Filed 10/17/13 P. v. Thomas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 OFTHE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. DEONTRAY DESH ON THOMAS, Defendant and Appellant. F063867 (Super. Ct. No. BF135794A)



### OPINION

APPEAL from a judgment of the Superior Court of Kern County . John S. Somers, Judge. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, A ssistant Attorney Gene ral, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-2. INTRODUCTION Following a plea to a violation of Penal Code 1 section 273.5, subdivision (a) and the imposition of a four-year sentence, defendant Deontray Deshon Thomas appeals his conviction. He argues the trial court abus ed its discretion when it granted his motion made under Faretta v. California (1975) 422 U.S. 806 ( Faretta ) because it failed to consider whether he lacked the mental capacity to represent himself at trial. Defendant also contends that failure resulted in an invalid waiver, thus, denying him his constitutional right to counsel. We affirm the judgment. BRIEF PROCEDURAL SUMMARY In an information filed April 14, 2011, it was alleged defendant committed the following violations: count 1— assault with a deadly weapon (§ 245, subd. (b)); count 2—willful infliction of corporal injury upon a cohabitant (§ 273.5, subd. (a)); count 3— criminal threat (§ 422); coun t 4—unlawful taking of a vehicl e (Veh. Code, § 10851, subd. (a)); count 5—unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)); and count 6—active participation in a criminal street gang (§ 186.22, subd. (a)). A gang enhancement was also alleged (§ 186.22, subd. (b)(1)) as to counts 1, 2, 3, and 5. A firearm enhancement was alleged (§ 12022.5, s ubd. (a)) as to counts 1, 2, 3, and 4. Additionally, it was alleged defe ndant had a prior strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and a prior serious felony c onviction for attempted first degree burglary (§ 667, subd. (a)). Finally, it was also a lleged defendant had served two prior prison terms. (§ 667.5, subd. (b).) On April 22, 2011, defendant pled not guilty to all counts and denied all allegations. Subsequently, the trial court granted de fendant’s motion to se t aside the section 186.22, subdivision (b)(1) enhancemen t as to counts 1, 2, 3, and 5.

1 All further statutory references are to the Penal Code unless otherwise indicated.3. Thereafter, a series of Marsden ( People v. Marsden (1970) 2 Cal. 3d 118) motions made or filed by defendan t were heard and denied. Jury trial commenced August 18, 2 011, with motions in limine argued and considered over two days. On the second day of trial, defendant made yet another Marsden motion; it was denied. Defendant’s subsequent Faretta motion was granted. On August 23, 2 011, the trial court granted de fendant’s request for a 30-day continuance, but denied his request for cocoun sel. Later that same morning, defendant entered a conditional plea: that he serve no mo re than four years in prison in exchange for pleading no contest to a violation of section 273.5, subdivision (a). After denying defendant’s mo tions to withdraw his plea, the trial court eventually sentenced defendant to four years in state prison. BRIEF FACTUAL SUMMARY 2 On February 27, 2011, Toya Tarki ngton reported she had been assaulted by defendant. More particularly, she indicated her boyfriend punched he r in the head, face, chest and back. At one point, he produced a handgun, pointed it at Tarkington’s head, and told her he was going to kill her. The as sault continued briefly before defendant took Tarkington’s keys and left in her car. Alth ough Tarkington declin ed medical assistance, law enforcement personnel noted brui sing to her face and shoulder. DISCUSSION The Faretta Motion Defendant contends the tria l court erred in granting his Faretta motion because it employed an incorrect standard in assessing his ability to co nduct himself during trial. He argues the trial court’s reference to People v. Nauton (1994) 29 Cal.App.4th 976 during the hearing meant it was unaware of the rules of Indiana v. Edwards (2008) 554 U.S. 164 and People v. Johnson (2012) 53 Cal.4th 519 applicable to Faretta motions.

2 The factual summary is taken from the probation officer’s report.4. The People assert the trial court exercised its sound discretion in allowing defendant to represent himself and, thus, no error occurred. The Relevant Proceedings Below On the morning of August 22, 2011, the trial court noted defendant’s appearance and, particularly, the fact he was not dresse d out for trial. When defense counsel was asked about the issue, he indi cated defendant refused to sp eak with him, but that the bailiff had advised him defendant was refusing to dress out for trial. The following colloquy then occurred: “[T HE C OURT :] [S]ir, I know you did have clothes available at Lerdo. Was there a mix-up or a problemin terms of getting dressed out this morning or what is the reason that you ’re not dressed out this morning, sir? “T HE D EFENDANT : Because I felt like, yo u know, I no longer can proceed with [defen se counsel] on a caseload w ith me, and I’m not going to sit here and act like me and [defense counsel] get along and we really don’t. “It’s always been a break in communication and lack of communication and trust, and I’m not —I’m not going to proceed with [defense counsel] on my caseload. If I got to go pro per, I go pro per. Just ain’t no trust there. “T HE C OURT : For the record, without ge tting into the details of it, because it is a closed hearing and is se aled and [the prosecutor] is present with us at the present time, there was a Marsden motion brought and heard on Friday, I believe it was, first thing inthe afternoon shortly after lunch, if I’m not mistaken. And, obviously, I w ill not go into the details of that at this point in time. “As I understand it, what you’re te lling me is that, because you’re not happy with your currentrepresentation, that’s why you have chosen not to dress out. Is that correct, sir? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : I’m not sure I understand the connection between the two. Can you maybe explain that to me, because I’m not quite following why one would have anything to do with the other. “T HE D EFENDANT : I mean [defense coun sel]—he disrespectful to my mom.5. “T HE C OURT : I know how you feel about [defense counsel], and I don’t want you to be in a position of having to get into that too much in front of the Deputy DA. [¶] Why is not dressing out connected to [defense counsel]’s representation, whatever you may feel? “T HE D EFENDANT : I don’t trust [defense counsel] whatsoever. I feel like I can’t proceed on this case. “T HE C OURT : There is one comment that, for purposes of the record, I need to follow-up on at this point in time. “[Y]ou said something about you ’re not going to proceed with [defense counsel] as your attorney atthis point and made a comment about going pro per. [¶] Are you—not inviting anything you’re not asking me to you do, [ sic ] because— “T HE D EFENDANT : Whatever. “T HE C OURT : Wait a minute. One has a constitutional right to do so. It is generally—it is, frankly, al most always unwise for someone to represent themselves, but are you as king the Court to discharge your attorney and proceed representing yourself— “T HE D EFENDANT : That’s what— “T HE C OURT : —at this point? “T HE D EFENDANT : If that’s what I got to do to get him off my case, that’s what I want to do. “T HE C OURT : I only want you to do that if that’s what you want to do as far as your case and if that’s what you think is in yo ur best interest. “T HE D EFENDANT : Be in my best interest. Maybe I feel I can win a case or maybe I feel I got a better chan ce. I feel like he working with the DA anyways. “T HE C OURT : Before proceeding with that request, ... you understand that this matter is in trial now? [¶] We have a jury panel which is reserved and which we’regoing to bring over to begin jury selection on the case later on this morning. So if you do discharge your counsel or seek to do that and represent yourself on the matter, then you would be expected, and need to be prepared, to proceed on the matter immediately, because it’s prejudicial to the People to go forward or to basically have this stalled at the last moment when they have done everything they canin good faith to become preparedto proceed.6. “You have counsel who is prepared to proceed. And we’ve already spent basically—though we have not ye t selected a jury , we’ve spent the better part of two whole days alrea dy conducting motions in limine on this case. Do you understand that? [¶] I need you to answer out loud. “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : I want to make sure just that the answer is clear for the record. I can see you nodding the head one way or the other, but it’s hard for the court reporter to take down. “Mr. [Prosecutor], I haven’t asked the People to provide any input on anything because, up to th is point. Obviously d ealing with the issue of representation, to the extent that it presents a conflict or Marsden-type issue, that is between counsel and th e defendant, and no disrespect but it isn’t the People’s business. “And, in addition, with regards to [defendant] bei ng dressed out or not being dressed out, that’s entirely a matter of his choice. Though I think it wise for him to be dressed in civilia n clothing, he’s not obligated to do that if he doesn’t wish to do so. “However, with regards to the i ssue of self-representation, it does appear to me there is a request being made for that at this point in time. “Your comments, if any, with respect to that at this point? “[P ROSECUTOR ]: I would object to timeliness. “T HE C OURT : All right. “[P ROSECUTOR ]: And I would object to any continuance. “T HE C OURT : So you understand ... that the People are going to be—if you proceed with that request, th e People are going to be objecting to the motion, number one, on the ground s that it’s untimely, that is being made too late in the proceedings, and in connection with that they’re going to be objecting to any continuance of the trial because they are ready, prepared to proceed and have their w itnesses available and so forth. Do you understand that? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Okay. At this point we’re going to go off the record for just a couple of minutes. I amgoing to—while we’re off the record we’re going to do two things.7. “Number one, we have a written a dvisal and waiver form regarding self-representation or so-called Faretta motion. We are going to get a copy of that for you ... and give you an o pportunity to read over that, review that. [¶] And then when we go back on the reco rd we’ll proceed with your motion. You can state the reasons for it. “I also want to take the time to go over that form and make sure you’re fully advised with regards to any potential pitfalls or dangers to your case, of which there are some being in volved in representing yourself. I want to make sure before you proceedwith the motion and I hear it that you’re fully advised. Okay? “So we’ll do that during the rece ss and give you an opportunity to review that.” When the proceedings resumed following recess, the court re viewed the “Faretta Waiver” form with defendant. It made specific inqui ries based upon defendant’s selections or responses on the form: “T HE C OURT : Okay. Turning to the second page , the advisal in number seven [3] at the top of the page stat es, quote: Do you understand that if you are in custody you will rece ive no more library privileges than those available to other pers ons representing themselves? “You will receive no extra time fo r preparation, and you will have not have a staff of investigator s at your disposal. [¶] ... [¶] “You circled the answer no to that and placed the initials DT. “What I want to make sure is thatyou understand what ’s stated in in [ sic ] that. If you are in custody, you will receive the same library privileges as all other individuals who are re presenting themselves and will not receive any additional or extra time fo r preparation nor will you have a staff of investigators at your disposal. “Do you understand those things? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Okay. Why did you circle no in response?

3 Later in the proceedings, the trial court agai n clarified number seven on the waiver form. Defendant acknowledged number se ven was the only portion of the form he had any difficulty with.8. “T HE D EFENDANT : Because I’m up in D pod, and like before officers, you know, I be really like having a rough time and I ask for the law forms and requests to go to the law library, they be slow dragging. So like, you know, I—basically—the offi cers—the officers time—and it’s like when we ask for law forms, we can re quest to the law lib rary. I guess they be forgetting sometimes. “Basically they be like slowing us down to get the forms. We request those at the law library. “So if I be behind on going to th e law library to study and read and stuff is basically because I be on they time. “T HE C OURT : If you have any problems with the speed of the access, bring that to the Court’s—initia lly bring it to the attention of the officers in that pod and let them know that you’re representing yourself in an effort to speed that up. If that doe s not suffice, bring that to the Court’s attention, and I’ll address the matter. Okay? “T HE D EFENDANT : All right. “T HE C OURT : However, you do need to understand that while the Court will see that you get the same acces s as far as library privileges, time for preparation and so forth as all other individuals representing themselves, you’re not going to recei ve anything extra above and beyond what anybody else in that same situation gets. “Do you understand that? “T HE D EFENDANT : Yes, sir. I understand, your Honor. “T HE C OURT : Next, I wanted to ask y ou with respect to question eight, because that is not filled in. That question eight would normally list the various charges in this particular case.” The court then reviewed with defendant each count alleged, 4 including enhancements. Defendant indicated he understo od. The court then addresse d the issue central to this appeal: “T HE C OURT : Now, ... in the form yo u indicate in answer to question number ten that your formal education includes high school education. Is that correct, sir?

4 The judge completed this portion of the form.9. “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Okay. Did you—where di d you attend high school, sir? “T HE D EFENDANT : At West High School. “T HE C OURT : Did you graduate from West High School? “T HE D EFENDANT : No, your Honor. “T HE C OURT : How far did you go? “T HE D EFENDANT : Eleventh grade. “T HE C OURT : You completed the eleventh grade? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : So essentially, from a credit standpoint, you’re basically one year short of high sc hool graduation; is that correct? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : You indicated in the fo rm that English is your primary language. Is that correct? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : All right. And, sir, in answer to question number 12 I need to ask you a question with respect to that so I understand your answer. “You state in answer to that—it states, quote, the question, have you been treated for any emotional or ment al illnesses? In answer to that you circled and stated and initialed that, and explaining that in detail you state I was on SSI for being slow as a kid. Is that correct? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Can you explain to me wh at that means to you in a little bit more detail? “T HE D EFENDANT : I mean base everything—explain it right there. “T HE C OURT : Do you know if you were found to be developmentally disabled?10. “I know they use various terms fo r things sometimes, and that’s why I ask. “T HE D EFENDANT : Yeah. “T HE C OURT : Okay. You said that you received SSI for that. “Did you at any point in time, e ither while you were growing up or since you’ve been an adult, receive any kind of treatment—or not sure the treatment is exactly the right word—but assistance for that or any special education facilities? “T HE D EFENDANT : Yeah. “T HE C OURT : Or assistance while you were in school? “T HE D EFENDANT : I had—I was in special ed. “T HE C OURT : Can you tell me—that was while you were in school. Can you tell me a little more about that? “T HE D EFENDANT : I was—I kind of had like reading problems, comprehending, catching on. That was basically it. I never had no treatment or medication. “T HE C OURT : So it’s basically kind of a—sounds like, correct me if I’m wrong, some sort of a disability or difficulty with reading and comprehending written information. Is that correct? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Now, in this particular case, obviously, as in most cases, a lot of what we’re doing in c ourt proceedings take place as far as speaking orally and everything. “Have you had any difficulty unders tanding what we’ve discussed in court during the course of the pretrial motions over the last couple of days as it’s been spok en in court? “T HE D EFENDANT : A little bit. “T HE C OURT : Okay. “T HE D EFENDANT : Just a little bit. “T HE C OURT : Does that apply to just what’s been going on generally or does that happen when we—because sometimes in court11. proceedings lawyers and the judge w ill use legal termin ology or kind of lawyer shorthand for things. We’ll re fer to something as, for example, a Marsden motion or a motion to bifurc ate, things like that, using legal terminology or shorthand, and we use it because we know what it refers to. “Has that been the situation wh ere you’re having difficulty what’s being said in court or has it b een a little bit broader from that [ sic ]? “T HE D EFENDANT : Yes. “T HE C OURT : Using the kind of termi nology or things like that? “T HE D EFENDANT : Yes. “T HE C OURT : If at any point in time during the proceedings either [the prosecutor] or I use legal termi nology that you do not understand, stop me and let us know, and I will—altho ugh the Court, obviously, cannot conduct your defense for you or a ssist you with the conduct of the defense—just as I would with a witne ss, it is important that all parties understand what is being said during the proceedings. If we at times slip into legal shorthand or terminology that you don’t follow or understand, please politely tell me that, and we’ll stop, and I’ll make clear what we’re talking about. Fair enough? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Other than that have you had any difficulty understanding what’s been said in court? “T HE D EFENDANT : No, your Honor. “T HE C OURT : I do want to focus a little bit on the reading issue for a moment, because you did indicatethat during school, what you characterized as being slow, was to some extent a difficulty with comprehending written material and reading. Is that correct? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : You may not know the answer to this, sir, but if you do—do you know what your—w hen you left or finish ed school what your reading level was assessed at? “Were you at grade level for elev enth grade or ab ove that, below that? “T HE D EFENDANT : Below that.12. “T HE C OURT : Okay. Do you know how much below? [¶] Again, you may not know. “T HE D EFENDANT : I don’t remember my test. I couldn’t remember what it was. “T HE C OURT : So little bit below eleventh grade level, but you’re not sure exactly how much? “I need you to answer out loud. “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : I could see the nod of the he ad. It’s hard for the court reporter. “[S]ir, with respect to this pro ceeding now, a lot of the—obviously, necessarily, because of much of what wedo in the law is based on words. We, obviously, discuss things in court, but there also a lot of the information is contained in written documents such as police reports, transcripts of previous proceedings orrecorded interviews, written motions and things of that nature. [¶] ... [¶] ... With respect to any documents that you may have read, have you had any difficulty understanding those? “T HE D EFENDANT : No. Have no difficulty. “T HE C OURT : With regards to the read ing issue when you were in school, was that a question of you could—comprehension of a question, you could understand things so lo ng as you had sufficient time but you perhaps read slower than perhaps othe r people or did you have difficulty understanding what was in writing even if you had enough time to read through it? “T HE D EFENDANT : I had like difficult [ sic ]. “T HE C OURT : So you had some difficulty even reading the materials even if you had essentially unlimited time to read them? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : ... I want you to answer th is for me based solely on whether or not, on the basis of your question of your ability to represent yourself, do you—strike that.13. “Do you, sir, believe that you are ab le to read sufficiently well to be able to read and understand what is in court documents and any police reports and other documents you n eed to read in this case? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Okay. Now, in answeri ng question 13, it asks: Have you had any difficulties reading and unders tanding this form? You wrote yes but circled no. In reading the form, have you understood the form? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Okay. All of the advisa ls and the questions in the form, do they make sense to you? “T HE D EFENDANT : Yeah, they do. “T HE C OURT : Okay. And do you unde rstand the form itself? “T HE D EFENDANT : Yes, your Honor.” In making its ruling, the trial court st ated that defendant made a knowing and intelligent waiver of his constitutional rights and, specifically, that while defendant indicated he has some “difficulty in digesting reading materials, he has been able to read and comprehend and understand the form in th is particular case .... I will characterize the form as, frankly, being written at a level th at at least requires a high school education to be able to fully compre hend it.” Thereafter, defense counsel was relieved from further representation of defendant and was directed to provide defendant with all materials. Analysis The Law at the Time of Trial In Faretta , supra , 422 U.S. 806, the United States Supreme Court held the Sixth Amendment to the United States Constitutio n gives criminal defe ndants the right to represent themselves. Before Faretta was decided, the law in California had been that a criminal defendant had no constitutional or statut ory right to self-repr esentation except, in noncapital cases, the trial court had discretio n to grant a defendant’s request for selfrepresentation. ( People v. Sharp (1972) 7 Cal.3d 448, 459, 461, 463-464.)14. “In the wake of Faretta ’s strong constitutional statemen t, California courts tended to view the federal self-representation righ t as absolute, assuming a valid waiver of counsel.” ( People v. Taylor (2009) 47 Cal.4th 850, 872.) Thus, a trial court had to grant a defendant’s request for sel f-representation if the defendan t voluntarily and intelligently elected to do so, even if th e defendant, though competen t to stand trial, was not competent to serve as his or her own attorney. ( Id . at pp. 872-873.) In Godinez v. Moran (1993) 509 U.S. 389, the United States Supreme Court appeared to confirm that a separate comp etence requirement for self-representation did not exist under federal law. In Godinez , the defendant sought and was allowed to waive assistance of counsel and pleaded guilty to murder charges in state court. ( Id . at pp. 391- 393.) During habeas corpus proceedings, the federal appeals court held that even though the defendant was competent to stand trial, he was not competent to waive counsel and plead guilty. ( Id . at pp. 393-394.) The Supreme C ourt reversed, rejecting the argument that federal law required a higher standardof competence for waiving counsel or pleading guilty than is required to stand trial. (Id . at p. 402.) California courts, including the California Supreme Court, generally interpreted Faretta and Godinezas holding the required degree of competency to stand trial and the required degree of competency to waive the right to counsel were the same. ( People v. Taylor , supra , 47 Cal.4th at pp. 874-876.) In 2008, the United States Supreme Court decided Indiana v. Edwards , supra , 554 U.S. 164. In that case, the Indiana state tria l court had denied the defendant’s request for self-representation and found that, while the de fendant was competent to stand trial, he was not competent to represent himself at trial. ( Id . at p. 169.) An Indiana appellate court ordered a new trial, and the Indiana Su preme Court affirmed the appellate court on the ground Faretta and Godinezrequired the trial court to permit the defendant to represent himself. (Indiana v. Edwards , supra , at p. 169.) The United States Supreme Court reversed, holding:15. “[T]he Constitution permits judges to takerealistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is menta lly competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky [v. United States (1960) 362 U.S. 402] but who still suffe r from severe mental illness to the point where they are not competen t to conduct trial proceedings by themselves.” ( Indiana v. Edwards , supra , 554 U.S. at pp. 177-178.) The court called those defendants who are comp etent to stand trial but not to represent themselves “gray-area defendants.” (Id . at pp. 172-173.) Indiana v. Edwards did not hold that due proce ss requires a higher standard of mental competence for self-representation than is required to stand trial with counsel. Rather, “[t]he Edwards court held only that states may , without running afoul of Faretta , impose a higher standard ....” ( People v. Taylor , supra , 47 Cal.4th at pp. 877-878.) In Taylor , the California Supreme Court upheld th e trial court’s decision to grant the defendant’s request for self-representation. ( Id . at pp. 856, 868, 878-879.) Because Edwards did not mandate the application of “‘a dual standard of compet ency for mentally ill defendants,’” that case “does not support a claim of federal constitutional error in a case like the present one, in wh ich defendant’s request to represent himself was granted.” ( People v. Taylor , supra , at p. 878.) The Taylor court also rejected the defendant’ s argument the trial court should have exercised its discretion, recognized in Edwards , to apply a higher standard than competence to stand trial. ( People v. Taylor , supra , 47 Cal.4th at p. 879.) “We reject the claim of error because, at the time of defendant’s trial, stat e law provided the trial court with no test of mental compet ence to apply other than the Duskystandard of competence to stand trial [citation], under which defend ant had already been found competent.” ( Ibid .) Such was the state of the law in th is case when defendant requested selfrepresentation. Here, as in Taylor , the trial court’s decision to grant the request for selfrepresentation did not support a claim of federal constitutional error. At the time of16. defendant’s trial, California state law did no t provide a standard of competence for selfrepresentation different from the standard required to stand trial. As defendant does not deny he was competent to stand trial, helikewise met the comp etency standard to represent himself at trial. The Law Posttrial In 2012, after defendant pled guilty and sh ortly after he filed his notice of appeal, the California Supreme Court decided People v. Johnson , supra , 53 Cal.4th 519. In that case, the trial court revoked the de fendant’s self-representation. (Id . at p. 525.) The Supreme Court had to decide “wheth er California courts may accept Edwards ’s invitation and deny self-representation to gray-area defendants.” ( Id . at p. 527.) That court concluded that California trial courts have discretion to deny self-representation to grayarea defendants. The court reasoned: “Indeed, to refuse to reco gnize such discretion woul d be inconsistent with California’s own law. In People v. Floyd [(1970)] 1 Cal.3d 694, we upheld the denial of a capital defendant’s re quest for self-representation citing, among other factors, his youth, his low level of education, and his ignorance of the law. [Citation.] Certainly, a defendant who could be denied self-representation under Edwards , supra , 554 U.S. 164, could also have been denied self-representation under People v. Sharp , supra , 7 Cal.3d 448, and People v. Floyd . Denying self-representation when Edwards permits such denial does not violat e the Sixth Amendment right of selfrepresentation. Because California law provides no statutory or constitutional right of self-representation, such denial also does not violate a state right. Consistent with long-est ablished California law, we hold that trial courts may deny self-representation in those cases where Edwards permits such denial.” ( People v. Johnson , supra , at p. 528.) The Johnson court considered several standards by which to measure competence and concluded: “[P]ending further guidance from th e high court, we believe the standard that trial courts considering exercising their di scretion to deny sel f-representation should apply is simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry outthe basic tasks needed to pr esent the defense without the help of counsel.” ( People v. Johnson , supra , 53 Cal.4th at p. 530.)17. Here, defendant contends he met that st andard, i.e., he suffered mental illness to the point he could not carry out the basic ta sks to defend himself without counsel. Johnson was decided after defendant was to be tr ied, and after he entered a guilty plea. Therefore, its holding does not apply retroac tively. Changes in the law—either through legislation or court opinion—that govern the co nduct of trials apply prospectively only. ( People v. Johnson , supra , 53 Cal.4th at p. 531.) “‘[A ] law governing the conduct of trials is being applie d “prospectively” when it is app lied to a trial occurring after the law’s effective date, regardless of when the underlying crime was committed ....’” ( Ibid ., quoting Tapia v. Superior Court (1991) 53 Cal.3d 282, 2 89.) Application of a change in law that occurred after the crime to ok place is retroactive only if it changes the legal consequences of a de fendant’s past conduct. ( Tapia v. Superior Court , supra , at p. 298.) In this case, the Johnson decision did not change th e legal consequences of defendant’s past conduct. He pled no cont est to a violation of willful infliction of corporal injury to a cohabitant; the legal cons equences of that conduct were not affected. Moreover, even under the Johnson standard for competence, the trial court did not err by granting defendant’s request for self-repr esentation. “As with other determinations regarding self-representation, we must defe r largely to the trial court’s discretion.” ( Johnson , supra , 53 Cal.4th at p. 531.) “The tria l court’s determination regarding a defendant’s competence must be upheld if supported by substantial evidence.” ( Ibid .) Here, substantial evidence supportedthe trial court’s decision permitting defendant to represent himself. The trial court had observed defendant during two full days of pretrial motions and also had the chance to observe and assess defendant during the Marsden motion heard August 19, 2011. Th e trial court very thoroughly and meticulously reviewed the waiver of couns el form with defendant. On the form, defendant indicated he had received assistance as a child for being “slow,” but after an extensive inquiry, the trial court concluded that, despite defendant’s mild reading and comprehension deficits, he was capable of repr esenting himself at trial. The trial court did not abuse its discretion in so finding. Contrary to defendant’s assertion, the trial court18. was not required to obtain an expert’s opinion regarding de fendant’s ability to represent himself at trial. This record does not in dicate defendant “‘suffer[s] from severe mental illness to the point where’” he cannot “‘carry out the basic tasks n eeded to present [a] defense without the help of counsel.’” ( People v. Johnson , supra , 53 Cal.4th at p. 530.) The trial court took a realistic account of defendant’s mild—not severe—reading difficulty and determined defe ndant was capable of representing himself despite the mild deficit. We perceive no error. In explaining its decision, the trial court stated, in relevant part, as follows: “T HE C OURT : At this point in time the Court has no further inquiry in making a determination as to whethe r or not the defendant is capable of representing himself. “While the Court may inquire as I have to determine if the defendant has sufficient—I don’t mean it to sound derogatorily, because it isn’t meant to be that way or critical—the Court needs to make a determination the defendant has sufficient intelligence and mental capacity to represent themselves, the Court does not and can not inquire as to the technical knowledge of the law or ability to litigate a case. “The relevant inquiry from the Court’s perspective pursuant to the Faretta versus California decision at 422 US 806 page 835, and People versus Nauton, N-a-u-t-o-n, at 29 Ca l.App.4th 976, is does the defendant have the mental capacity to make a knowing and intelligen t waiver of his right to be represented by counsel in this case.” Defendant asserts the tria l court’s reference to the Nauton decision is evidence the trial court did not understand its discretion. However, the trial court stated the correct general standard for determining whether a de fendant may represent himself. It noted a defendant must knowingl y and voluntarily elect self-repres entation. Although the court did not reference the au thority that followed Faretta pertaining to consideration of a defendant’s request where that request wa s accompanied by the presence of or a presumption of mental illness, it did c onsider defendant’s purported reading and comprehension deficits. Those deficits fa ctored into its dete rmination of whether defendant would be able to represent himsel f at trial and whether he was knowingly and19. intelligently giving up his right to be represen ted by counsel at tria l. On appeal, we presume the court was aware of the applicable standards and applied them to the facts in this case. ( People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [reviewing court presumes trial court knew and app lied correct statutory and case law]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [in absence of contrary evidence, reviewing court presumes trial court properl y followed established law]; People v. Woods (1993) 12 Cal.App.4th 1139, 1152 [reviewing court presumes trial c ourt knew and properly applied the law; appellant’s burden to rebut presumption by affirmative showing]; People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [review ing court presumes trial court knew and applied the correct statutory and case law in exercise of its discretion]; People v. Mack (1986) 178 Cal.App.3d 1026, 10 32; see also Evid. Code, § 664.) The trial court’s reference to Nauton —a case recently cited by th e California Supreme Court in People v. Taylor , supra , 47 Cal.4th at pages 875-881—does not affirmatively establish the court was unaware of its discretion pursuant to Edwards

. A review of this record strongly suggests defendant was “playing ‘the Faretta game’” and was able to delay the trial “by juggling his Faretta rights with his right to counsel interspersed with Marsden motions.” ( People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) As the court note d at a hearing on defendant’s motion to withdraw his plea: “T HE C OURT : I’m not buying it .... [¶] Right now the blunt fact of the matter is that it’s pretty clear to me you didn’t want [defense counsel] to represent you. “Multiple Marsden motions have beendenied. Frankly, at this point in time, if one looks at the whole recordof this case, it appears to me that the reason you made a Faretta moti on and are now seeking to try to withdraw your plea was basically as an end run to get around multiple previous denials of that Marsden moti on. You clearly understood what we were discussing in court on the previo us occasions when you were here representing yourself and you did during the procee dings last week and20. during the earlier proceedings now. [¶] I’mflat out finding at this point in time that this is an atte mpt to deceive the Court.” 5 In sum, the trial court did not err in granting defendant’s Faretta motion. Defendant knowingly and voluntarily waived his constitutional right to the assistance of counsel. Further, the trial court properly considered defendant’s mild reading and comprehension deficits before determining he was capable of representing himself at trial. The Validity of the Waiver Defendant asserts that because the tria l court did not “conduct[] an adequate inquiry” as to his mental capacity, placi ng him in a “position where he immediately realized that he was incapable of proceeding on his own” and he “suddenly reverses to a conviction by plea,” his Sixth Amendment rights to the assistance of counsel and the presentation of a defense have been violated. He contends a proper inquiry would have led to expert reports “poin ting precisely to the types of functional impairments the Edwards court cited ....” We have already determined the trial court did not err in granting defendant’s Faretta motion. Therefore, the basis upon whic h defendant’s second argument rests is invalid. The argument lacks merit and is larg ely a restatement of the earlier argument. We do not agree defendant’s unsucc essful request for advisory counsel 6 in the wake of the trial court’s decision to grant his Faretta motion results in “a legitimate inference that his election to resume plea negotiations was the result of his recognition that he was incapable of representing himsel f.” Rather, on this record, the legitimate

5 We note defendant also tried, unsuccessfully, to delay proceedings further following the trial court’s comments by disingenuously claiming he did not understand the court’s questions regarding a waiver of time for purposes of sentencing. 6 Once a defendant elects self-representati on, the defendant does not have the constitutional right to appointmentof advisory or standby counsel to assist in his or her defense, and the trial court has the discretion to grant or deny such a motion. ( People v. Sullivan (2007) 151 Cal.App.4th 524, 553-554.)21. inference is that defendant wa s simply out of alternatives. He succeeded in getting his defense counsel removed as his attorney, and his request to represent himself was properly granted. Notably to o, defendant was granted a 30- day continuance, despite the fact the trial had already commenced and a ju ry panel had been assembled. He had but two choices: proceed to trial or accept a plea. Defendant elected the latter. Moreover, it is pure speculation for defend ant to assert that “expert reports would likely have been generated poi nting precisely to the types of functional impairments the Edwards court cited ....” “‘... A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows whathe is doing and his choice is made with eyes open.’ [Citation.]” ( Faretta , supra , 422 U.S. at p. 835.) “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.” ( People v. Koontz(2002) 27 Cal.4th 1041, 1070.) Rather, “the te st is whether the record as a whole demonstrates that the defendant unde rstood the disadvantages of selfrepresentation, including the risks and co mplexities of the particular case.” ( Ibid .; accord, People v. Lawley(2002) 27 Cal.4th 102, 140; People v. Marshall (1997) 15 Cal.4th 1, 24.)’ ( People v. Blair (2005) 36 Cal.4th 686, 708.) Thus, ‘[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.’ ( People v. Pinholster (1992) 1 Cal.4th 8 65, 928-929; accord, U.S. v. Lopez–Osuna (9th Cir. 2001) 242 F.3d1191, 1199 [‘the focus should be on what the de fendant understood, rather than on what the court said or understood’].) “On appeal, we independently examine the entire record to determine whether the de fendant knowingly and in telligently waived the right to counsel. ( People v. Doolin (2009) 45 Cal.4th 390, 453.)” ( People v. Burgener (2009) 46 Cal.4th 231, 241.) After ensuring that defendant understood he faced a potential of 41 years in prison were he to be convicted of all counts , the following colloquy occurred regarding defendant’s waiver: “T HE C OURT : [I]n answer to that yo u stated that you wish to represent yourself because, quote, b ecause I been effectively by [defense counsel] who never—I’m notsure what the word s-u-m-e-n-t—discover on22. my case and did nothing in my defense. [¶] I know that you have not been satisfied with [defense co unsel]’s representation. “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Without going into the details as far as the Marsden motion is concerned, is it because of your dissatisfaction with that representation that you’re seeking to represent yourself? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Again, without going into detail, all you need to do is tell me yes or no, is it your desire to conduct your defense differently than [defense counsel] feels or has indicated he feels it is appropriate to conduct that defense? [¶] I don’t want you to go into detail, because [the prosecutor] is present. That’s just a yes or no. “T HE D EFENDANT : Yes. “T HE C OURT : Okay. So there’ s not necessarily a conflict of interest, but there is a disagreement or conflic t as far as strategy between [defense counsel] and yourself. Is that correct? “T HE D EFENDANT : It’s both. It’s all. “T HE C OURT : So you feel that there is a conflict in strategy, but also you feel just generally there is a c onflict in terms of his representation? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Fair enough. Okay. “Now, ... I’m going over a couple of these because, like I said, I want to make sure you understandthe consequences of representing yourself. [¶] You understand that, a ssuming that you are capable of making a knowing and intelligent waiv er of your right to a lawyer, that you do have a constitutional right to represent yo urself. Do you understand that? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : I do want to make doubly sure, though, that you understand you also do have the constitutional right , even if you cannot afford one, to be represented by a lawyer. Do yo u understand that? “T HE D EFENDANT : Yes, your Honor.23. “T HE C OURT : Okay. Although there are many—I won’t say many, but there are folks who represent themse lves in criminal proceedings when they are charged with a crime. Some times those proceedings wind up in a result they’re satisfied w ith. Although many times , perhaps more often, they don’t. “Generally speaking it is virtually always unwise for someone, frankly even if they are a lawyer, to represent themselves when they are charged with a crime. [¶ ] Do you understand that? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Part of the reason for that is that while certainly, as in many cases, that person is unfamiliar with and untrained in the law, even in the case of a lawyer it is very often unwise for the lawyer to represent themselves, because be ing personally involvedin a proceedings [ sic ] charged with a crime sometimes makes it difficult for one to objectively evaluate the evidence ag ainst them and what would be in their best interests. [¶] Do you understand that? “T HE D EFENDANT : Yes, your Honor. “T HE C OURT : Does that make sense? “T HE D EFENDANT : Yes. “T HE C OURT : Okay. You understand thatwhile I certainly will stop and clarify to make sure that you unde rstand any legal terminology that is used, and we’ll do our best to conduct the proceedings in a manner where you follow along and unders tand what’s going on in court and are able to articulate your case and your defense to the jury, you understand you’re not entitled to special treatment or privileges? “When I rule on questions that are asked or answers that may be giv[en], when I instruct the jury to the law, I ha ve to follow the law with respect to all of those. I can’t, if y ou will, put a thumb on the scale in your favor or give you anythi ng [in] that regard. [¶ ] Do you understand that? “T HE D EFENDANT : Yes, your Honor.” In this case, defendant was made aware of the dangers and disadvantages of selfrepresentation. The record as a whol e demonstrates defendant understood the disadvantages and associated risks. One of those risks involved th e potential of a 41-year24. prison sentence. We think it likely that after defendant realized his machinations had all but come to an end, he opted to take the guaranteed four-year prison term. In conclusion, following our independent review, we have determined defendant knowingly and intelligently waivedhis right to counsel. The wa iver is valid and no error occurred. DISPOSITION The judgment is affirmed.

__________________________ PEÑA, J. WE CONCUR:

________________________________ CORNELL, Acting P.J.

________________________________ FRANSON, J.