Filed 5/22/15 P. v. Castellano CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN CASTELLANO,

Defendant and Appellant.

F066005

(Fresno Super. Ct. No. F11902219)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne 

Ellison, Judge.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne 

LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

Appellant/defendant Adrian Castellano was charged and convicted of count I, 

second degree burglary, based on his theft of merchandise from a store (Pen. Code,
2.

§§ 459, 460, subd. (b));1 and count II, felony evading an officer, for leading police 

officers on a high speed chase against traffic on a busy freeway (Veh. Code, § 2800.2, 

subd. (a)). He had three prior strike offenses (§ 667, subds. (b)–(i)) for assault with a 

deadly weapon, based on an incident when he attacked three people with a baseball bat. 

He was sentenced to the indeterminate third strike term of 50 years to life.

The evidentiary portions of defendant’s jury trial on the substantive offenses, and 

the bifurcated jury trial on the special allegations, were fairly short and straightforward. 

From the beginning of the criminal proceedings, however, defendant brought numerous 

motions to discharge his court-appointed counsel pursuant to People v. Marsden (1970) 2 

Cal.3d 118 (Marsden), to represent himself pursuant to Faretta v. California (1975) 422 

U.S. 806 (Faretta), to hire retained counsel just days before the scheduled trial date, and 

to otherwise continue the trial because of his alleged poor health, the belated discovery of 

purported alibi witnesses, and his general unhappiness with the case. The court 

repeatedly denied these motions and found they were meritless and brought for purposes 

of delay because the prosecution faced the potential unavailability of an eyewitness if the 

case was continued. When the court denied his motions, defendant became belligerent, 

repeatedly disrupted the proceedings, and tried to delay the trial. The court expressly 

warned him that his behavior could prejudice the jury and result in his removal from the 

courtroom.

The court ultimately found a manifest need to restrain defendant during the trial, 

and the restraints were not visible to the jury. As the trial began, defendant feigned a 

suicide attempt and refused to leave his cell. He returned to court the following day and 

engaged in an outburst in the jury’s presence. The court ordered him removed, and he 

did not return for the rest of the trial. He initially appeared at the sentencing hearing, 

 

1 All further statutory citations are to the Penal Code unless otherwise indicated.
3.

made both Marsden and Faretta motions, again engaged in another outburst when the 

motions were denied, and the court ordered him removed.

On appeal, defendant has not challenged the evidence in support of his convictions 

for the substantive offenses or the special allegations. Instead, he challenges the court’s 

orders, which were necessitated by his disruptive and belligerent behavior. He contends 

the court lacked any evidence to order him restrained; abused its discretion when it 

ordered him removed from the courtroom; violated his Sixth Amendment right to counsel 

when it denied his motion to substitute retained counsel just days before trial started; and 

improperly denied his motion to represent himself at the sentencing hearing. Defendant 

also raises several challenges to his third strike term, and the court’s denial of his motion 

to recall his sentence under Proposition 36. We affirm.

FACTS

The Kmart Theft [Count II, Felony Evasion]

Around 7:00 p.m. on April 4, 2011, defendant entered the Kmart store located at 

Shaw and Clovis Avenues. He pushed a shopping cart and placed some personal items in 

the top portion. Defendant picked up an electric shaving razor valued around $120. He 

broke open the package and placed the razor in his pocket. Defendant also selected other 

merchandise. He went to the register, paid for the other merchandise, and did not pay for 

the razor. He walked out of the store.

Steven Ray Bankston and Aron Dominguez, the store’s loss prevention officers, 

had been monitoring defendant on the surveillance cameras. They saw defendant take 

and conceal the razor. Bankston called 911 while defendant was standing at the register.

Bankston and Dominguez approached defendant outside the store. They identified 

themselves and asked him to return to the store with the merchandise. Defendant still had 

the shopping cart with him. Defendant became hostile and pushed both men away. 

Bankston asked defendant to stop and told him that the Clovis Police Department was on 

the way. Defendant replied: “F**k Clovis P.D.” Defendant reached into his pocket as if 
4.

he was going to pull a weapon. He asked the two men whether they wanted a fight. 

Bankston replied they did not want to fight, and it was not worth it. At one point, 

defendant pushed the shopping cart toward the two men.

Defendant got into the driver’s seat of a blue Mitsubishi Mirage, which had a large 

Raiders sticker on the rear windshield. A woman was waiting by the car, and she also got 

into the car. Defendant drove away, but he left his wallet in the shopping cart. The 

wallet contained defendant’s driver’s license and a small bindle of a white, crystal-like 

substance.

Bankston again called 911 and described defendant’s vehicle, gave the license 

plate number, and the direction it turned out of the parking lot. Bankston and Dominguez 

subsequently identified defendant as the driver of the car from a photographic lineup.

The Pursuit

Officer Eric Taifane of the Clovis Police Department was driving to the store in 

response to Bankston’s first call about the shoplifting and received the updated 

information with the description and license plate number of defendant’s vehicle. 

Taifane saw a car that matched the description near Willow and Shaw Avenues. Taifane 

pulled up to the vehicle, saw a man driving the car, and later identified defendant as the 

driver.

Officer Taifane activated his patrol car’s siren and signal lights, but defendant did 

not stop. Defendant moved to the right lane as if he was heading for the onramp to 

Highway 168 at Shaw Avenue. Instead, defendant suddenly drove to the left across all 

four traffic lanes, ran a red light, and entered the freeway using the “exit” off ramp and 

driving against traffic. Defendant forced four cars on the ramp to swerve and take 

evasive action.

Defendant drove eastbound in the westbound lanes of the freeway, crossed lanes 

against traffic, and accelerated to 100 miles per hour. Several cars were forced to take 
5.

evasive action. Defendant drove off the freeway using the westbound onramp as an exit. 

He drove up the ramp and turned onto Bullard.

Defendant drove eastbound on Bullard, ran traffic lights, and swerved to avoid 

traffic. He turned into a residential neighborhood at a high rate of speed. The officers 

terminated the pursuit because it was too dangerous to follow defendant into a residential 

area at high speed. Officer Taifane believed 10 cars were forced to take evasive action 

during the pursuit.

The blue car was registered to Teresa Saldate, defendant’s girlfriend. Defendant 

was not apprehended, and the car was not found at her address that day. The police 

determined defendant had been subject to a traffic stop while driving that same vehicle in 

February 2011.

The Target Theft [Count I, Second Degree Burglary]

On the afternoon of April 9, 2011, defendant and Saldate went into the Target 

store on Shaw and Clovis Avenues. Defendant selected several pieces of jewelry, and 

Saldate picked up an electric razor. Defendant opened the package and concealed part of 

the razor and the jewelry on his person. Defendant and Saldate went to the register. 

Saldate paid for some merchandise, but she did not pay for the razor and the jewelry. 

Defendant did not pay for anything and walked out of the store ahead of Saldate.

Brandon Burton, the store’s loss prevention officer, had been monitoring 

defendant and Saldate by following them in the store. His partner watched them on the 

surveillance cameras. Burton confronted defendant outside the store, identified himself, 

and asked defendant to return to the store. Defendant refused. Burton placed his arm in 

front of defendant and directed him to the store. Defendant replied, “ ‘You can’t F’ing 

touch me, you’re not an F’ing cop.’ ”

Burton attempted to detain defendant. Defendant resisted and they struggled. 

Burton testified that defendant “twisted and spun two or three times, and I was able to 

grab ahold of his shirt, and he slipped out of that and took off.” Defendant ran across the 
6.

street. Burton called the Clovis Police Department. Saldate was not present during 

Burton’s struggle with defendant.2

The Pursuit

Officer Phil Macy responded to the store, spoke to Burton, and received the 

description of defendant. Macy drove around the area, saw defendant walking in a 

nearby residential neighborhood, and notified other units. Defendant saw the patrol cars, 

quickened his pace, and jumped a fence. Macy drove to the next street and saw 

defendant running in an adjacent shopping center. Several officers and a helicopter 

joined in the pursuit, and defendant ran back into the residential area. Defendant was not 

in the officers’ continuous sight during the chase. Defendant was eventually 

apprehended when he was trapped against a wall.

Officer Macy took defendant into custody. Defendant falsely claimed his name 

was “Samuel Ceja.” Burton positively identified defendant at an infield showup. 

Defendant was not found in possession of any stolen property. Defendant’s identity was 

later determined when his fingerprints were taken.

DEFENSE

Nadine Chavaria Castellano, defendant’s mother, testified defendant lived with her 

at the time of the alleged store thefts. The blue Mitsubishi belonged to Saldate, and 

defendant had driven it. Several of defendant’s friends also used the car, and they looked 

similar to defendant based on their appearances, builds, and tattoos.

PART II

PROCEDURAL HISTORY

As we have mentioned, defendant’s appellate issues are based on the procedural 

history of this case: His numerous Marsden, Faretta, substitution, and continuance 

 

2 Saldate subsequently pleaded no contest to misdemeanor petty theft from Target 

and was placed on probation.
7.

motions, his repeated disruptions, and his voluntary absence. The court eventually 

ordered him restrained and then ordered him removed after an outburst in front of the 

jury.

Defendant contends the court abused its discretion and lacked any evidence to 

order the restraints, remove him from the courtroom, and deny his various motions. In 

making these arguments, defendant focuses on narrow segments of the proceedings when 

he displayed the appropriate decorum. We are compelled to review the lengthy history of 

this case which demonstrates that defendant’s pretrial motions and his conduct during the 

trial were likely part of an attempt to prevent a material prosecution witness from 

testifying.

Initial Proceedings

Defendant was arrested on April 9, 2011, and he was in custody throughout the 

entirety of the proceedings. On April 22, 2011, defendant was charged in a felony 

complaint with the second degree burglaries of Target (count I) and Kmart (count III), 

and it was alleged he had three prior strike offenses and three prior prison term 

enhancements.

On May 9, 2011, the court appointed Ciummo and Associates as conflict counsel 

to represent defendant. On July 13, 2011, defendant substituted retained counsel Glenn 

LoStracco to represent him.3

 

3 On November 30, 2011, defendant conditionally pleaded guilty to two counts of 

second degree burglary and admitted all special allegations, based on the court’s 

indicated sentence that it would dismiss two of the prior strike convictions and impose a 

second strike term of eight years four months. The court stated it might decide not to 

dismiss defendant’s prior strike convictions after it reviewed defendant’s record, and that 

defendant could withdraw his plea in that situation. Defendant apparently filed a motion 

to dismiss the prior strike convictions. The prosecution filed opposition that set forth 

defendant’s lengthy criminal record and strenuously argued the prior strike convictions 

should not be dismissed. On January 9, 2012, the court granted defendant’s motion to 

withdraw his guilty pleas, presumably pursuant to the terms of the conditional plea.
8.

On February 10, 2012, the preliminary hearing was held. On March 1, 2012, the 

court granted the motion of Mr. LoStracco to withdraw for nonpayment of fees and 

reappointed Ciummo and Associates to represent him.

Pretrial Hearings and First Marsden Motion4

After several continuances, defendant’s trial was set for August 28, 2012. 

Defendant was represented by Mark Siegel of Cuimmo and Associates for the remainder 

of the proceedings.

On August 23, 2012, defendant made a Marsden motion. The court heard and 

denied the motion.

On August 28, 2012, a second amended information was filed that charged 

defendant with count I, second degree burglary of Target; and count II, felony evading an 

 

4 As we will discuss below, defendant made several Marsden motions before the 

superior court. On appeal, he has not challenged the court's denial of those Marsden

motions. In his opening brief, however, he extensively quoted from specific pages of the 

confidential reporter’s transcripts from certain Marsden hearings in support of his claim 

that he suffered from medical problems which affected his ability to sit through trial. 

Defendant requested this court order that the rest of the Marsden transcripts remain 

confidential.

In response, the People filed a motion for this court to release the entirety of the 

Marsden transcripts or those sections relevant to defendant’s appellate claims. Defendant 

filed opposition and argued the People could only obtain the pages which he had cited to 

his in opening brief.

On December 4, 2013, this court partially granted the People’s motion and ordered 

disclosure of certain pages of the reporter’s transcripts for the Marsden hearings held on 

August 28, September 6, and October 17, 2012. This court further stated: “If respondent 

continues to believe facts contained in the other Marsden hearing transcripts may be 

relevant, respondent may request in its brief that this court independently review the 

Marsden transcripts in light of all the briefing and the remaining record on appeal.” The 

People have duly requested disclosure of the rest of the Marsden transcripts.

We have reviewed the entirety of the Marsden transcripts, find the release of 

additional confidential transcripts from those hearings is not necessary, and deny the 

People’s request.
9.

officer (based on the car chase after the Kmart incident), with three prior strike offenses

for assault with a deadly weapon (§ 245, subd. (a)(1)), based on juvenile adjudications in

1992.5

Second Marsden Motion and Request for Continuance

On August 28, 2012, defendant appeared with Mr. Siegel and made another 

Marsden motion.6 At the Marsden hearing, defendant complained he was very sick, he 

was hurting and in pain, and he was not ready to go to trial. Defendant also complained 

his attorney did not respect him. The court denied the motion.

After denying the Marsden motion, the court advised the prosecutor that defense 

counsel had been informed about a number of possible defense witnesses and moved for 

a continuance until mid-September 2012 to contact those witnesses.

The prosecutor objected to the continuance and explained that two material 

witnesses had joined the military, and one of these witnesses was scheduled to be 

deployed out of the country on the week of September 25, 2012. The prosecutor argued 

defendant had “delayed this case purposely all the way through these proceedings” to 

prevent these witnesses from appearing. The prosecutor clarified that defense counsel 

was not personally trying to “sandbag” the case, but “the fact that the defendant now on 

the day of trial is coming up with yet new witnesses in this case, screaming of the games 

he’s been playing all the way throughout this case.” The prosecutor found it hard to 

 

5 According to the probation report, defendant’s three prior strike offenses were 

based on a juvenile adjudication for three counts of assault with a deadly weapon (§ 245, 

subd. (a)(1)): Defendant was 16 years old, and he was with three male adults. They beat 

two juveniles and one adult; the victims ran away. Defendant and his friends pursued the 

victims by car and then produced baseball bats and beat the victims again. Defendant 

beat one victim in the face with the bat. The victim fell unconscious, and defendant 

struck additional blows to his body. Defendant was committed to the California Youth 

Authority (CYA) for six years.

6 This court granted the People’s motion to release a portion of the transcript of 

the August 28, 2012, Marsden hearing, limited to pages 904, 913–916, and 929.
10.

believe defendant had just remembered the names of his alibi witnesses and argued 

defendant was “hoping and praying that the People will lose witnesses, and I’m trying to 

put the Court on notice that there’s a very real possibility witnesses will be lost in this 

case due to the fact that they are in the military.”

The court overruled the prosecutor and held defense counsel had an ethical 

obligation to contact and interview the witnesses before going forward in the case. The 

court set the pretrial conference for September 5 and the trial for September 10, 2012. 

The court advised defendant that most of his Marsden complaints were not valid, and he 

did not have the right to veto his appointed counsel. The court told defendant that he had 

a duty to work with his attorney, he was doing a great job for him, and additional 

Marsden motions based on the same issues would be unsuccessful. The court stated it 

would not likely grant any further continuances.

Motion for Conditional Examination of Prosecution Witness

On September 5, 2012, the prosecution moved for an order to conditionally 

examine an eyewitness, Steven Bankston, the loss prevention officer at Kmart. Bankston 

had identified defendant as the person who drove away in the blue car and provided the 

vehicle description and license plate of the vehicle that the police followed on the high 

speed pursuit against traffic on the highway (count II). Bankston had joined the Navy, 

was stationed in Virginia, and was going to be deployed to Japan on or about September 

28, 2012. The prosecution requested the conditional examination to obtain Bankston’s 

testimony while he was on leave from September 11 to 28, 2012.

Motion to Substitute Counsel

On September 5, 2012, Judge Penner convened the pretrial conference and 

defendant said he wanted to represent himself. However, attorney Richard Ruiz appeared 

and asked the court to substitute him as defendant’s attorney. Ruiz said he would not be 

ready by the scheduled trial date, there was a newly-discovered witness who would 

vindicate defendant, and he did not have the factual basis for that information yet.
11.

The prosecutor objected to Ruiz if he was not ready to proceed because a 

continuance would result in the loss of the witness. Mr. Siegal, defense counsel, said his 

investigator interviewed defendant and his mother several times, and defendant believed 

there were other witnesses who would assist the defense. However, counsel did not

believe there was any tactical purpose that would be served by another continuance.

Defendant interrupted and addressed the court against counsel’s advice. 

Defendant said he made Marsden motions against Mr. Siegal because he acted 

inappropriately toward him and there was a breakdown in communications. Defendant 

also said he had been unable to get the money together to hire Ruiz until then, and he felt 

very confident Ruiz could represent him.

The court denied Ruiz’s motion to substitute based on the delay and the substantial 

prejudice that would result to the People’s case if the matter was again continued.7 As 

the court made the ruling, defendant repeatedly interrupted. The court advised he would 

be removed from the courtroom if he was not quiet. Defendant apologized.

Thereafter, defendant asked the court for either another attorney or to represent 

himself. The court continued the motions to the next day.

The Court’s Findings About Defendant’s Motions

On September 6, 2012, Judge Penner heard and denied defendant’s renewed 

Marsden motion.8 Defendant complained he was sick and in pain, and his attorney 

wasn’t doing anything to help him get medical treatment. Defendant also claimed he 

delayed telling his attorney about possible defense witnesses because he thought he was 

going to get a deal instead of going to trial.

 

7

In issue III, post, we will address defendant’s contentions about the court’s 

denial of his motion to substitute Mr. Ruiz.

8 This court granted the People’s motion to release a portion of the September 6, 

2012, transcript of the Marsden hearing, limited to pages 1221–1224 and 1236–1237.
12.

When the proceedings resumed in open court, defendant made a Faretta motion 

and said he would be ready for trial in two weeks. The prosecutor objected to 

defendant’s delaying tactics because of the potential loss of the witness. The court took 

the matter under submission.

On September 7, 2012, Judge Penner denied defendant’s Faretta motion because 

it was untimely and found defendant’s motions were part of his attempt to delay the trial.

“[T]here have been many recent entries of general time waivers and then 

withdrawals of those general time waivers and then an entry of a specific 

waiver. There was a continuance on the eve of trial at the last trial date 

because of a late revelation by the defendant that he had a number of alibi 

witnesses. The court gave a continuance for the defense to investigate 

those alibi witnesses. In the face of that continuance, the defendant has 

refused to give his attorney information on what those witnesses would 

say ....

“In addition, without going into the content of any of these Marsden

motions, there have been a number of Marsden motions with what the court 

considers to be incredible accusations against counsel in this case and I 

believe that all of these attempts are nothing more than an attempt by 

[defendant] to either delay the trial or gain some tactical advantage as a 

result of the People losing a witness at the end of this month.

“For these reasons, balancing those reasons against the right, the 

conditional right but a very important right of the defendant for the right to 

counsel and also under the Faretta decision to represent himself, balancing 

all of those factors against that right, I make a finding that the request for 

Faretta and the request for the right to counsel by Mr. Ruiz were untimely 

and for that reason, it would result in prejudice to the People because they 

are losing this witness. For those reasons, I am denying both – I have 

denied the motion to substitute Mr. Ruiz in and I am now denying the 

Faretta motion....” (Italics added.)

Defendant interrupted, and the court asked him not to speak. Defendant continued 

to talk and said the court and his attorney were prejudiced against him and violated his 

rights. The court told defendant he would be removed if he was not quiet. Defendant 

said his rights were being violated and he might as well leave. The court replied, “All 
13.

right then, you can leave.” The court confirmed the trial date and adjourned before he 

was removed.

THE TRIAL

The First Day of Trial

On September 10, 2012, defendant’s trial was scheduled to begin. Several 

incidents occurred throughout the day’s proceedings. At the beginning of the day, 

defendant appeared with Mr. Siegel before Judge Hoff for the case to be assigned for 

trial. Defense counsel stated defendant’s mother had just handed him a letter from a third 

party “who claims to have material knowledge about this case and he says he will not be 

available under September 24th, so for the record, I’m making a request for a continuance 

until then.” Defense counsel said defendant had mentioned this person’s name before, 

but he never provided any contact information and the letter still did not have that 

information.

The prosecutor objected to any continuance and argued defendant “desperately 

doesn’t want to go to trial” so the People would lose the witness. Defense counsel 

advised the court that defendant said he had medical issues, he was in tremendous pain

which made it impossible for him to sit through a trial, and defendant had an appointment 

at a hospital in the next week. Defendant’s mother said she was going to retain Ralph 

Torres to represent defendant, but counsel had not heard from Torres.

Judge Hoff denied defendant’s motions without prejudice and assigned the trial to 

Judge Ellison. Defendant interrupted and said he wanted to represent himself. The court 

also denied that motion without prejudice.

Defendant Asks to Leave the Courtroom

Next, the parties appeared before Judge Ellison, who would preside over

defendant’s trial. Defendant immediately asked to say something. The court said no 

because he was represented by counsel. Defendant ignored the court and said Mr. Siegal 
14.

could not represent him because he was biased and acted inappropriately toward him. 

Defendant wanted to either have his own attorney or represent himself.

The court carefully admonished defendant about his conduct, and defendant 

threatened to leave:

“THE COURT: ... I’m going to say three things here, sir, in 

order. First of all, I understand you’d already made a request – as a matter 

of fact, several requests of the court to have a Marsden hearing to have 

order some other lawyer to be appointed to represent you based upon the 

representations that you’ve just made here to the court. Those have been 

denied. And so we’re not revisiting those, sir. That request is denied. I 

also--

“THE DEFENDANT: They said to bring them to your attention 

here. So you are denying them all too, right? [S]o I feel you are prejudice 

for me.

“THE COURT: The record will reflect that Mr. Castellano is 

interrupting the court.

“THE DEFENDANT: Get me out of here. I don’t want to be 

here.

“THE COURT: That’s the last thing I'm going to tell you. We 

can do this trial without you.

“THE DEFENDANT: Okay. Send me on my way.

“THE COURT: Are you telling me you are going to interfere 

with the court?

“THE DEFENDANT: No. I’m telling you you’re violating my 

own rights. You are violating my rights. I don’t want to be here.

“THE COURT: Mr. Castellano, tell you what we’re going to do 

here. I’m going to go ahead and proceed with these proceedings without 

you. You have clearly indicated to me you are voluntarily absenting 

yourself from these proceedings. You have a right to be here.

“THE DEFENDANT: I haven’t asked you nothing. You are 

denying everything. Can I be my own lawyer?
15.

“THE COURT: Yes, sir. And I think we’ve already indicated 

that. You have had that hearing before Judge Penner. And he indicated 

your request was not timely. That request was denied.

“THE DEFENDANT: Because of the DA’s discretion? So 

everything works for the DA’s side? What about me? I have no rights? 

Nothing?

“THE COURT: The last thing I want to tell you, Mr. Castellano, 

is we don’t have any room here where you can watch this trial on closed 

circuit television. I’m not going to have the deputies gag you in the 

presence of this jury. I think it would further prejudice your case. So the 

only choice I have left in your behavior as it’s being conducted right now 

here in court is to do this trial without you, sir. That’s just the truth.” 

(Italics added.)9

The court told defendant he had the right to be present but “you are going to have 

to behave” or the court would conduct the trial without him. Defendant asked about the 

People’s final plea offer, which had been for 19 years. Defendant said he wanted to think 

about the plea offer for another day. The court told defendant to speak with his attorney 

and decide what he wanted to do, and again warned about his disruptions:

“THE COURT: ... But your case has been pending a long time 

here, sir. And now is the day of reckoning. So you are going to make this 

decision or you are going to go to trial. And if you behave like you’ve been 

behaving we’ll do the trial without you. [¶] And I want you to understand 

this, sir, I am not messing around with you. This is going to happen exactly 

the way I have discussed it. Either you take the disposition. That’s up to 

you. Or you go to trial. That’s your decision to make as well. But you are 

not going to interrupt this court and disrupt the proceedings as you’ve just 

been doing right now.” (Italics added.)

Defendant apologized and asked whether he could have his own lawyer represent 

him at sentencing if he accepted the plea offer. The court said no because he already had 

a lawyer. The court again asked defendant if he would behave and not disrupt the 

 

9

In issue II, post, we will discuss defendant’s repeated threats to leave the 

courtroom, his voluntary absence, and the court’s order to remove him.
16.

proceedings. Defendant said yes. The court called for a recess for defendant to speak 

with his attorney.

Defendant Disrupts the Evidentiary Hearing

After the recess, the court conducted an evidentiary hearing on the admissibility of 

defendant’s postarrest statements. Officer Hutchinson, who interviewed defendant, was 

asked to identify him in the courtroom. Hutchinson pointed out defendant and added: 

“He’s the gentleman that just flipped me off.”

At the conclusion of the hearing, the court stated defendant had “flipped the bird”

to the officer while he testified. The court advised defendant that they were going to 

select the jury the following morning. The court told defendant that he still had some 

time to decide whether to accept the offer of pleading to the charges in the information 

for 19 years, or go to trial with the possible sentence of 50 years to life.

The court admonished defendant that he could not keep bringing the same motions 

“over and over again,” it would not revisit the same issues, and addressed his behavior.

“The only thing I’ve heard that’s going to happen to change anything 

is your behavior. And in spite of what you promised me a minute ago you 

flipped the bird to one of the witnesses. That’s inappropriate conduct for a 

courtroom, sir.... If you behave like that in the presence of the jury, I know 

your lawyer told you that you are going to prejudice the jury against you. 

You are. But most importantly I’m not allowing that, sir. I am not 

allowing that. I’m not allowing you to come in here and act like a person 

who doesn’t belong in court and just have this entire proceeding be some 

kind of joke. So I just want you to know, we’re going to do this trial unless 

you decide to make this disposition here today .... But you are going to 

trial. We will do this case without you. I mean, I just want you to know 

that. We will do this case without you if you continue to behave the way 

you have gone. It’s just as simple as that. This trial can be done. And I’ve 

done it in the past. So I don’t want you to think that I’d be afraid to do that 

or, you know, I think that, you know, this is not an important right. I know 

it’s an important right for you to be here. But your right to be here is 

controlled by your behavior. And I’m not going to have this be a joke here 

and have you disrupt court proceedings and you think you can stay here. 

We’ll just do the trial without you.”
17.

After a brief recess, defense counsel said defendant wanted to “sleep on it” and 

decide about the plea in the morning. The court stated that it was 3:40 p.m. and 

defendant had until 4:00 p.m. to decide.

After another recess, defense counsel said defendant rejected the plea offer and 

wanted his trial. The court asked defendant if that was his decision. Defendant replied 

he did not know, and he needed more time. The court declined to give him more time,

and the trial would begin the next morning. The court again admonished defendant to 

control himself and treat his attorney with respect.

The Second Day of Trial – the Court’s Order to Restrain Defendant

On September 11, 2012, the court convened but delayed jury selection. Instead, it 

conducted an evidentiary hearing with Deputy Kerry Mason about statements that

defendant made after the previous day’s hearing.

Deputy Mason testified that as defendant was leaving the courtroom the previous 

day, the deputies searched him because Mr. Siegel was not sure if defendant still had his 

pen. Mason testified defendant said: “[W]ell, I could get a pen any time I wanted to.” 

Mason searched defendant and did not find the pen. During the search, another deputy 

told defendant the judge was still in the courtroom, and he needed to be careful about his 

demeanor. Mason testified defendant said: “[T]his isn’t – this isn’t nothing. Wait until 

you see what happens tomorrow. And nothing was said about the statement. And it just 

ended like that.” (Italics added.)

In light of this incident, the court stated that Sergeant Rosander of the sheriff’s 

department requested to have defendant restrained in the courtroom because of his prior 

criminal history and his statement. The court made the following findings:

“[I]t’s the court’s ultimate finding that there is a manifest need for restraint 

of [defendant] here in the courtroom, based not only on what I have just 

heard from the deputy and he’s just testified about, but the court’s own 

perceptions of what’s been going on here and the history of this case as I 

understand it.
18.

“And to really to summarize it very succinctly, it’s very clear to me 

from prior proceedings that I have read relating to [defendant’s] various 

requests to continue this trial, requests to delay the trial by taking such 

actions as seeking to discharge his lawyer and making false claims about 

his lawyer in that regard, and seeking at the last minute to represent himself 

in order to obtain a delay of the trial, and although we’re going to talk about 

this at some length in the context of pretrial motions, all for the obvious 

purpose of avoiding the fact that the witnesses in this case who are 

available, as the People have made clear in several proceedings in the 

defendant's presence, only this month, in an attempt to delay the case so the 

witnesses will not be available to the People to testify against him.

“It’s the court’s view, based on what happened here yesterday, in 

particular the court’s own observations that at some point during the 

proceedings yesterday when the defendant was unshackled in court that his 

first act was to put his hand on Mr. Siegel’s shoulder – and I want you to 

know, [speaking to defendant], Mr. Siegel didn’t complain about that. I 

saw it. And it was the court’s view that sitting as close as the two of you 

were that it was a little odd to see you behave in that fashion, given your, in 

this court’s view, false accusations about Mr. Siegel having made 

homosexual advances to you [at the Marsden hearing]. That the very first 

thing that you did was undertake to pat him on the back.

“[I]t’s clear to me that you are prepared to do anything you want and 

anything you can to delay this trial. And I’m not going to have anybody in 

this courtroom be hurt or injured in some attempt to delay this trial. And 

the court, of course, is fully aware of recent events in this court – don’t 

interrupt [speaking to defendant].

“THE DEFENDANT: I’ve seen lawyers and inmates hug.

“THE COURT: The court is fully aware of other incidents in other 

courtrooms in this courthouse in which acts of violence have resulted in 

delays of trials. And I’m also aware that doesn’t matter how many deputies 

we put in this courtroom, that as a practical matter there's just not enough 

deputies that can be available to stop an incident of the kind that the court’s 

concerned about. [¶] And under the circumstances here of your prior 

criminal history and acts of violence, although [albeit] as a teenager ....

“THE DEFENDANT: 20 years ago.

“THE COURT: That’s right. I’m finding there is a manifest need to 

restrain you during the course of this trial. At the same time as I have said 
19.

that, I’m also concerned, as the court is required to be, about not 

prejudicing you in the presence of this jury.”

The court proposed to follow the sheriff’s department recommendation to tether 

defendant to the table so he could not step away and directed the department to work it 

out before the jury was selected. The court did not order any restraints on defendant’s 

hands at that time.10

The court again reminded defendant that it was prepared to remove him from the 

courtroom if he disrupted the trial in the jury’s presence. The court noted that defendant 

talked, made comments, and made an obscene gesture at a witness despite his assurances 

that he would not be disruptive. The court advised defendant he had the right to be 

present for the trial, but he would give up that right by his own actions and there were 

“consequences to your continuing behavior.”

11

Defendant asked to say something. The court said no, and his attorney would 

speak for him. After a brief off-the-record discussion, Mr. Siegel said defendant wanted 

to accept the plea deal. The court replied it was too late, and defendant had been advised 

the deadline to accept it was the previous day.

The court proceeded to consider the parties’ motions in limine and other pretrial 

matters.

At the end of the proceedings that day, Mr. Siegel advised the court that defendant 

said he was in pain, he was going to miss his medical appointments if the trial proceeded, 

and defendant wanted a continuance. The court denied the continuance request.

 

10 In issue I, post, we will address defendant’s contentions about the court’s order 

for restraints.

11 In issue II, post, we will address the court’s warnings to defendant about being 

removed and his subsequent absence from the trial.
20.

The Third Day of Trial – Defendant’s Further Efforts to Delay

On the morning of September 12, 2012, the court was about to begin jury 

selection. Mr. Siegel stated that defendant had retained Ralph Torres to represent him, 

and Torres was ready to proceed if defendant’s Marsden motion was denied. The court 

asked if defendant was making another Marsden motion. Defendant said yes. The court 

asked if there was any new evidence to support the motion. Defendant said there was 

nothing new.

The court said it would grant the substitution if Torres was ready because it did 

not have any interest “in precluding [defendant’s] right to have counsel of your choice.” 

The court again admonished defendant to behave himself because the court wanted him 

to remain in the courtroom.

“But I’ve just got to warn you, you act up in the presence of this jury, you 

will waive your right to be here. It’s just as simple as that. You know, any 

kind of actions like that can only serve to prejudice your case. But I’m not 

going to allow you to get yourself a new trial or some new jury just because 

you act on your own to prejudice your case. That will not be a remedy for 

you. Just want you to know that. I’m just hoping that I don’t even need to 

talk about that....”

Defendant said he was in pain, he needed to see the doctor, and he was unable to 

sit through the trial. The court replied that it was aware of defendant’s claims about his 

physical condition, he had raised these issues before Judge Penner, and Judge Penner did 

not find his claims credible. However, the court clarified defendant was making another 

Marsden motion. The court heard and denied the motion.

Renewed Faretta Motion; Defendant’s Request to Leave

As the proceedings continued on September 12, 2012, the court addressed 

defendant’s Faretta motion. The court noted defendant made the same motion the 

previous week and Judge Penner denied it because it was untimely. The court denied 

defendant’s renewed Faretta motion for the same reason. Defendant repeatedly 
21.

interrupted and argued that he could “go pro per anytime.” The court advised him to stop 

interrupting.

The following exchange occurred:

“THE DEFENDANT: I don’t want to be here because I’m hurting. 

I’m being in pain. You are denying rights for medical. You are denying 

rights for Faretta. I’m going through pain. He don’t want to go over and 

get the doctor. You don’t care. I’m hurting right now. I can’t be here, so 

get me out of here.

“THE COURT: Is that your request?

“THE DEFENDANT: I’m hurting. I want to go to medical 

right now. You can get me out of here. I need to see –

“THE COURT: Mr. Castellano, the court doesn’t believe you.

“THE DEFENDANT: I got records.

“THE COURT: Mr. Castellano, I don’t want you to prejudice 

yourself with this jury panel. We’re going to bring you up here. I want you 

to know that if I’m going to be forced to make a choice–

“THE DEFENDANT: You cut me off.

“THE COURT: Are you asking to be removed now?

“THE DEFENDANT: I’m hurting. I want to see medical.

“THE COURT: Mr. Siegel, it’s the court’s intention to have 

[defendant] removed from the courtroom given his statements.”

Both defendant and his attorney objected. Mr. Siegel stated defendant was not so 

ill that he could not participate in the proceedings. Defendant interrupted and asked how

Mr. Siegel knew how he felt. The court called for a recess and advised Mr. Siegel to talk 

with defendant and explain the situation to him. The court said it would not forcibly 

remove defendant from the courtroom, but it would not permit defendant to prejudice the 

jury panel if he misbehaved in their presence.
22.

The court noted defendant was already restrained under the table “in a fashion that 

is a silent restraint that cannot be seen by prospective jurors at any location in the 

courtroom.”

“The court did find there was a manifest need to find a restraint. The 

court did not find a need that there was a restraint that could potentially 

prejudice the prospective jurors seeing that. And that’s the court’s 

continued position in, I guess, consideration of the defendant’s conduct 

throughout the course of the trial so far.”

The court said a “modesty panel” had been installed around the entire table to 

cover the restraints, but defendant had chosen to sit further away from the table. Both the 

prosecutor and defense counsel agreed the restraints were arranged so they could not 

been seen as long as defendant sat close to the table.

The court again admonished defendant about his behavior:

“[Y]ou’ve presented the court and your lawyer with a very difficult 

situation.... I’m not saying you haven’t got a medical condition. What I’m 

saying is it’s clear you are able to be here in court for trial. And this 

decision that you’ve made not to be here is yours. And so, fundamentally, 

I’m not going to make you stay if you are going to end up prejudicing your 

jury by acting up in their ... presence. If you tell me that you are afraid that 

that’s what’s going to happen and you are going to further prejudice your 

case and you want to be excused from the courtroom, I’ll exceed to that 

request. If you want to stay here, then you are going to stay. And I’ll leave 

it to your behavior.”

After the recess, Mr. Siegel advised the court that defendant wanted to remain in 

the courtroom, but he was going to continue to raise “in open court” the issue of his 

medical treatment, and he was “not going to follow Your Honor’s instructions. [I]t’s 

probably going to be easier for me to explain to the jury panel an empty chair like Clint 

Eastwood rather than any outside bursts by [defendant] in their presence.”

The court disagreed with counsel’s tactical decision, and decided defendant should 

remain in the courtroom. However, the court again admonished defendant that he would 

be removed if he continued to disrupt the proceedings in the jury panel’s presence. 
23.

Defendant asked the court to wait until attorney Ralph Torres arrived. The court said no, 

it was going to begin jury selection.12 Defendant said he was in pain, but he would stay 

in the courtroom.

Thereafter, the court conducted jury selection, and a jury was selected and sworn. 

Defendant was present in the courtroom and did not disrupt the proceedings.

The Fourth Day of Trial – Defendant’s Alleged Suicide Attempt and Voluntary 

Absence

On September 13, 2012, defendant’s trial resumed outside the jury’s presence. 

The court stated that defendant was not present and conducted another evidentiary 

hearing about defendant’s conduct.

Sergeant Rosander, the head of court security, testified he was in the courtroom 

the previous day when defendant complained that he was in too much pain to sit through 

the trial, and the court denied his objections. Rosander testified that when the court went 

off the record, he heard defendant say: “ ‘Well, if I can’t get my medical treatment, then 

I’ll just attempt suicide tonight and I’ll get it that way.’ ”

Sergeant Rosander testified that at 7:30 a.m. that morning, he learned defendant 

had been placed in a safety cell by the jail’s mental health staff for his own protection. 

Defendant told guards he swallowed razor blades and 40 to 60 pills. There was no 

independent evidence that he actually ingested those items. The jail’s mental health staff 

would not allow defendant to leave the safety cell because he was under observation. 

Rosander was told, however, that appropriate arrangements could be made if defendant 

was willing to appear in court.

Sergeant Rosander testified he went to the jail that morning and personally 

observed defendant in the safety cell. The jail staff “popped an ammonia inhalant under

 

12 There is no evidence Mr. Torres arrived in court or moved to substitute as 

defendant’s counsel.
24.

his nose, and he cover[ed] his face and [made] audible noises, but would not talk to us.” 

Defendant was repeatedly told the judge had ordered him to appear in court, and the trial 

would start without him if he refused. Defendant grunted but did not speak. The jail 

staff proposed placing defendant in a restraint chair and escorting him to court, but 

Rosander declined. Rosander testified he made it clear to defendant that if he did not go 

to court, his case would proceed without him, but defendant did not respond.

Sergeant Rosander testified defendant was “laying on the side in the jail and he 

was conscious and faking it, or semi conscious, because he did move, he did make 

auditory noises, he did cover his face.” The jail was equipped to handle such medical 

situations, but the staff had not observed any behavior which would warrant taking him to 

the hospital.

Sergeant Rosander further stated that a correctional officer had heard from the jail 

staff that defendant was “maybe trying to plan some type of an escape. And once 

[defendant] took the pills and swallowed the razor blades, he made statements, ‘Now you 

have to take me to the hospital.’ But it was deemed that due to his size and the small 

razor blades, that they would not take him to the hospital, they would keep him in jail 

under direction of the medical staff.”

Sergeant Rosander was also told by the jail staff that defendant said, “ ‘Well, if 

you take me to court, then you’re going to have to take me in a wheelchair and take me 

outside of the building,’... which would open up another avenue of possibility of 

escape.” The jail staff advised defendant he would be taken to court through the internal 

tunnels. Rosander advised the court that if the jail staff believed defendant actually 

swallowed pills and razor blades, they would have taken him to the hospital for treatment.

The court asked whether defendant appeared to be unconscious or suffering from 

an overdose. Sergeant Rosander replied that in his personal experience, “unconscious 

people ... usually don’t cover their faces. When they’re unconscious, they don’t make 

any moves, they just lay there. But today he did make a conscious [move] of covering 
25.

his face up. So whether or not he was totally conscious and faking it, or maybe partially 

conscious, I don’t know, but he was definitely conscious enough to make auditory noises 

and cover his face.”

The Court Makes Findings About Defendant’s Voluntary Absence

The court found defendant had voluntarily left the courtroom:

“The court has let [defendant] know, through deputies this morning, 

as I had done on several occasions directly to [defendant] here in court, that 

if he undertakes to engage in behavior that is disruptive of the court, that if 

he refuses to come to the courtroom, we’re going to do this case without 

him. And it’s the court’s view, from everything I have heard in this subject 

matter, that what’s going on here in the jail right now is – it’s just part of 

his ongoing and continuing efforts that began long ago to avoid this trial, 

to delay this trial at all costs, and any event, anything he can come up with 

to do so, including all of the Faretta motions and allegations that he has 

lied to the Court about, about one moment he couldn’t be ready for two 

weeks, yesterday he could be ready to represent himself – or the day before

– I can’t remember – immediately. The misrepresentations about you 

[referring to defense counsel], frankly, in relation to various requests under 

Marsden. So it’s the Court’s view that, first of all, that [defendant’s] 

purported suicide attempt is most likely just another lie. More importantly, 

that whatever he may have done to himself or not done to himself last 

night, that he’s clearly capable of coming to court and is making a decision 

not to do so.” (Italics added.)

Defense counsel stated defendant had hepatitis-C and was in tremendous pain, 

which adversely affected his ability to participate in the trial. Counsel speculated that 

defendant’s behavior was because he had not received requested medical treatment. 

Defense counsel moved for a continuance until defendant’s medical issues were 

addressed. In the alternative, since the jury had already been sworn, counsel moved for a 

mistrial because defendant was physically unable to be present. Counsel argued the court 

could grant the prosecutor’s pending request for a conditional examination of the witness 

who was about to be deployed out of the country.

The court found that defendant’s assertions about his physical condition were not 

true and represented his “ongoing attempt to manipulate these proceedings for purposes 
26.

of obtaining what he has wanted from the very beginning, which is to have a trial in 

which these witnesses are unavailable.” Defendant had sat through other proceedings 

without complaint.

The court also decided a conditional examination of the prosecution’s witness 

would be “a weak second” to having him testify before the jury, and “the People’s case 

should not be prejudiced by being required to have some lesser evidence, some

conditional examination, because [defendant] wants to manipulate the proceedings.”

The court found defendant had intentionally absented himself from the trial, 

despite the court’s repeated advisements to him, and the trial would proceed in his 

absence.13 The court asked defense counsel to speak with defendant in the jail at the end 

of the day, advise him of the court’s ruling, and that he still have the opportunity to 

change his mind and appear in court.

The Special Instruction to the Jury

The jury was brought into the courtroom and the court read the following 

instruction, which both parties had approved.

“As you can see ..., the defendant ... is not here in court this 

morning. Like all criminal defendants, [he] has an absolute right to be 

personally present in court for all proceedings in his case, including the 

presentation of evidence, which we’re about to begin this morning. In spite 

of that right, [defendant] has chosen not to participate in these proceedings 

and has declined to be present in court today. Whether [defendant] will 

change his mind tomorrow, or as the trial continues thereafter, we cannot 

know at this time. Whatever he decides, you are not to hold [his] decision 

to be absent against him, nor are you to consider the fact that he is absent 

from court in any way in marking your decisions in this case.”

The jury trial continued with the prosecution’s case, including the testimony from 

Steven Bankston, the witness who was scheduled to be deployed out of the country. 

 

13 In issue II, post, we will address defendant’s contentions about his absence from 

the courtroom.
27.

Bankston identified defendant as the man who entered the vehicle which led the officers 

on the high speed chase on the freeway.

At the end of the day, the court stated that it expected defense counsel to speak 

with defendant in the jail to inform him of the court’s ruling about his failure to appear, 

and that he could change his mind and attend the next session. The court also stated that 

as a practical matter, defendant would waive his right to testify if he did not appear the 

next day, since the evidentiary portion of the trial would be completed by then.

The Fifth Day of Trial; Defendant’s Return and His Outburst

On September 14, 2012, the court convened the trial outside the jury’s presence 

and stated the following information: Defendant told a deputy that he would return to the 

courtroom, but he wanted a wheelchair and refused to dress out. There were no known 

physical reasons for defendant to use a wheelchair, but the court directed the deputies to 

use it and bring defendant to court in his jail attire.

Defense counsel said he tried to speak to defendant the previous night, but the 

deputies determined there was no way for him to conduct a secure interview. Counsel 

tried to speak with defendant again that morning in the holding cell, but defendant had 

not arrived. The court said defense counsel could speak to defendant when he arrived.

Defendant Returns to the Courtroom

After a brief recess, the court said defendant had arrived in a wheelchair, he was 

dressed for trial, and he was restrained with “a silent tether to the floor.” Sergeant 

Rosander said additional restraints were placed on defendant as he was being brought 

into court to avoid any possibility of escape. The court noted defendant had a “belly 

chain, and his hands restrained in a fashion that anybody who comes in the court will 

see.” The court asked Rosander if these restraints could be removed, and Rosander 

agreed.

The court asked defense counsel if defendant would move from the wheelchair to 

a regular chair. Counsel replied defendant was “displaying signs of being comatose, at 
28.

least in the sense that his eyes are closed.” The court said defendant appeared “somewhat 

unresponsive to the proceedings with his eyes closed.” However, a deputy advised the 

court that he spoke with defendant within the hour. In light of that information, the court 

asked defense counsel to speak with defendant and determine his current condition, and 

whether he would sit in the chair.

After another recess of about 30 minutes, the court stated the deputies removed 

defendant because he asked to use the restroom. Sergeant Rosander said defendant got 

out of the wheelchair and walked into the restroom, and “apparently his statement that he 

cannot get out of the wheelchair is a false statement.”

Defendant returned to the courtroom in the wheelchair. In light of defendant’s 

ability to walk to the restroom, the court ordered defendant to remain in the wheelchair 

and tethered to the floor. The court brought in the jury and directed the prosecutor to 

continue with the People’s case.

Defendant’s Outburst

Defendant was in the courtroom during the introduction of evidence from officers 

about the high speed chase on the highway. The next witness was Brandon Burton, the 

Target employee, who testified about defendant’s actions in the store. As Burton 

testified, defendant suddenly interrupted the trial:

“THE DEFENDANT: I want to object myself. I’m tired of 

being here. The reason why I – I’m in here – I tried to commit suicide 

yesterday–

“THE COURT: Take the jury out.

“[THE DEFENDANT:] –because they’re violating my rights. I 

tried to fire my lawyer five times and they give me the same lawyer. I tried 

to commit suicide yesterday and I almost died yesterday. That’s why I’m 

in a wheelchair. They’re violating my rights. I’m a three-striker – for this 

stupid charge, I’m a three striker, 25-to-life, for this one charge. That’s 

why they’re trying to do all this. I got daughters and kids like all you guys. 

Daughters and kids, like all your guys. They’re violating all my rights. I 

tried to fire my lawyer five times.”
29.

The jurors were escorted out of the courtroom. The court reminded defendant that

he knew the consequences of this behavior, and “[y]ou’re done with me in here, sir. [¶] 

Take him back to the jail.”

When the jury returned, the court read the following instruction:

“... I’m really sorry about what happened here and the situation that 

occurred just before we took the break. I just want you to know, first of all, 

you know, that that – the things that [defendant] had to say, you’re not to 

hold any of that against him, his behavior here. You’re not to take into 

account making your judgments in this case anything that he told you here 

before he left the courtroom. Okay? Just set it aside, don’t let it affect your 

judgment. That’s the rule. I’ll talk to you some more about it at the end of 

the trial.”

The Court’s Additional Findings

At the end of that day, outside the jury’s presence, the court summarized 

defendant’s actions as an “ongoing process” of attempting to delay or obstruct the trial by 

“pretending to have conditions that he doesn’t have.” The court believed there was no 

reason to make an additional record or “drag” defendant into court “against his will” to 

clarify whether he wanted to return to court and testify. “I think it seems clear he has 

twice promised me, once implicitly, and once explicitly, that he would behave, and on 

both of those occasions, he’s violated that trust. He flipped off ... an officer witness on 

the stand in the presence of the court and the witness, after he had told me that he would 

not engage in disruptive behavior, and, then of course, he yelled at the jury here this 

morning.”

The parties rested and there was no further testimony in the guilt phase of the trial.

Instructions, Closing Arguments, Verdict

On September 17, 2012, the court convened for instructions and closing 

arguments. Prior to bringing in the jury, the court stated defendant was still in custody, 

he was not present, and nothing had changed from its earlier findings. Mr. Siegel 
30.

requested defendant’s presence, but stated he had not visited defendant or received any 

communications from him.

The court again made findings about defendant’s conduct and his absence:

“[I]n normal practice I might bring [defendant] up here for every occasion, 

or at least have the jail personnel talk to him on every occasion to see if he 

changed his mind. But he has twice indicated to the court that he would 

behave and then violated that indication. And under the circumstances here 

this court’s view is that even if [defendant] told me today that he changed 

his mind and was going to behave, the court wouldn’t believe him to 

undertake to do that. It’s ... the court’s view, based on all the things that 

have happened in this case, both while he has been present in this 

courtroom and before in other courtrooms, indication in Marsden motions 

and Faretta requests, that it is his intent to do everything he can to delay or 

defer this trial so the witnesses will be unavailable and simply to disrupt the 

proceedings for his own personal benefit. Therefore, the court’s not going 

to undertake to examine the subject matter any further. [Defendant], in the 

court’s view, has made a decision to be absent from trial by his conduct, so 

we’re going to proceed ahead.”

When the jury returned to the courtroom, the court instructed that defendant was 

not present, and the jury was not to hold that against him. Later that day, the jury found

defendant guilty of the two charged offenses.

Bifurcated Jury Trial on Special Allegations

After the guilt phase, the court conducted the jury trial on the special allegations, 

as previously requested by defendant. Defendant did not return to the courtroom, and the 

jury found the special allegations true.

During the bifurcated trial, the court noted outside the jury’s presence that 

defendant was not present, and it did not intend to change its ruling given defendant’s 

prior behavior. Defense counsel said defendant had not contacted him, but he moved for 

defendant to be present during the sentencing hearing. The court agreed since a jury 

would not be present at the sentencing hearing.
31.

The Sentencing Hearing

After he was convicted, defendant filed a Marsden motion but also requested to 

represent himself at the sentencing hearing pursuant to Faretta. Defense counsel filed a 

request to dismiss defendant’s prior strike offenses pursuant to People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497 (Romero).

On October 17, 2012, the court conducted the sentencing hearing. Defendant was 

present with Mr. Siegel. As the court reviewed defendant’s pending motions, defendant 

interrupted the court.

“My right, where is my right to testify? That’s my Constitutional right. 

My right was violated. I want to file a Marsden hearing right now. I want 

to testify, and I felt if I were to testify, there would have been a different 

outcome in this whole thing. I feel that my rights were violated, and there’s 

new evidence on the Marsden hearing, so I want to have a Marsden

hearing.”

The court conducted the Marsden hearing.14 In response to defendant’s 

complaints against him, Mr. Siegel said defendant appeared “sophisticated and competent 

to assist counsel if he wanted to,” and he never had the impression that defendant “didn’t 

understand what was going on.” Mr. Siegel also addressed defendant’s failure to testify 

in his trial:

“I think the reason why he didn’t testify is because the court ordered 

him removed from the courtroom. I did visit him in the middle of these 

proceedings, after court, this is before things had reached that stage. We 

spoke behind the glass, but the last conversation I had with him before the 

trial ended, behind the glass, was a fairly civilized one, and I told him, it is 

really not part of my game plan that you testify, I don’t think it would assist 

you. Probably not a good idea for you to testify, but you have the right to 

testify it you want to.

 

14 This court granted the People’s motion to release a portion of the October 17, 

2012, transcript of the Marsden hearing, limited to page 3312.
32.

“So I certainly never told him, I certainly never deprived him of the 

right to testify. I guess in effect the court has found that he deprived 

himself of that right by his behavior in court.

“I don’t think I ever agreed that he could be removed from the court, 

that he could be removed from the trial. As far as I can remember, I made 

timely objections, the court nevertheless found that he had waived his right 

to appear at his trial, and hence to testify by his own conduct.”

Mr. Siegel also stated that he did not call Teresa Saldate as a witness because he 

decided it would not be a good tactical decision.

The Court Orders Defendant’s Removal from the Courtroom

When the court resumed the proceedings, defendant interrupted and said he was 

not done with his Marsden motion and he wanted to make a Faretta motion. The court 

denied his motions because they were part of his “continuing attempt ... to delay the 

proceedings at all costs, including faking having tried to kill yourself in the jail, including 

pretending that Mr. Siegel here had made homosexual advances against you, which is a 

thorough lie.”

15

Defendant complained that his constitutional rights were being violated. The court 

replied that he had a right to be present for his trial and sentencing, he gave up that right 

when he disrupted the trial, he was “continuing to disrupt” the proceedings, and “I’m 

going to have you removed from these proceedings and go ahead with sentencing unless 

you are prepared to be quiet.”

Defendant kept talking about his Marsden motion and that the jury saw his 

restraints. Mr. Siegel objected to removing defendant from the courtroom. The court 

replied: “I’m not going to have his mouth taped shut so we can do this, that’s offensive 

to anyone who comes in this public courtroom.” Defendant repeatedly stated he was 

 

15 In issue IV, post, we will address defendant’s contentions that the court 

erroneously denied his Faretta motion at the sentencing hearing.
33.

taking medication and he was not competent. The court ordered him removed from the 

courtroom.

After defendant was removed, the court stated: “I have never seen anything like 

this in a courtroom, but this gentleman’s behavior speaks for itself.” The court denied 

defendant’s motion to dismiss the prior strike convictions and sentenced him to the third 

strike term of 50 years to life.

DISCUSSION

I. The Court’s Order to Restrain Defendant

Defendant contends the court violated his due process rights when it ordered him 

“shackled for the entire trial in leg restraints anchored to the floor.” Defendant asserts the 

court improperly ordered him to be restrained “[b]efore trial began, and based largely 

upon the nature of the charges and [his] prior felony convictions 20 years earlier.”

16

 

Defendant argues there was no evidence to support the court’s order, and his convictions 

must be reversed because of his “severe pain caused by an on-going medical condition 

[and] the psychological harm caused to [him] by the unnecessary and inhumane shackling 

disrupted his ability to participate in the trial....”

As we will explain, defendant's contentions ignore the procedural history of this 

case and his repeated efforts to disrupt and delay his jury trial. The entirety of the record 

supports the court’s finding of a manifest need to order restraints.

A. Restraints

“In general, the ‘court has broad power to maintain courtroom security and orderly 

proceedings’ [citation], and its decisions on these matters are reviewed for abuse of 

discretion. [Citation.] However, the court’s discretion to impose physical restraints is 

constrained by constitutional principles. Under California law, ‘a defendant cannot be 

 

16 Defendant’s prior strike offenses were not adult convictions but juvenile 

adjudications for three counts of assault with a deadly weapon.
34.

subjected to physical restraints of any kind in the courtroom while in the jury’s presence, 

unless there is a showing of a manifest need for such restraints.’ [Citation.] Similarly, 

the federal ‘Constitution forbids the use of visible shackles ... unless that use is “justified 

by an essential state interest” – such as the interest in courtroom security – specific to the 

defendant on trial.’ [Citation.]” (People v. Lomax (2010) 49 Cal.4th 530, 558–559

(Lomax).)

“ ‘Manifest need’ arises only upon a showing of unruliness, an announced 

intention to escape, or ‘[e]vidence of any nonconforming conduct or planned 

nonconforming conduct which disrupts or would disrupt the judicial process if 

unrestrained ....’ [Citation.] Moreover, ‘[t]he showing of nonconforming behavior ... 

must appear as a matter of record ....’ [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 

651, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, 

fn. 22.)

“When the objectionable conduct has occurred outside the courtroom, ‘sufficient 

evidence of that conduct must be presented on the record so that the court may make its 

own determination of the nature and seriousness of the conduct and whether there is a 

manifest need for [physical] restraints ....’ [Citation.]” (Lomax, supra, 49 Cal.4th at 

p. 561.)

“ ‘In deciding whether restraints are justified, the trial court may “take into 

account the factors that courts have traditionally relied on in gauging potential security 

problems and the risk of escape at trial.” [Citation.] These factors include evidence 

establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the 

proceedings or otherwise engage in nonconforming behavior.’ [Citation.] Although the 

court need not hold a formal hearing before imposing restraints, ‘the record must show 

the court based its determination on facts, not rumor and innuendo.’ [Citation.]” 

(Lomax, supra, 49 Cal.4th at p. 559.)
35.

When determining the existence of manifest need, the court need not find “prior 

conduct of the exact type about which the court is concerned, or that the defendant 

himself personally had engaged in such conduct. A court’s decision about the use of 

restraints involves a prediction of the likelihood of violence, escape, or disruption 

weighed against the potential burden on the defendant’s right to a fair trial. Given the 

serious potential consequences on both sides of the scale, the range of factors the court 

may consider in assessing and weighing the risks should be broad. [Citations.]” (People 

v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)

“The imposition of physical restraints without evidence of violence, a threat of 

violence, or other nonconforming conduct is an abuse of discretion. [Citation.]” (Lomax, 

supra, 49 Cal.4th p. 559.) The court must make its own independent determination 

regarding restraints on a case-by-case basis. A general policy to restrain all persons is not 

sufficient, and the court cannot delegate the decision to security or law enforcement 

personnel. (People v. Mar (2002) 28 Cal.4th 1201, 1218; People v. Miller (2009) 175 

Cal.App.4th 1109, 1114.)

Even if the court erroneously ordered restraints, the error will be deemed 

“harmless if there is no evidence that the jury saw the restraints,... or that the shackles 

impaired or prejudiced the defendant’s right to testify or participate in his defense. 

[Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 596.) “Even a jury’s brief 

observations of physical restraints generally have been found nonprejudicial. 

[Citations.]” (People v. Slaughter (2002) 27 Cal.4th 1187, 1213, disapproved on other 

grounds in People v. Diaz (2015) 60 Cal.4th 1176 [185 Cal.Rptr.3d 431, 441–442].)

B. Analysis

The court decided to order defendant restrained on September 11, 2012, which 

was the second day of his trial and before the selection of the jury. Defendant asserts the 

court abused its discretion because he appeared numerous times without incident and 

promised not to interfere with the proceedings.
36.

Defendant’s assertions are meritless and refuted by the record. The court’s order 

for restraints cannot be considered in a vacuum, and must be addressed in light of the 

defendant's conduct throughout the criminal proceedings. Defendant initially escaped 

apprehension in this case after leading the police on a high-speed chase the wrong way on 

a busy freeway. The fact that defendant did not perform a violent act or attempt to escape 

after he was arrested did not foreclose the court from finding a manifest need based on 

his belligerent, disruptive, and nonconforming conduct in the courtroom, which raised the 

threat of violence.

The court expressly found a manifest need for restraints based on defendant’s 

disruptive behavior which began during the pretrial hearings and escalated as the trial 

approached, and those findings are supported by the record. When the court warned 

defendant about his behavior, defendant promised to maintain decorum but almost 

immediately broke his promises with numerous outbursts, interruptions, and threats to 

leave.

Defendant’s conduct became more disruptive as the evidentiary portion of the trial 

began. After the court denied his latest round of Marsden, Faretta, and continuance 

motions, defendant made a veiled threat to the deputy who searched him for the pen: 

“[T]his isn’t nothing. Wait until you see what happens tomorrow.” The court learned 

about defendant’s statements the next morning, conducted an evidentiary hearing, and 

made extensive findings of a manifest need for restraints.

The court did not order defendant restrained because he brought multiple Marsden

and Faretta motions, but because of the strong indication that he was trying to delay and 

disrupt his trial at all costs, and prevent the appearance of one of the prosecution’s 

witnesses. Given the nature of defendant’s initial and desperate escape on the freeway, 

together with his history of violence, belligerent courtroom conduct, and the threat to the 

deputy upon being searched, the court did not abuse its discretion when it ordered 

“silent” restraints which were not visible to the jury. “A court’s decision about the use of 
37.

restraints involves a prediction of the likelihood of violence, escape, or disruption 

weighed against the potential burden on the defendant’s right to a fair trial.” (People v. 

Bryant, supra, 60 Cal.4th at p. 390, italics added.)

The court also did not abuse its discretion when it found a continuing need for the 

restraints as the trial progressed. After the court’s order for restraints and denial of his 

latest motions, a deputy heard defendant say he would attempt suicide to get his way. 

The next morning, defendant allegedly attempted suicide attempt and refused to return to 

court. He agreed to return the following day, but demanded to use a wheelchair and 

thought he would be taken outside the jail, and the jail staff was concerned he was 

planning an escape. He returned to court in the wheelchair and acted comatose, but then 

went to the restroom without assistance. Upon the resumption of trial, he immediately 

disrupted the proceedings with his outburst in front of the jury, telling them that he tried 

to commit suicide, he wanted to fire his attorney, and he faced a third strike. The court 

ordered his removal and he did not return to the trial.17

Defendant’s repeated disruptions, suspicious behavior, and statements to the court 

and the deputies supported the court’s continuing order for restraints. While he might 

have promised to behave himself early in the proceedings, he violated his promises 

almost immediately and took extraordinary steps to delay the trial.

Defendant contends the court’s order for restraints was prejudicial and requires 

reversal for the following reason:

“[Defendant] had serious on-going medical problems, which resulted 

in severe pain and blood in his urine. Shackling compounded the 

debilitating physical and psychological pain [defendant] was suffering, as 

evidenced by the fact that he was unable to sit in court for any extended 

period of time without having to use the restroom, the fact that he required 

the assistance of a wheelchair, the fact that during trial he became 

 

17 In issue II, post, we will address defendant’s absence from the courtroom.
38.

despondent and attempted suicide, and the fact that he was continuously in 

pain during the trial.”

In making this argument, defendant cites to his own statements to the court as 

evidence of his medical condition. We note that on June 7, 2011, at the very beginning of 

the criminal proceedings, defendant appeared in front of Judge Vogt for a status hearing. 

Defendant asked the court to “get my medical issues on track” said he had a “staph”

infection, he was bleeding, he was jumped, he was hit in the face, he needed surgery for a 

dog bite on his thumb, he had a concussion, and “I’m going to die here before the next 

court date.” Defendant said a doctor had recommended certain antibiotics, pain 

medication, and his personal shoes, but he did not get them. Defendant complained the 

jail didn’t give him “a pain killer” or let him see “medical” for his various problems.

Judge Vogt ordered defendant referred to the jail medical staff “to address any and 

all issues” that he had. Defendant asked for an order to wear his personal shoes “for 

stability.” The court replied that if there was documentation about a specific medical 

need, “the jail medical staff is directed to review that.”

While defendant repeatedly claimed he did not receive appropriate medical care, 

defendant seriously eroded his own credibility with the court in innumerable ways, which 

likely led to the court’s justifiable doubts about his repetitive claims regarding his 

relationship with his appointed counsel, his alleged attempts to hire retained counsel, and, 

most of all, the true state of his physical condition.

Defendant’s assertions about his physical inability to sit through the trial are 

refuted by his own conduct, such as his reaction to the ammonia inhaler after the alleged 

suicide attempt, his feigned unconsciousness when he returned to court in the wheelchair, 

and his ability to get out of the wheelchair and walk to the restroom without assistance. 

During his outburst before the jury, defendant made very clear and cogent statements 

about his potential third strike term, alleged suicide attempt, and efforts to fire his 

attorney – further indicating his actions were carefully calculated.
39.

More importantly, defendant never claimed the restraints were painful, 

exacerbated any of his purported medical conditions, or prevented him from participating 

in his defense or consulting with his attorney. (See, e.g., People v. Slaughter, supra, 27 

Cal.4th at p. 1214.) In addition, there is no evidence the jurors saw the restraints. The 

court and the attorneys concurred that defendant was restrained under the defense table in 

such a manner the jurors could not see the restraints.

The court’s finding of manifest need must be based on evidence of violence, the 

threat of violence, or other nonconforming conduct. (Lomax, supra, 49 Cal.4th at 

p. 559.) Defendant’s “nonconforming conduct” gave rise to the threat of violence and 

supported the court’s order for restraints. The court’s order was based on defendant’s 

conduct and the particular facts of this case rather than any type of generalized policy, 

and it did not simply defer to requests by the prosecutor or security personnel. The court 

extensively addressed the matter outside the jury’s presence with the prosecutor and 

defense counsel, repeatedly warned defendant about the consequences of his actions, and 

summarized its specific concerns about defendant’s conduct throughout the entirety of 

the criminal proceedings.

II. The Defendant’s Absence from Trial

Defendant’s next issue is based on the court’s order which removed him from the 

courtroom after he interrupted a witness in front of the jury. Defendant did not return 

during the guilt phase or the bifurcated jury trial on the special allegations. Defendant 

returned for the sentencing hearing but he was removed because he again disrupted the 

hearing.

Defendant contends the court abused its discretion and violated his constitutional 

rights when it ordered him removed critical stages of his trial, including participating in 

his defense for the guilt phase and bifurcated trial on the special allegations, assisting 

counsel, confronting witnesses, and testifying before the jury.
40.

As we will explain, the court did not abuse its discretion because defendant’s 

absence from the courtroom was initially voluntarily, he was repeatedly warned that he 

would be removed if he continued to interrupt the court, and he was ultimately removed 

because of his disruptive behavior.

A. Absence of the Defendant

“A criminal defendant, broadly stated, has a right to be personally present at trial 

under various provisions of law, including the confrontation clause of the Sixth 

Amendment to the United States Constitution, as applied to the states through the due 

process clause of the Fourteenth Amendment; the due process clause of the Fourteenth 

Amendment itself; section 15 of article I of the California Constitution; and sections 977 

and 1043 of the Penal Code.” (People v. Waidla (2000) 22 Cal.4th 690, 741.) The 

defendant’s right to be present at all critical stages includes the presentation of evidence 

to the jury and sentencing. (People v. Concepcion (2008) 45 Cal.4th 77, 81; People v. 

Doolin, supra, 45 Cal.4th at p. 453.)

However, the defendant’s right to presence is not absolute. (Illinois v. Allen

(1970) 397 U.S. 337, 342–343 (Allen); People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 

(Gutierrez).) The defendant’s “privilege may be lost by consent or at times even by 

misconduct. [Citations.]” (Snyder v. Massachusetts (1934) 291 U.S. 97, 106; Gutierrez, 

supra, 29 Cal.4th at p. 1202.)

“[A] defendant can lose his right to be present at trial if, after he has been 

warned by the judge that he will be removed if he continues his disruptive 

behavior, he nevertheless insists on conducting himself in a manner so 

disorderly, disruptive, and disrespectful of the court that his trial cannot be 

carried on with him in the courtroom. Once lost, the right to be present can, 

of course, be reclaimed as soon as the defendant is willing to conduct 

himself consistently with the decorum and respect inherent in the concept 

of courts and judicial proceedings.

“It is essential to the proper administration of criminal justice that 

dignity, order, and decorum be the hallmarks of all court proceedings in our 

country. The flagrant disregard in the courtroom of elementary standards 
41.

of proper conduct should not and cannot be tolerated. We believe trial 

judges confronted with disruptive, contumacious, stubbornly defiant 

defendants must be given sufficient discretion to meet the circumstances of 

each case.” (Allen, supra, 397 U.S. at pp. 343–344, fn. omitted.)

Section 1043 addresses such situations and “ ‘was designed to prevent the 

defendant from intentionally frustrating the orderly processes of his trial by voluntarily 

absenting himself.’ [Citation.]” (Gutierrez, supra, 29 Cal.4th at pp. 1204–1205.) It 

provides in relevant part:

“(a) Except as otherwise provided in this section, the defendant in a felony 

case shall be personally present at the trial.

“(b) The absence of the defendant in a felony case after the trial has 

commenced in his presence shall not prevent continuing the trial to, and 

including, the return of the verdict in any of the following cases:

“(1) Any case in which the defendant, after he has been warned by the 

judge that he will be removed if he continues his disruptive behavior, 

nevertheless insists on conducting himself in a manner so disorderly, 

disruptive, and disrespectful of the court that the trial cannot be carried on 

with him in the courtroom.

“(2) Any prosecution for an offense which is not punishable by death in 

which the defendant is voluntarily absent.

“(c) Any defendant who is absent from a trial pursuant to paragraph (1) of 

subdivision (b) may reclaim his right to be present at the trial as soon as he 

is willing to conduct himself consistently with the decorum and respect 

inherent in the concept of courts and judicial proceedings.” (§ 1043, italics 

added.)

In situations where the defendant is disruptive, “[a] trial court need not wait until 

actual violence or physical disruption occurs within the four walls of the courtroom in 

order to find a disruption within the meaning of section 1043.” (People v. Price (1991) 1 

Cal.4th 324, 406.) In addition, the trial may continue “in a custodial defendant’s absence 

after the trial has commenced in the defendant’s presence – without first obtaining the 

defendant’s written or oral waiver of the right to presence – if other evidence indicates 

the defendant has chosen to be absent voluntarily.... A defendant’s ‘consent need not be 
42.

explicit. It may be implicit and turn, at least in part, on the actions of the defendant.’ 

[Citations.]” (Gutierrez, supra, 29 Cal.4th at p. 1206.) For example, a custodial 

defendant “who refuses to leave the lockup” may be “ ‘voluntarily absent’ ” if the trial 

court has taken “reasonable steps to ensure that being absent from trial is the defendant’s

choice.” (Ibid.)

“An appellate court applies the independent or de novo standard of review to a 

trial court’s exclusion of a criminal defendant from trial, either in whole or in part, 

insofar as the trial court’s decision entails a measurement of the facts against the law. 

[Citation.]” (People v. Waidla, supra, 22 Cal.4th at p. 741.) However, the reviewing 

court “must give considerable deference to the trial court’s judgment as to when 

disruption has occurred or may reasonably be anticipated. [Citations.]” (People v. Welch

(1999) 20 Cal.4th 701, 773.)

B. Defendant’s Disruptions and Threats to Leave

Defendant asserts the court abused its discretion when it ordered him removed 

after making comments in the jury’s presence. In making this argument, he relies on a 

brief period of the trial when he was allegedly “well-behaved, even after he was shackled 

to the courtroom floor, never once threatening physical harm and never once being 

physically disruptive.” Defendant concedes he “interrupted the court a few times by 

speaking out-of-turn.” He describes these moments as “minor” and “not excessive,” and 

argues the incidents did not warrant his removal from courtroom.

As with his arguments about restraints, defendant’s version of the events leading 

to his removal is completely refuted by the record. Despite the court’s numerous 

warnings, defendant engaged in disruptive behavior which initially led to the restraints, 

his voluntary absence, and then his removal from the courtroom.

Indeed, defendant threatened to leave his trial almost from the beginning of the 

proceedings, and his threats appeared to be part of his strategy to delay and disrupt the 

case. When the court denied defendant’s earlier Marsden and Faretta motions, he 
43.

displayed anger and frustration, and demanded to leave the courtroom. In response to his 

threat to leave, the court advised defendant he had the absolute right to be present but 

warned the trial would proceed without him if he voluntarily left, and admonished him to 

work with his attorney and not prejudice the jury.

After defendant made an obscene gesture to the witness at the evidentiary hearing, 

the court complied with the provisions of section 1043, subdivision (b)(1) and 

unequivocally warned him that he would be removed if he continued to disrupt the 

proceedings. A short time after this warning, as he was being searched for defense 

counsel’s pen, defendant advised one of the deputies, “[T]his isn’t nothing. Wait until 

you see what happens tomorrow.” The court learned about defendant’s statements the 

next morning, conducted an evidentiary hearing, and made extensive findings of a 

manifest need for restraints. In addition to ordering restraints, the court again warned 

defendant he would give up his right to be present for the trial if he continued to disrupt 

the proceedings, and he would not remain in the courtroom.

Nevertheless, defendant’s disruptive behavior escalated after the restraint order. 

On the following day, the court heard and denied defendant’s renewed Marsden and 

Faretta motions. Defendant repeatedly interrupted and said he wanted to leave.

“THE DEFENDANT: I don’t want to be here because I’m hurting. 

I’m being in pain. You are denying rights for medical. You are denying 

rights for Faretta. I’m going through pain. He don’t want to go over and 

get the doctor. You don’t care. I’m hurting right now. I can’t be here, so 

get me out of here.

“THE COURT: Is that your request?

“THE DEFENDANT: I’m hurting. I want to go to medical 

right now. You can get me out of here. I need to see–

“THE COURT: Mr. Castellano, the court doesn’t believe you.

“THE DEFENDANT: I got records.
44.

“THE COURT: Mr. Castellano, I don’t want you to prejudice 

yourself with this jury panel. We’re going to bring you up here. I want you 

to know that if I’m going to be forced to make a choice–

“THE DEFENDANT: You cut me off.

“THE COURT: Are you asking to be removed now?

“THE DEFENDANT: I’m hurting. I want to see medical.

“THE COURT: Mr. Siegel, it’s the court’s intention to have 

[defendant] removed from the courtroom given his statements.” (Italics 

added.)

The court said it would not forcibly remove defendant from the courtroom, but it 

would not permit defendant to prejudice the jury panel if he misbehaved in their 

presence.

“[Y]ou’ve presented the court and your lawyer with a very difficult 

situation.... I’m not saying you haven’t got a medical condition. What I’m 

saying is it’s clear you are able to be here in court for trial. And this 

decision that you’ve made not to be here is yours. And so, fundamentally, 

I’m not going to make you stay if you are going to end up prejudicing your 

jury by acting up in their ... presence. If you tell me that you are afraid that 

that’s what’s going to happen and you are going to further prejudice your 

case and you want to be excused from the courtroom, I’ll exceed to that 

request. If you want to stay here, then you are going to stay. And I’ll leave 

it to your behavior.” (Italics added.)

After a recess, the situation appeared to settle down. Defendant agreed to stay in 

the courtroom and he did not disrupt jury selection. At the conclusion of that day’s 

proceedings, however, a deputy heard defendant say, outside the jury’s presence: “Well, 

if I can’t get my medical treatment, then I’ll just attempt suicide tonight and I’ll get it that 

way.”

C. Defendant’s Voluntary Absence

On appeal, defendant focuses on the court’s order to remove him after his outburst 

in front of the jury. However, defendant voluntarily absented himself from the courtroom 

the day before the court’s removal order.
45.

On the fourth day of trial, the court learned about defendant’s statements after the 

previous day’s hearing, that he would attempt suicide to get his way. The court also 

learned that defendant claimed to have ingested razors blades and pills to commit suicide, 

although there was no independent evidence to support his claim. Notably the jail staff 

did not find it necessary to administer medical aid or take him to the hospital, and there 

was no independent evidence that he attempted suicide.

Sergeant Rosander testified defendant was advised the trial would start without 

him, but defendant would not respond and acted as if he was unconscious. However, he 

moved around, made noises, and covered his face when confronted with an ammonia 

inhaler, and he was either “conscious and faking it, or semi conscious.” Rosander also 

testified about the concerns that defendant was planning some type of escape if he was 

taken outside the jail.

A criminal defendant may not frustrate the orderly the process of court by refusing 

to appear. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1369.) While the court did 

not obtain defendant’s written or oral waiver of presence, there is overwhelming evidence 

that defendant chose to be voluntarily absent from his trial based on his prior conduct and 

statements, the court’s warning that the trial would continue in his absence, the 

circumstances surrounding his alleged suicide attempt, his feigned unconsciousness in the 

observation cell, and his refusal to leave the jail. (People v. Howze (2001) 85 

Cal.App.4th 1380, 1396; Gutierrez, supra, 29 Cal.4th at p. 1206 [defendant waived his 

right to be present at trial by his refusal to exit cell]; People v. Rogers (1957) 150 

Cal.App.2d 403, 413 [self-induced medical condition for the purpose of disrupting 

proceedings is a waiver of the right to be present].)

D. Defendant Returns and Disrupts the Trial

Defendant’s repeated disruptions, threats to leave, and voluntary absence were 

merely the prologue to the court’s order to remove him from the trial. On the day 

following the alleged suicide attempt, defendant agreed to return to court but demanded 
46.

to use a wheelchair even though the jail staff reported there was no medical necessity for 

one. Sergeant Rosander advised the court the jail staff was concerned about a possible 

escape. Outside the jury’s presence, defendant was wheeled into the courtroom with 

additional restraints, and he acted unconscious. During a recess, however, he rose from 

the wheelchair and walked to the restroom on his own power. Defendant returned to the 

courtroom in the wheelchair, and the court again found a manifest need for restraints 

since he was feigning illness but capable of walking.

Thereafter, the jury entered the courtroom, the prosecution resumed its case, and 

matters seemed to remain calm. Defendant was restrained in the wheelchair and the court 

later explained the restraints were not visible. The calm was short-lived. As a witness 

testified about the Target incident, defendant interrupted the proceedings with his 

outburst in the jury’s presence, and the court ordered him removed.

E. Analysis

The court did not abuse its discretion when it ordered defendant’s removal, and the 

record supports its extensive findings that defendant’s actions were an “ongoing process”

of obstructing the trial by making numerous Marsden and Faretta motions, “pretending 

to have conditions that he doesn’t have,” and doing “everything he can to delay or defer 

this trial so the witnesses will be unavailable....”

On appeal, defendant concedes his right to be present could have been waived by 

his own courtroom disruptions. He insists, however, that his conduct did not rise to that 

level. He admits that he verbally and “momentarily” interrupted a witness in front of the 

jury, but asserts the court properly addressed the matter by immediately removing the 

jury from the courtroom. Defendant claims this “isolated incident” did not support the 

court’s decision to order his removal from the rest of the trial.

As explained above, a defendant has a constitutional interest in personally 

attending trial proceedings but the right is not absolute, and a disruptive defendant waives 

his right to be present at trial. (Allen, supra, 397 U.S. at pp. 342–343; People v. Sully
47.

(1991) 53 Cal.3d 1195, 1239.) Defendant’s arguments about his alleged conforming 

conduct are based on an extremely narrow view of the record and ignore the events that 

preceded his outburst in front of the jury, including his repeated threats to leave the 

courtroom and his voluntary absence. As the court found, defendant engaged in constant 

efforts to delay and disrupt his trial at all costs, despite the court’s warnings that his 

conduct might prejudice the jury or result in restraints or his removal. These disruptions 

culminated in his outburst in front of the jury, after he had feigned unconsciousness in the 

wheelchair. The court was not obliged to wait for violence to occur within the courtroom 

to find a disruption within the meaning of section 1043. (Gutierrez, supra, 29 Cal.4th at 

p. 1208; People v. Price, supra, 1 Cal.4th at p. 406.)

Defendant complains the court failed to consider less intrusive means of 

maintaining decorum short of removing him, such as giving him a short “cooling off”

period from the trial, which would have allowed the court to assess his conduct and 

permit his return. In this case, however, defendant “cannot seriously claim that he lacked 

‘full knowledge and appreciation’ ” that his misconduct would “likely result in his 

exclusion from the courtroom. [Citation.]” (People v. Banks (2014) 59 Cal.4th 1113, 

1181.) “The manifest purpose of the warning requirement [in section 1043] is to inform a 

defendant of the consequences of further disruptions so as to allow him a final 

opportunity to correct his behavior. That purpose was satisfied here ....” (People v. 

Sully, supra, 53 Cal.3d at p. 1240.) Defendant was repeatedly warned about the 

consequences of his disruptions. In spite of these warnings (or perhaps because of them), 

defendant continued to disrupt the proceedings, the court concluded he feigned a suicide 

attempt and, when the court proceeded with the trial in his voluntary absence, he returned 

to the courtroom, feigned unconsciousness, and almost immediately engaged in an 

outburst that might have been specifically intended to prejudice the jury. The court 

allowed defendant more than ample time to cool off during the numerous incidents which 
48.

preceded his outburst in front of the jury. (See, e.g., People v. Medina (1995) 11 Cal.4th 

694, 739.)

In addition, the court was not required to “affirmatively inquire whether a 

defendant wishe[d] to return to trial and [was] willing to conduct himself properly. It is a 

defendant’s duty to ‘reclaim’ his right to be present at trial by moving to do so and by 

demonstrating a willingness ‘to conduct himself’ consistently with the decorum and 

respect inherent in the concept of courts and judicial proceedings.’ [Citations.]” (People 

v. Banks, supra, 59 Cal.4th at p. 1181.) “Defendant was given the opportunity mandated 

by [section 1043] to correct his errant behavior; he declined it. No more was required to 

justify his voluntary absence. Section 1043, like other provisions of law, does not require 

idle acts.” (People v. Sully, supra, 53 Cal.3d at p. 1240.) Defendant waived his 

constitutional right to remain in the courtroom by his own actions, taken with full 

knowledge and appreciation of the consequences. (Id. at p. 1239.) Given the

circumstances, the court was not required to give defendant new warnings or advise him 

about his right to return to the courtroom. (See, e.g., People v. Medina, supra, 11 Cal.4th 

at p. 738.)

Defendant contends the court lacked any evidence to find he was “feigning 

illness” after his alleged suicide attempt because it simply relied on its own observations 

and Sergeant Rosander’s testimony instead of hearing evidence from a medical 

professional. Unfortunately for defendant, his own behavior undermined his claims 

about his purported medical condition. He claimed to have attempted suicide by 

ingesting razor blades and pills but there was no independent evidence that happened. 

Defense counsel never called the jail medical staff to refute Sergeant Rosander’s 

description of defendant’s condition as he feigned unconsciousness in his cell. When 

defendant finally agreed to return to the courtroom, he claimed he needed a wheelchair 

and acted unconscious. But when he needed to use the restroom, he rose from the 

wheelchair and walked without assistance. His outburst in front of the jury further 
49.

undermined his feigned conduct, just a short time earlier, of allegedly being 

unconscious.18

We further find the court did not abuse its discretion when it ordered defendant

removed from the sentencing hearing. Defendant again engaged in the same belligerent 

and disruptive behavior when the court denied his Marsden and Faretta motions at that 

hearing. The court again warned he was going to be removed if he continued to disrupt 

the sentencing hearing. Defendant ignored the court’s warnings and continued to 

interrupt, and the court ordered him removed from the courtroom and imposed the third 

strike sentence. Given defendant’s repeated refusal to maintain decorum, the court was 

not required to seek less restrictive means or allow defendant a cooling off period based 

on his continued disruptive conduct and the numerous warnings he had received 

throughout the criminal proceedings. (People v. Medina, supra, 11 Cal.4th at pp. 738–

739.)

Defendant’s Alleged “Desire to Testify”

As a separate matter, defendant asserts the court violated his constitutional right to 

testify when it ordered his removal. Defendant claims he had “expressed a desire to 

testify in his own defense ... but the removal order prevented him from exercising that 

right.” There is no evidence defendant expressed his desire to testify before he was 

removed. At the sentencing hearing, defendant complained his removal prevented him 

from testifying. However, defense counsel explained that prior to defendant’s removal, 

he recommended that defendant should not testify, and there is nothing to refute this 

evidence.

 

18 We note that there were lengthy proceedings which followed defendant’s 

alleged suicide attempt – including the remainder of the prosecution’s case, the defense 

case, closing arguments, jury deliberations, the bifurcated trial on the special allegations, 

the sentencing hearing, and the motion to recall his sentence. There was no evidence that 

defendant suffered adverse consequences or required medical care consistent with his 

claim that he had ingested razor blades and pills.
50.

In any event, defendant’s argument about testifying is based “on the erroneous 

premise that a court may never exclude a defendant if such exclusion might collaterally 

infringe on constitutional rights. The courts have consistently held that although a 

defendant has the constitutionally protected right to be personally present at trial, that 

right can be waived when, despite warnings, a defendant persists in unduly, 

contumacious behavior. [Citation.]” (People v. Hayes (1991) 229 Cal.App.3d 1226, 

1233.)

“When a defendant forfeits the right to attend trial personally because of his 

unruly behavior, certain constitutional rights (such as the right to confront 

witnesses) are necessarily lost. These constitutional rights are waived 

because of the defendant's conduct, not because the state has denied him 

such rights. While the state must accord due process to a defendant, ‘[d]ue 

process does not require the presence of the defendant if his presence 

means that there will be no orderly process at all.’ [Citation.]” (Ibid.)

In this case, defendant’s own behavior led to his exclusion. The court did not 

abuse its discretion when it declined to “drag” him back into the courtroom, shortly after 

his outburst in front of the jury, to make a record on this point. While defendant’s 

absence “allegedly ‘prevented’ him from timely asserting his right to testify, his 

contumacious behavior waived his right to be personally present, and thereby waived the 

attendant benefits of being personally present: to confront witnesses against him, to 

assist counsel in his defense, and to assert in a timely manner his right to testify. Since 

the right to testify can be waived by conduct and does not require a personal and explicit 

waiver [citation], we conclude [defendant’s] conduct waived his right to assert a desire to 

testify.” (People v. Hayes, supra, 229 Cal.App.3d at pp. 1233–1234, fns. omitted.)

III. The Court’s Denial of Defendant’s Motion to Substitute Retained Counsel 

Richard Ruiz

Defendant contends the court violated his constitutional rights when it denied his 

motion on September 5, 2012, a few days before the scheduled start of trial, to substitute 

privately retained counsel Richard Ruiz in place of Mr. Siegel, his appointed counsel. 
51.

The court did not abuse its discretion or violate defendant’s constitutional right to counsel 

when it denied the motion, because Mr. Ruiz was not prepared and requested a 

continuance on the eve of trial.

A. Right to Retained Counsel

“A criminal defendant ... has the due process right to appear and defend with 

retained counsel of his or her choice. [Citations.]” (People v. Lara (2001) 86 

Cal.App.4th 139, 152.) However, the defendant’s right to retained counsel is not 

absolute. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144.) “A criminal 

defendant’s right to decide how to defend himself should be respected unless it will result 

in ‘significant prejudice’ to the defendant or in a ‘disruption of the orderly processes of 

justice unreasonable under the circumstances of the particular case.’ [Citation.]” (People 

v. Ortiz (1990) 51 Cal.3d 975, 982.)

A trial court has “wide latitude in balancing the right to counsel of choice against 

the needs of fairness [citation], and against the demands of its calendar, [citation].” 

(United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 152.) “[T]he ‘fair opportunity’ to 

secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] 

the countervailing state interest against which the sixth amendment right provides explicit 

protection: the interest in proceeding with prosecutions on an orderly and expeditious 

basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, 

and jurors at the same place at the same time.” ’ ” (People v. Ortiz, supra, 51 Cal.3d at 

pp. 983–984.)

As a related matter, the trial court generally “has discretion whether to grant a 

continuance to permit a defendant to be represented by retained counsel. [Citation.]” 

(People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) “A continuance may be denied if the 

accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to 

substitute counsel at the time of trial.’ [Citation.]” (People v. Courts (1985) 37 Cal.3d 

784, 790–791.) The court must balance the competing interests of the defendant’s right 
52.

to choose his own counsel against the need for speedy resolution of criminal trials. 

(People v. Pigage, supra, 112 Cal.App.4th at pp. 1367–1368; People v. Jeffers, supra,

188 Cal.App.3d at p. 850.)

Where the defendant requests a continuance on the eve of trial, the lateness of the 

request may be a significant factor justifying denial absent compelling circumstances to 

the contrary. (People v. Courts, supra, 37 Cal.3d at p. 792, fn. 4.) In determining 

whether denial of a continuance is so arbitrary as to violate due process, we must 

examine the circumstances of each particular case, particularly the reasons presented to 

the trial court. (Ibid.; People v. Blake (1980) 105 Cal.App.3d 619, 624.) The court’s 

denial of a continuance to retain counsel is reviewed for an abuse of discretion. (People 

v. Pigage, supra, 112 Cal.App.4th at p. 1367.)

B. Analysis

Defendant argues the court violated his Sixth Amendment right to be represented 

by Mr. Ruiz because there are “uncontroverted facts” that he engaged in due diligence to 

hire him. Defendant further argues there is no evidence his motion to substitute Mr. Ruiz 

was made to delay the proceedings, particularly since the prosecution had already 

received continuances prior to the start of trial.

Based on the circumstances of the case and defendant’s conduct, the court did not 

abuse its discretion when it denied defendant’s motion to substitute Mr. Ruiz as retained 

counsel and obtain a continuance on the eve of trial. We have extensively addressed 

defendant’s repeated efforts to delay and disrupt his trial, particularly with the 

approaching trial date and the looming unavailability of the prosecution’s witness. The 

court properly denied the substitution motion because of the delay and substantial 

prejudice which would result to the prosecution’s case. While Mr. Ruiz was likely 

unaware of defendant’s tactics, defendant’s substitution motion appears consistent with 

his efforts to impose other procedural roadblocks, delay the trial, and lose the 

prosecution’s witness.
53.

Defendant acknowledges the court denied the substitution motion because Mr. 

Ruiz was not prepared for trial, and the requested continuance might have led to the loss 

of the People’s witness. Defendant argues the court’s concern about that witness was “a 

nonissue” because the prosecution had already moved for a conditional examination to 

preserve that witness’s testimony, and the defendant had not objected to the motion. 

Defendant argues his “constitutional right to counsel of choice” trumped the court’s 

concerns about the impact on the People’s material witness.

Defendant is correct that the People, out of an abundance of caution, had moved 

for a conditional examination of the material witness just before Mr. Ruiz moved to 

substitute into the case. The People or defense may move for a conditional examination 

of a witness in certain circumstances, including when a witness “is about to leave the 

state ....” (§ 1336, subd. (a); § 1335; People v. Cadogan (2009) 173 Cal.App.4th 1502, 

1509.) The trial court has discretion whether to grant a conditional examination. (People 

v. Mays (2009) 174 Cal.App.4th 156, 172.) In this case, the court was faced with 

weighing the competing interests of defendant’s request for counsel of his choice against 

the discretionary determinations of whether to grant a continuance on the eve of trial, 

which would have required the court to also order a conditional examination of the 

material witness as time neared for the witness to be deployed out of the country. The 

court did not abuse its discretion when it decided a conditional examination of the 

prosecution’s witness would be “a weak second” to having him testify before the jury, 

and found “the People’s case should not be prejudiced by being required to have some 

lesser evidence, some conditional examination, because [defendant] wants to manipulate 

the proceedings.”

IV. The Court’s Denial of Defendant’s Faretta Motion at the Sentencing Hearing

Defendant next contends the court violated his constitutional right to represent 

himself when it denied his Faretta motion at the sentencing hearing. Defendant argues 

the Faretta motion was timely since he filed a written motion prior to the sentencing 
54.

hearing, and it should have been granted because he did not ask for a continuance and he 

was ready to proceed.

A. Faretta

“A trial court must grant a defendant’s request for self-representation if the 

defendant knowingly and intelligently makes an unequivocal and timely request after 

having been apprised of its dangers. [Citations.]” (People v. Valdez (2004) 32 Cal.4th 

73, 97–98.) A motion for self-representation at sentencing must be made within a 

reasonable time prior to the commencement of the sentencing hearing. (People v. Miller

(2007) 153 Cal.App.4th 1015, 1024.) The erroneous denial of a proper Faretta request is 

reversible error per se. (People v. Valdez, supra, 32 Cal.4th at p. 98.)

However, Faretta and later cases “have made clear that the right of selfrepresentation is not absolute. [Citations.]” (Indiana v. Edwards (2008) 554 U.S. 164, 

171.) A Faretta motion may be denied “if the defendant is not competent to represent 

himself [citation], is disruptive in the courtroom or engages in misconduct outside the 

courtroom that ‘seriously threatens the core integrity of the trial’ [citations], or the motion 

is made for purpose of delay [citation].” (People v. Lynch (2010) 50 Cal.4th 693, 722, 

abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 636–643.)

A Faretta motion “made in passing anger or frustration, an ambivalent motion, or 

one made for the purpose of delay or to frustrate the orderly administration of justice” is 

not unequivocal and may be denied. (People v. Marshall (1997) 15 Cal.4th 1, 23.) 

“Equivocation of the right of self-representation may occur where the defendant tries to 

manipulate the proceedings by switching between requests for counsel and for selfrepresentation ....” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.) “ ‘Trial 

courts are not required to engage in game playing with cunning defendants who would 

present Hobson’s choices.’ Faretta ... held generally that a defendant may represent 

himself. It did not establish a game in which defendant can engage in a series of 

machinations, with one misstep by the court resulting in reversal of an otherwise fair 
55.

trial.” (People v. Clark (1992) 3 Cal.4th 41, 115, overruled on other grounds in People v. 

Pearson (2013) 56 Cal.4th 393, 462.) “[B]y juggling his Faretta rights with his right to 

counsel interspersed with Marsden motions,” a court may reasonably conclude the 

defendant was “playing ‘the Faretta game’ ” in an effort to delay the trial. (People v. 

Williams (1990) 220 Cal.App.3d 1165, 1170.)

The “court possesses much discretion” to decide “whether a defendant is and will 

remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or 

her actions or words as to preclude the exercise of the right to self-representation.”

(People v. Welch, supra, 20 Cal.4th at p. 735.) The court’s exercise of discretion will not 

be disturbed in the absence of a clear abuse. (Ibid.)

B. Analysis

By the time of the sentencing hearing, defendant had made numerous Marsden, 

Faretta, continuance, and substitution motions. Despite earlier promises to maintain 

decorum, defendant displayed belligerent and disruptive conduct each time his motions 

were denied, culminating in the court's order for restraints, defendant’s threatened and 

then voluntary absence, his outburst before the jury, and his removal from the courtroom.

As the sentencing hearing approached, defendant filed a motion which demanded 

both a Marsden hearing and to represent himself. Defendant appeared at the hearing and, 

as the court attempted to sort out his various motions, he immediately interrupted and 

engaged in the same type of behavior which resulted in his earlier removal from the 

courtroom. After the court heard and denied his Marsden motion, defendant again 

interrupted and said he wanted to represent himself. The court denied his Faretta motion 

because it was part of his “continuing attempt” to delay and disrupt his trial “at all costs.” 

As the court addressed his Faretta motion, defendant again interrupted and repeated 

claims previously made at other hearings. The court admonished defendant to be quiet or 

he would be removed from the courtroom. Defendant ignored the court’s warnings, 

continued to disrupt the hearing, and the court ordered him removed.
56.

Given defendant’s lengthy and consistent history of disruptive behavior, the court 

acted within its discretion when it denied defendant’s Faretta motion at the sentencing 

hearing. Defendant’s outburst showed that his Faretta motion was part of his renewed 

efforts to interfere with the court’s process and conclusion of his trial. (See, e.g., People 

v. Howze, supra, 85 Cal.App.4th at p. 1398.)

“ ‘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.’ [Citation.] ‘[A]n accused has a Sixth 

Amendment right to conduct his own defense, provided only that he 

knowingly and intelligently forgoes his right to counsel and that he is able 

and willing to abide by rules of procedure and courtroom protocol.’ 

[Citation.] This rule is obviously critical to the viable functioning of the 

courtroom. A constantly disruptive defendant who represents himself, and 

who therefore cannot be removed from the trial proceedings as a sanction 

against disruption, would have the capacity to bring his trial to a standstill.” 

(People v. Welch, supra, 20 Cal.4th at p. 734, italics added in original.)

While a jury was not present for the sentencing hearing, the court was not required 

to permit defendant to take control of the hearing, as he attempted to do throughout the 

criminal proceedings in this case:

“The judges of our courts are entitled to conduct their proceedings in an 

orderly and just fashion, and are not required to place their dockets and

courtrooms at the mercy of obstreperous and unruly defendants with long 

track records of disruptive behavior. Such defendants, may not thwart the 

functioning of the criminal justice system in this state by making 

manipulative motions designed to result in the disruption of serious court 

proceedings for the perceived benefit of the defendant. Just as defendants 

have certain rights in court, so do courts have the power to preserve their 

dignity and their basic ability to function. In this case the court acted 

properly in denying the motion for self-representation and no abuse of 

discretion occurred.” (People v. Howze, supra, 85 Cal.App.4th at 

pp. 1398–1399.)

V. Defendant’s Prior Juvenile Adjudications as Strikes

The second amended information alleged defendant had three prior strike offenses, 

based on three juvenile adjudications for assault with a deadly weapon (§ 245, subd. 
57.

(a)(1)), all of which were from the same case in 1992. After a bifurcated trial, the jury 

found the special allegations true. At the sentencing hearing, the court imposed two 

consecutive third strike terms of 25 years to life for counts I and II, for an aggregate 

sentence of 50 years to life.

Defendant contends his prior juvenile adjudications do not qualify as strikes 

within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466 since he did not have 

the right to a jury trial in the juvenile proceedings. Defendant concedes that in People v. 

Nguyen (2009) 46 Cal.4th 1007, 1010, the California Supreme Court rejected this 

identical argument, but raises the issue to preserve it for further review. We note his 

contentions and follow Nguyen in rejecting his arguments. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.)

VI. Imposition of the Third Strike Term

Defendant contends the court abused its discretion when it denied his request to 

dismiss two or more of the three prior strike offenses, and instead imposed an aggregate 

third strike term of 50 years to life. Defendant argues the court should have dismissed 

the prior strikes since the three juvenile offenses occurred 20 years earlier, arose from a 

single incident, and his current felony offenses were not violent.

A. Section 1385

Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if 

the dismissal is in furtherance of justice. (§ 1385, subd. (a); People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497, 529–530.) In deciding whether to dismiss a prior strike 

conviction, the trial court “must consider whether, in light of the nature and 

circumstances of his present felonies and prior serious and/or violent felony convictions, 

and the particulars of his background, character, and prospects, the defendant may be 

deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as 

though he had not previously been convicted of one or more serious and/or violent 

felonies....” (People v. Williams (1998) 17 Cal.4th 148, 161.)
58.

The trial court’s decision not to dismiss a prior strike conviction is reviewed under 

the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 

371 (Carmony).) An abuse of discretion is established by demonstrating the trial court’s 

decision is “irrational or arbitrary. It is not enough to show that reasonable people might 

disagree about whether to strike one or more of his prior convictions.” (People v. Myers

(1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered 

relevant factors and acted to achieve legitimate sentencing objectives, the court’s decision 

will not be disturbed on appeal. (Ibid.)

B. Defendant’s Request to Dismiss the Strikes

After he was convicted, defense counsel filed a request to dismiss the prior strike 

offenses to avoid an indeterminate third strike term. According to the motion, the prior 

strike offenses arose from a single juvenile case when defendant was sixteen years old in 

1992, when defendant and two adults attacked three victims with baseball bats. The 

motion conceded defendant had not led “an exemplary life” after the juvenile 

adjudications, but he did not commit any serious or violent felonies after that time. The 

motion also conceded defendant’s current convictions involved conduct which 

endangered others, but the offenses did not justify a third strike term. Defendant also 

argued his “poor health” which had been “brought to the attention of the court” precluded 

his being a serious threat to society.

C. The Prosecution’s Opposition

The prosecution’s opposition argued the court would abuse its discretion if it 

dismissed any of defendant’s prior strike offenses. It summarized defendant’s lengthy 

juvenile and adult records, which consisted of 10 felony offenses and nine misdemeanors. 

When defendant was 13 years old, he had juvenile adjudications for battery, threatening 

school personnel and robbery. The prior strike offenses were based on juvenile 

adjudications for three counts of assault with a deadly weapon, based on his attack on 
59.

three people with a baseball bat; he was sentenced to a maximum term of six years in the 

California Youth Authority.

Defendant was 37 years old at the time of trial, and his adult convictions began in 

1998 with possession of a sawed-off shotgun; he was placed on probation but violated the 

terms and was sentenced to three years in prison. He was released on parole in 2001, but 

returned to custody numerous times until he was discharged in 2004.

In 1999 and 2000, defendant was convicted of three counts of misdemeanor 

driving while intoxicated and two counts of misdemeanor spousal abuse. In 2002, he was 

convicted of misdemeanor battery and disturbing the peace. In 2004 and 2005, he was 

convicted of two separate felony convictions for driving under the influence. He violated 

probation and was sentenced to seven years eight months in prison, after the court 

granted his motion to dismiss and imposed a one-strike term. In 2009, defendant was 

again convicted of driving under the influence and sentenced to four years in prison, after 

the court dismissed all his prior strikes.

As for the current offenses, the prosecution noted defendant’s conduct endangered 

the community when he led the police on a high speed pursuit against traffic on a busy 

freeway. Defendant continued to reoffend despite receiving leniency in prior cases where 

the strike offenses were alleged. The prosecutor also challenged defendant’s claim of 

poor health because of the lack of supporting evidence.

D. The Sentencing Hearing

At the sentencing hearing, the court made extensive findings about defendant’s 

prior convictions and his current offenses.19

“[I]f we were simply talking about stealing from Lowe’s or 

possession of drugs, those are crimes which I would agree in this court's 

view, even though, you know, the three strikes law might apply to them, 

 

19 We recite the entirety of the court’s findings because they are relevant to other 

sentencing issues raised by defendant.
60.

that there, that perhaps 25 to 50 to life doesn’t really fit that behavior. 

Perhaps it doesn’t. That’s why I think in some of these cases, [defendant] 

has, by other judges, at other times, been given breaks.... And the strikes 

have been stricken [in previous cases] for purpose of those sentencing to 

allow him to go to probation.

“In one instance, I believe, Judge Nunez even sent him to Delancy 

Street, and instead of doing what he was supposed to do, he took off and 

engaged in other crimes....

“But the situation presented here before this jury, where [defendant] 

drives a hundred miles an hour, at 6:30 or so in the evening on Highway 

168 in the wrong direction, that puts the lives of everyone at risk, babies, 

mothers, everybody on that highway, with complete disregard for their 

safety, because he wanted to get away. That’s the truth of the matter ....

“He is desperate. The desperation is right here in this courtroom. 

And that desperation makes him a danger to everyone, and this court has a 

fundamental obligation to protect the community. Not [to] punish 

[defendant] because he’s a bad man, but to protect the community. And 

that’s exactly what I’m intending to do here. Is because in this court’s 

view, that despite the nature of the crimes that caused all of this in the first 

place, which is essentially shoplifting, [defendant’s] behavior suggests that 

it would not be in the interest of justice to grant probation, or to strike any 

strikes, or to allow a situation that would give him something less than the 

maximum under law. Because this court fundamentally is convinced that 

[defendant] will not stop. He will simply not stop. And that’s the sad truth 

of it. And I don’t know that it’s, I don’t think it is the fault of anybody here 

in this courtroom, but it is the truth.”

The court denied defendant’s request to dismiss the prior strike convictions, and 

found the two offenses were “wholly separate crimes, on wholly separate dates.” The 

court imposed two consecutive third strike terms of 25 years to life for counts I and II.

E. Analysis

As explained, ante, we review a ruling upon a request to strike a prior felony 

conviction under a deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th 

at p. 371.) “[A] trial court does not abuse its discretion unless its decision is so irrational 

or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “Because the 

circumstances must be ‘extraordinary ... by which a career criminal can be deemed to fall 
61.

outside the spirit of the very scheme within which he squarely falls once he commits a 

strike as part of a long and continuous criminal record, the continuation of which the law 

was meant to attack’ [citation], the circumstances where no reasonable people could 

disagree that the criminal falls outside the spirit of the three strikes scheme must be even 

more extraordinary. Of course, in such an extraordinary case – where the relevant 

factors ... manifestly support the striking of a prior conviction and no reasonable minds 

could differ – the failure to strike would constitute an abuse of discretion.” (Id. at p. 378, 

italics added.)

The instant case is not the type of extraordinary one contemplated by Carmony, 

supra, 33 Cal.4th 367. The trial court herein carefully considered the enumerated factors 

and reasonably concluded defendant could not be deemed outside the spirit of the “Three 

Strikes” law, based on the nature of his criminal activity in both the prior strike 

convictions and the instant matter. Defendant’s criminal activities began before the 

juvenile adjudications which constituted the prior strike offenses, and continued after he 

was discharged from that case. In addition, he received the benefit of judicial discretion 

when his prior motions were granted to avoid imposition of a third strike term. 

Nevertheless, defendant continued to reoffend, and jeopardized the lives of the public as 

led the police on a high speed chase the wrong way on the highway. The mere fact that 

defendant’s three prior strike offenses arose from a single juvenile adjudication does not 

mean the court abused its discretion by declining to dismiss one or more. (See, e.g., 

People v. Benson (1998) 18 Cal.4th 24, 35–36; People v. Scott (2009) 179 Cal.App.4th 

920, 930.)

We note that in People v. Vargas (2014) 59 Cal.4th 635, the court held that when a 

defendant has been convicted of committing a single criminal act on a single victim that 

results in two felony convictions under different statutes, the trial court abuses it 

sentencing discretion if it fails to dismiss one of the two prior strike convictions. (Id. at 

pp. 640–649.) We believe Vargas does not apply to this case because defendant’s prior 
62.

strikes were based on three juvenile adjudications for assaulting three different victims 

with a baseball bat. While the strikes arose from the same incident, defendant committed 

multiple offenses against multiple victims of violence.

On this record, the court’s decision was “neither irrational nor arbitrary and [did] 

not constitute an abuse of its discretion.” (Carmony, supra, 33 Cal.4th at p. 379.)

Rather, since “the record demonstrates that the trial court balanced the relevant facts and 

reached an impartial decision in conformity with the spirit of the [Three Strikes] law,” we 

must affirm its decision. (People v. Myers, supra, 69 Cal.App.4th at p. 310; Carmony, 

supra, 33 Cal.4th at p. 378.)

VII. Recall of Third Strike Sentence Under Proposition 36

Defendant contends this court should vacate his third strike sentence and remand 

the matter for resentencing pursuant to the provisions of Proposition 36, which was 

passed by initiative after the sentencing hearing in this case. Defendant argues he is 

within the terms of the initiative because his current offenses for second degree burglary 

and willful evasion were not serious or violent felonies, and he is no longer eligible for a 

third strike term given the law’s passage.

As we will explain, defendant filed a petition for recall of his sentence with the 

superior court, and the court did not abuse its discretion when it denied the motion.

A. The Sentencing Hearing

The sentencing hearing was held on October 17, 2012, just a few weeks before the 

November 2012 General Election. At the sentencing hearing, defense counsel argued 

there was every chance Proposition 36 was going to be approved in the election. Defense 

counsel argued the initiative would give relief to people in defendant’s situation, who had 

prior strike convictions but whose current offenses were not serious or violent. Counsel 

argued it would be unfair to deprive defendant of a benefit which others might receive in 

a few weeks.
63.

As set forth in section VI, ante, the court acknowledged the nature of the two 

substantive offenses, but denied defendant’s request to dismiss the strike offenses 

because it had “a fundamental obligation to protect the community” and found that 

defendant’s behavior suggested that he “will not stop. He will simply not stop.” The 

court also addressed defense counsel’s comments about the possible passage of 

Proposition 36.

“[T]he court may have some authority in the future to do something 

different than what it did, I don’t know, that’s up to the voters of the State 

of California. But, this court understands this has authority right now to 

strike strikes, and this court has made a specific decision based on the 

interest of justice not to do so.

“I have no reason to believe that I can change the law that doesn’t 

demand some other course of action would change this court’s view about 

the appropriate sentence in this matter.”

B. Enactment of Proposition 36

“On November 6, 2012, the voters approved Proposition 36, the Three Strikes 

Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added 

[Penal Code] section 1170.126 (hereafter the Act). The Act changes the requirements for 

sentencing a third strike offender to an indeterminate term of 25 years to life 

imprisonment. Under the original version of the three strikes law a recidivist with two or 

more prior strikes who is convicted of any new felony is subject to an indeterminate life 

sentence. The Act diluted the three strikes law by reserving the life sentence for cases 

where the current crime is a serious or violent felony or the prosecution has pled and 

proved an enumerated disqualifying factor. In all other cases, the recidivist will be 

sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a 

postconviction release proceeding whereby a prisoner who is serving an indeterminate 

life sentence imposed pursuant to the three strikes law for a crime that is not a serious or 

violent felony and who is not disqualified, may have his or her sentence recalled and be 

sentenced as a second strike offender unless the court determines that resentencing would 
64.

pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. 

Yearwood (2013) 213 Cal.App.4th 161, 167–168, quoting § 1170.126, subd. (f), italics 

added.)

C. Petition to Recall

On December 12, 2012, while this case was pending on appeal, defendant filed a 

petition with the superior court to recall his third strike sentence of 50 years to life, and 

resentence him pursuant to the recent enactment of Proposition 36, because his current 

offenses were not serious or violent.

On January 10, 2013, the superior court denied defendant’s petition to recall his 

sentence, found he was not entitled to relief under Proposition 36, and noted it had 

addressed this issue at the sentencing hearing:

“After hearing from counsel and consideration of the probation 

report, the Court sentenced the defendant to two consecutive life terms 

pursuant to the existing three strikes law. In anticipation of the voter’s 

approval of Prop. 36, the Court made a specific finding, on the record, that 

the defendant in fact posed an unreasonable risk of danger to public safety 

if not confined to the state prison for those life terms, based on the 

circumstances of his criminal conduct in the instant case as well as his prior 

criminal history. The Court further found that if Prop. 36 was approved by 

the voters in November [2012], the Court would nevertheless decline a 

request to resentence the defendant to a lesser term, in light of the 

unreasonable risk to public safety if the defendant were allowed an earlier 

release from prison.”

D. Analysis

While defendant may have been eligible to petition for resentencing since his 

current offenses were not serious or violent, the superior court had discretion to deny his 

petition for recall based on the provisions of section 1170.126, subdivision (f), “that 

resentencing the petitioner would pose an unreasonable risk of danger to public safety.” 

In exercising this discretion, the court may consider:
65.

“(1) The petitioner’s criminal conviction history, including the type of 

crimes committed, the extent of injury to victims, the length of prior prison 

commitments, and the remoteness of the crimes;

“(2) The petitioner’s disciplinary record and record of rehabilitation while 

incarcerated; and

“(3) Any other evidence the court, within its discretion, determines to be 

relevant in deciding whether a new sentence would result in an 

unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g).)

When applying these definitions, “dangerousness is a hurdle which must be 

crossed in order for a defendant to be resentenced at all. If the court finds that 

resentencing a prisoner would pose an unreasonable risk of danger, the court does not 

resentence the prisoner, and the petitioner simply finishes out the term to which he or she 

was originally sentenced.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 

1279, 1303, fn. omitted (Kaulick).) The petitioner’s dangerousness “need not be 

established by proof beyond a reasonable doubt to a jury” and “the proper standard of 

proof is preponderance of the evidence.” (Id. at pp. 1303, 1305; People v. Flores (2014) 

227 Cal.App.4th 1070, 1075–1076.) We thus review the record to determine if the court 

abused its discretion in finding by a preponderance of the evidence that appellant “would 

pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f); Kaulick, 

supra, 215 Cal.App.4th at p. 1301.)20

In this case, the superior court was clearly aware of its discretionary authority in 

light of the enactment of Proposition 36. It made extensive findings at the sentencing 

hearing about defendant’s current dangerousness in anticipation that the initiative would 

 

20 On appeal, defendant argues Proposition 36 should be retroactively applied to 

his case, and this court should vacate the sentence and remand; he never addresses his 

petition for recall or the superior court’s findings. In contrast, the People curiously argue 

that defendant must first seek relief before the superior court, and then concede such a 

petition was already filed and denied. We will address defendant’s sentencing issue 

based on the record before this court – that he already filed a petition for recall, and the 

court denied the petition based on the finding of an unreasonable risk of danger.
66.

be enacted, and referenced those findings when it denied defendant’s petition for recall. 

The court considered defendant’s criminal history, his record of reoffending, how his 

offenses endangered other members of the public, his complete disregard for the safety of 

others, and his desperate attempts to avoid prosecution and punishment for his offenses.

The court did not abuse its discretion when it denied defendant’s petition for 

recall, and its findings regarding defendant’s dangerousness are supported by substantial 

evidence.

VIII. Proposition 47

While this case was pending on appeal, we granted leave for the parties to file 

supplemental briefing as to the possible application of Proposition 47 to defendant’s 

conviction in count I for felony second degree commercial burglary.

On November 4, 2014, voters enacted Proposition 47, entitled “the Safe 

Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next 

day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 

classifies as misdemeanors certain drug- and theft-related offenses that previously were 

felonies or “wobblers,” unless they were committed by certain ineligible defendants. 

(§ 1170.18, subd. (a).)

As relevant to this case, prior to the passage of Proposition 47, a person who 

entered a commercial business and stole property could be charged and convicted of 

felony second degree burglary. (§§ 459, 460, 461) After the enactment of Proposition 

47, the same perpetrator may only be charged and convicted of misdemeanor shoplifting 

if the value of the stolen property does not exceed $950, and the offender has not 

committed a prior “super strike” offense as defined in section 667, subdivision (e)(2)(C) 

or an offense which requires registration under section 290, subdivision (c). (§ 459.5, 

subd. (a).)

Defendant contends this court must vacate his conviction and sentence for felony 

commercial burglary in count I because the record implies the value of the stolen 
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property was approximately $200; he has not suffered any prior “super strike” offenses; 

and this court must automatically reclassify count I as a misdemeanor conviction for 

shoplifting pursuant to the minifying provisions of Proposition 47 based on the equal 

protection analysis set forth in In re Estrada (1965) 63 Cal.2d 740. The People reply that 

defendant is not entitled to the automatic reclassification of his felony offense and he 

must comply with Proposition 47’s provisions, which require that he file a petition for 

recall in the superior court to request resentencing. We agree with the People’s 

argument.

We begin with section 1170.18, a new resentencing provision created by 

Proposition 47, under which “[a] person currently serving a sentence for a conviction, 

whether by trial or plea, of a felony or felonies who would have been guilty of a 

misdemeanor under the act that added this section had this act been in effect at the time 

of the offense may petition for a recall of sentence before the trial court that entered the 

judgment of conviction in his or her case” and request resentencing. (§ 1170.18, 

subd. (a).)

“If the petitioner satisfies the criteria in [section 1170.18,] subdivision (a), the 

petitioner’s felony sentence shall be recalled and the petitioner resentenced to a 

misdemeanor ... unless the court, in its discretion, determines that resentencing the 

petitioner would pose an unreasonable risk of danger to public safety. In exercising its 

discretion, the court may consider all of the following: [¶] (1) The petitioner’s criminal 

conviction history, including the type of crimes committed, the extent of injury to 

victims, the length of prior prison commitments, and the remoteness of the crimes. [¶] 

(2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated. 

[¶] (3) Any other evidence the court, within its discretion, determines to be relevant in 

deciding whether a new sentence would result in an unreasonable risk of danger to public 

safety.” (§ 1170.18, subd. (b).)
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“As used throughout this Code, ‘unreasonable risk of danger to public safety’ 

means an unreasonable risk that the petitioner will commit a new violent felony within 

the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of 

Section 667.” (§ 1170.18, subd. (c).)

Section 667, subdivision (e)(2)(C)(iv) lists eight felonies or classes of felonies, 

sometimes called “super strike” offenses, including certain classes of sexually violent 

offenses, child molestation offenses, and assaultive offenses; possession of a weapon of 

mass destruction; solicitation to commit murder; any serious and/or violent felony 

offense punishable by life imprisonment or death; and “[a]ny homicide offense, including 

any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.”21 (§ 667, 

subds. (e)(2)(C)(iv)(I)–(e)(2)(C)(iv)(VIII).)

We find the analysis in People v. Yearwood, supra, 213 Cal.App.4th 161 is 

similarly applicable to the issues raised in this case, and defendant’s arguments are 

without merit. Defendant is not entitled to automatic reclassification of his felony 

conviction to a misdemeanor under the provisions of Proposition 47, and the prospective 

application of the statutory provisions for a petition for recall does not violate defendant’s 

equal protection rights under In re Estrada, supra, 63 Cal.2d 740. (Yearwood, supra, at

pp. 168, 171–179.) Defendant, as a person “currently serving a sentence for a 

conviction,” is limited to the statutory remedy provided in Proposition 47 of filing a 

“petition for a recall of sentence before the trial court that entered the judgment of 

conviction in his or her case to request resentencing” in accordance with the newly 

enacted section 459.5 and other applicable provisions. (§ 1170.18, subd. (a); People v. 

Yearwood, supra, 213 Cal.App.4th at pp. 170, 177.) At that time, the trial court may 

 

21 The enumerated homicide provisions are for first degree murder (§§ 187, 190), 

first degree murder with special circumstances (§§ 190.1–190.4), second degree murder 

(§§ 187, 190, 190.05), vehicular manslaughter while intoxicated (§ 191.5), and gross 

vehicular manslaughter while intoxicated (§ 191.5).
69.

consider defendant’s petition and whether he is eligible for resentencing, exercise its 

discretion to evaluate the statutory factors, and determine whether he would “pose an 

unreasonable risk of danger to public safety” as defined in section 1170.18, subdivision 

(b), which includes the “unreasonable risk” that he could commit “[a]ny homicide 

offense, including any attempted homicide offense, defined in Sections 187 to 191.5, 

inclusive.” (§ 667, subd. (e)(2)(C)(iv).)22

DISPOSITION

The People’s request to disclose the balance of the confidential Marsden

transcripts is denied.

The judgment is affirmed.

_____________________

POOCHIGIAN, J.

WE CONCUR:

_____________________

LEVY, Acting P.J.

_____________________

GOMES, J.

 

22 We do not address the merits of the court’s potential exercise of discretion. We 

note, however, that when the court addressed defendant’s petition for relief under 

Proposition 36, it specifically referenced the extensive findings it made at the sentencing 

hearing when it declined to dismiss any of his prior strike convictions: that defendant 

engaged in a “desperate” act and put “the lives of everyone at risk” when he escaped by 

speeding in the wrong direction on the highway, and the court had a “fundamental 

obligation to protect the community” because his “desperation makes him a danger to 

everyone.”