliciously tried to prevent or discourage Maria Mejia from making a report that she was a victim of a crime to the police; “2. Maria Mejia was a crime victim; “AND “3. The defendant knew he was trying to prevent or discourage Maria Mejia from making a report that she was a victim of a crime to the police a nd intended to do so. “A person acts maliciously when he unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice. “As used here, witness means someone who knows about the existence or nonexistence of facts relating to a crime. “It is not a defense that the defendan t was not successful in preventing or discouraging the witness. “It is not a defense that no one was ac tually physically injured or otherwise intimidated.”8 A. Background During a discussion of jury instructions, the trial court stated with respect to CALCRIM No. 2622, “[T]here’s a definition of a crime. I’m inclined to think that’s unnecessary in this case, but I can give it if e ither side requests it as to when a person is a victim.” Both the prosecutor and defens e counsel responded that they were not requesting such a modification. The trial cour t stated, “So I’m not go ing to give that. I think fairly obvious a robb ery would be a crime.”

B. Forfeiture “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too ge neral or incomplete unless the party has requested appropriate clarifying or amplifying language.” ( People v. Andrews (1989) 49 Cal.3d 200, 218.) As relevant , CALCRIM No. 2622 correctly stated that the prosecution had to prove that defendant tried to preven t or discourage Mejia from reporting that she
was a crime victim and that she was a crime vi ctim. If defendant be lieved that the trial
court should have modified CALCRIM No. 2622 to identify the crime and the elements of the crime he was alleged to have dissuad ed Mejia from reporting, he was obliged to request such modification. ( People v. Andrews, supra, 49 Cal.3d at p. 218.) His failure to do so forfeited review of this issue. ( Ibid. )
Defendant contends that he did not forfe it review of this issue because the trial court’s failure to modify CA LCRIM No. 2622 sua sponte aff ected his substantial rights within the meaning of section 1259 6 because the prosecutor argued to the jury, in discussing the dissuading charge, that Mejia was a crime “‘victim’ because she had a ‘right to call the police’ and nothing in th e instruction disputed that.’” We do not perceive how this one-sentence, perfunctory contention involves “substantial rights” within the meaning of section 1259.

6 Section 1259 provides, in relevant part, “The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”9 In a second one-sentence argument, defenda nt contends, without explanation, that
if defense counsel forfeited review of this i ssue by failing to request a modification in the trial court, then defense counsel provided ineff ective assistance of counsel. The failure to object, however, to a correct jury instruction is not ineffectiv e assistance of counsel. ( People v. Samaniego (2009) 172 Cal.App.4t h 1148, 1170.) As stated above, CALCRIM
No. 2622 is a correct statement of the law.

III. Defendant’s Post-Trial Faretta Motion
Defendant contends that the trial c ourt abused its disc retion in denying his Faretta motion to represent himself. The tria l court acted within its discretion.

A. Background On May 3, 2013, during Ms. Hernandez’ s cross-examination , defendant stood and yelled, “This lady, she’s lying. I’m innocent. They’re trying to send me to prison for life. They’re lying.” The trial court advise d defendant that he was to sit quietly and informed him that if he could not, he would be removed. The trial court asked defendant if he could sit quietly. Defenda nt responded, “I’m innocent.” The trial court stated that defendant was going to be “excused” from the courtroom. Defendant said, “I’m innocent. She’s lying.” The tr ial court told defendant that he could testify if he wanted, but could not speak while seated as a defend ant. Defendant responded, “You guys are setting me up,” a charge he twice repeated. At some point duri ng defendant’s outburst, he was acting in a “very hostile manner” an d “needed to be cont rolled,” so the bailiff placed him in handcuffs and rem oved him from the courtroom. Later that day, during the prosecuti on’s case-in-chief, defendant moved to represent himself. Defendant informed the trial court that he was not then ready to
defend himself and that he would need a one- month continuance. The trial court denied
defendant’s Faretta motion as untimely, stating that if it granted the motion, it would
have to declare a mistrial a nd excuse the jury, which would be an unreasonable disruption of the orderly processes of justice.10 The jury rendered its verdicts on May 8, 2013. Through a series of continuances, the trial on defendant’s prior conviction a llegations and his sentencing hearing were continued to October 25, 2013. On October 25, 2013, befo re the trial on defendant’s prior conviction allegations,
defendant moved to exercise his Faretta rights to represent himself. Defendant said that defense counsel had provided ineffective as sistance by failing to call witnesses on his
behalf. The trial court denied the motion as untimely, informing defendant that he could
not exercise his Faretta rights during the middle of a tria l. It advised defendant that he could renew his motion to represent himself at the conclusion of the prior conviction trial for purposes of his sentencing hear ing. Defendant then requested a Marsden 7 hearing for substitution of counsel, claiming that he and his attorney were not getting along. The
trial court held the Marsden hearing and denied defendan t’s motion for substitution of
counsel. On October 29, 2013, the trial court c onducted the trial on the prior conviction allegations and found them to be true. The tr ial court continued the sentencing hearing to December 20, 2013, to allow de fense counsel time to inves tigate a new witness and to prepare a new trial motion. At the December 20, 2013, sentencing hearing, defense counsel informed the trial court that defendant wanted to represent hi mself. She further info rmed the trial court that, based on her investigation, she would not be filing a new trial motion. She said she
would not file a new trial motion because sh e had thoroughly investigated the potential new witness, including interviewing her mu ltiple times, she had “looked into” the
witness’s work schedule on the date of the offenses, and she had determined that the
witness could not offer exculpatory evidence or an alibi. Defense counsel further stated that the defense had re-interviewed percip ient witnesses and visited the apartment building to confirm that there were, and had been, no cameras. Based on that

7 People v. Marsden (1970) 2 Cal.3d 118.11 investigation, defense counsel di d not believe that there was a “good faith basis” to file a new trial motion based on the emergence of the new potential witness.
Defendant informed the tria l court that he wanted a Marsden hearing and to represent himself pursuant to Faretta . He stated that he and defense counsel were “having difficulties.” Th e trial court held a Marsden hearing and deni ed defendant’s
Marsden motion. Defendant then moved to exercise his Faretta rights to represent
himself.
The trial court observed th at the jury had rendered its verdict May 8, 2013, and asked defendant why he had delayed seven months to as k to represent himself. Defendant said that he moved to represent hi mself during trial. Th e trial court responded
that defendant made a Marsden motion on October 25, 2013, but had not previously
made a Faretta motion. Defendant disagreed. 8
The trial court asked defendant how mu ch time he would need to prepare to represent himself for the sentencing hearing. Defendant responded that he wanted to file
a new trial motion and that he needed to investigate witn esses and whether “there was actually a camera involved.” The trial cour t reminded defendant that defense counsel
said she had “looked into all those issues an d did not find it.” Defendant maintained that there were cameras at the apar tment building and that defens e counsel had not looked in the right place. The trial court again aske d defendant how much time he needed to prepare for the sentencing hearing. Defendant said, “Whatever is convenient to the court. 2 months. 3 months. I need an investigator. An investigator so th ey can look into the
case.”
The trial court denied defendant’s Faretta motion. It found that defense counsel had provided defendant excellent representati on and there would not be a different result if he represented himself; defendant had made prior Marsden motions and there had been a seven-month delay in his Faretta request; defense counsel had extensively investigated the reasons for defendant’s requested conti nuance; defendant’s se ntencing hearing had

8 Technically, he had made one, but it was untimely.12 been continued a number of times, and the trial court had prepared for each of the hearings; and disruption or dela y might reasonably be expected if it granted the motion. The trial court said it “envision[ed] significa nt additional delays” that would cause the sentencing hearing to be held ov er a year after the jury retu rned the verdicts. It added that the prosecution had a right to have the case resolved and defendant sent to prison after the guilty verdicts.
The trial court also stated that it had “a serious concern” in allowing defendant to represent himself. The trial court noted th at defense counsel had submitted a report from a doctor who opined that defendant had “men tal impairments.” The report suggested to the trial court that while defendant was compet ent to stand trial, it was likely that he was not competent to represent himself. According to the report, defendant’s neuropsychological test results indicated th at he did not “possess the requisite brain capacity with which to consiste ntly exert reasoned control over his behavior,” causing the trial court “great concern” about whether de fendant could represent himself. The trial court stated that it would have to appoint a nother psychologist to evaluate defendant to determine if he was competent to represen t himself and then hold a hearing on his competence. Only then would the trial court appo int an investigator who would repeat defense counsel’s prior investigation. The tr ial court stated that it would then “set it”— presumably a new trial motion—for hearing a nd set a briefing schedule. All that would cause the sentencing hearing to be held two years after the guilty verdicts.
The trial court said that if defendant had believed that defe nse counsel had not conducted a sufficient investiga tion before trial, then he should have sooner moved to represent himself. Defendant reminded the tr ial court that he had moved to represent himself during trial and the tria l court had denied the motion. The trial court reiterated that it was denying defendant’s Faretta motion on two grounds: (1) the motion would result in significant delay, and (2) it did no t believe that defendant could represent himself adequately. Defendant objected to the tr ial court’s denial of his Faretta motion, calling the ruling “ludicrous” and “crazy.” The trial court denied defendant’s request to speak with13 the trial court in camera, telling defendant that he was represented by counsel who should speak for defendant. When defendant continued to address the trial court, the trial court
informed defendant that he would be rem oved from the courtroom and sentenced without being present if he did not stop . Defendant continued to spea k to the trial court, and the
trial court ordered him removed.
Later the trial court stated that defenda nt would be permitted to return to the courtroom “if he’s willing to speak quietly.” Defense counsel spoke with defendant and
determined that he would not be returning to the courtroom. The trial court found that defendant had voluntarily absented himsel f from the courtroom and sentenced him without his being present.

B. Application of Relevant Principles “A trial court must grant a defendant’s request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingl y, and intelligently. [Citations.] As the high court has stated, however, ‘ Faretta itself and later cases have made clear that the right of self-representa tion is not absolute.’ [Citations.] Thus, a
Faretta motion may be denied if the defendant is not competent to represent himself [citation], is disruptive in the courtroom or engages in misconduct outside the courtroom that ‘seriously threatens the core in tegrity of the trial’ [citations].” ( People v. Lynch (2010) 50 Cal.4th 693, 721-722, ab rogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610.) A trial court has no discretion to deny a valid, timely Faretta motion. ( People v. Lynch, supra, 50 Cal.4th at p. 726.) The erroneous denial of a timely motion for self-representation is reversible per se. ( People v. Butler (2009) 47 Cal.4th 814, 824.) The California Supreme cour t has “long held that a self-representation motion may be denied if untimely. [Citation.]” ( People v. Lynch, supra, 50 Cal.4th at p. 722.) “In order to invoke the constitutionally mandated unconditional right of self-representation, a
defendant must assert that ri ght within a reasonable time pr ior to trial. The latter14 requirement serves to prevent a defenda nt from misusing the motion to delay unjustifiably the trial or to obs truct the orderly administration of justice. [Citation.] If the motion is untimely—i.e., not asserted wi thin a reasonable tim e prior to trial—the defendant has the burden of justifyi ng the delay. [Citation.]” ( People v. Horton (1995) 11 Cal.4th 1068, 1110 [motion made on the day of trial was scheduled to start was untimely]; People v. Hill (1983) 148 Cal.App.3d 744, 757 [“‘it is now settled that a trial court may deny a request for self-representation made on the very eve of trial, on the ground that granting the motion would involve a continuance for preparation’”].) Like a request for self-representation at trial, a “req uest for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing. (See [ People ] v. Mayfield[(1997)] 14 Cal.4th [668,] 810 [assuming postverdict selfrepresentation motion may be timely if made a reasonable time before sentencing].)” ( People v. Miller (2007) 153 Cal.Ap p.4th 1015, 1024.) Once a defendant chooses to proceed to sentencing represented by counsel, the defendant’s motion to represent himself is addr essed to the trial court’s sound discretion. (See People v. Lynch, supra, 50 Cal.4th at p. 722.) “In exer cising this discretion, the trial
court should consider factors such as ‘“the quality of counsel’s representation of the defendant, the defendant’s pr ior proclivity to substitute co unsel, the reasons for the request, the length and stage of the proceeding s, and the disruption or delay which might reasonably be expected to follow th e granting of such a motion.”’” ( People v. Jenkins (2000) 22 Cal.4th 900, 959, quoting People v. Windham (1977) 19 Cal.3d 121, 128 [the
Windham factors].) The erroneou s denial of an untimely Faretta motion is reviewed
under the harmless error test of People v. Watson, supra, 46 Cal.2d at page 836. ( People
v. Nicholson (1994) 24 Cal.App.4th 584, 594-595.)
Defendant’s December 20, 2013, post-trial Faretta motion was not timely as he made the motion on the date set for the sentencing hearing. ( People v. Miller, supra, 153 Cal.App.4th at p. 1024.) Defendant contends that his post-trial Faretta motion was timely because the trial court told him to wa it until “we are at sentencing” to make his motion. Instead, at the hearing on October 25, 2013, the trial court denied defendant’s15 Faretta motion stating, “Currently we are in th e middle of a trial because we have not concluded this trial. So it is not timely with re spect to the trial. If you want to make that request after we finish with the trial on the priors and before sentencing , I will consider your request at that time.” (Italics added.) The trial cour t further stated that at the conclusion of the trial on the pr ior conviction allegations, “whe n we get to the sentencing, I will hear from you as to a Faretta motion at that time.” On October 29, 2013, at the conclusion of the trial on defendant’s prior co nviction allegations, the trial court stated, “So that brings us to the issue of sentencing.” Fairly construed, on October 25, 2013, the
trial court instructed defendant to make his Faretta motion prior to th e sentencing hearing
and that he would hear defend ant’s arguments on the motion at the sentencing hearing. On October 29, 2013, the tria l court informed defendant that it was time to address sentencing issues—i.e., it was time to make any Faretta motion. Accordingly, because
defendant did not make his Faretta motion until December 20, 2013, the motion was not timely.
The trial court acted within its di scretion in denying defendant’s untimely Faretta motion. When ruling on defendant’s Faretta motion, the trial court considered the
Windham factors. It found that defense co unsel had provided de fendant excellent representation and there would not be a diffe rent result if he represented himself; defendant had made prior Marsden motions and there had been a seven month delay in
his Faretta request; defense counsel had extens ively investigated the reasons for defendant’s requested continuance; disruption or delay might reasonabl y be expected if it granted the motion—the trial court “envision[ ed] significant additional delays” that would cause the sentencing hear ing to be held over a year after the jury returned the verdicts. ( People v. Windham, supra, 19 Cal.3d at p. 128; People v. Jenkins, supra, 22 Cal.4th at p. 959.) In addition, defendant ’s unruly conduct in the courtroom also militated against his Faretta request.16 IV. Section 654 Stay
Defendant contends that th e trial erred when it imposed concurrent terms for his robbery (16 years) and dissuading a witness (19 years to life) convictions. Instead, defendant argues, the trial court should ha ve stayed the senten ce for his robbery
conviction under section 654. 9 Respondent agrees, as do we. “‘Section 654 precludes multiple punishment s for a single act or indivisible course of conduct. [Citation.]’ ( People v. Hester (2000) 22 Cal.4th 290 , 294 [92 Cal.Rptr.2d 641, 992 P.2d 569].) ‘“Whether a course of cr iminal conduct is divisible . . . depends on the intent and objective of the actor.”’ ( People v. Latimer (1993) 5 Cal.4th 1203, 1208 [23 Cal.Rptr.2d 144, 858 P.2d 611 ].) ‘[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilit ating one objective, de fendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored “multiple crimin al objectives,” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of ea ch objective, “even though the violations shared common acts or were parts of an ot herwise indivisible course of conduct.” [Citation.]’ ( People v. Harrison (1989) 48 Cal.3d 321, 335 [256 Cal.Rptr. 401, 768 P.2d 1078].) [¶] ‘“The question wh ether . . . section 654 is fact ually applicable to a given series of offenses is for the trial court, an d the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to su pport them.” [Citation.]’” ( People v. Galvez (2011) 195 Cal.App.4th 1253, 1262-1263.) At defendant’s sentencing, the trial cour t stated, “With respec t to count 1, the People are seeking to run count 1 consecutive. It seems to me that in this case the robbery and witness intimidation were one series of events, and the issues the cases have

9 Section 654, subdivision (a) provides, “A n act or omission that is punishable in different ways by different prov isions of law shall be punish ed under the provision that provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under mo re than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”17 held that it’s within court’s discretion, notwithstanding the somewhat conflicting language of the statute, but that it’s within the court’s discretion whether to run them consecutive or concurrent, and the principal questions are whether the crimes arose on
difference occasions and out of different set of operating facts. They occurred on one occasion, and in my view with the same opera tive facts in that seem s to me the taking of the phone, which is the robbery, it’s part of the defendant intimida tion because the victim here, Miss Mejia, said that she was going to call the police. So it seems to me the taking of the phone was intertwined with the defendant intimidation.”
In People v. Galvez, supra, 195 Cal.App.4th 1253, the c ourt of appeal held that section 654 barred punishment for robbery an d witness dissuasion co nvictions when the defendant’s objectives in comm itting those offenses were inci dental to each other—i.e., when the purpose of the robbery of the vi ctim’s cell phone was so that he could not
contact law enforcement a nd report a crime. ( Id. at pp. 1262-1263.) In this case, the trial court found that defendant robbed Mejia of her cell phone so that she could not contact the police—i.e., as part of the witness dissuas ion offense. Accordingly, the trial court should have stayed defendant’s sentence on his robbery convictio n—the shorter of the two terms the trial court imposed—under section 654. ( People v. Galvez, supra, 195 Cal.Ap.4th at pp. 1262-1263.)

V. Defendant’s Motion to Strike the Al ternate Penalty Pres cribed by Section 186.22(b)(4)(C)
Defendant contends that the trial court abused its discretion under section 1385
when it denied his motion to strike the alternate penalty prescribed by section 186.22(b)(4)(C) for his dissuading a witness co nviction in violation of section 136.1 by failing to credit sufficiently his mental defici encies. Defendant acknowledges that he brought his motion to strike under section 186.22, subdivisi on (g) and not under section
1385 and that People v. Campos (2011) 196 Cal.App.4th 438, 448-449 held that section 186.22, subdivision (g) does not authorize a tr ial court to strike se ction 186.22(b)(4)(C)’s alternate penalty. Defendant contends that we should consider his challenge to the trial18 court’s ruling, however, because the trial cour t ruled under section 1385 and not section 186.22, subdivision (g). Section 1385’s ap plicability to section 186.22 is before the California Supreme Court. 10 Whether or not the trial court had the discretion under section 1385 to strike the alternate pena lty in section 186.22( b)(4)(C), defendant’s argument is unavailing—if the trial court di d not have discreti on, defendant has no argument; if the trial court had discretion, it properly ex ercised that discretion.

A. Background In his sentencing memorandum, defendant re quested the trial court to strike a prior strike conviction under the Three Strikes law ( Romero 11 motion) and to strike the section 186.22(b)(4)(C) alternate penalty under th e discretion granted in section 186.22, subdivision (g). He contended that he was not the type of defendant the Legislature contemplated when it enacted section 186.22( b)(4)(C) due to his a lleged severe cognitive deficits. Defendant attached a copy of a report from a neuropsychologist who examined him and determined that he had an IQ of 66—a score that placed him in the first percentile—and other neuropsyc hological deficits. According to the neuropsychologist, defendant’s “pattern of neuropsychologica l deficits implicates probable brain damage/dysfunction involving the bilateral frontal lobes, left temporal lobe, and bilateral parietal lobes.” The tests defendant perform ed indicated that he did not “possess the requisite brain capacity with which to cons istently exert reasoned control over his

10 In People v. Venegas (2014) 229 Cal.App.4th 849, we held that a trial court has discretion under section 1385 to strike alle gations under section 186.22, subdivision (b)(4). The California Supreme Court gran ted the People’s petiti on for review in People v. Venegas and deferred further action in the matter pending its consideration and disposition of a “related issue” in People v. Fuentes, S219109. ( People v. Venegas (2014) 181 Cal.Rptr.3d 40.) According to its site, the California Supreme Court will consider in People v. Fuentes the following issue: “Does the trial court have the power under Penal Code section 1385 to dismiss a Penal Code section 186.22 enhancement for gang-related crimes, or is the court lim ited to striking the punishment for the enhancement in accordance with su bdivision (g) of section 186.22?”

11 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.19 behavior.” The neuropsychol ogist opined that defendant’s deficits may have resulted from defendant’s long-time marijuana use a nd his mother’s possible alcohol use while pregnant with him.
The trial court stated its tentative rulin g to deny defendant’s motion to strike the section 186.22(b)(4)(C) alternate penalty. It viewed this case as being “all about the gang allegation in that the testimony from the vict im was that [defendant] repeatedly said Breed Street, and that this was his barrio, and that she needed to leave and move out because it was his territory. So the entire nature of the offens e as related to the gang is related to the gang allegation.” The trial court said, “[T]he onl y thing I would note is that with respect to the circumst ances in aggravation, there are more circumstances in aggravation than there are mitig ation. I do not believe th at the mental state of the defendant supports modifying the sentence, and the only way to modify the sentence would be to state [ sic ] a gang allegation, because that ’s what bumps it up to the life
sentence. That does seem to be the heart of the case.” The trial court made its findings with re spect to the circumst ances in aggravation and mitigation in connection with its prior ruli ng on defendant’s Romero motion. It
found that defendant’s current offenses—rob bery and dissuading a witness were “fairly violent”—defendant punched Mejia in the face and bent her thumb to take her cell phone. Defendant had a prior manslaught er conviction for which he was sentenced to 11 years in state prison. Defendant was released from pris on just over a year before the offenses in this case and was on parole at the time of his current offenses. As for defendant’s background, character, and prospe cts, the trial court stated, “The only factor in the favor of potentially striking the prior strike is th e cognitive impairment as a mitigating factor. The difficulty I have is that my obligation in sentencing is a combination of both punishment and protection of th e public. I do believe that [defendant] continues to pose a serious threat to the public from his actions . I believe upon his re lease from state prison he’s likely to recommit the same type of offens e again. It may be that he is somewhat impaired, but he is not impaired to the level that he was not guilty by reason of insanity.20 It’s that he has some cognitive impairment. That does not mean th at when placed back
on the street he will not commit a similar or otherwise violent crime again.”

B. Standard of Review We review a trial court’s ruling on a re quest to strike an enhancement under section 1385 for an abuse of discretion. ( People v. Carmony (2004) 33 Cal.4th 367, 375.) “[A] trial court does not abuse its discretion unl ess its decision is so irrational or arbitrary that no reasonable person could agree with it.” ( Id. at p. 377.) It is the burden of party attacking the sentence to demonstrate that the trial court abused its discretion. ( Id. at p. 376.)

C. Application of Relevant Principles Under section 1385, subdivision (a), a “judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. ” “‘“[F]urtherance of justice,” requires
consideration both of the constituti onal rights of the defendant, and the interests of society represented by the People , in determining whether there should be a dismissal. [Citations.]’ [Citations.] At the very least, the reason for dismissal must be ‘that which would motivate a reasonable judge.’ [Citations.]” ( People v. Orin (1975) 13 Cal.3d 937, 945-946.) In denying defendant’s motion to stri ke the alternate penalty in section 186.22(b)(4)(C), the trial court found that the aggravating factors outweighed the mitigating factors. As aggravating factors, it found that defendant committed violent and serious felonies in this case, he had a prior manslaughter conviction for which he served a term in state prison, and he committed the offe nses in this case while on parole and just over one year after his releas e from prison for his manslaught er conviction. The trial court reviewed the neuropsy chologist’s report and considered defendant’s cognitive impairment in ruling on defendant’s motion to strike, and found that his cognitive impairment was a mitigating factor. It rule d, however, that the mitigating effect of21 defendant’s cognitive impairment was outwei ghed by the threat of future violence defendant posed upon his release from prison. That ruling was neither so irrational nor so arbitrary that a reasonable person could not agree with it. ( People v. Carmony, supra, 33 Cal.4th at p. 377.) Accordingly, the trial c ourt acted within its disc retion, if any, under section 1385 in denying defendant’s moti on to the strike section 186.22(b)(4)(C)’s alternate penalty. ( People v. Carmony, supra, 33 Cal.4th at pp. 375, 377.)

DISPOSITION
We order defendant’s sentence for his ro bbery conviction stayed under section 654 and the abstract of judgment modified accord ingly. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, Acting P. J.

We concur:

KRIEGLER, J.

GOODMAN, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.