Filed 5/11/22 P. v. Quintero CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL RODRIGUEZ QUINTERO,

Defendant and Appellant.

 D077996

 (Super. Ct. No. SCS303737)

APPEAL from a judgment of the Superior Court of San Diego County, 

Francis Devaney, Michael T. Smyth, and Timothy Walsh, Judges. Affirmed 

as modified.

John P. Dwyer, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. 

Sevidal and James M. Toohey, Deputy Attorneys General for Plaintiff and 

Respondent. 
2

INTRODUCTION

A jury convicted Daniel Rodriguez Quintero of first degree murder 

with the special circumstances of torture and kidnapping for ransom. Early 

in the case, Quintero asked to represent himself. The trial court granted his 

Faretta1 motion and appointed the Office of Assigned Counsel (OAC) “to 

provide a legal runner and reasonable ancillary services.” Quintero later

raised concerns about the efficiency of OAC and, on two separate occasions,

requested the appointment of “co-counsel” other than OAC or the public 

defender. The trial court denied both requests and, approximately three 

weeks later, Quintero relinquished his pro per status. He was represented by 

a public defender at trial.

On appeal, Quintero contends the trial court failed to exercise its 

discretion to appoint “advisory counsel”2 and, instead, summarily denied his 

request as a matter of practice. He further contends the error is reversible 

per se because it would have been an abuse of discretion to deny the request 

had the trial court exercised its discretion. The Attorney General contends 

Quintero forfeited this claim by relinquishing his pro per status, the trial 

court did not fail to exercise its discretion, and, even if it did, the error was 

not prejudicial. 

1 Faretta v. California (1975) 422 U.S. 806 (Faretta).

2 Quintero asked the trial court to appoint “co-counsel,” but on appeal he 

asserts the trial court erred by failing to appoint “advisory counsel.” In 

response to Quintero’s request, the trial court stated it would not appoint cocounsel or advisory counsel. Except when referencing the exact language 

Quintero used in the trial court, we refer to his request as a request for 

advisory counsel. 
3

We reach the merits of Quintero’s claim, but conclude the trial court 

did not fail to exercise its discretion and, even assuming so, any error does 

not require reversal. Quintero also asks us to vacate any unpaid portion of 

the $154 criminal justice administration fee imposed under the recently 

repealed Government Code section 29550.1. We shall modify the judgment to 

vacate any unpaid portion of that fee as of July 1, 2021, and affirm the 

judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Trial

A. Prosecution’s Case 

Jesus Q. co-owned a tattoo shop and ran a T-shirt business with his 

brother, Jose Q., from the bottom floor of the shop.3 The brothers also sold 

drugs and Jesus was known to use cocaine. 

At about 8:30 p.m. on December 16, 2017, Jose saw Jesus at the tattoo 

shop when he went to unload some shirts at his T-shirt shop. Jesus helped 

Jose unload the shirts and Jose left about half an hour later. Jesus was alone 

when Jose left, but he later texted Jose and told him he was drinking with a 

friend at the tattoo shop. The friend left the shop at approximately 3:00 in 

the morning on December 17.

Jesus called Jose around the same time to tell him Quintero was 

outside the tattoo shop. Jose told Jesus to go inside and lock the door. Jesus 

told Jose he would call him back. When Jesus failed to call, Jose tried to call 

him. Jesus answered and Jose could hear people arguing. Jose asked to 

3 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy 

in opinions,” we refer to the victim and witnesses by their first name and last 

initial, and then by their first names only. 
4

speak to Quintero and asked him, “What’s going on?” Quintero said: “Well, 

somebody owes me money. Somebody owes me a million dollars.” Quintero 

then explained, “Ramon owes me money,” that he could not get ahold of 

Ramon, and thought Jose or Jesus could because they were “closer” and “get 

along” better with Ramon.4 Quintero hung up the phone.

Jose tried calling his brother back, but no one answered. Jose then

reached Quintero through a Facebook call. When Quintero answered, Jose 

heard talking and “some sort of scuffle” in the background. He heard Jesus 

say: “You guys already hit me. You know, you guys already did what you 

did. You know, you guys already hit me and, you know, that’s it. You know, 

let’s just call that it.” Jose believed his brother was “begging for his life.” 

Quintero then told Jose, “[i]f you hang [up] the phone, you call the cops, I’m 

going to kill your brother.” Jose heard the voice of at least one other person 

talking in the background and, at one point, Quintero told Jose, in a quieter, 

softer voice, “because they’re trying to kill me and my family.” 

Quintero continued to demand money but changed the amount from a 

million dollars to $5,000. When Jose told him he had $2,000 at home,

Quintero responded: “So that’s what your brother’s worth? $2,000? You 

think this the first time I do this?” Jose said he would need to make some 

calls to get more money, and Quintero agreed to let him hang up the phone to 

call Ramon. When Jose called Ramon, Ramon told him that he did not owe 

Quintero any money. Ramon refused to go to the tattoo shop but agreed to 

call Quintero. Quintero then told Ramon to stay out of it because “the 

problem was not with [him].”

4 This was a reference to a mutual acquaintance, Ramon G.
5

Jose began calling others, including Jesus’s former girlfriend, Christina 

R., who agreed to call the police. Meanwhile, Jose drove to the tattoo shop. 

He arrived at about 6:30 a.m., parked across the street, and waited to see if 

there was any movement. He did not see any movement, so he left to meet 

Christina at a restaurant down the street from the tattoo shop and gave her

the building key to give to the police.

At around noon, the police entered the tattoo shop in tactical gear. 

They found blood on the wall, tile, and stairs in the entryway. Jesus’s body 

was lying on the floor at the top of the stairs. He was naked from the waist

down, his legs were wrapped with an electrical cord, and his ankles were

wrapped tightly with shoelaces. The police did not locate any other 

individuals inside the building. 

The medical examiner testified Jesus died from “blunt head and neck 

trauma,” and possible “mechanisms” of death included blunt force to the head 

and neck, and strangulation. Jesus had extensive injuries throughout his 

body, including blunt force trauma to the head, neck (including fractures to 

the hyoid bone), torso, and both his upper and lower extremities. He had a 

small skull base fracture, bruising and bleeding around and on the brain. 

His nose was broken, and he had bruising and lacerations near his eyes. The 

manner of death was homicide.

Forensic evidence established Quintero’s presence at the scene of the 

murder. Quintero’s fingerprints were on a beer bottle and tequila bottle in 

the tattoo shop. His fingerprints on the tequila bottle were in blood and DNA 

testing established it was Jesus’s blood. There were shoe impressions with a 

distinctive tread pattern left on the floor of the tattoo shop, which were

forensically matched to Quintero’s sandals later seized during a search of his

apartment. Cell phone tower data placed Quintero’s phone in the vicinity of 
6

the tattoo shop at the time of the murder; the phone was used for two voice 

calls, at approximately 2:35 a.m. and 3:24 a.m. The police collected 

fingerprints belonging to several other individuals, but did not determine 

who else, if anyone, was at the shop with Quintero at the time of the murder. 

Quintero was detained on December 20, 2017, while crossing the border 

from Mexico into the United States. A detective asked Quintero if he had any 

knowledge about what happened at the tattoo shop. He initially denied 

having any information, but later said it involved the D.E.A. (Drug 

Enforcement Agency). Quintero was released but the police seized his phone 

and impounded his car. During a warrant search executed at Quintero’s 

apartment later that week, police collected the sandals Quintero wore when 

he was detained at the border and which matched the shoe impressions left 

at the murder scene. 

B. Defense Case

Quintero testified in his own defense. He admitted he was at the tattoo 

shop and stayed at a nearby motel the night of Jesus’s murder. He admitted 

his fingerprint, imprinted in Jesus’s blood, was on the tequila bottle in the 

shop. And he acknowledged the sandals seized from him by law enforcement 

were the sandals he wore on the night of the murder. 

Quintero testified, however, he was an alcoholic and was taking 

prescription muscle relaxers the week of the murder. As a result, he had 

frequent blackouts and a limited recollection of the days surrounding the 

murder. Quintero knew Jesus and Jose, and knew Jesus was co-owner of the 

tattoo shop. He had been staying at a motel near the tattoo shop on the night 

of the murder, but had no recollection of checking into the motel. 

He left the motel to go to a party with his ex-wife on December 16, 

2017. He drank heavily at the party, and his ex-wife dropped him off at the 
7

motel sometime after dark. He went to the store to buy more alcohol, but it 

was closed. When he returned to the motel two men in the parking lot told 

him the 7-Eleven was open, so he walked there and purchased two bottles of 

wine. When he got back, he took his muscle relaxers and fell asleep. 

The next thing Quintero remembered was drinking on the sidewalk in 

front of the motel. He did not know how long he had been there, or how long 

he had slept. He saw two men standing outside the tattoo shop. He walked 

towards them and recognized one as Jesus. He did not know the other man.

Quintero’s next memory was lying on the sidewalk in front of the tattoo 

shop, alone and bleeding. He did not have a shirt on and recalled being hit 

again when he stood up to look for it. He saw Jesus standing in the doorway 

of the shop and saw another man running towards him. He thought he was 

going to get beat up again, so he started fighting with Jesus. The other man

tackled Jesus and started screaming, saying Jesus had stabbed him. 

Quintero pulled the man off Jesus, and Quintero and Jesus fell onto the 

stairs inside the tattoo shop. 

Jesus handed Quintero a phone. Quintero recalled talking to Jose on 

the phone, but the only detail of the conversation he could recall was telling 

Jose that Jesus beat him up. Jesus kicked or punched Quintero, causing him 

to hit his head. Then, Jesus and the other man began to fight again. 

Quintero did not recall what happened to Jesus’s phone, but did recall Jose 

calling him back on his own phone and asking what was going on. He also 

remembered Jose saying he had $5,000 and that he was going to come to the 

shop. 

Quintero’s next memory was the other man telling him not to go 

outside because there were people out there. Jesus was unconscious on the 

landing of the stairs. Quintero next recalled Jesus grabbing him, although he 
8

was not sure of the exact sequence of events. The other man pulled Jesus off 

Quintero and Quintero ran out of the tattoo shop and back to his motel room. 

Quintero had been in the building for 15 minutes. When he left, he did not 

know that Jesus was dead.

Quintero had told Jose where he was staying and was concerned Jose 

would come after him, so he got in his car to leave. As he was leaving, a man 

ran up to the car and got in on the passenger side. Quintero did not recognize 

the man but believed it was the same man that had been at the tattoo shop. 

The man said “Go, go, go,” and Quintero started driving. Quintero’s next 

memory was the man waking him up. Quintero was still driving but had 

stopped, and presumably fallen asleep, at a stoplight. He was on the phone 

with Ramon and the person in the car was asking, “Is he here with the 

money?” Quintero then drove to Mexico. He and the man checked into a 

motel, Quintero consumed some cocaine, and he and the other man went 

drinking at a club until Quintero ran out of money. 

Quintero tried to cross back into the United States a few days later to 

go to work. He was drunk, hit another car while waiting in line at the 

border, and got into a fist fight with the other driver. Quintero was detained 

at the border and arrested a few days later. 

On cross-examination, Quintero acknowledged writing a letter to law 

enforcement in March 2019, describing what happened on the evening of the 

murder. He conceded his prior statement was “very different” from his trial 

testimony. He explained the differences by saying he “filled in all the gaps in 

[his] memory” with “the police report and the transcripts,” “what somebody 

angry would do at the time,” and his “imagination.”

Quintero’s ex-wife also testified. She confirmed Quintero was drinking 

a lot at the party on December 16, 2017. She decided it was time to leave the 
9

party around midnight and dropped Quintero off at the motel on her way 

home. Quintero was “very drunk.”

The defense also called an emergency room physician and a 

psychologist as expert witnesses. Each testified about the effects of alcohol 

on memory, behavior, and judgment. Both discussed blackouts and 

confabulation, a phenomenon in which alcoholics try to make sense of what 

happened by filling in memory gaps caused by fragmentary blackouts.

During closing arguments, defense counsel asserted Quintero was 

guilty of manslaughter, but not murder. She argued the prosecution had not 

proven intent, in part because the evidence showed Quintero was extremely 

intoxicated.

C. Verdict and Sentencing

The jury convicted Quintero on all charged counts: first degree murder 

(Pen. Code,5 § 187, subd. (a); count 1); kidnapping for ransom (§ 209, subd. 

(a); count 2); and torture (§ 206; count 3). As to the murder charge, the jury 

found two special circumstances to be true⎯murder in the commission of a 

kidnapping (§ 190.2, subd. (a)(17)) and intentional murder with infliction of 

torture (§ 190.2, subd. (a)(18)). As to the kidnapping charge, the jury found 

the special allegations that the victim suffered bodily harm and death and 

was intentionally confined in a manner which exposed him to a substantial 

likelihood of death to be true.

The trial court sentenced Quintero to prison for life without the 

possibility of parole on each of the murder kidnapping convictions, and life in 

prison on the torture conviction. As to the sentences on the kidnapping and 

torture convictions, the court stayed them pursuant to section 654. The court 

5 Further unspecified statutory references are to the Penal Code.
10

also imposed various fines and fees, including a $154 criminal justice 

administration fee pursuant to now-repealed Government Code section 

29550.1.

DISCUSSION

I.

The Trial Court Did Not Abuse Its Discretion By Denying Quintero’s Request 

for Advisory Counsel

Quintero asserts the trial court failed to exercise its discretion when it 

denied his request for advisory counsel, during a brief period in which he was 

representing himself in pro per. He further contends the error requires 

reversal per se because it would have been an abuse of discretion to deny the 

request if the trial court had exercised its discretion. The Attorney General 

contends Quintero forfeited the argument by relinquishing his right to 

represent himself and accepting appointed counsel. We decline to resolve the 

issue based on forfeiture, but conclude the trial court did not fail to exercise 

its discretion and, even if it did, the error was not prejudicial. 

A. Relevant Pre-Trial Proceedings

Quintero was initially represented by the San Diego County Public 

Defender Office. He asked to represent himself in February 2019, relatively 

early in the proceedings. He explained to Judge Francis Devaney, then 

presiding, that he did not want his attorney to vigorously cross-examine 

certain witnesses because another individual had been executed shortly after 

the murder and he did not want to place anyone else in danger.6 However, 

6 At trial, a detective testified there was a fingerprint and palm print on 

an exterior door to the tattoo shop matched to an individual named Jose Z. 

The police were not able to connect Jose Z. to Jesus or the murder. Jose Z.’s
11

he understood any appointed attorney would have an ethical obligation to put 

on a zealous defense. The court granted Quintero’s request for pro per status, 

and appointed OAC “to provide a legal runner and reasonable ancillary 

services.” 

At a readiness hearing on April 22, 2019, Quintero presented a 

discovery motion, but agreed to take it off calendar after Judge Devaney

explained he first needed to use the informal discovery process. Quintero 

then said, “I want to file an injunction on OAC,” and asserted OAC was not 

providing adequate assistance with the discovery process. Judge Devaney

explained to Quintero that he would need to ask OAC to file a motion 

regarding his discovery issues and complaints about OAC, in the appropriate 

department. The trial court and Quintero had the following exchange:

“[Quintero]: I do want to ask the [c]ourt for a court counsel that 

is not affiliated with OAC.

“[Court]: Well, you want me to reappoint the public defender?

“[Quintero]: No. I have a conflict of interest with the public 

defender on my last hearing on the Faretta hearing. I made a 

crucial mistake saying that the person claiming responsibility got 

executed, but I was wrong. The person claiming responsibility is 

still out there. The other person known to the alleged victim is 

the one that got executed and my public defender did not know 

that after six months of having my case. And I think that she 

would have -- I told her a few weeks when I filed the Faretta and 

she didn’t look up the paperwork.

“[Court]: I don’t need all that background in front of the public 

defenders. [¶] What exactly are you asking me to do?

“[Quintero]: I need for the [c]ourt to assign me co-counsel that is 

not affiliated with OAC, because OAC makes me sign a contract 

mother told the police he was assassinated in Mexico shortly after Jesus’s 

murder.
12

waiving my rights, and I don’t agree with the contract with OAC 

waiving my rights.

“[Court]: Okay. Mr. Quintero, you are going to either represent 

yourself or I will appoint the public defender or the alternate 

public defender, but I’m not appointing co-counsel. You can 

either be your own attorney or you can be represented by an 

attorney. I’m not going to appoint co-counsel. [¶] So are you 

asking me to revoke your pro per status and appoint an attorney 

to represent you?

“[Quintero]: I believe in the interest of justice it would be better 

to have a co-counsel so that this moves on faster. And if you say 

that I’m not having a co-counsel, I’ll stay as pro per. But the time 

it’s going to take me --

“[Court]: I don’t want to tell you what to do. We had this 

conversation. I told you what I think about someone in your 

shoes, with a murder charge, representing themselves. I already 

told you it’s not a wise idea. But there is no such thing as cocounsel. It’s either you’re on your own in pro per or I assign you 

an attorney and you can assist that attorney. That attorney has 

obligations towards you. But there is no co-counsel. So if you 

want to continue to represent yourself sitting next to an attorney, 

that is not going to happen. It is either you’re on your own or 

you’re represented. What is your choice?

“[Quintero]: I’ll stay on my own.

“[Court]: All right.”

OAC filed Quintero’s motion and the trial court held another hearing 

on May 1, 2019. Judge Michael T. Smyth was now presiding. Quintero 

raised a number of specific concerns, which the court addressed. The 

following exchange occurred at the conclusion of the hearing:

“[Quintero]: May I ask a comment or a question? You said that 

you were able to appoint a public defender again in this court?

“[Court]: Right.
13

“[Quintero]: Due to my limitations as a KSA[7] inmate, is it 

possible so that I have full access with the board of lawyers to 

cross-examine for the court to assign me a co-counsel? That way 

all the motions that establish my defense, I can send that 

straight to that co-counsel.

“[Court]: We don’t do co-counsel here. I don’t do that. We can 

have someone represent you, but in this circumstance, I would 

not be doing co-counsel or advisory counsel.”8 (Italics added.)

A few weeks later, on May 20, 2019, Quintero relinquished his pro per 

status and accepted appointed counsel. He was represented by the public 

defender at trial. 

B. Forfeiture 

We begin our analysis with the Attorney General’s assertion that 

Quintero forfeited his claim of error regarding the trial court’s denial of his 

request for advisory counsel by subsequently accepting appointed counsel. 

The Attorney General provides no authority, nor are we aware of any, 

establishing that a self-represented defendant waives or forfeits the claim of 

an erroneous denial of advisory counsel by subsequently relinquishing his 

self-represented status. 

The Attorney General relies primarily on People v. Stanley (2006) 39 

Cal.4th 913. There, the defendant “orally interposed [a] request for self7 KSA means “keep separate all” and is a restricted housing status 

requiring certain inmates be kept separate from others.

8 The transcript for the hearing was sealed for Quintero’s benefit because

he raised issues relevant to his defense as a self-represented defendant. The 

quoted portion of the transcript does not reveal those defenses and Quintero 

included the same passage in his opening brief. He has therefore waived any 

objection to our inclusion of the passage in this opinion. 
14

representation during a renewed Marsden[9] motion made in municipal court 

one year before his preliminary hearing and nearly two years before the start 

of trial, out of apparent annoyance or frustration with his first appointed 

counsel.” (Id. at pp. 932−933.) The defendant never renewed the request but 

subsequently accepted a substitution of appointed counsel, as well as the 

appointment of an additional attorney to assist the primary appointed 

counsel. (Id. at p. 933.) The California Supreme Court concluded, “[i]n light 

of defendant’s subsequent acceptance of several appointed counsel to 

represent him without ever renewing his request for self-representation,” he 

abandoned his desire to be self-represented and therefore waived the issue on 

appeal. (Ibid.) 

We cannot reach the same conclusion regarding Quintero’s request for 

advisory counsel in this case. Quintero raised his request twice in less than 

two weeks and only accepted appointed counsel after the trial court denied 

both requests, leaving him with the choice of continuing to represent himself 

without assistance or accepting appointed counsel. The Attorney General 

asserts there is no evidence the trial court’s denial of Quintero’s request for 

advisory counsel had any bearing on Quintero’s decision to accept appointed 

counsel. To the contrary, Quintero began the second inquiry by confirming 

the trial court could still appoint a public defender, but indicated his 

preference was to represent himself with the assistance of “co-counsel.” We 

are not convinced that Quintero’s subsequent relinquishment of his pro per 

status, under these circumstances, constituted a forfeiture of the claim he 

now asserts. So we will address the merits of Quintero’s claim.

9 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
15

C. Advisory Counsel

Turning to the merits, we are not persuaded the trial court failed to 

exercise its discretion when it denied Quintero’s requests for advisory 

counsel. 

“ ‘A defendant in a criminal case possesses two constitutional rights 

with respect to representation that are mutually exclusive.’ [Citation.] ‘[T]he 

Sixth Amendment guarantees a defendant a right to counsel but also allows 

him to waive this right and to represent himself without counsel.’ ” (People v. 

Sullivan (2007) 151 Cal.App.4th 524, 545.) A defendant who chooses selfrepresentation may request, but does not have a constitutional right to, 

advisory counsel. (People v. Doane (1988) 200 Cal.App.3d 852, 861, 

disapproved on other grounds in People v. Barnum (2003) 29 Cal.4th.1210.) 

“[T]he decision to appoint an advisory counsel lies within a trial court’s 

discretion.” (Doane, at p. 861.) If the trial court does appoint advisory 

counsel, they typically serve a “narrow role . . . giving legal advice and 

assistance to a defendant who has the control and responsibility for his own 

defense.” (Id. at p. 864; see also People v. Bradford (1997) 15 Cal.4th 1229, 

1368 [“When a defendant chooses self-representation, he or she retains 

primary control over the conduct of the case, and consequently the role of 

advisory counsel is limited.”].)

The California Supreme Court, in People v. Crandell (1998) 46 Cal.3d 

833 (Crandell), explained that: “When a defendant requests appointment of 

advisory counsel, a court’s failure to exercise its discretion is serious error 

and its denial of a request for advisory counsel in a capital case may 

constitute an abuse of discretion. [(People v. Bigelow (1984) 37 Cal.3d 731, 

743 (Bigelow).)] We held in Bigelow that failure to exercise discretion on a 

request for advisory counsel in circumstances where a refusal to grant the 
16

request would be an abuse of discretion requires automatic reversal of a 

resulting conviction because of the inherent difficulty in assessing prejudice.” 

(Crandell, at p. 861, citing Bigelow, at pp. 744−746, italics in original.) 

However, as the Court further explained, “Bigelow, supra, 37 Cal.3d 731, did 

not establish a ‘fixed rule’ that advisory counsel must be appointed for every 

pro se defendant in a capital case, and thus the question whether denial of a 

request for advisory counsel would have been an abuse of discretion must be 

determined on a case-by-case basis.” (Crandell, at p. 863.)

Where the trial court fails to acknowledge or exercise its discretion in 

refusing to appoint advisory counsel, but the denial would not have been an 

abuse of discretion if the court had exercised its discretion, prejudice is 

assessed under the harmless error standard articulated in People v. Watson 

(1956) 46 Cal.2d 818 (Watson). (Crandell, supra, 46 Cal.3d at 

pp. 864−865.) Under the Watson standard, the error is prejudicial and 

requires reversal if it is reasonably probable the result would have been more

favorable to the defendant had the error not occurred. (Watson, at p. 836.) 

Here, Quintero asserts the trial court failed to exercise its discretion 

because it did not engage “in a reasoned exercise of judgment based on an 

examination of the particular circumstances of this case,” and instead, issued 

a blanket ruling. (See Crandell, supra, 46 Cal.3d at p. 862.) We begin with 

the presumption the trial court both understood and appropriately exercised 

its discretion. (See People v. De Jesus (1995) 38 Cal.App.4th 1, 29.) The trial 

court need not affirmatively acknowledge its discretion. (Ibid.) Rather, 

Quintero, as the appellant, has the burden of demonstrating “the trial court 

failed to perceive its power.” (Ibid.) We acknowledge the trial court made 

broad statements about its willingness to appoint advisory counsel in each 

instance. And those statements might be taken as blanket rulings, if read in 
17

isolation. However, when read in context, we conclude the trial court did 

understand that it had the discretion to appoint advisory counsel, and that it 

did consider the specific circumstances of the case before denying Quintero’s 

request.

When Quintero first asked the trial court to assign “co-counsel” not 

associated with OAC, Judge Devaney responded, in part, “I’m not going to 

appoint co-counsel.” Quintero persisted and the court stated, in part, “there 

is no co-counsel.” Although the later statement appears conclusory in nature, 

in full context, we perceive it as the trial court’s attempt to explain to a selfrepresented defendant, in simple straightforward language, that co-counsel 

was not an option in this case. Quintero then renewed his request at a 

subsequent hearing in a different department, with a different judge. Like 

the first request, the second was in the context of complaints about OAC and, 

specifically, OAC’s efficiency in responding to Quintero’s administrative 

requests. Judge Smyth initially told Quintero, “We don’t do co-counsel here,” 

but then clarified, “in this circumstance, I would not be doing co-counsel or 

advisory counsel.” (Italics added.) 

This is not a case, as Quintero urges, like Crandell or Bigelow, in which 

the trial court expressly stated, “ ‘there is no such thing’ ” as advisory counsel 

(Crandell, supra, 46 Cal.3d at p. 857) or that advisory counsel is “ ‘not 

permitted under California law’ ” (Bigelow, supra, 37 Cal.3d at p. 740), 

without any further clarification. Instead, this case is more like People v. 

Choi (2021) 59 Cal.App.5th 753 (Choi). In Choi, the trial court responded to a 

request for advisory counsel by stating, “That’s not the way it’s done in this 

courthouse.” (Ibid.) However, the trial court also acknowledged it did have 

the authority to appoint advisory counsel, and explained the defendant made 

a choice to represent himself and “was ‘smarter than most.’ ” (Id. at 
18

pp. 767−768.) Viewing the trial court’s comments in context, the appellate 

court was “satisfied the [trial] court did not apply a blanket practice of 

denying advisory counsel without exercising its discretion under the 

circumstances.” (Id. at p. 769.) Similarly considering the trial court’s 

comments in context here, we cannot conclude the trial court failed to 

recognize or exercise its discretion. 

Even if we were to conclude the trial court did fail to exercise its 

discretion, which we do not, reversal would not be warranted. As we explain, 

the record before us “does not demonstrate that denial of [Quintero’s] request 

for advisory counsel would have been an abuse of discretion.” (Crandell,

supra, 46 Cal.3d at p. 864.) Thus, “Bigelow is distinguishable and its rule of 

per se reversal does not govern.” (Ibid.) We instead apply the Watson 

harmless error standard and conclude it is not reasonably probable the result 

would have been more favorable to Quintero in the absence of the purported

error. (Crandell, at pp. 864−865; Watson, supra, 46 Cal.2d at p. 836.) 

“The factors which a court may consider in exercising its discretion on a 

motion for advisory counsel include the defendant’s demonstrated legal 

abilities and the reasons for seeking appointment of advisory counsel.” 

(Crandell, supra, 46 Cal.3d at p. 863 [concluding trial court does not abuse its 

discretion by denying a request for advisory counsel that is essentially a 

manipulative end run around the denial of a Marsden motion].) The court 

may also consider the defendant’s general education level, the seriousness of 

the charges, and the overall complexity of the case. (Bigelow, 37 Cal.3d at 

pp. 743−744.) 

As an initial matter, we note this case presents a unique set of 

circumstances. First, as the trial court acknowledged, this was not a typical 

case in which Quintero believed he could do a better job than the public 
19

defender. Rather, Quintero’s stated reason for wanting to represent himself 

was he did not want his attorney to “adequately, diligently represent” him at 

trial. As Quintero explained to the trial court, he did not want his appointed 

attorney to vigorously cross-examine certain witnesses.

Second, the scope of Quintero’s request for advisory counsel was 

limited. After raising complaints about OAC, Quintero asked for “co-counsel 

that is not affiliated with OAC, because . . . [he did not] agree with the 

contract with OAC waiving [his] rights.” Quintero renewed his request at the 

next hearing after raising complaints about the efficiency of OAC, and said 

he wanted “co-counsel” so he could send “all the motions that establish my 

defense . . . straight to that co-counsel.” Quintero did not, at any point, 

indicate he needed legal assistance to prepare those motions, or any other 

part of his defense. 

Third, Quintero’s requests appear to have been motivated primarily by 

his stated concerns with the public defender and OAC. Quintero first asked 

for “counsel that is not affiliated with OAC.” When the trial court inquired 

whether Quintero wanted it to reappoint the public defender, Quintero 

declined, citing the alleged conflict of interest, and stated he wanted “cocounsel that is not affiliated with OAC.” Thus, the record suggests Quintero 

was actually seeking substitute counsel for OAC, or, put another way,

assistance from an appointed counsel that was not the public defender or 

OAC.10 As the Court in Crandell explained, it is appropriate for a trial court 

to deny a request for advisory counsel where there is “evidence [of] a 

10 Notably, the trial court did hold several Marsden hearings and did 

specifically address the public defender’s alleged conflict of interest, but 

Quintero does not assert the trial court erred in any of its rulings at those 

proceedings. 
20

manipulative endeavor to obtain the appointment of private counsel without 

a showing of conflict or inadequacy sufficient to remove the public defender in 

the first instance.” (Crandell, supra, 46 Cal.3d at p. 863.) 

Quintero relies on People v. Mattson (1959) 51 Cal.2d 777 to assert the 

denial of his request was error because advisory counsel would have 

promoted justice and allowed the matter to proceed in an “orderly and 

expeditious” manner. (Id. at p. 797.) In Mattson, the California Supreme 

Court confirmed matters related to the appointment of advisory counsel “are 

within the sound discretion of the trial judge, who is in a position to appraise 

the courtroom situation and determine what procedure will best promote

orderly, prompt and just disposition of the cause.” (Ibid.) The Court 

continued, “[t]he [trial] court, however, should not permit a litigant both to 

have counsel and to actively participate in the conduct of the case (as by 

conducting examination of witnesses, interposing objections, arguing points 

of law or of fact, addressing the jury, etc.) unless the court on a substantial 

showing determines that in the circumstances of the case the cause of justice 

will thereby be served and that the orderly and expeditious conduct of the 

court’s business will not thereby be substantially hindered, hampered or 

delayed.” (Ibid., italics added.) The Court did not hold, as Quintero suggests, 

the trial court must appoint advisory counsel any time doing so would 

promote justice or efficiency. Regardless, Quintero did not argue he needed 

advisory counsel for the presentation of his case at trial, nor did he make the 

type of showing described in Mattson. 

Moreover, Quintero was educated and capable of self-representation. 

He was competent, could read and write in English, and had completed 

approximately 120 college credits. During the Faretta hearing, the trial court 

observed: “Having talked to Mr. Quintero, I think he’s much brighter and 
21

well[-]spoken than most defendants who ask to go pro per, so I don’t think 

there’s going to be a competency issue.” Quintero argues he did not have any 

legal knowledge or experience but, of course, the vast majority of selfrepresented litigants do not. The record demonstrates Quintero was capable 

of understanding the proper mechanism for bringing a discovery motion once

the trial court explained the discovery process. Although the trial court 

indicated some of the claims included in the motion were civil matters, and 

were not appropriate for a criminal case, Quintero was able to obtain at least 

some relief with respect to other, properly raised issues. And again, Quintero

never directly indicated he needed assistance with understanding the law or 

legal processes; he simply raised concerns with the efficiency of OAC’s 

administrative services. 

Quintero further asserts the charges against him were serious and the 

case was both legally and factually complex. We acknowledge the charges 

were serious, and there is at least some suggestion in the record the Attorney 

General was still considering the death penalty when the trial court refused 

to appoint advisory counsel. However, the case ultimately was not a capital 

case and did not involve the type of difficult statutory construction or 

constitutional issues present in Bigelow. (See Bigelow, supra, 37 Cal.3d at 

p. 743 [“The case arose under the 1978 death penalty initiative, an enactment 

rife with constructional and constitutional difficulties, which had not yet been 

judicially interpreted.”].) Quintero argues the different charges here required 

different mental states but does not assert, or present any evidence in the 

record indicating, he had difficulty understanding or applying the relevant 

legal principles. 

In Crandell, our high court distinguished the holding in Bigelow and 

found the Watson standard of prejudice applicable, where “the defendant was 
22

charged only with the multiple-murder special circumstances, which 

presented no significant construction problems,” and “demonstrated 

substantial competence.” (Crandell, supra, 46 Cal.3d at p. 864.) Likewise,

here, the charges did not raise any novel constitutional issues, Quintero’s 

request for assistance was limited, and Quintero was substantially

competent. Thus, the denial of Quintero’s request would not have been an 

abuse of the trial court’s discretion, had the trial court exercised that 

discretion. 

Applying the Watson standard, it is not “reasonably probable that

different verdicts would have been returned had [Quintero] received the 

assistance of advisory counsel.” (Crandell, supra, 46 Cal.3d at p. 866.) 

Importantly, unlike the defendants in Bigelow and Crandell, Quintero was 

ultimately represented by competent, appointed counsel at trial and the jury 

still convicted him on all asserted charges. Quintero’s reason for initially 

rejecting appointed counsel was he wanted to present a less zealous defense. 

Given Quintero’s explanation, it is difficult to conceive of a scenario in which 

he would have received a better outcome at trial if he had remained selfrepresented, even with the assistance of advisory counsel. 

In sum, we conclude the trial court did not fail to exercise its discretion 

when it denied either of Quintero’s requests for advisory counsel, but even if 

it did, the error was not prejudicial and does not warrant reversal. 

II.

Any Unpaid Portion of the $154 Criminal Justice Administration Fee Shall

Be Vacated

Quintero requests we modify the judgment to strike the $154 criminal 

justice administration fee based on recent changes to the law. 
23

After Quintero was sentenced, Assembly Bill No. 1869 (2019–2020 Reg. 

Sess.) (Assembly Bill No. 1869) was signed into law. As of July 1, 2021, 

pursuant to Assembly Bill No. 1869, the statutory provision pursuant to 

which the court ordered Quintero to pay a $154 criminal justice 

administration fee (former section 29550.1 of the Government Code) was 

repealed, and Government Code section 6111 was added. (Assem. Bill No. 

1869, §§ 11, 24.) Government Code section 6111, subdivision (a), provides 

that: “On and after July 1, 2021, the unpaid balance of any court-imposed 

costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and 

Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 

2021, is unenforceable and uncollectible and any portion of a judgment 

imposing those costs shall be vacated.” 

The Attorney General concedes, and we agree, Quintero is entitled to 

vacatur of any unpaid balance of his criminal justice administration fee as of 

July 1, 2021. 
24

DISPOSITION

Any portion of the $154 criminal justice administration fee imposed 

pursuant to former Government Code section 29550.1 unpaid as of July 1, 

2021 is vacated. The judgment as modified is affirmed.

DO, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.