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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Responden t,

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; a ffirmed in part

. Leonard J. Klaif, under appointment by the Court of Appeal , for Defendant and Appellant.
Xavier Becerra , Attorn ey General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorney s 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 Ay ala 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 w e will
strike the Penal Code section 667.5, subdivision (b) and 667, subdivision (a)(1) enhancements imposed on count 3 from the3

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 dur ing 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 ea ch 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 infli cted 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 p urposes of section 667.5, subdivision (b)

, that he had suffered a p ri or 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 ca se 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 va cated 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. O n May 17, 2018, the public defender’s office was relieved and an alternat e 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 tria l. 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 t o 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 recover y 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 pla ced 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 “r eceived” 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 th e 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 six6

months or so to get ready to go to trial, or you start trial today pro per.”
After a brea k 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 strik es 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, 20 19, 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, t he 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 a7

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 term s of 44 years to life , composed of seven years to life, doubl ed 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, subd ivision (a)(1). The trial court imposed and stayed sentences for the assault w ith a firearm counts. Ayala filed a tim ely 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 self

representat ion 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 determ ine 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 sel f

representation,’ but rather to prevent the defendant from ‘misus[ing] the Faretta mandate as a means to unjustifiably delay8

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. (200 0) 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 ch aracterized 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 ma y 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 c ourt 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 be9

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 de aling 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 consi dered 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 reasonably10

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 discre tion and rule on the defendant’s request.” ( People v. Windham (1977) 19 Cal.3d 121,
12 8

- 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 informa tion 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 make s clear that the
trial court had considered the qualit y 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.
T he 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 trial11

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
l icense 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
attack ed 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 a t 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 i n 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 sea ted 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 would12

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 supporte d 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
b ehavior 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 unde r 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, subdivisi on (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 fiv e

- year enhancement imposed under section 667, subdivision (a)(1) on count 3

.13 DISPOSITION
The matter is remanded to the trial cour t with instructions
to strike the one

- year enhancement under section 667.5, subdivision (b) and the five

- year enhancement unde r 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 a ffirmed 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.