Filed 12/18/14 P. v. Watkins CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
CURTIS WATKINS,
Defendant and Appellant. B252964
(Los Angeles County Super. Ct. No. BA400349)

APPEAL from a judgment of the Superior Court of Los Angeles County. Laura F. Priver, Judge. Affirmed as modified. Caneel C. Fraser, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.

* * * * * *2 Curtis Watkins (defendant) appeals hi s second degree robbery conviction (Pen. Code, § 211) 1 on the grounds that the trial court wr ongly denied his request to represent himself and his motion for a mistrial due to prosecutorial misconduct. There was no reversible error, so we affirm his conviction. Except for a minor modification, we also affirm his prison sentence of 35 years to life. FACTUAL AND PROCED URAL BACKGROUND A man wearing a hoodie held up Patrick Tyre with a gun at a gas station. Tyre’s fiancée called 911 and relayed th e license plate number of the car the robber used to get away. The police went to the ho me of the car’s registered owner. The car was in front of the home; inside the car was a hoodie, and just outside of the car was a gym membership card belonging to Tyre. The cops found defe ndant inside the home, along with a gun and money. Tyre and his fiancée identified defenda nt in a driveby showup in the field; it is unclear whether the cops first told them that defendant was found w ith their belongings. The People charged defendant with a single count of second degree robbery (§ 211), along with an enhan cement for personal use of a fi rearm (§ 12022. 53, subd. (b)). The information also alleged defendant’s 1993 and 1996 convictions for robbery (§ 211) as prior “strikes” (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), as prior “serious” felonies (§ 667.5, subd. (c)), and as prio r prison terms (§ 667, subd. (a)(1)). The information further alleged hi s 1996 assault with a deadly weapon conviction (§ 245, subd. (a)(2)) as a prior “strik e” and prior “serious” felony, and his 2007 conviction for possessing a firearm (§ 120 21) as a prison prior. Defendant went to trial. The jury wa s instructed on direct liability, as well as aiding and abetting liability. Th e jury convicted defendant of robbery, but found the personal use of a firearm enhancement “not true.” After his prior convictions were proven at a bench trial, the trial court senten ced him to a total of 35 years to life in state prison—25 years to life for the robbery (as a third “strike”), pl us an additional five years

1 All further statutory references are to the Penal Code unless otherwise indicated.3 for each of the 1993 and 1996 ro bberies as “serious” felonies. The trial court stayed the prior prison sentence enhancements under section 654. Defendant timely appealed. DISCUSSION I. Self-representation Nearly eight months after his initial a ppearance in court and just minutes before the jury pool was to arrive in the courtroom, defendant anno unced for the first time that he wanted to represent himself. The trial c ourt informed him that his request would be untimely unless he was ready to proceed to trial immediately. Although defendant initially said he was “ready to go forward,” he next stated that there were “a lot of things [he] need[ed] to do.” Defendant also indicate d that he had not received any discovery for his case. When the trial court told him it would not grant a conti nuance and again asked if he was ready to proceed without one, defendan t asked if the court was “gonna force [his] hand.” The trial court then declared th at the request was untimely and denied it. A criminal defendant has the constituti onal right to forego the constitutional guarantee of assistance of counsel and to represent himself at trial. ( Faretta v. California (1975) 422 U.S. 806, 817-818.) But th is right is “‘not absolute.’” ( People v. Boyce (2014) 59 Cal.4th 672, 702 ( Boyce ), quoting Indiana v. Edwards (2008) 554 U.S. 164, 171.) When a defendant in vokes this right “within a reasonable time prior to the commencement of trial” ( People v. Burton (1988) 48 Cal.3d 843, 852 ( Burton ), quoting People v. Windham (1977) 19 Cal.3d 121, 128 ( Windham )), the request must be granted except in special circumstances (such as when the defendant la cks competency to represent himself or has engaged in conduct th at seriously threatens the core integrity of the trial). ( People v. Johnson (2012) 53 Cal.4th 51 9, 530 [competency]; People v.
Carson (2005) 35 Cal.4th 1, 8 [m isconduct].) However, when a defendant’s request is untimely, the court has discretion whethe r to allow self-representation. ( Boyce , at p. 702; People v. Powell (2011) 194 Cal.App. 4th 1268, 1277-1278 ( Powell ).) Defendant argues that his request was tim ely. As a general matter, requests made4 on the eve or morning of trial are considered untimely (e.g., People v. Lynch (2010) 50 Cal.4th 693, 702 ( Lynch ), overruled on other grounds by People v. McKinnon (2011) 52 Cal.4th 610), and are disfavored ( Powell , supra , 194 Cal.App.4th at pp. 1277-1278). In assessing timeliness, a court mu st look to the tota lity of the circumstances, including the nearness of the request to trial, counsel’s re adiness, the anticipated length and complexity of the trial, and, most relevant here, wh ether the defendant had earlier opportunities to assert his right to self-representation. ( Lynch , at p. 726; see also People v. Herrera (1980) 104 Cal.App.3d 167, 173-175 [defendant’s request at “earliest opportunity” after he tried to enter a plea of not guilty by reason of insanity was timely].) In this case, defendant requested self-representation just mi nutes before the jury pool was to arrive, and he had several prior oppor tunities to do so: He had 10 prior court appearances, not including the three times he refused to co me to court. His request was untimely. Defendant alternatively contends that the trial court abused its discretion in denying his untimely request. In exercising its discretion whether to grant or deny an untimely request, a court is to consider seve ral factors: (1) the quality of defense counsel’s representation; (2) th e defendant’s prior proclivity to substitute counsel; (3) the reasons for the request; (4) the length and stag e of the proceedings; and (5) the disruption and delay which might reasonabl y be expected to follow the granting of such a motion. ( Burton , supra , 48 Cal.3d at p. 853, citing Windham , supra , 19 Cal.3d at p. 128.) Defendant levels three attacks at the trial court’s ruling. First, defendant argues that the trial cour t erred in not analyzing each of the factors on the record. However, explicit findings are not required. ( People v. Perez (1992) 4 Cal.App.4th 893, 910, fn. 10.) Second, defendant asserts that the tria l court’s ruling is inconsistent with People v. Nicholson (1994) 24 Cal.App.4th 584 ( Nicholson ) and People v. Tyner (1977) 76 Cal.App.3d 352 ( Tyner ). These cases are distinguishable. Both concluded a defendant’s last-minute request to proceed without coun sel was wrongly denied when the request was not “accompanied by any reque st for a continuance” ( Tyner , at p. 355), and when there5 was “no hint that one woul d be forthcoming if pro. per. status was granted” ( Nicholson , at p. 592). Although defendant initially stated that he was “r eady to go forward,” he also stated that there were “a lot of things [he] ne ed[ed] to do” and refused to answer the trial court’s followup questions as to whether he wa s ready, in light of those “things to do” and the absence of any discovery. The tria l court did not abuse its discretion in not accepting defendant’s initial response at face value, and inquiring further. Moreover, defendant’s answers to the court’s questioni ng revealed more th an a “hint” that a continuance request would be forthcoming. Lastly, defendant asserts that the trial c ourt’s ultimate denial of his request was an abuse of discretion. We accord “considerab le weight” to the trial court’s decision ( People v. Howze (2001) 85 Cal.App.4th 1380, 1397), and conclude there was no abuse of discretion. Although defe ndant had not previously asked to represent himself and was not asked (and did not offer) why he wanted to do so, his request was made for the first time minutes before the jury was to arrive and his answers to the court’s questions reasonably led the trial court to find that he would ask for a continuance to start on the “things to do” he perceived were undone. II. Prosecutorial misconduct Midway through the People’s case-in-chief, the trial court ruled that, if defendant chose to testify, the prosecution could cr oss-examine him regarding his 1996 robbery conviction along with his use of a gun during th at robbery. Defendan t testified. During cross-examination, the prosecutor asked if he had previously been convicted of a robbery and whether it had involved the use of a gun; defendant answered “yes” to both. The prosecutor then asked, “So that prior robber y it was also at a gas station, right?” Defendant objected and moved fo r a mistrial, and the trial court denied the motion and asked the prosecutor to move on before defendant answered. Defendant renewed his mist rial motion two more times. The prosecutor explained that she had just learned of the gas station locale and indicated sh e had not understood the trial court’s earlier ruling to preclude referen ce to additional facts from the crime. The6 trial court stated that the scope of its order had not been clear, and that the prosecutor had not intentionally violated it. The court nevertheless concluded that the prosecutor’s question was not appropriate, and took the de fendant’s suggestion and gave the following curative jury instruction: “You have heard evidence that [defendant] suffered a prior conviction for robbery. Just as with any other witness you may consider that fact only in evaluating the credibility of the witness’s testimony. There is no evidence that this prior incident occurred at a gas station. As the questions of counsel are not evidence, and in this case improper, you must disregard any ques tion suggesting that that fact was true.” “The permissible scope of cross-examina tion of a defendant is generally broad” ( People v. Chatman (2006) 38 Cal.4th 344, 382 ( Chatman )), but there are constitutional boundaries. A prosecutor violates federal due process by asking qu estions that “‘“‘“so infect the trial with unfairn ess as to make the resulting conviction a denial of due process.”’”’” ( People v. Wallace (2008) 44 Cal.4t h 1032, 1070 ( Wallace ), quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) As re levant to this case, the prosecutor violates state law if she (1) intentionally asks a question that violates a court order ( People v. Silva (2001) 25 Cal.4th 345, 373), or (2 ) otherwise “uses ‘“‘“deceptive or reprehensible methods to attempt to persuade either the court or the jury”’”’ [citations]” ( Wallace , at pp. 1070-1071). Bad faith is not required ( People v. Bolton (1979) 23 Cal.3d 208, 213-214 ( Bolton )), but prejudicial effect is ( People v. Warren (1988) 45 Cal.3d 471, 480 ( Warren )). If the misconduct is called to the court’s attention midtrial, the court should only grant a mistrial wh en the defendant’s chances of receiving a fair trial have been “irretrievably damaged.” ( People v. Garcia (2014) 229 Cal. App.4th 302, 311 ( Garcia ).) The trial court determined that the pros ecutor’s question rega rding the location of the crime underlying the 1996 robbery co nviction was improper, but deemed a curative instruction sufficient to cure any prejudice. Defendant raises three challenges. Defendant argues that the prosecutor’s que stion was improper. But the trial court agreed with him on this point, and so do we. Although the prosecutor did not violate any7 court order, the question she asked sought to elicit evidence that was probably inadmissible. The location of the prior robber y was not relevant to defendant’s character for truth and veracity; it pertained to a specifi c instance of conduct inadmissible to prove defendant’s propensity fo r robberies under Evidence Code section 1102; and its admissibility as proof of id entity or common scheme or plan under Evidence Code section 1101, subdivision (b) was uncertain at best (and certainly shou ld have been vetted first). “‘It is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citations]’” ( Chatman , supra , 38 Cal.4th at pp. 379-380, italics omitted; People v. Smithey (1999) 20 Cal.4th 936, 960), at least if she knows the answer is inadmissible ( People v. Hawthorne (2009) 46 Cal.4th 67, 98, overruled on other grounds by People v.
McKinnon (2011) 52 Cal.4th 610). Although the trial court’s findings indicate that the prosecutor may not have known the answer to her question was inadmissible, the question—whether or not “misconduct”—was improper. (Cf. Chatman , at p. 379 [questioning whether, on similar facts, the pr osecutor’s question “is properly considered . . . misconduct”].) However, this question, involvin g a single detail of an otherwise properly admissible prior conviction and cured with a jury admonition, did not “so infect the defendant’s trial with unfa irness” as to violate his fe deral right to due process. Defendant next contends that the misc onduct was prejudicial, and thus warrants reversal. Defendant cites several cases, but each of them involves a different—and hence distinguishable—species of prosecu torial misconduct. (Compare People v. Wagner (1975) 13 Cal.3d 612, 618 [improper questioning regarding details of prior crimes when there was no prior conviction]; Warren , supra , 45 Cal.3d at pp. 480-481 [prosecutor asked questions suggesting certain facts were true without good faith belief the facts existed]; Bolton , supra , 23 Cal.3d at pp. 212-214 [prose cutor referred in closing argument to evidence never admitted at trial]; People v. Dykes (2009) 46 Cal.4th 731, 766 [prosecutor should not ask que stions that are “damaging but irrelevant”].) Here, the prosecutor asked a single question regarding a detail of a prior crime resulting in a conviction after the trial court ruled that the cr ime and one of its details (the use of a gun)8 were proper for impeachment. The court th en gave a curative instruction, which is presumed to be sufficient (cf. Garcia , supra , 229 Cal.App.4th at pp. 311-312), unless the “improper subject matter is of such a characte r that its effect on th e minds of the jurors cannot be removed by the court’s admonitions” ( People v. Seiterle (1963) 59 Cal.2d 703, 710), such as when the prosecut or refers to a prior convicti on that is entirely inadmissible (e.g., People v. Ozuna (1963) 213 Cal.App.2d 338, 340-342; People v. Figueriedo (1955) 130 Cal.App.2d 498, 505-506). Here, the pr osecutor’s single question was not of that magnitude. Defendant lastly argues that the trial c ourt abused its discretion in not granting a mistrial. A trial court has “‘“consider able discretion”’” in this regard ( Garcia , supra , 229 Cal.App.4th at p. 311), and did not abuse it here. The prosecutor’s question was asked just once, was never argued to the jury, an d was the subject of a special curative instruction. On these facts, defendant’s chances of receiving a fair trial were not “irretrievably damaged” ( ibid. ). III. Sentence modification The People argue that the trial court shou ld have stricken the prison priors that were also used as “serious” felony enhancem ents, rather than stay ing them. This is correct. ( People v. Dejourney (2011) 192 Cal.App.4t h 1091, 1094, fn. 3.)9 DISPOSITION The judgment is modified to strike rather than stay the one-ye ar prior prison term enhancements. (§ 667.5, subd. (b).) The trial court is directed to amend the abstract of judgment accordingly and forwar d a certified copy of the ame nded abstract of judgment to the Department of Correc tions and Rehabilitation. As modified, the judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________ ____, J. HOFFSTADT
We concur:

_____________ _______________, P. J. BOREN

___________________ _________, J. CHAVEZ