Filed 8/25/16 P. v. Jacques CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JACQUES,

Defendant and Appellant.

 B266138

 (Los Angeles County

 Super. Ct. No. YA087359)

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

Escobedo, Judge. Affirmed as modified.

Alex Coolman, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Roberta L. Davis and 

David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

Defendant and appellant Michael Jacques appeals from his conviction, after jury 

trial, of multiple counts of residential burglary (Pen. Code, § 459) and receiving stolen 

property (Pen. Code, § 496, subd. (a)), and a single count of carjacking (Pen. Code, 

§ 215, subd. (a)). We reject all of defendant’s challenges to his conviction, although we 

modify his sentence in several respects.

FACTUAL AND PROCEDURAL BACKGROUND

The bulk of defendant’s offenses arise from a burglary spree in which defendant 

burglarized multiple residences in February and March 2013. He committed the crimes 

using a black Chevy Impala which his girlfriend, Crystal Davis, had rented from Hertz, a 

rental car corporation, on February 14, 2013, and failed to return when the rental period 

was over. Property from the burglaries was subsequently discovered in the Impala and in 

a storage locker defendant had rented on March 26, 2013. 

The actual facts of the offenses are only relevant in the context of defendant’s 

claims of instructional error. We therefore discuss them briefly, and do so in 

chronological order.

1. Burglary of Dania Rubio – Count 1, Burglary with Person Present

On February 19, 2013, at 2:00 p.m., Rubio returned to her home, with her mother 

and her toddler, to discover a burglary in progress. Defendant had entered by breaking a 

window in the toddler’s bedroom. When Rubio arrived home, the Impala was parked in 

her driveway. After Rubio entered the house, her mother saw defendant jump over the 

fence and out of the yard, get in the Impala, and drive away. When Rubio reported the 

crime to police, she gave them the correct license plate number from the Impala. Rubio’s 

expired driver’s license, which had been stolen from her toddler’s bedroom, was 

ultimately recovered from defendant’s storage locker. 

2. Burglary of Chantal Williams – Count 21, Burglary and Count 13, Receiving 

Stolen Property

On March 2, 2013, at 11:30 p.m., Chantal Williams returned home to see 

defendant leaving her house, carrying one of her television sets out the front door. He 

had gained entry by breaking the security lock on her back door. When defendant saw 
3

Williams, he jumped into his car and drove off. Williams tried to follow and read the 

license plate number, but she could only get one digit. A receipt with Williams’s name 

on it, which had been taken from her house, was eventually recovered from the Impala. 

A gift card given to her by a student, with the student’s name on it, was also recovered 

from the Impala. 

3. Burglary of Collin Nielsen – Count 3, Burglary

On March 9, 2013, at 11:00 a.m., Collin Nielsen returned home to discover a 

burglary in progress. The Impala was parked in his carport. Nielsen saw defendant exit 

the house and enter the Impala. Nielsen moved his own car, to leave defendant room, 

and defendant drove the Impala past Nielsen, where he was able to see defendant. 

Defendant had gained entry to the house by ripping and removing a window screen, and 

going through the window. Nielsen reported the crime to police, and accurately gave 

them the license plate number from the Impala. Nielsen identified defendant in court at 

the preliminary hearing and at trial. None of the electronics stolen from Nielsen’s home 

was recovered.

4. Burglary of Jonathan Bruce – Count 7, Burglary

On March 12, 2013, defendant burglarized Jonathan Bruce’s apartment while 

Bruce was at work. Defendant pulled a couch under a high window on the side of the 

building, and broke the window. Before doing so, defendant knocked on one of Bruce’s 

neighbor’s doors. When the neighbor answered, defendant asked if “Eric” lived there; 

there had never been an Eric there. The neighbor identified defendant from a 

photographic lineup, although she was not positive. Items stolen from Bruce’s apartment 

were recovered from both the Impala and defendant’s storage locker. 

5. Burglary of Reynato Lucas – Count 8, Burglary with Person Present

After 7:00 a.m. on March 25, 2013, Reynato Lucas returned to his house after 

going for a morning run. He was cooling down alone in his room, although two other 

residents were also in the house. After approximately 30 minutes, he heard a loud noise. 

He went to another room to investigate and discovered defendant inside his home, 

looking out the window. Defendant had gained entry by removing a window screen and 
4

opening a window. Lucas said, “What the fuck are you doing?” and went back to his 

bedroom to get his phone. Defendant said, “Oh shit” and fled. Lucas chased defendant 

while simultaneously calling 911 on his cell phone. He saw the Impala drive off, and 

correctly gave the 911 dispatcher the Impala’s license plate number.1 Lucas interrupted 

the burglary before defendant could take anything.

6. Burglary of Thelonia Brown/Carjack of Sylvia Fairmon – Count 10, Burglary and 

Count 11, Carjacking

On March 25, 2013, a few hours after the Lucas burglary, defendant burglarized 

the residence of Sylvia Fairmon’s daughter, where Fairmon’s mother, Thelonia Brown, 

had been staying. After 11:00 a.m., Fairmon drove her mother to the house. Fairmon’s 

daughter lived in a triplex; the triplex had a narrow driveway in the back, which widened 

out to a carport with space for multiple cars. When Fairmon drove past her daughter’s 

door, she saw that it had been pried open. She drove her van to the end of the driveway, 

where she saw defendant, who was carrying two bags, get in the black Impala in which a 

woman was already sitting. Fairmon stopped her van at the end of the driveway, right 

before it widens, blocking defendant’s ability to leave. Fairmon and her mother exited 

the van; Fairmon told defendant she was calling the police. 

Defendant ran up to Fairmon; Fairmon told her mother to run into the house. 

Defendant pinned Fairmon against the wall, put a gun to her head and said, “Bitch give 

me the keys or I will . . . fucking kill you.” Fairmon gave him the keys. Defendant got 

into Fairmon’s van and drove it a short distance, crashing it into two other cars at the 

back of the carport. He then re-entered the Impala and drove away. 

 

1 The Impala’s license plate number was 6YMU412. The 911 transcript indicates 

Lucas gave the number as “Yankee [unintelligible] Uniform 412.” When the recording 

of the 911 tape was played at trial, counsel asked Lucas if he heard himself give the 

number as “6JE Mike Uniform 412.” It appears that the reporter’s transcript erroneously 

states “JE” for “Yankee,” which the 911 transcript properly indicated. Indeed, it is clear 

that Lucas correctly identified the license plate number of the Impala, because the police 

ultimately identified the car as owned by Hertz and rented to Davis based on Lucas’s 

report. 
5

None of the items stolen from the home of Fairmon’s daughter was ever 

recovered. However, Fairmon described defendant’s distinctive tattoo to police, and 

identified him from a photographic lineup, and at trial. 

7. Burglary of Jacqueline Griffin, Jessica Griffin, and Walter Beatty – Count 18, 

Burglary; Count 16, Receiving Stolen Property; Count 19, Burglary; and Count

20, Burglary

Jacqueline Griffin lives next door to her cousin, Walter Beatty. Jacqueline’s 

daughter Jessica lives behind Beatty. Defendant burglarized all three of their homes, a 

few hours after the Fairmon carjacking, on March 25, 2013. Each of the three homes was 

broken into and ransacked; items were missing from all three. At 2:45 p.m., when 

Jacqueline Griffin came home and discovered the burglary at her house, she saw the 

Impala in Beatty’s driveway with the trunk open. She called police and saw the vehicle 

leave. 

A W-2 form stolen from Jessica Griffin’s house was recovered from the Impala. 

A coin purse stolen from Jacqueline Griffin’s house was also found in the car. 

8. Defendant’s Arrest and the Investigation

Defendant was arrested on March 30, 2013, but not for any of these crimes. He 

had been the passenger in a Mazda driven by his girlfriend, Davis, which was parked in a 

fire lane. Defendant had accidentally shot himself in the leg, with a gun he had in the car. 

When police arrived, he was standing outside the car, putting bags in the trunk. Los 

Angeles Police Department (LAPD) patrol officers from the Newton station investigated 

the stopped vehicle, and arrested defendant for being a felon in possession of a firearm. 

The girlfriend was released. Defendant was ultimately convicted of being a felon in 

possession of a firearm, and transportation of marijuana. 

On April 1, 2013, Davis brought the Impala to the Newton station, and opened the 

trunk for officers to look inside. There, police saw the rental records for the storage unit 

defendant had rented on March 26. 

What the LAPD officers had not known was that Gardena Police officers had been 

looking for the Impala ever since victim Lucas called in its license plate number. The 
6

Gardena officers obtained a warrant to access the car’s location via the OnStar system. 

Using OnStar’s data, they located the Impala in front of defendant’s residence. At that 

time, they planted their own tracking device on the car. On March 27, 2013, they located 

the Impala at a casino, and conducted surveillance on it. Officers saw defendant go back 

and forth from the casino to the driver’s seat of the car. A woman, who was not Davis, 

was with him at this time. 

On either April 1 or April 2, Gardena officers checked the tracker to determine the 

Impala’s location and discovered it was at LAPD’s Newton division. Gardena officers 

requested LAPD officers to hold the car for them, and it was at this point that LAPD 

learned that the car had been involved in multiple burglaries. Police then searched the 

Impala and the storage unit, finding a great deal of stolen property.

On April 3, 2013, defendant made a telephone call to Davis while in custody; the 

call was recorded. During the call defendant asked Davis to get his “stuff out of the car” 

which “ain’t just some ordinary stuff.” If that was not possible, he said, he wanted Davis 

to ask his mother to get his stuff, because “she done it before. She had that situation with 

her. Like, she didn’t—been involved in that situation with herself, so she knows exactly 

what to do.” Additionally, he asked Davis if she had gone inside the storage unit yet. 

When Davis asked what was in there, defendant replied, “I already told you.” When she 

said she did not remember, defendant started to “get a funny vibe” that “the feds” were 

“working all around” him. He was frustrated that Davis “want[ed] [him] to itemize, 

instead of [her] going to go look.” Finally, defendant told her he needed her to “go get 

that stuff, so [he could] make a better decision.” When Davis said it had nothing to do 

with his decision, defendant responded, “It does, cause that compromises me.” 

9. Stolen Property from Other Burglaries – Counts 12, 14 and 15, Receiving Stolen 

Property

When police searched the Impala and the storage locker, they found stolen goods

from three other burglaries. Only the receiving stolen property count relating to victim 

Haseok Lim is at issue on appeal. The issue is the value of the property.
7

Lim’s home had been burglarized in December 2012, and a great deal of property 

had been taken, including electronics and jewelry. In April 2013, he was contacted by 

Gardena police officers, who had recovered some of Lim’s property from defendant’s 

storage locker. He identified his stolen property by serial number. The recovered 

property included a 37-inch Samsung LCD, 47-inch LG3 DVD,2 a 24-inch LG monitor, a 

3D 24-inch Playstation 3 monitor, Playstation 36 (120 GB); and a Nintendo Wii U and 

the controller. When asked the value of the recovered items, Lim testified it was “more 

than like $2,500.” He did learn, however, that the screens on two of the TVs were 

cracked; he took them to the recycling center. 

10. Self-Representation, Charges, and Discovery

Prior to his preliminary hearing, defendant waived his right to counsel and 

represented himself. Subsequent to his preliminary hearing he was charged with the 

above-identified counts.

3

 As to the carjacking of Fairmon, it was further alleged that 

defendant personally used a firearm within the meaning of Penal Code section 12022.53, 

subdivision (b). Three prior prison terms were also alleged, within the meaning of Penal 

Code section 667.5, subdivision (b).

Defendant continued to represent himself as the case proceeded to trial. He filed 

numerous motions and discovery requests. Relevant for our purposes are defendant’s 

attempts to obtain discovery. Defendant filed multiple informal requests for discovery 

and, on the eve of trial, a motion to compel the discovery he believed he had not yet 

received. He sought to compel a long list of discovery items; three are at issue here: 

(1) GPS tracking data obtained on the Impala by the police from OnStar; (2) GPS 

tracking data obtained on the Impala by the police with their own tracking device; and 

(3) phone records, including location of, and text messages to and from, Davis’s cell 

 

2 This is somewhat ambiguous. A DVD or DVD player is not measured at 47-

inches. A photograph of Lim with the recovered property shows that this is a television. 

3 There was an additional count of burglary which was dismissed when the victim 

did not appear to testify at trial. 
8

phone, purportedly obtained by the police from Davis’s carrier. All of this information 

was intended to support defendant’s theory that Davis had set him up by bringing the 

Impala to the police with the storage locker documentation in the trunk. Defendant 

wanted to establish that, after defendant’s arrest, the Impala had been driven to the home 

of the real burglar, who was in cahoots with Davis and had then transferred the loot to the 

storage facility.

At a hearing on defendant’s motion to compel, the prosecutor represented that 

there was no additional OnStar or tracking information, but the prosecution would 

confirm with the officers.4 The court directed the prosecution to give defendant the 

OnStar records.5 The prosecution was directed to turn over the police tracking data, if it 

existed. As to the cell phone data, the prosecutor agreed that the police had obtained a 

warrant to obtain Davis’s cell phone data, but represented that they never executed the 

warrant. The court directed the prosecutor to confirm this with the officers. Another 

hearing was scheduled which would resolve these outstanding issues.

However, before that hearing could be held, defendant’s self-represented status 

was revoked for misconduct. The public defender was appointed to represent defendant; 

ultimately, that office declared a conflict and the alternate public defender was appointed. 

The alternate public defender also had a conflict, and defendant was appointed counsel 

from the bar panel. The case was also transferred to several different courtrooms. The 

hearing to follow up on defendant’s in discovery motion was never held. However, the 

record indicates that, during this time, the prosecutor continued to informally provide 

discovery to defense counsel. 

 

4

It appears that defendant assumes that OnStar and the police GPS tracking device 

were always collecting data; that is, that they generated a list of all locations the vehicle 

visited, which could then be downloaded and provided to defendant. The prosecution’s 

argument implied that data from OnStar and the police tracker only existed during the 

times when those devices were specifically queried regarding the vehicle’s location.

5 There had been a subpoena duces tecum to Hertz; at a previous hearing, the court 

directed the clerk to give the Hertz data to both parties. It is not clear if the Hertz data 

and the OnStar data were the same thing. 
9

11. Trial and Verdict

The case proceeded to jury trial. Defendant testified in his defense, taking the 

position that he committed none of the charged offenses. He admitted renting the storage 

unit, but represented that he had rented it for Davis, who wanted the unit, but had been

unable to rent it herself, because she did not have her identification with her. He stated 

the only thing he put in the storage unit was marijuana. He denied ever driving, or even 

being in, the Impala.

The jury found defendant guilty as charged. Defendant admitted the three prior 

prison terms.

12. Posttrial Marsden Motion

At the sentencing hearing, defendant requested to be heard on a motion under 

People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to appoint new counsel on the basis 

that his current counsel was providing ineffective assistance. The court heard the motion, 

giving the defendant an opportunity to set forth counsel’s perceived deficiencies in the 

absence of the prosecutor. Defendant itemized a litany of over 15 faults, ranging from a 

(nonspecific) failure to object to objectionable evidence to a failure to assist with 

defendant’s demeanor while testifying. Among these issues were a failure to obtain the 

cell phone records and GPS tracking data on the Impala. 

When asked for his response, defense counsel did not know where to begin, as 

defendant had raised so many issues. The court walked counsel through defendant’s 

concerns, and he addressed each one individually, explaining his tactical reasons behind 

many challenged decisions. As to the alleged failure to obtain Davis’s cell phone 

records, which the police had (according to defendant) obtained via warrant, counsel 

replied, “I am not aware of that.” As to the tracking device, he stated, “I don’t know if 

any information was obtained from a tracking device.”6 

 

6 Counsel also stated, “[I]t was my recollection that the car was impounded before 

they had a chance to put the device on.” This was mistaken; the officers clearly testified 

that they placed the device on the Impala at defendant’s residence and used the tracking 

data to locate it at the casino. 
10

After hearing all of counsel’s responses, the court concluded defendant’s motion 

was simply a case of disappointment with a verdict which was reached in the face of 

overwhelming evidence. The court acknowledged that defendant believed counsel did 

not have his best interest at heart – by not pursuing the arguments defendant would have 

pursued – but concluded that none of that had an effect on the case. The court denied the 

Marsden motion and proceeded to sentencing.

13. Sentencing

Defendant had been convicted of one count of carjacking with a firearm 

enhancement, nine counts of burglary, and five counts of receiving stolen property. The 

court reduced four of the receiving offenses—all except for the count involving victim 

Lim—to misdemeanors, pursuant to Proposition 47. Sentences on the two that arose 

from burglaries of which defendant was also convicted were stayed pursuant to Penal 

Code section 654.

Defendant’s sentence was calculated as follows:

- For carjacking, the high term of 9 years, plus 10 years for the firearm 

enhancement, for a total of 19 years;

- For each of the nine burglary counts, a consecutive sentence of 1 year, 4 months 

(one-third the midterm) for a total of 12 additional years;

- For the Lim receiving stolen property count, a consecutive term of 8 months 

(one-third the midterm); 

- For the two misdemeanor receiving stolen property counts, a consecutive year in 

jail, for a total of two more years (to be served in any institution); and

- For the three prior prison terms, an additional year each, for a total of three years. 

Defendant’s total sentence was 36 years, 8 months. 

The court awarded defendant 1716 days of presentence credit, consisting of 858 

actual days and 858 conduct credits. 

The court also ordered defendant to stay away from victim Fairmon and the 

location of the offenses, stating as its only rationale, “I don’t know—I am going to 
11

include this, that defendant shall be required to stay away from Ms. Fairmon.” The 

prosecutor agreed.

Defendant filed a timely notice of appeal. On appeal, defendant raises five 

challenges: (1) instructional error on burglary; (2) failure to reduce the Lim receiving 

stolen property offense to a misdemeanor; (3) abuse of discretion in denying the 

Marsden motion; (4) improper sentencing on three prior prison terms, when he had 

actually served only two; and (5) no authority for the stay-away order. We have asked 

the parties to also discuss apparent errors in the abstract of judgment and the calculation 

of defendant’s presentence credits.

DISCUSSION

1. Instructional Error

Residential burglary consists of the entry into any home with the intent to commit 

theft therein. (Pen. Code, § 459.) CALCRIM No. 1700 is a form jury instruction 

defining the elements of burglary as: (1) entry; and (2) the intent to commit theft. 

CALCRIM No. 1700 indicates that there will be a separate instruction defining theft 

given. CALCRIM No. 1800 is the form jury instruction defining the elements of theft as: 

(1) taking possession of property owned by another; (2) without consent; (3) with the 

intent to permanently deprive; and (4) that the property was moved a distance and kept 

for some time.

In this case, the court instructed the jury in the language of both CALCRIM No. 

1700 and CALCRIM No. 1800. However, the court erroneously stated that both

instructions set forth the elements of burglary, rather than stating that CALCRIM No. 

1700 set forth the elements of burglary and CALCRIM No. 1800 set forth the elements of 

the target offense, theft. This mistake was in both the written and oral instructions, and 

went unnoticed at trial. Defendant contends that there is no way of knowing which 

definition of burglary the jury actually used, and argues that it is reasonably likely that at 

least one juror voted to convict defendant of burglary based on a finding that defendant 

had committed theft only.
12

While it is apparent that the court erred, it is also apparent that any error was 

harmless under even the strictest standard of review. When the court fails to instruct on 

an element of the offense, we must reverse unless, after a thorough examination of the 

entire record, we cannot conclude beyond a reasonable doubt that the verdict would have 

been the same absent the error. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1166.) 

Three factors lead us to the conclusion the error was harmless beyond a reasonable doubt 

in this case.

First, there was no dispute at trial that the victims suffered burglaries as opposed 

to mere thefts. Defendant did not suggest that he had been, for example, invited to his 

victims’ homes and taken their items once inside as a guest. The homes were all broken 

into. In other words, if defendant committed theft from these victims, he also committed 

burglary. Defendant argues that, under the court’s mistaken version of CALCRIM No. 

1800, the jury could have convicted him of burglary based only on its finding that 

defendant had possession of the stolen goods. But the court did not mistakenly instruct 

that burglary could be satisfied by the elements of receiving stolen property; it instructed 

that burglary could be satisfied by the elements of theft—which required taking 

possession of the property owned by another and moving it, an act necessarily committed 

in this case by the burglar.

Second, the prosecutor’s opening argument to the jury clearly stated that the 

elements of burglary are entry and intent to commit theft. Defendant argues that this was 

undermined by the prosecutor’s statement in closing argument that we know defendant 

committed the burglaries “because property from every single one of these victims was 

found inside the car.” Defendant takes the prosecutor’s statement out of context. 

Defense counsel had argued that defendant had not committed any of the offenses. The 

prosecutor responded that, in addition to the direct evidence of identification, there was 

also a great deal of circumstantial evidence - including that the stolen property was found 

in the car and storage locker. The statement that we know defendant committed the 

offenses because he had the stolen property was simply an argument that his possession 
13

of the stolen property established his identity as the perpetrator, not that his possession of 

stolen property was sufficient to establish the elements of burglary.

Third, the jury convicted defendant of the Lucas burglary. Lucas had interrupted 

defendant before he could take anything. Thus, there was no theft, only entry with an 

intent to commit theft. That the jury convicted defendant of the Lucas burglary 

establishes beyond doubt that the jury understood entry with intent to commit theft 

constituted burglary, and did not believe that burglary was defined by the elements of 

theft.

2. Failure to Reduce the Lim Receiving Stolen Property to a Misdemeanor

Proposition 47, which was effective prior to defendant’s trial, modified Penal 

Code section 496 to provide that receiving stolen property is a misdemeanor if the value 

of the property does not exceed $950. The jury was not asked to determine whether the 

value of the property taken in any the receiving stolen property offenses exceeded $950, 

and the court reduced all but one of them (the Lim offense) to misdemeanors at 

sentencing.

Assuming that the court erred in failing to present to the jury the element of value, 

any error is again harmless beyond a reasonable doubt. The sole evidence of value was 

the itemization of the stolen property found in defendant’s storage locker, and Lim’s 

statement that its value was “more than like $2,500.” On appeal, defendant speculates 

that the jury might have thought the value of the two cracked televisions must be 

deducted from this amount, and that Lim might have been testifying to the value of all of 

the recovered items when new, rather than in their used condition. But defendant’s 

speculation is just that; the only evidence is that the value of Lim’s recovered items 

exceeded $2,500. The owner of property may give an opinion as to its value. (CALJIC 

No. 14.27.) There is simply no evidence to the contrary.

Defendant’s inference that the value of the cracked televisions should be 

subtracted from Lim’s estimate is based on his suggestion (made without legal authority) 

that the property must be valued at the time it was received by the defendant and his 

inference (made without factual support) that the televisions were broken when they 
14

came into defendant’s possession. Yet even if defendant were not the one who originally 

obtained the televisions from Lim’s house, it is not reasonable to assume a burglar of his 

experience would have gone to the trouble of acquiring the televisions and moving them 

into his recently-leased storage facility if they were worthless at that time. The only 

reasonable inference is that the televisions were damaged after they came into 

defendant’s possession.

3. Marsden Motion

“Criminal defendants are entitled to the assistance of counsel in their defense. 

[Citations.] A court must appoint counsel to represent an indigent defendant. [Citation.] 

A defendant also has a right to seek substitute counsel under Marsden if the defendant 

can show that continued representation by present counsel would substantially impair or 

deny his or her right to effective assistance of counsel. [Citations.] The trial court must 

appoint new counsel when failure to do so would substantially impair the defendant’s 

right to assistance of counsel. [Citation.] [¶] During a Marsden hearing, the court must 

allow the defendant an opportunity to explain the grounds for the motion and to relate 

specific instances of his or her attorney’s inadequate performance. [Citation.] The trial 

court must afford the defendant every opportunity to express the specific reasons for 

dissatisfaction with counsel. [Citations.] Thus, a trial court abuses its discretion when it 

refuses to listen to the defendant’s reasons for requesting substitute counsel. [Citations.] 

[¶] The right to effective assistance of counsel continues throughout proceedings in the 

trial court and on appeal. [Citations.] As here, it may arise after a verdict and before 

judgment is entered in the trial court. [Citations.] When new counsel is appointed at that 

stage of the proceedings, new counsel may, if counsel believes it is appropriate, move for 

a new trial on the grounds former counsel was ineffective. [Citations.]” (People v. 

Knight (2015) 239 Cal.App.4th 1, 5-6.)

Defendant argues the trial court abused its discretion in denying his Marsden

motion given that counsel had no valid explanation for not obtaining Davis’s cell phone 

records and the GPS tracking data on the Impala, despite defendant’s diligent attempts to 

obtain discovery of this information when he had represented himself.
15

We see no abuse of discretion in the court’s acceptance of counsel’s explanation

that he was unaware of such data. When defendant had initially moved to compel 

disclosure of this information, the prosecutor represented that the police had never 

executed the search warrant on Davis’s cell phone provider, and there was no further 

GPS tracking data to turn over. While the prosecutor was directed to discuss this with the 

officers and to turn over any existing data, there is no indication that the prosecutor did 

not, in fact, confirm with the officers that no such data existed. As such, defense counsel 

was rightly unaware of any such data and there is nothing in the record that suggests such 

information in fact existed. Defendant’s charge of ineffective assistance relies on the 

implicit assumption that the prosecutor consulted with the officers, found that the data 

existed, and, in complete derogation of the court’s order, declined to turn it over to 

defense counsel. That is an inference we are unwilling to make.

Moreover, we fail to see where defense counsel’s choice to not continue to pursue 

defendant’s strategy when he was self-represented constitutes ineffective assistance.7 

Defendant sought the cell phone and GPS tracking data in the hopes of establishing that, 

while he was in jail, Davis drove the Impala to another location and then to the storage 

facility, prior to bringing the car to police. Yet even if the data showed this, it would not 

raise a reasonable doubt in the face of Fairmon’s unimpeachable identification of 

defendant, and defendant’s jail phone calls to Davis, in which he begged her to get his 

“stuff” out of the car and the storage unit—indicating he was well aware of the 

incriminating evidence in both locations.

In his Marsden motion, defendant also complained of a sleeping juror and the fact 

that some jurors had accidentally seen him shackled and in jail attire; he believed counsel 

 

7 Additionally, there is an element of untimeliness to defendant’s assertion of a 

failure to pursue pretrial discovery in a post-trial Marsden motion. The hearing on the 

motion to compel the defendant made while representing himself was held on August 12, 

2014. His self-representation status was revoked on August 20, 2014. Trial counsel was 

appointed on September 11, 2014. Jury selection began on June 22, 2015. If defendant 

was concerned with the quality of counsel’s pretrial preparation, he had some nine 

months in which to raise the issue with the trial court.
16

had rendered ineffective assistance by failing to object to these things. On appeal, he 

argues that the court erred in not asking defense counsel to explain his failure to object. 

But defendant’s motion itself indicated that the deputy woke the sleeping juror, and 

counsel’s decision to not call out the juror (assuming he was even aware the juror had 

been sleeping) is a tactical one. As to a juror seeing defendant shackled in jail garb, the 

issue had, in fact, been addressed by the trial court. A mid-trial minute order states: “In 

chambers: Court and both counsel and juror in seat (11) are present to address the said 

juror seeing the defendant in his jail clothing being wheeled through the door leading to 

the back hallway of the courtroom while he was waiting in an area of the public hallway. 

After the court inquires, the juror says seeing the defendant in custody will have no 

bearing on deciding the case and he has not told any of the jurors what he saw. The court 

admonishes the said juror not to say anything to the other jurors about what he saw.” 

Moreover, defendant testified that he was continuously in custody from the time of his 

arrest on March 30, 2013; this was part of his defense that he could not have gone to the 

storage locker after that date. Thus, the juror seeing him in jail garb could not possibly 

have been prejudicial. 

In any event, we agree with the trial court that defendant’s Marsden motion was 

nothing more than a defendant disappointed with the result trying to remove the attorney 

who had failed to get him an acquittal. Defendant failed to establish that continued 

representation by his counsel would deny him effective assistance, or any conflict except 

for a disagreement over tactics. Defendant did not expressly state he was pursuing the 

Marsden motion to obtain new counsel for sentencing; rather he sought new counsel to 

file a new trial motion based on ineffective assistance of his then-current counsel. The 

trial court, in denying the Marsden motion, noted that the evidence against defendant was 

“[i]nsurmountable.” While defendant points to certain things he would have done 

differently had he remained in control of his defense, we fail to see how any of counsel’s 

perceived shortcomings had any effect on defendant’s case, in light of the overwhelming 

evidence of his guilt.
17

4. Prior Prison Term

Under Penal Code section 667.5, subdivision (b), a defendant’s sentence is 

enhanced by one year for each “prior separate prison term” under certain circumstances. 

Here, defendant was charged with, and admitted, three prior prison terms. However, it 

appears that although defendant suffered three prior convictions, he served only two 

separate prison terms in connection with them. Defendant contends one of the prior 

prison term enhancements must therefore be stricken. The prosecution concedes the 

error. We agree, and will modify defendant’s sentence accordingly.

5. Stay-Away Order

At sentencing, the trial court, on its own motion, and without citation to any 

authority, imposed an order that defendant stay at least 100 yards away from victim 

Fairmon and the location “of the incidents.” There does not appear to have been any time 

limit to the order. Defendant contends the order must be reversed as being without legal 

basis. We agree.

Under Penal Code section 136.2, a trial court may order a defendant to stay away 

from a crime victim.8 Such an order, however, is valid only during the pendency of the 

action. (People v. Ponce (2009) 173 Cal.App.4th 378, 382 (Ponce).) There are other 

statutory provisions for long-term protective orders, but they set forth “numerous 

procedural protections for persons subject to them.” (Id. at p. 383.) There is no 

suggestion that the restraining order in this case complied with any such requirements. 

An unauthorized restraining order with no statutory basis, which was not imposed as a 

condition of probation, must be reversed. (Ibid.) 

The prosecution suggests that, independent of statutory authority, a trial court has 

inherent authority to issue appropriate protective orders. The same argument was made 

and rejected, in large part, in Ponce. The Ponce court warned, “An existing body of 

statutory law regulates restraining orders. ‘ “[I]nherent powers should never be exercised 

in such a manner as to nullify existing legislation . . . .” ’ [Citation.] Where the 

 

8 The order is not issued as a matter of course, but requires good cause. (Pen. Code, 

§ 136.2, subd. (a)(1).)
18

Legislature authorizes a specific variety of available procedures, the courts should use 

them and should normally refrain from exercising their inherent powers to invent 

alternatives. [Citation.] [¶] Moreover, even where a court has inherent authority over an 

area where the Legislature has not acted, this does not authorize its issuing orders against 

defendants by fiat or without any valid showing to justify the need for the order. 

[Citation.]” (Id. at p. 384.)

Ponce allowed that, in unique and compelling circumstances, such as where the 

defendant threatened witnesses after having been charged, a court may be justified in 

exercising its inherent power to enter a protective order. (Ponce, supra, 173 Cal.App.4th 

at pp. 384-385.) There was no such showing in this case. Conceding the absence of a 

valid showing on the record, the prosecutor speculates that “there might have been 

discussions off the record” justifying imposition of the order, and therefore asks this court 

to remand so the parties could make a record as to “the legal and factual basis for the 

order.” First, we may not fashion or approve relief on matters outside the record. 

Second, if anything, the trial court’s statement imposing the order—“I don’t know—I am 

going to include this, that defendant shall be required to stay away from Ms. Fairmon” 

implies the court acted sua sponte and without certainty as to whether the order was 

within the court’s powers. 

Respondent points to two cases, Townsel v. Superior Court (1999) 20 Cal.4th 

1084, 1094-1095, and People v. Clayburg (2012) 211 Cal.App.4th 86, 91-92, in support 

of the lawfulness of the stay-away order. The former deals with orders to not contact

jurors. The latter deals with stay-away orders as part of a defendant’s conviction of 

stalking under Penal Code section 656.9. Subdivision (k) of that statute expressly calls 

for stay-away orders. Neither case has application here.

The Attorney General suggests that we remand the matter to the trial court for 

further consideration of a stay-away order. We see no basis for a remand to allow the 

prosecution an opportunity to justify an order it never sought, and for which the record 

discloses no legal or factual basis. 
19

6. Designation of Violent Felonies

We asked the parties to discuss whether the abstract must be modified to indicate 

three of defendant’s offenses were violent felonies. In two of the nine burglaries of 

which defendant was convicted, it was pleaded and proven that another person, not an 

accomplice, was present in the residence at the time of the burglary. This finding renders 

those burglaries violent felonies. (Pen. Code, § 667.5, subd. (c)(21).) Additionally, the 

carjacking offense is a violent felony, both in and of itself and due to the Penal Code 

section 12022.53 enhancement. (Pen. Code, § 667.5, subds. (c)(17), (22).) As such, the 

abstract must be modified to identify these three offenses as violent felonies.

7. Presentence Credit

We also asked the parties to address whether defendant’s presentence conduct 

credits must be reduced, due to his conviction of violent felonies. Penal Code section 

2933.1, subdivision (c) provides that the maximum conduct credits to be awarded for a 

person convicted of a violent felony is 15 percent. As defendant was convicted of three 

violent felonies, this limitation applies. Defendant had 858 days of actual credit and was 

awarded 858 days of conduct credits. The conduct credits must be reduced to 128 days.

DISPOSITION

The judgment is modified to: (1) strike the imposition of one of the three Penal 

Code section 667.5, subdivision (b) prior prison term enhancements; (2) strike the 

imposition of the stay-away order; and (3) reduce defendant’s presentence conduct 

credits from 858 days to 128 days. Additionally, the superior court is directed to modify 

the abstract of judgment to reflect that counts 1, 8, and 11 are violent felonies. The 

superior court shall forward a copy of the amended abstract to the Department of 

Corrections. As modified, the judgment is affirmed.

RUBIN, J.

WE CONCUR:

BIGELOW, P. J. GRIMES, J.