Filed 2/23/21 P. v. Ayala CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and 

 Respondent,

v.

JOSE LUIS AYALA,

Defendant and 

 Appellant.

 B301443

 (Los Angeles County

 Super. Ct. No. KA106636)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Steven D. Blades, Judge. Remanded and 

modified in part; affirmed in part.

Leonard J. Klaif, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

____________________________

A jury convicted Jose Luis Ayala in January 2016 for the 

April 2014 attempted murder of Jose and Fidel Hernandez, one 

count of possession of a firearm by a felon, and two counts of 

assault with a firearm. In April 2018, the trial court vacated the 

judgment and granted Ayala a new trial.

On February 19, 2019—the day Ayala’s retrial was set to 

begin—Ayala requested under Faretta v. California (1975) 422 

U.S. 806 (Faretta) that he be permitted to represent himself 

during the second trial. After a hearing, during which Ayala 

requested a continuance should the trial court grant his Faretta 

motion, the trial court denied the motion.

The second jury also convicted Ayala of all five counts 

alleged against him and found true various factual allegations 

that had been alleged in the information. At sentencing, in 

addition to other sentencing decisions, the trial court imposed but 

stayed a one-year prior prison term enhancement under Penal 

Code section 667.5, subdivision (b) and imposed a five-year prior 

felony enhancement under section 667, subdivision (a)(1) on 

count 3.

Ayala contends on appeal that the trial court abused its 

discretion when it denied his Faretta motion. Ayala also argues 

that under Senate Bill No. 136, we must strike the one-year prior 

prison term enhancement that the trial court imposed but stayed 

and the five-year prior felony enhancement the trial court 

imposed on count 3.

We will affirm the trial court’s judgment. But we will 

strike the Penal Code section 667.5, subdivision (b) and 667, 

subdivision (a)(1) enhancements imposed on count 3 from the 
3

judgment and instruct the trial court to file an amended abstract 

of judgment.

BACKGROUND

On July 7, 2014, Ayala shot brothers Jose and Fidel 

Hernandez during an altercation outside a triplex in Pomona 

where the three all lived. Ayala fled to Mexico and was arrested 

at the Mexican border as he reentered the United States on July 

23, 2014. 

The People charged Ayala by information with two counts

(one for each Hernandez brother) of attempted murder (Pen. 

Code, §§ 664 & 187, subd. (a)),

1 possession of a firearm by a felon

(§ 29800, subd. (a)(1)), and two counts (again, one for each 

Hernandez brother) of assault with a firearm (§ 245, subd. (a)(2)). 

The information alleged that Ayala had personally used and 

discharged a firearm in the commission of the attempted murders

and that he personally inflicted great bodily injury upon each of 

the Hernandez brothers during the commission of the assaults 

with a firearm. The People also alleged as to the firearm 

possession and assault with a firearm charges that Ayala had 

suffered two prior prison terms for purposes of section 667.5, 

subdivision (b), that he had suffered a prior conviction for 

purposes of the “Three Strikes law” (§§ 667, subds. (b)-(j), 

1170.12), and that he had suffered a prior conviction for purposes 

of section 667, subdivision (a).

The case was tried to a jury in January 2016. The jury 

found Ayala guilty of all counts and found true all of the 

1 Further unspecified statutory references are to the Penal 

Code.
4

enhancement allegations in the information. After trial, Ayala 

substituted private counsel in place of Ayala’s trial counsel.

The trial court vacated the jury’s verdict and granted Ayala 

a new trial on April 16, 2018. 

Ayala’s retained counsel was relieved and he was appointed 

a public defender for trial on April 27, 2018. On May 17, 2018, 

the public defender’s office was relieved and an alternate public 

defender was appointed for Ayala. Finally, on May 18, 2018, the 

alternate public defender’s office was relieved and a bar panel 

defense attorney was appointed to represent Ayala at trial. 

On the morning of October 9, 2018, the People dismissed 

and refiled the case and the trial court arraigned Ayala again. 

The trial court set the matter for trial to begin December 5, 2018.

The afternoon of October 9, 2018, Ayala’s counsel requested 

a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118

(Marsden) for Ayala to ask the court for a substitution of counsel; 

the trial court set the Marsden motion for hearing on October 19, 

2018. At the Marsden hearing, Ayala’s counsel informed the trial 

court that counsel was ready for trial. After the hearing, the trial 

court denied Ayala’s request to substitute counsel. 

On December 5, 2018, the trial court called the case to reset 

the trial after learning that Ayala’s counsel had broken his hip 

and was in the hospital. Ayala declined to waive time for trial 

and requested another Marsden hearing. Citing counsel’s 

absence, the trial court declined to hear Ayala’s Marsden request

on that date and set the matter for trial on January 8, 2019 over 

Ayala’s objection.

At a hearing on January 8, 2019, Ayala’s counsel requested 

a brief continuance because of the unavailability of witnesses, 

and the trial court trailed the matter to January 29, 2019.
5

At the conclusion of the January 8, 2019 hearing, Ayala 

again requested a Marsden hearing and asked the trial court to 

“give [him] another attorney.” The trial court denied Ayala’s 

second Marsden motion. 

On January 29, 2019, Ayala’s counsel again requested a 

brief continuance—to February 19, 2019—for treatment of 

complications in his recovery from his broken hip. On the record 

at that hearing, Ayala declined to waive time for trial and 

requested another Marsden hearing. Based on counsel’s absence, 

the trial court set the Marsden hearing for the next court date—

February 19, 2019. 

The trial court’s minute order for January 29, 2019 

contains the following entry: “Later, off the record and after the 

matter was called: [¶] The defendant notifies the court bailiff 

that he wished to proceed in pro per. [¶] Faretta waiver is filled 

out and placed in the court file. [¶] The People and defense 

counsel not being present, the matter as to the defendant’s 

representation is to be addressed on the next court date.” Ayala’s 

Faretta waiver form is signed and dated January 29, 2019, but 

was stamped “received” by the trial court on February 19, 2019. 

On February 19, 2019—the date the matter was set for 

trial—the matter was transferred to another department for 

trial. As the trial court discussed pretrial matters and jury 

selection with counsel for the parties, Ayala requested a Marsden 

hearing. The trial court immediately cleared the courtroom and 

held a combined Marsden and Faretta hearing. 

During the argument, the trial court asked Ayala, “What if 

I grant your Marsden motion now? Where are we?” and 

explained to Ayala that he’d “have two choices”: “We continue 

the trial while you get another attorney, who will take at least six 
6

months or so to get ready to go to trial, or you start trial today 

pro per.”

After a break to review his Faretta waiver form and 

consider his options, Ayala told the court that he would like to 

represent himself and requested a continuance “to file motions,”

but did not specify the nature or timing of the motions. The trial 

court explained, “That’s not going to work because if I grant your 

pro per status, we have a jury out there and we’re gonna start 

today. If you’re not ready to start today, I will deny pro per 

status.” Ayala confirmed that he was not ready to go to trial that 

day, and the judge denied his motion to proceed pro per. The 

trial court heard further argument regarding Ayala’s Marsden

motion and also denied that motion.

The trial began immediately. As the jury deliberated, 

Ayala admitted the allegations involving prior strikes and prison 

terms, and the trial court accepted Ayala’s admission. The jury 

returned its verdict on February 22. The jury found Ayala guilty 

on all counts and found true all of the enhancement allegations 

contained in the information. 

On March 21, 2019, Ayala requested a continuance to 

retain private counsel, and private counsel substituted in for 

Ayala’s trial attorney on April 11, 2019. Ayala’s new attorney 

requested and received continuances to file posttrial motions. 

The trial court denied Ayala’s posttrial motions.

After Ayala’s requested continuances and hearings on 

Ayala’s posttrial motions, the trial court sentenced Ayala on 

September 12, 2019. On count 3, which the trial court deemed 

the base count, Ayala was sentenced to 11 years in state prison,

which was the upper term of three years, doubled to six years 

under the Three Strikes law, and an additional five years for a 
7

prior serious felony conviction (§ 667, subd. (a)(1)), and a one-year 

term (stayed) for the prior prison term enhancement (§ 667.5, 

subd. (b)). On counts 1 and 2, the trial court sentenced Ayala to 

consecutive indeterminate terms of 44 years to life, composed of 

seven years to life, doubled to 14 years to life under the Three 

Strikes law, plus terms of 25 years to life for the firearm 

enhancement (§ 12022.53, subd. (c)) and a prior strike under 

section 667, subdivision (a)(1). The trial court imposed and 

stayed sentences for the assault with a firearm counts. 

Ayala filed a timely notice of appeal. 

DISCUSSION

A. Faretta

“In Faretta, the United States Supreme Court made clear 

that a criminal defendant has a federal constitutional right to 

represent himself if he voluntarily and intelligently so chooses. 

[Citation.] A trial court must grant a defendant’s request for selfrepresentation if the request is timely and unequivocal, and the 

defendant makes his request voluntarily, knowingly, and 

intelligently. [Citation.] If a self-representation motion is 

untimely, however, it is ‘within the sound discretion of the trial 

court to determine whether such a defendant may dismiss 

counsel and proceed pro se.’ ” (People v. Johnson (2019) 8 Cal.5th 

475, 499 (Johnson).)

Our Supreme Court has “long held that a Faretta motion is 

timely if it is made ‘within a reasonable time prior to the 

commencement of trial.’ ” (Johnson, supra, 8 Cal.5th at p. 499.) 

The “ ‘reasonable time’ requirement ‘must not be used as a means 

of limiting a defendant’s constitutional right of selfrepresentation,’ but rather to prevent the defendant from 

‘misus[ing] the Faretta mandate as a means to unjustifiably delay 
8

a scheduled trial or to obstruct the orderly administration of 

justice.’ ” (Ibid.) “Even at the trial level,” the United States 

Supreme Court has explained, “the government’s interest in 

ensuring the integrity and efficiency of the trial at times 

outweighs the defendant’s interest in acting as his own lawyer.” 

(Martinez v. Court of Appeal of California, Fourth Appellate Dist.

(2000) 528 U.S. 152, 162.) “Faretta motions made on the eve of 

trial are untimely.” (People v. Lynch (2010) 50 Cal.4th 693, 722, 

abrogated on other grounds by People v. McKinnon (2011) 52 

Cal.4th 610, 620; accord Johnson, at p. 499.)

Ayala contends that the trial court abused its discretion 

when it denied his Faretta motion on the day his trial was set to 

begin because, he argues, the record makes it clear that Ayala did 

not bring the motion for the purpose of delay. In his briefing and 

at argument, Ayala characterized the trial court’s actions at the 

combined Faretta/Marsden hearing on February 19, 2019 as 

offering Ayala a choice between granting the Faretta motion and 

allowing Ayala to go to trial that day or granting the Marsden

motion and continuing the trial date long enough to allow new 

counsel to prepare the matter for trial. Ayala’s briefing here 

strongly implies that the only factor the trial court may consider 

when deciding an untimely Faretta motion is whether the motion 

was brought for the purpose of delaying trial.

We disagree with Ayala’s characterization of the trial 

court’s statements at the Faretta/Marsden hearing. At that 

hearing, the trial court explained to Ayala what the consequences 

would be if he granted either motion. The trial court explained 

that it would grant the Faretta motion if Ayala were ready to 

proceed to trial that day. And the trial court explained that, 

contrary to Ayala’s stated wish to start trial soon, there would be 
9

significant delay if the trial court granted the Marsden motion. 

Based on Ayala’s decision that he would not start trial that day if 

he represented himself, the trial court—independent of the 

Marsden motion—denied the Faretta motion. The trial court 

then heard Ayala’s third Marsden motion on the merits and 

denied it.

Ayala cites People v. White (1992) 9 Cal.App.4th 1062 to 

support his Faretta contentions here. That case, however, dealt 

with a determination whether the Faretta motion was timely in 

the first instance, and if so, how the trial court must analyze the 

Faretta motion. It did not deal with an untimely motion and the 

factors that circumstance imports into the trial court’s analysis. 

Aside from dealing with a Faretta motion, People v. White is 

inapposite.

The trial court “may consider the totality of the 

circumstances in determining” whether to deny a Faretta motion 

as untimely. (Johnson, supra, 8 Cal.5th at p. 500.) The “trial 

court may properly consider ‘not only the time between the 

motion and the scheduled trial date, but also such factors as 

whether trial counsel is ready to proceed to trial, the number of 

witnesses and the reluctance or availability of crucial trial 

witnesses, the complexity of the case, any ongoing pretrial 

proceedings, and whether the defendant had earlier opportunities 

to assert his right of self-representation.’ ” (Ibid.) In earlier 

opinions, the Supreme Court articulated other factors: “Among 

other factors to be considered by the court in assessing” untimely 

Faretta requests “are the quality of counsel’s representation of 

the defendant, the defendant’s prior proclivity to substitute 

counsel, the reasons for the request, the length and stage of the 

proceedings, and the disruption or delay which might reasonably 
10

be expected to follow the granting of such a motion. Having 

established a record based on such relevant considerations, the 

court should then exercise its discretion and rule on the 

defendant’s request.” (People v. Windham (1977) 19 Cal.3d 121, 

128-129, italics added.)

The record discloses that Ayala had been through an entire 

trial, a successful motion for a new trial, and a dismissal and 

refiling of the information against him, as well as two

unsuccessful Marsden motions before he brought his Faretta 

motion on the day his case was transferred to a department for 

jury selection and a second trial. The original information in 

Ayala’s case was filed on December 26, 2014. Ayala had four 

years’ worth of opportunities to file a Faretta request before the 

trial date in his retrial, but had never done so. The reporters’ 

transcript from the Faretta hearing also makes clear that the 

trial court had considered the quality of Ayala’s legal 

representation, that the motion was brought not on the eve of 

trial, but as the jury panel awaited selection, and that the case 

involved two counts of attempted murder and multiple 

enhancement allegations compounding the complexity of the 

matter for even experienced attorneys. The trial court was also 

presumably aware of Ayala’s “proclivity to substitute counsel,” 

evidenced by his multiple substitutions of counsel between the 

first trial and the second.

The reason for the Faretta request is only one factor the 

trial court must consider. “The fact that the granting of the 

motion will cause a continuance, and that this will prejudice the 

people, may be evidence of the defendant’s dilatory intent.” 

(People v. Burton (1989) 48 Cal.3d 843, 854 (Burton).) The trial 
11

court could have concluded, therefore, that the motion was 

brought to delay.

We also note that a trial court may deny a Faretta “motion 

for self-representation in the first instance when a defendant’s 

conduct prior to the Faretta motion gives the trial court a 

reasonable basis for believing that his self-representation will 

create disruption. ‘The right of self-representation is not a 

license to abuse the dignity of the courtroom. Neither is it a 

license not to comply with relevant rules of procedural and 

substantive law.’ ” (People v. Welch (1999) 20 Cal.4th 701, 734.) 

Immediately before clearing the courtroom for the combined 

Faretta/Marsden hearing, the trial court learned that Ayala had 

attacked prisoners and deputies while in custody, that Ayala had 

been warned that morning about courtroom behavior, that 

multiple bailiffs were present because of Ayala’s propensity to 

disrupt proceedings, and that, according to the prosecutor, “Mr. 

Ayala spat at the [prosecutor]” during his first trial. During the 

Faretta hearing, the trial court stopped the hearing to warn 

Ayala again about behavior that interrupted that hearing.

Here, like the defendant in Burton, supra, 48 Cal.3d at 

page 853, Ayala “did not invoke his right to self-representation 

until after the case had been called for trial, both counsel had 

answered ready, and the case had been transferred to a trial 

department for pretrial motions and a jury trial.” A jury panel 

was waiting to be seated for voir dire as the trial court conducted 

the Faretta/Marsden hearing. Here, as in Burton, “[u]nder the 

circumstances, the motion was clearly directed to the sound 

discretion of the trial court.” We review the trial court’s ruling, 

not its rationale. “[I]f the record as a whole establishes” that the 

Faretta motion was properly denied on any ground, “we would 
12

uphold the trial court’s ruling.” (People v. Dent (2003) 30 Cal.4th 

213, 218.) The trial court’s order denying the Faretta motion is 

supported not only by the trial court’s stated rationale, but by a 

variety of factors that the record indicates the trial court could 

have (and may have) considered when it made its ruling. Ayala’s 

inability to start trial, and Ayala’s past and recent courtroom 

behavior both supported the trial court’s order. Ayala has not 

demonstrated that the trial court abused its discretion when it 

denied his Faretta motion as Ayala’s retrial began.

B. Sentencing Enhancement Issues

Ayala contends, and the People agree, that under Senate 

Bill No. 136, we must strike a one-year enhancement imposed 

(but stayed) pursuant to section 667.5, subdivision (b) because 

neither of the prior convictions Ayala admitted to support the 

enhancement is a sexually violent offense as that term is defined 

in Welfare and Institutions Code section 6600, subdivision (d). 

(See People v. Choi (2021) 59 Cal.App.5th 753, ___.) We agree 

with the parties and will strike the one-year enhancement 

imposed (and stayed) on count 3 under section 667.5, subdivision 

(b).

Ayala also contends, and the People again agree, that we 

must strike the five-year section 667, subdivision (a)(1) 

enhancement imposed on count 3 because the enhancement 

applies to “any person convicted of a serious felony,” and the 

possession of a firearm by a felon under section 29800, 

subdivision (a)(1) is not a “serious felony” for purposes of section 

667, subdivision (a)(1) because it is not enumerated in section 

1192.7, subdivision (c). Again, we agree with the parties and will 

strike the five-year enhancement imposed under section 667, 

subdivision (a)(1) on count 3.
13

DISPOSITION

The matter is remanded to the trial court with instructions 

to strike the one-year enhancement under section 667.5, 

subdivision (b) and the five-year enhancement under section 667, 

subdivision (a)(1) imposed on count 3. The trial court will issue 

an amended abstract of judgment and forward a certified copy of 

the abstract of judgment to the Department of Corrections and 

Rehabilitation. The trial court’s judgment is affirmed in all other 

respects.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.