Filed 1/3/24 P. v. Baker CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TO MMIE LEE BAKER

,
Defendant and Appellant. B 325893

(Los Angeles County Super. Ct. No. VA095371 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Roger T. Ito , Judge. Affirmed

.

Jared G. Coleman , under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet , Deputy Attorneys Genera l, for Plaintiff and Respondent.2 Defendant and appellant Tommie Lee Baker seeks reversal of his sentence and remand for resentencing, asserting the trial

court ’s denial of his motion to represent himself in a resentencing proceeding was an abuse of discr etion as well as a violation of the
Sixth Amendment to the United States Constitution and his right

to due process

. We find no merit in defendant’s arguments and thus affirm the judgment.

BACKGROUND 1 A jury convicted defendant of the attempted murder of Antonio Godinez (count 1) and found he personally used, intentionally discharged, and proximately caused great bodily injury with a firearm (Pen. Code, § 12022.53, subds. (b)

- (d)), 2 and personally infl icted great bodily injury ( § 12022.7, subd. (a)).
D efendant was also convicted of four counts of attempted carjacking

, and during each crime defendant personally used a firearm ( § 12022.53, subd. (b)). As to the attempted carjacking from Godinez (count 2 ), the jury found defendant inflicted great bodily injury ( § 12022.7, subd. (a)). In October 2007 defendant was sentenced as a second strike offender to an aggregate sentence of 58 years to life in prison. On appeal, this court held
the sentences for the attempted carjacking alleged in counts 3 and 4 were erroneously stayed, and the matter was remanded for resentencing. ( People v. Baker ( May 7, 2009 , B204173 ) [nonpub.

1 We do not include a summary of the evidence adduced at trial, as it is unnecessary to the determination of the issues raised on appeal. We provide a timeline to address arguments made by defendant regarding delays.

2 All further unattributed statutory ref erences are to the Penal Code.3

opn.].) The trial court resentenced defendant to the same total term by striking the o rder to stay counts 3 and 4, and instead imposing the concurrent middle terms of five years for each

count. In 2018, the California Department of Corrections and
Rehabilitation notified the trial court of inconsistencies between the abstract of judgment an d a related minute order, suggesting the possibility of an unauthorized sentence. When the case was called for resentencing on January 15, 2019, defendant moved
pursuant to Faretta v. California (1975) 422 U.S. 806 ( Faretta ) to have appointed counsel reli eved and to represent himself. T he
trial court reviewed the court record and found defendant had filed a “whole bunch” of petitions for habeas corpus petitions

. D efendant volunteered that the court had sent him a cease and
desist letter. The court also found defendant was originally granted pro

. per

. status in January 2007, and asked for reappointment of counsel in April 2007. The court noted that after conviction defendant filed a number of habeas petitions, as well as various motions before three different judges. Based on these findings t he trial court denied the Faretta motion and noted
trial counsel had been adequat e counsel through trial and to the present. The court observed defendant to be “playing games.” In response, defendant stated reasons for his dissatisfaction with appointed counsel. The trial court asked whether defendant was requesting new counsel. Def endant said he was, prompting the court to conduct a Mar s den hearing. 3
D efendant explained that counsel had been ineffective prior to
his 2007 trial

. T he court denied the Marsden motion

.

3 See People v. Marsden (1970) 2 Cal.3d 118.4 Defendant was resentenced and again appealed, citing sentencing er rors and asserting that the trial court erred by denying defendant ’ s request to represent himself at the resentencing hearing. ( People v. Baker ( May 6, 2020, B295721) [nonpub. opn.].) Due to sentencing errors, we again remanded
the matter with directions regarding resentencing, noting , “On remand, defendant can again request self

- representation, and the trial court can consider that request based on the facts known at
the time.” ( Ibid .)
On October 30, 202 0 , after remand, defendant requested appointment of new counsel. A new bar panel attorney was appointed on October 30, 2020, and a resentencing hearing w as scheduled for November 30, 2020. After several continuances due to defendant’s medical condition, a hearing was hel d on May 19, 2021, for resentencing and to consider defendant ’ s renewed
Faretta motion . After hearing from defendant regarding the
Faretta motion , and warning defendant of the drawbacks of self

representation, the trial court granted the motion

, relieved
counsel

, and continued the matter to June 2, 2021.
On that date the court advised it had been notified that defendant’s pro

. per

. privileges had been revoked due to concerns about his mental health and possible self

- harm by the sheriff’s department . The t rial court declared a doubt about defendant’s mental status pursuant to section 1368

. The court revoked defendant’s pro

. per

. status, appointed stand

- in counsel, and continued the matter to the following week. A bar panel attorney was appointed and requested a continuance to investigate the sheriff’s department report. The proceedings were suspended.
On June 29, 2021, the new attorney told the court that unlike the last court date defendant appeared to be “quite
competent, ” but that he would return the next day with an5

evaluation order. The matter was continued to July 29, 2021 pending an evaluation pursuant to section 1368. On that date,
defense counsel reported the psychologist needed an additional 30 to 45 days due to limited video availability. The matter was continued twice, awaiting reports from the psychologist.
On December 21, 2021, before the completion of defendant’s evaluation, the trial court allowed defense counsel to withdraw as counsel for defendant, as def endant had written a letter to the court making allegations against counsel, creating an irreconcilable conflict. The court appointed another bar panel attorney, who requested a three

- week continuance. On January 10, 2022, the court appointed still anoth er bar panel attorney. O n January 11, 2022, defendant’s handwritten pro

. per

. Faretta motion was filed. On February 1, 2022, defendant appeared with new counsel , who informed the court that the psychological evaluation had not been completed due to the

co nflict with prior counsel. The new attorney, McCurry

, asked to bring in a psychologist of his choosing and for time to do so. The competency hearing was continued several times at defense counsel’s request due to the medical evaluation not being completed

. O n September 1, 2022
, the parties submitted the issue on the psychologist’s report

. After review the trial court found defendant was fully aware of the nature of the proceedings against him and competent to proceed with resentencing on September 22, 2022. Defendant did not mention a motion to represent himself. On September 22, 2022 , defendant appeared with counsel,
who had filed an extensive sentencing memorandum advocating full resentencing due to ameliorative changes to the law. Th e trial court had reviewed the memorandum and the attach ments
, including letters of support, prison accomplishments, defendant’s6

age at the time of the crimes (25 years), and evidence of a troubled childhood due to his mother’s longstanding drug abuse
issu e. The court agreed full resentencing was warranted and sentenced defendant to a total term of 20 years, eight months plus 25 years to life in prison. The court chose the middle term

over the high term as to count 1, doubled as a second strike to 14

year s, plus the firearm enhancement pursuant to section 12022.53, subdivision (d) of 25 years to life. The court then imposed one

- third the middle term of one year eight months as to
count 2
, without doubling as a second strike

. T he firearm and great bodily injury enhancements as to that count were stricken

. The court imposed but stayed five years as to each count 3 and 4,
and struck the firearm enhancements as to those counts. As to count 5, the court imposed the middle term of one year eight months plus o ne

- third the enhancement alleged pursuant to section 12022.53, subdivision (b) of three years four months

. Defendant did not mention a motion to represent himself and spoke only one word during the 30 minute hearing . After the court pronounced sentence an d informed defendant of his appeal rights, the court asked defendant if he had any questions about his appeal rights. Defendant had none. A timely notice of appeal from the judgment was filed.

DISCUSSION
Defendant contends: “The sentence must be reversed because appellant was denied his right to represent himself in violation of the Sixth Amendment and a denial of due process of
law.” (Boldface omitted.)
The Sixth Amendment of the United States Constitution gives a defendant the right to be represented by counsel and the right of self

- representation

. ( Faretta, supra

, 422 U.S. at pp. 819

-7

820 .) T he Sixth Amendment right to self

- representation may be asserted by any defendant competent to stand trial

. ( Godinez v.
Moran (1993) 509 U.S. 389, 399

- 400 .) 4 We construe defendant’s arguments to be that the trial court abused its discretion by denying defendant’s request to represent himself on multiple occasions

, for taking too long to resolve the competence issue, and the tri al court committed structural error by failing to sua sponte reinstate defendant’s pro

. per

. status once he was found competent to proceed with resentencing. Defendant contends that an abuse of discretion standard of review applies to the first two conten tions, and the alleged structural error is reversible per se.
D efendant seems to contend the trial court abused its discretion in denying his right to self

- represent ation because appointed counsel testified on June 29, 2021
, that defendant was competent, aware of the issues he faced at resentencing, yet the trial the court delayed granting his request for self

represent ation

. Even if counsel’s testimony were enough,

a ppointed counsel did not testify but merely stated to the court
that unlik e their last meeting, defendant “seemed quite competent” that day

. Moreover, c ounsel made no object ion to the court’s suspension of criminal proceedings and indeed selected a

court

- approved expert. Citing People v. Horton (1995) 11 Cal.4th 1068, 1108, de fendant acknowledges that once doubt of

4 Defendant does not argue that the Sixth Amendment or state law allows a person to be sentenced while mentally incompetent. “ A person shall not be tried or adjudged to punishment

. . . while that person is mentally incompetent .” ( § 1367, subd. (a).) Indeed, do ing so would violate state law and federal due process guarantees. ( People v. Ary (2011) 51 Cal.4th 510, 513; see Pate v. Robinson (1966) 383 U.S. 375, 385.)8

competency was declared and the criminal proceedings were suspended, the court lacked jurisdiction to rule upon a Faretta
motion. The trial court was required to appoint counsel until the conclusion of the competenc y proceedings. (See People v. Lightsey (2012) 54 Cal.4th 668, 696

, fn. 11, 697

- 698.) F ailure to do so would have been a reversible miscarriage of justice under article VI, section 13 of our state Constitution. ( Lightsey

, at p. 702.) The People observe d efendant makes no claim the trial court’s revocation of his pro

. per

. status was error. We agree
defendant does not challenge the court’s discretion to suspend proceedings and obtain a competency evaluation after the report of symptoms of mental illness . However, defendant does appear to claim that revocation of his pro per status was nevertheless an abuse of discretion because the competency determination was such a “slow, inconsistent, and confusing process [that it] effectively eclipsed his constitut ional right to autonomy in directing his case.” Defendant claims he repeatedly asked to represent himself during the 15 months between the court ’s suspension of proceedings to the determin ation of his competence

, but the request s were denied without giv in g any reason

. 5 Defendant also complains that when competence was reinstated the court failed to reinstate his pro

. per

. status on its own

. Defendant argues the revocation of the grant of an order granting pro

. per

. status is reviewed under an abuse of di scretion

5 In making t hese assertions, defendant fails to refer to the record. We found a single request after doubt was declared and have described the continuances and the reasons for them in the Background section. D efendant was present at about half the hearings . H e thus exaggerates claims to have repeatedly requested self

- representation during that time.9

standard

. A s it is defendant who claims discretion was abused

, it
is his burden to demonstrate the alleged abuse , and he must do so by showing the court’s exercise of discretion was irrational or arbitrary, and not “‘ grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular
matter at issue. ’ ” ( People v. Superior Court ( Alvarez ) (1997) 14 Cal.4th 968, 977.) Moreover, it is always the complaining party’s burden to demonstrate a miscarriage of justice suffered as a
result of an abuse of discretion. ( Denham v. Superior Court (1970) 2 Cal.3d 557, 566 .) A miscarriage of justice occurs when it appears that a result more favorable to the appealing party
would have been reached in the absence of the alleged errors. ( People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const., art. VI, § 13.) We note counsel was thorough in his advocacy, resulting in defendant’s aggregate prison term being reduced
from 58 years to life in prison to 45 years to life. Defendant does not suggest he could have achieved a different outcome . A s defendant has made no effort to demonstrate either an abuse of discretion or prejudice, we need not undertake any further discussion of defendant’s arguments on this issue.
Defend ant also appears to claim the trial court should have
reinstated his pro

. per

. status without further request, and a
failure to do so violated his Sixth Amendment under the United
States Constitution . He argues this was structural error,
reversible withou t regard to prejudice. Defendant adds he was unable to make such a request because he was forced to proceed with unwanted counsel and was thus not given the opportunity to renew his request at the resentencing hearing. The People respond that defendant di d in fact have an opportunity to renew his request for self

- representation. On September 1, 2022, the court declared defendant competent to10

proceed with resentencing. At that time, counsel told the court
he intended to file additional documentation setti ng forth defendant’s position and requested time to do so. Defendant said nothing at that hearing. 6 T he September 22, 202 2 sentencing hearing lasted about 30 minutes . D efendant appeared with
counsel , and at no time did defendant renew his request to represent himself. Defendant demonstrated many times in hearings prior to June 2, 2021
, that he had no compunction against interjecting his views in open court. Yet he did not do so at resentencing even when the court asked both counsel whether there was anything else they wished to say

. Nor did defendant speak up after the trial court imposed a reduced sentence and
then asked defendant whether he had any questions about his appeal rights. We agree with the People that by his conduct defendant abandoned or withdrew any request to represent himself. A

“ Faretta right, once asserted, may be waived or abandoned. ” ( People v. Dunkle (2005) 36 Cal.4th 861, 90 9, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390

, 421,
fn. 22 .) “ A defendant may, by his or her conduct, indicate abandonment or withdrawal of a request for self

- representation. ” ( People v. Weeks (2008) 165 Cal.App.4th 882, 88 7.) For example,
where a self

- represented defendant a cquiesces in the participation of stand

- by counsel, he may not complain on appeal

6 Defendant incorrectly asserts that the trial court found him competent and sentenced him the next day. According to the record, t he trial court sentenced defendant th ree weeks after finding him competent. We have examine d the record de novo to determine whether defendant effectively requested the right to self

- representation. ( See People v. Dent (2003) 30 Cal.4th 213, 218.)11

that he was denied his right to self

- representation. ( People v.
Dunkle

, supra , at p. 909, citing McKaskle v. Wiggins (1984) 465
U.S. 168 .)
In People v. Kenner (1990) 223 Cal.App.3d 56 , 62 ( Kenner )

, as here, defendant “ had ample opportunity to call the court ’ s attention to the neglected Faretta motion, but did not. ” Also as in
Kenner , defendant may have “ had second thoughts about the wisdom of representing hims elf and abandoned the idea. [¶] Defendants who sincerely seek to represent themselves have a responsibility to speak up. ” ( Ibid .) The Kenner court concluded that “ it is reasonable to require the defendant who wants to take
on the task of self

- represent ation to remind the court of the pending motion. Therefore

, we hold that on this record, where appellant had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so,
he must be deemed to have abandoned or withdrawn that
motion. ” ( Ibid .; accord, People v. Skaggs (1996) 44 Cal.App.4th 1,
5

- 9

. ) Defendant may have been influenced by counsel’s extensive sentencing memorandum with mitigation ev idence, advocating full resentencing due to ameliorative changes to the law. In

a gree ing full resentencing was warranted, t he court was guided by the memorandum and evidence, particularly the evidence of defendant’s troubled childhood and substance abuse, the support of his family, and his age (25 years) at the time of the offense. The court complimented counsel on his presentation and noted that although defendant was quite agitated in court with prior counsel, he ha d been exceptionally courteous and pro fessional in his demeanor since McCurry’s appointment. Moreover, at sentencing the only Faretta motion before the court was defendant’s pro

. per

. motion filed in January 202212

while proceedings were suspended

. There had been no ruling

, and it was incumbent upon defendant to request such a ruling

. ( People v. Skaggs

, supra , 44 Cal.App. 4th at pp. 7

- 8.) B y failing to
do so and never raising the issue again, defendant abandoned the
motion. ( Ibid .) Defendant contends that renewing the motion would hav e been futile, and thus his failure to do so did not constitute a
waiver. He argues the combination of denials and inordinate delays would make any further requests appear to be futile. “It may be that where a defendant has been repeatedly rebuffed in
hi s request to proceed in propria persona an inference of futility may be indulged to obviate the inference from his appearance with retained counsel that he intended to give up his right to proceed in propria persona.” ( People v. Weeks

, supra , 165 Cal.App. 4th at p. 889 , italics added .) Defendant fails to refer to the record in support of his argument of many requests and denials, which the record does not in fact support. Defendant

was granted pro

. per

. status in January 2007, and then he asked that counsel be appointed in April 2007. His next request, on January 15, 2019 , was denied when the trial court suspected he was “playing games.” His subsequent request was granted in May 2021. This does not suggest that a renewed request upon being de clared competent to proceed would have surely been
denied.
Defendant next relies on United States v. Arlt (9th Cir. 1994) 41 F.3d 516, 523, where the court did not find a waiver when defendant appeared with counsel, because the defendant had previously “ st ated his request clearly and unequivocally and the judge has denied it in a [n] equally clear and unequivocal
fashion. ” Defendant also relies on People v. Tena (2007) 156 Cal.App.4th 598, 609

- 610
, and quotes People v. Butler (2009) 4713

Cal.4th 814, 82 5
, foo tnote 3 , to argue that “ defendant was not required to renew his request after it was conclusively denied

. ” Defendant’s reliance on these cases is misplaced, as defendant’s

pro

. per

. status was not conclusively denied after an unequivocal request, or any request, but revoked as required due to doubts about his competence. (See People v. Lightsey

, supra , 54 Cal.4th
at pp. 696
, fn. 11, 697

- 698.) Moreover, even though the trial court had conclusively denied one request i n the past before granting another, defendant’s silence after being found competent does not suggest futility, particularly after all the delays noted by defendant, but instead a decision to abandon the request. (S ee Kenner

, supra , 223 Cal.App.3d at pp. 5 8

- 59, 62 .)
We conclude that the trial court did not err or abuse its discretion, and no constitutional right was violated by the court’s appointment of counsel for resentencing.

DISPOSITION The judgment is affirmed.

___________________________ CHAVEZ, J.

We concur:

_______________________________ ASHMANN

- GERST, Acting P. J.

_______________________________ HOFFSTADT, J.