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Filed 9/21/20 P. v. McRorie CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT VERN MCRORIE,

Defendant and Appellant.

C089955

(Super. Ct. No. 18CR000534)

Defendant Robert Vern McRorie, who represented himself during trial, was 

convicted of crimes related to eluding and resisting a peace officer. On appeal, he 

contends the trial court erred in denying his motions for advisory counsel. He also argues 

he was denied reasonable access to a law library. He further requests we strike his prior 

prison term enhancements. Finally, relying on People v. Dueñas (2019) 30 Cal.App.5th 

1157 (Dueñas), defendant argues the trial court erred in imposing certain fines and fees 

without holding a hearing to determine his ability to pay them. We will strike the prior 

prison term enhancements, remand the matter for resentencing, and otherwise affirm the 

judgment.
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FACTUAL AND PROCEDURAL BACKGROUND

Just after midnight on March 11, 2018, a sergeant with the Tehama County 

Sheriff’s Office saw defendant speeding by in a car. Using his radar, the officer 

determined defendant was driving 70 miles per hour in a 55-mile-per-hour zone. The 

officer activated his lights and pursued defendant. Defendant refused to pull over and 

continued driving for over 11 miles. Even though other cars were also on the road, 

defendant drove erratically, including crossing double yellow lines and traveling in the 

oncoming lane of traffic, failing at least once to stop at a stop sign, and reaching speeds 

in excess of 100 miles per hour in a 55-mile-per-hour zone. Eventually, defendant pulled 

into a parking lot, got out of his car, and ran away toward a nearby creek. After 

determining there was no one else in defendant’s car, the officer chased defendant on 

foot. The officer finally caught up with defendant at the creek, and defendant dove into 

the water and swam to the other side. A second officer arrived and the two officers 

searched for defendant. The two officers eventually found defendant with the help of a 

police helicopter; defendant was taken into custody. 

Defendant was charged with attempting to elude a peace officer with willful or 

wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)) 

and willfully resisting, delaying, and obstructing a peace officer (Pen. Code, § 148, subd. 

(a)(1)).1 With respect to the eluding an officer count, it was further alleged defendant 

committed the crime while released from custody on bail or on his own recognizance 

(§ 12022.1). It also was alleged defendant suffered eight prior prison terms (§ 667.5, 

subd. (b)). 

In April 2018, a doubt was declared as to defendant’s competency to stand trial. 

(§ 1368 et seq.) Proceedings were stayed and a psychologist was appointed to evaluate 

1 Undesignated statutory references are to the Penal Code. 
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defendant. The trial court found defendant incompetent to stand trial in May 2018. In 

February 2019, the court found defendant was restored to competency and resumed 

proceedings. 

In March 2019, defendant filed a motion requesting to represent himself. The 

motion included a signed Faretta2 waiver form with advisements. Included in the 

petition was a statement from defendant that he understood that, “if I am permitted to 

represent myself, . . . I will have to conduct my own defense without the aid of counsel, 

unless the court grants a motion by me for advisory counsel.” Defendant stated that he 

had represented himself and successfully obtained dismissals in three prior criminal 

proceedings. Defendant also filed a motion for “[a]ncillary defense services,” including 

advisory counsel and access to a law library. 

During the hearing on defendant’s requests, the trial court noted that defendant 

had previously been represented by six different attorneys, each of whom had declared a 

conflict. The court denied prior requests for self-representation because it was concerned 

defendant did not have an adequate legal education. But, after six attorneys declared a 

conflict, the court felt it had “no choice but to allow” defendant to represent himself. 

Defendant confirmed for the court that he had read and understood the Faretta waiver. 

The court advised defendant of his rights and also explained the dangers and 

disadvantages associated with representing himself. Defendant confirmed he understood. 

With respect to defendant’s request for advisory counsel, the court responded, “So, 

let me tell you right now there is no such thing as advisory counsel. There is no such 

thing.” After further discussion, the court denied defendant’s request for advisory 

counsel. In a subsequent written ruling, the court formally denied defendant’s request for 

2 Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
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advisory counsel, citing People v. Goodwillie (2007) 147 Cal.App.4th 695. The court 

also noted, “There is no constitutional right to advisory counsel.” 

During the two-day trial in May 2019, the only testimony was from the two 

officers at the scene. Defendant cross-examined each witness. After deliberating for less 

than one hour, a jury found defendant guilty of eluding and resisting a peace officer. In 

bifurcated proceedings, the court found true that defendant had eight prior prison terms. 

In June 2019, the trial court sentenced defendant to state prison for an aggregate 

term of nine years, as follows: three years (the upper term) for attempting to elude a 

peace officer, one year concurrent for resisting a peace officer, and six consecutive years 

for each of six prior prison term enhancements.3 The court also imposed a $600 

restitution fine (§ 1202.4, subd. (b), a corresponding $600 parole revocation restitution 

fine, suspended unless parole is revoked (§ 1202.45). In addition, the court imposed an 

$80 court operations assessment (§ 1465.8) and a $60 court facilities assessment (Gov. 

Code, § 70373). Defendant did not object to the fines and fees, nor did he claim he was 

unable to pay them. 

DISCUSSION

I

A defendant who elects to represent himself has no constitutional right to advisory 

counsel or any other form of hybrid representation. (People v. Clark (1992) 3 Cal.4th 41, 

111, abrogated on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462; People 

v. Moore (2011) 51 Cal.4th 1104, 1119-1120, fn. 7.) The appointment of advisory 

counsel rests in the sound discretion of the trial court and will not be set aside absent a 

showing the ruling is arbitrary, capricious, or whimsical. (People v. Crandell (1988) 46 

3 At the prosecution’s request, the court vacated one of the prior prison term 

findings, bringing the total number to seven. Also at the prosecutor’s request, the court 

did not impose sentence on one of the remaining prior prison terms. 
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Cal.3d 833, 863, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 

346, 364-365; see also People v. Garcia (2000) 78 Cal.App.4th 1422, 1431 [reasoning 

that “if [a defendant] is not able to defend himself without the assistance of advisory 

counsel, then he is not competent to represent himself”].) “In ruling on such a request, 

the trial court may consider [a] defendant’s demonstrated legal abilities and reasons for 

seeking the appointment of advisory counsel, including evidence of any manipulative 

purpose. [Citation.] Other factors include the seriousness of the charges, the complexity 

of the issues, and defendant’s education and familiarity with the justice system. 

[Citations.]” (People v. Debouver (2016) 1 Cal.App.5th 972, 976.)

When a trial court fails to exercise its discretion because it erroneously believes it 

lacks authority to appoint advisory counsel, a reviewing court will analyze the error as if 

the trial court had exercised its discretion. (People v. Bigelow (1984) 37 Cal.3d 731, 743-

744.) Reversal is required if it would have been an abuse of discretion to refuse to 

appoint advisory counsel (id. at p. 744); if it would not have been an abuse of discretion, 

the error is reviewed under the Watson harmless error standard. (People v. Crandell, 

supra, 46 Cal.3d at pp. 864-865; People v. Watson (1956) 46 Cal.2d 818, 836 [reversal is 

required only if it is reasonably probable a result more favorable to defendant would have 

been achieved had the error not occurred].)

According to defendant, the trial court failed to exercise its discretion to appoint 

advisory counsel because it purportedly believed it had no such discretion. Defendant 

points to the trial court’s remark during the hearing that there is “no such thing” as 

advisory counsel. He also argues the trial court made clear in its written ruling that it was 

denying his request because a defendant has no constitutional right to advisory counsel. 

The People disagree, arguing that the court indicated in its written decision that it fully 

understood its discretion because it relied on Goodwillie, which correctly states that a 

trial court has authority to appoint advisory counsel. (People v. Goodwillie, supra, 147 

Cal.App.4th 709-710 [“The weight of both federal and California precedent . . . 
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establishes that a criminal defendant does not have a constitutional right to the assistance 

of advisory counsel, but that it is within the discretion of trial courts to appoint advisory 

counsel to assist a criminal defendant who is proceeding in propria persona].) 

Regardless, defendant’s contentions are without merit because it would not have 

been an abuse of discretion for the court to refuse defendant’s request. Although 

defendant was initially found incompetent to stand trial, he was returned to competency 

by the time the trial court granted his request to represent himself. In addition, the record 

indicates he aggressively defended himself. Defendant, who had extensive experience 

with the criminal justice system and boasted that he had obtained dismissals while 

representing himself in three prior criminal cases, filed multiple motions in the trial court. 

Defendant also cross-examined each of the two trial witnesses. Moreover, defendant 

never explained to the trial court why he needed advisory counsel. The case against 

defendant was not complex and only involved charges of eluding a peace officer with 

willful and wanton disregard and resisting a peace officer, along with suffering prior 

prison terms. On appeal, defendant fails to set forth any witnesses or evidence that would 

have made a difference in his case. Under the circumstances, it is not reasonably likely 

defendant would have obtained a more favorable result if advisory counsel had been 

appointed for him. As such, even if the trial court had erred by misunderstanding the 

scope of its discretion, any error would be harmless.

II

Defendant argues his constitutional rights were violated because he was denied 

reasonable access to a law library. According to defendant, the jail should have provided 

him with general access to a law library or legal research assistance, rather than limiting 

him to requesting legal materials. Defendant contends he was prejudiced by the lack of 

access because he was unable to “understand the significance of the element of ‘willful 

and wanton disregard of the safety of others’ in the felony charged against him and focus 

his legal arguments to the jury in negating that requirement.” 
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A. Additional background

In his March 2019 request for ancillary services, defendant requested access to a 

law library, runner, law clerk, photocopies at no charge, legal mail at no charge, an 

investigator, and “anything else defendant needs as means to developing a defense.” 

During the hearing, the court asked the jail sergeant about the jail’s policies and whether 

the jail had a law library. The sergeant informed the court that the jail could get legal 

research materials to defendant through request, and would help defendant to send 

motions and other documents via legal mail. The court ordered the jail to accommodate 

defendant with free photocopies and noncollect and confidential calls. It further 

requested the jail to “accommodate [defendant] as much as possible knowing that he is 

representing himself,” and the sergeant agreed. With respect to defendant’s request for a 

law clerk, the court informed defendant that there were none. The court advised 

defendant, “[Y]ou’re just going to have to, unfortunately, operate within the confines of 

being in jail.” 

In April 2019, defendant moved to require the jail to provide legal research 

material and other services needed to prepare his defense. Defendant argued the jail had 

only allowed him to submit three requests per month for legal research. He also noted it 

typically took three days to obtain a response to his request for legal research. Defendant 

estimated he would need to file a 70- to 80-page motion, with 20 witnesses and several 

expert witnesses. 

In support of his motion, defendant included an inmate grievance he had submitted 

to the jail about his limited access to legal research. The jail responded that it only 

allowed inmates representing themselves to make three legal requests with five items per 

request every 30 days. Inmates not representing themselves were allowed to make one 

request every 30 days. At the second appeal level for his grievance, the jail responded, 

“You have been denied nothing. The court[ ] only ruled you may have access to the law 

library and did not order us to give you free access to as many requests as you desire. 
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Your other grievance for this same issue was reviewed by me earlier this week and sent 

back to be returned to you.” 

The court held a confidential ex parte hearing in May 2019. Defendant explained 

he was locked in a cell 22 hours a day and was not able to get forms for subpoenas, had 

no access to an investigator or law clerk, and was being restricted in making requests for 

legal research. The court denied defendant’s motion, reasoning that “the Court made 

very clear to you, when you chose to represent yourself that these were the limitations 

that you were going to be operating under and, quite frankly, based on the motions that 

you filed, which have a tremendous amount of legal authority, which I have to tell you is 

impressive, I think that your access to legal research material is appropriate.” 

B. Analysis

A defendant’s constitutional right to counsel “ ‘includes, and indeed presumes, the 

right to effective counsel [citations], and thus also includes the right to reasonably 

necessary defense services.’ ” (People v. Blair (2005) 36 Cal.4th 686, 732 (Blair), 

overruled on another ground in People v. Black (2014) 58 Cal.4th 912, 919.) This does 

not mean, however, that inmates have an “abstract, freestanding right to a law library or 

legal assistance, [and] an inmate cannot establish relevant actual injury simply by 

establishing that his prison’s law library or legal assistance program is subpar in some 

theoretical sense.” (Lewis v. Casey (1996) 518 U.S. 343, 351 [135 L.Ed.2d 606, 618].) 

“[T]he crucial question . . . is whether [the defendant] had reasonable access to the 

ancillary services that were reasonably necessary for his defense.” (Blair, supra, 36 

Cal.4th at p. 734.) Generally, only the complete denial of any means of presenting a 

defense infringes on a defendant’s right under Faretta to represent himself or his right to 

access the court. (See, e.g., Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1445-1447; 

United States v. Wilson (9th Cir. 1982) 690 F.2d 1267, 1273; Blair, at p. 733 [a 

defendant’s right of self-representation is violated when a defendant is deprived of “ ‘all 

means of presenting a defense’ ”].)
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The record establishes that under the circumstances, defendant had reasonable 

access to legal research materials to present his defense. Every 30 days, defendant was 

allowed to submit three requests with five items each, for a total of 15 items per month. 

Moreover, notwithstanding defendant’s standing complaint about his lack of access to 

legal materials and his need for research assistance, he filed multiple pretrial motions, 

which the trial court described as having a “tremendous” and “impressive” amount of 

legal authority. Defendant also actively participated in the trial, including crossexamining witnesses. On this record, we cannot say defendant was denied reasonable 

access to legal materials or that, assuming he was denied reasonable access, defendant 

was in any way prejudiced. 

III

In October 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) 

(Senate Bill 136), which amended section 667.5, effective January 1, 2020 (Stats. 2019, 

ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term 

enhancement to only those who have served a prior prison sentence for a sexually violent 

offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). 

(§ 667.5, subd. (b).) The amendment applies “retroactively to all defendants whose 

judgments are not yet final as of that date.” (People v. Petri (2020) 45 Cal.App.5th 82, 

94.)

As the People concede, defendant is entitled to have all of the one-year prior 

prison term enhancements stricken, including the prior that was found true but remains 

unsentenced. Defendant’s case was not yet final on the effective date of the amendment 

to prior section 667.5, subdivision (b). In addition, his prior prison term enhancements 

were not based on sexually violent offenses. 

Because the trial court imposed less than the maximum sentence, we will remand 

the matter for resentencing to allow the court to exercise its sentencing discretion in light 

of the changed circumstances. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
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IV

Relying on Dueñas, defendant argues due process requires that we strike the fines 

and fees imposed or remand the matter for a hearing on his ability to pay them. 

Defendant concedes that he did not object to the imposition of the fines and fees, even 

though defendant was sentenced five months after Dueñas was decided. We decline 

defendant’s invitation to excuse his failure to object and instead conclude he has forfeited 

the issue on appeal.4 

DISPOSITION

The trial court is directed to strike defendants’ prior prison term enhancements. In 

all other respects, the judgment is affirmed. The matter is remanded for resentencing not 

inconsistent with this opinion. Upon resentencing, the trial court is directed to prepare an 

amended abstract of judgment and to forward a certified copy to the Department of 

Corrections and Rehabilitation. 

 KRAUSE , J.

We concur:

 HULL , Acting P. J.

 DUARTE , J.

4 Even if defendant had preserved the issue for appeal, his arguments would be 

meritless because we would join the courts that have concluded that Dueñas was wrongly 

decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks

(2019) 40 Cal.App.5th 320, review granted, Nov. 26, 2019, S258946; People v. Aviles

(2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.)