Filed 1/22/20 P. v. Rodriguez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

PETER THOMAS RODRIGUEZ,

Defendant and Appellant.

B289165

(Los Angeles County

Super. Ct. No. MA069344)

APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher Estes, Judge. Affirmed and remanded for resentencing.

Kiran Prasad, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Peter Rodriguez appeals from his judgment of conviction on one count of making criminal threats, one count of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and 10 counts of contempt of court. He contends the trial court erred by denying his pretrial motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta). He also contends that under Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), passed on October 8, 2019 and effective as of January 1, 2020, which amended Penal Code section 667.5, subdivision (b), we must strike the one-year prison prior term imposed under that provision. We affirm Rodriguez’s convictions but remand for resentencing, including striking the one-year enhancement imposed for Rodriguez’s prior prison term.

FACTUAL BACKGROUND

A. Evidence Introduced at the September 22, 2016 Preliminary Hearing
B.
Rodriguez and Alicia Ayala were married and lived together. On August 12, 2016, Rodriguez drove Ayala to the restaurant where she worked. While they were still in Rodriguez’s truck in the restaurant parking lot, the pair argued over alleged infidelity and Rodriguez’s drug use.

According to the testimony of the police officer who responded to the scene, Ayala said that while they were inside the truck Rodriguez showed her a semi-automatic gun that he had wrapped in a towel. Rodriguez told Ayala, “I have enough bullets for you and your family.” Fearing Rodriguez was going to shoot her, Ayala ran out of the truck and into the restaurant. When Ayala testified, she denied seeing a weapon, stated she did not remember Rodriguez’s statements to her, and denied being fearful of Rodriguez. She testified she did not recall what she had told the police.

The police stopped Rodriguez’s truck near the scene and arrested him. He told the police he only had a BB gun that he had thrown out the window when he saw the deputies. In Rodriguez’s truck the police found 27 live rounds of ammunition for a nine-millimeter weapon.

Rodriguez was released after posting bail that same day and showed up at Ayala’s home at 2:00 a.m. the next morning. The police were called to Ayala’s home. According to the police officer who interviewed Ayala in the early morning hours at her home, Ayala reported that Rodriguez entered her home carrying a rolled-up t shirt, which he put on a table. Ayala observed a black semi-automatic handgun inside the t shirt. When Rodriguez went upstairs, Ayala hid the t-shirt and the gun. When the police arrived, Ayala gave them the gun, which was loaded with 14 rounds. In her testimony, Ayala admitted giving a gun to the police, but she did not testify that Rodriguez brought the gun into the home. She testified she did not recall telling the police that she found the gun in the rolled-up t-shirt.

Rodriguez was arrested again and jailed. Despite a criminal protective order served on Rodriguez in court on September 7, 2016 that prohibited him from having telephonic contact with Ayala, he made 10 phone calls to Ayala from jail between September 7, 2016 and September 22, 2016.

PROCEDURAL HISTORY

Rodriguez was originally charged on August 22, 2016 with making criminal threats (§ 422, subd. (a); count 1); being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 2); and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3). As to count 1, it was alleged Rodriguez personally used a firearm within the meaning of section 12022.5. As to counts 1, 2 and 3, it was further alleged Rodriguez had two prior prison term convictions (§ 667.5, subd. (b)).

On September 7, 2016, the court issued a criminal protective order under section 136.2, prohibiting Rodriguez from having any contact, including telephonic, with Ayala for a three-year period. The People subsequently added 10 counts of contempt of court based on Rodriguez’s violations of the protective order when he telephoned Ayala 10 times between September 7, 2016 and September 22, 2016, while in custody. (§ 166, subd. (c)(1)(A); counts 4-13). Rodriguez pleaded not guilty to all counts.

During a pretrial proceeding on April 19, 2017, Rodriguez complained that his defense counsel, Kareen Akry, had not aggressively pursued a more beneficial settlement for Rodriguez in dealing with the prosecution. After the court attempted to explain why the prosecution was unlikely to agree to Rodriguez’s requested terms, Rodriguez stated, “I understand. How I wish to proceed then–I wish to go pro per, because I do not feel confident in her.”

The court responded, “I have already appointed Ms. Akry. If you have an issue with her representation and you want her removed from the case, but you still want an attorney to assist you, then I can hold a hearing where you can tell me about what your issues are with Ms. Akry. So I just want you to understand that just because you have issues with your lawyer, doesn’t mean that you have to go pro per. If you want to go pro per, what you’re basically doing is giving up your constitutional right to have an attorney assist you in this case. . . .”

Rodriguez replied, “I do not wish to have a Marsden hearing and slander Ms. Akry.” The court stated, “Obviously you know what a Marsden motion is, where you’re asking me to remove your court appointed attorney and have another attorney appointed for you. So my question is; are you asking for a Marsden motion, or are you asking to go pro per because you want to give up your right to a lawyer and you want to act as a lawyer on your own behalf?” Rodriguez stated, “I wish to go pro per, Your Honor. I fully understand.” The court then stated before conducting a Faretta hearing it would have Rodriguez complete paperwork and ask the Los Angeles County Sheriff’s Department for a report on any discipline imposed on Rodriguez while in custody.

At the continued hearing the next day, the court again asked Rodriguez, “I understand you want to go represent yourself; is that right?” Rodriguez responded, “Yes, Your Honor.” The prosecutor advised the court she had information the court should hear before ruling on the Faretta motion. She stated that at the preliminary hearing, the People became aware that Rodriguez had been contacting the victim in the case, which was the basis for adding 10 counts alleging violations of the protective order. Further, although Rodriguez was again made aware at that time that he was not supposed to have any contact with the victim, a recent investigation of Rodriguez’s jail calls had revealed he made 122 subsequent phone calls to the victim, using different inmates’ booking numbers. The prosecutor stated she had randomly selected 10 of the 122 calls to screen herself, and she verified that the two participants on the call were Ayala and Rodriguez based on her personal knowledge of each of their voices.

The court denied Rodriguez’s motion to represent himself based on his misconduct while in county jail, reported by the Sheriff’s Department, as well as the information provided by the prosecutor about Rodriguez’s numerous phone calls to Ayala in violation of the protective order. The court described a reported in-custody incident in which Rodriguez acted as a lookout so that an inmate could physically assault another prisoner. On another occasion, it was reported Rodriguez became verbally agitated and combative with a deputy who caught him drinking a homemade alcohol drink. The court stated that due to Rodriguez’s “combative nature, the deputies indicated it took time for deputy personnel to conduct their procedures of moving him to another location.” Addressing the information related by the prosecutor, the court stated, “[N]ow armed with the fact that he’s directly violated a court order twice and has abused his phone privileges while in county jail, I find that if I were to grant him pro per status, it would disrupt the core functionality of this and other courtrooms. His abuse of the court system, that is designed to secure his rights, shows this court that he is not fit to represent himself.”

Rodriguez proceeded to trial, represented by counsel. In bifurcated proceedings, Rodriguez waived his right to a jury trial on, and admitted he had suffered, one prior prison term conviction (§ 667.5, subd. (b)); the court dismissed the second prior prison term allegation. The jury convicted Rodriguez of all counts, and found true the allegation that Rodriguez personally used a firearm within the meaning of section 12022.5.

The trial court sentenced Rodriguez to a total sentence of eight years and eight months. As to count 1, the court imposed the upper term of three years, plus an additional four-year consecutive term for the firearm-use enhancement, and a consecutive term of one year for the prior prison term conviction. As to count 3, the court imposed an eight-month sentence (one-third of the middle term of 24 months), to run consecutive to count 1. As to count 2, the court imposed the middle term of two years to run concurrent to count one. On counts 4 through 13, the court imposed 90-day consecutive sentences for each count.

The court imposed a restitution fine in the amount of $2,100 (§ 1202.4, subd. (b)) and a parole revocation fine in the same amount that was stayed pending revocation. The court imposed a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), and a $40 court operations assessment as to count 1 (§ 1465.8, subd. (a)(1)). The court waived any fines and fees as to counts 4 through 13. Rodriguez filed an untimely notice of appeal from the judgment, but this court granted his request to treat his appeal as timely filed.

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion by Denying Rodriguez’s Faretta Motion
II.
A defendant has the constitutional right to self-representation if he or she is competent to undertake the representation, and knowingly, voluntarily and intelligently invokes that right a reasonable time prior to the commencement of trial (see People v. Lynch (2010) 50 Cal.4th 693, 721-722, overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 637; People v. Welch (1999) 20 Cal.4th 701, 729 (Welch)). However, “[t]here are limits on the right to act as one’s own attorney.” (People v. Butler (2009) 47 Cal.4th 814, 825 (Butler).) “‘“[The] government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.”’” (People v. Becerra (2016) 63 Cal.4th 511, 518 (Becerra).) For instance, “‘serious and obstructionist out-of-court misconduct’ that threatens to ‘subvert the “core concept of a trial” [citation] or to compromise the court’s ability to conduct a fair trial [citation]’ may lead to forfeiture of the right to self-representation.”” (Butler, supra, 47 Cal.4th at p. 825; see Faretta, supra, 422 U.S. at p. 834, fn. 46 [“the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct”]; People v. Carson (2005) 35 Cal.4th 1, 10 (Carson) [“[w]henever ‘deliberate dilatory or obstructive behavior’ threatens to subvert ‘the core concept of a trial’ [citation] or to compromise the court’s ability to conduct a fair trial [citation], the defendant’s Faretta rights are subject to forfeiture”].) The same standard for determining whether to revoke in pro per status applies to the denial of a motion for self-representation in the first instance. (See Welch, supra, 20 Cal.4th at p. 734.)

“One form of serious and obstructionist misconduct is witness intimidation, which by its very nature compromises the factfinding process and constitutes a quintessential ‘subversion of the core concept of a trial.’” (Carson, supra, 35 Cal.4th at p. 9, quoting United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1125; see Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 960-961 (Babalola) [“‘victim and witness intimidation . . . inherently thwarts the process of criminal justice itself’”].) “‘A defendant . . . may not . . . intimidate witnesses. [Citations.] The trial court can stop harassment and abuse of a witness by a threatening defendant and can terminate self-representation by a defendant who engages in serious misconduct. [Citations.]’ [Citation.] Threatening or intimidating acts are not limited to the courtroom.” (Carson, supra, 35 Cal.4th at p. 9; People v. Kirvin (2014) 231 Cal.App.4th 1507, 1515-1516 (Kirvin) [“[a] defendant’s out-of-court efforts to intimidate witnesses may consequently justify the denial of self-representation”].) “[T]he effect, not the location, of the misconduct and its impact on the core integrity of the trial will determine whether termination is warranted.” (Carson, supra, 35 Cal.4th at p. 9.)

“‘The trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion “will not be disturbed in the absence of a strong showing of clear abuse.” [Citations.]’” (People v. Weber (2013) 217 Cal.App.4th 1041, 1060; see Carson, supra, 35 Cal.4th at p. 12 [appellate courts must “accord due deference to the trial court’s assessment of . . . the nature and context of [the defendant’s] misconduct and its impact on the integrity of the trial in determining whether termination of Faretta rights is necessary to maintain the fairness of the proceedings”].) We owe the same deference in reviewing the trial court’s decision whether a defendant’s motion for self-representation should be granted in the first instance. (See Welch, supra, 20 Cal.4th at p. 735.)

“When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. One consideration is the availability and suitability of alternative sanctions. [Citation.] Misconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant’s right of self-representation. [Citations.] The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status. [Citation.] Not every obstructive act will be so flagrant and inconsistent with the integrity and fairness of the trial that immediate termination is appropriate. By the same token, however, the defendant’s acts need not result in a disruption of the trial for example, by successfully dissuading a witness from testifying. The likely, not the actual, effect of the misconduct should be the primary consideration.” (Carson, supra, 35 Cal.4th at p. 10; accord, Becerra, supra, 63 Cal.4th at p. 518.)

In the case of out-of-court misconduct, “it is incumbent on the trial court to document its decision to terminate self-representation with some evidence reasonably supporting a finding that the defendant’s obstructive behavior seriously threatens the core integrity of the trial. Unsubstantiated representations, even by the prosecutor, much less rumor, speculation, or innuendo, will not suffice.” (Carson, supra, 35 Cal.4th at p. 11.) “A record of the basis for terminating a defendant’s Faretta rights should include ‘the precise misconduct on which the trial court based the decision to terminate. [Citation.] The court should also explain how the misconduct threatened to impair the core integrity of the trial.” (Becerra, supra, 63 Cal.4th at p. 518.) Because circumstances will vary with the facts of each case, we leave to the trial court’s discretion the ultimate decision as to how best to proceed in making an appropriate record.” (Carson, supra, 35 Cal.4th at p. 11.)

Based on Rodriguez’s violations of the criminal protective order on multiple occasions, the trial court determined that granting Rodriguez pro per status would “disrupt the core functionality” of the court proceedings, and it denied Rodriguez’s motion to represent himself in part on this ground. We find no abuse of discretion in this ruling.

On September 7, 2016, the court entered a criminal protective order pursuant to section 136.2 prohibiting Rodriguez from having any contact, telephonic or otherwise, with Ayala. “Section 136.2 permits the trial court in a criminal case to protect a witness or a victim by issuing a protective order.” (People v. Ponce (2009) 173 Cal.App.4th 378, 382.) The criminal court may enter such an order preventing a defendant from having any communication with a victim or a witness when the court has “a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur.” (§ 136.2, subd. (a)(1)(D); see Babalola, supra, 192 Cal.App.4th at p. 963 [in cases involving charges other than domestic violence charges, “a criminal protective order must be based on a finding of good cause to believe an attempt to intimidate or dissuade a victim or witness has occurred or is reasonably likely to occur”].) In a case such as this one that does not involve domestic violence charges, the purposes of a protective order issued under section 136.2 are to “preserv[e] the integrity of the administration of criminal court proceedings and protecting those participating in them.” (People v. Stone (2004) 123 Cal.App.4th 153, 159, superseded by statute on another ground as stated in Babalola, supra, 192 Cal.App.4th at p. 951.)

The criminal court’s issuance on September 7, 2016 of the protective order under section 136.2 demonstrates the court’s determination that Rodriguez was reasonably likely to attempt to intimidate or dissuade Ayala from cooperating with law enforcement or testifying in court against Rodriguez. (See Babalola, supra, 192 Cal.App.4th at p. 961 [“the underlying charges themselves and evidence of the circumstances surrounding their commission may be sufficient for issuance of a criminal protective order if they establish intimidation or dissuasion of a victim occurred or was attempted”].) At the September 22, 2016 preliminary hearing, evidence was introduced that Rodriguez had violated that protective order 10 times in the two weeks between the entry of the order and the preliminary hearing. Although different bench officers presided over the preliminary hearing and the Faretta hearing, the prosecutor pointed out to the judge deciding the Faretta motion that Rodriguez’s repeated contact with the victim in violation of the protective order was the basis for the 10 counts added against Rodriguez for contempt of court.

Rodriguez argues the court erroneously denied his right to self-representation because no evidence was presented that, in the jail calls he made to Ayala, he actually attempted to intimidate and dissuade Ayala from incriminating him. Such specific evidence was unnecessary. Rodriguez’s persistent violation of the protective order meant to prevent witness intimidation fairly allowed the inference that Rodriguez intended to dissuade or intimidate her from testifying truthfully at the trial. The fact that Ayala had already recanted her version of the events in question at the preliminary hearing (after receiving 10 calls from Rodriguez in the previous two weeks) further demonstrates that witness intimidation was a real concern.

Although the court did not explicitly state Rodriguez had engaged in witness dissuasion or intimidation by contacting Ayala, that finding was implicit in the court’s determination that Rodriguez had abused the court system by violating the protective order on multiple occasions, and that granting him pro per status would disrupt the core functionality of the courtroom. (Kirvin, supra, 231 Cal.App.4th at pp. 1516-1517 [when finding a defendant’s misconduct disqualifies him or her from being granted pro per status, “there are no magic words that must always be said, particularly when they would do no more than state the obvious”].) Such flagrant disregard of the court’s orders intended to ensure cooperation and unadulterated testimony from the victim indeed constitutes “‘serious and obstructionist out-of-court misconduct’ that threatens to ‘subvert the “core concept of a trial” and compromised the court’s ability to conduct a fair trial. (Butler, supra, 47 Cal.4th at p. 826.) The trial court made an appropriate record supported by evidence of “the precise misconduct on which the trial court based the decision to terminate.” (Carson, supra, 35 Cal.4th at p. 11.)

Rodriguez also contends the trial court failed to consider less restrictive alternatives to “complete denial” of his pro per rights, such as restricting his pro per phone privileges. (See People v. Doss (2014) 230 Cal.App.4th 46, 56 [faulting trial court for failing to consider possibility of limiting the defendant’s pro per phone privileges instead of terminating his pro per status, when defendant’s misconduct consisted of using his pro per phone calls to conduct inappropriate business and threaten people].) However, the trial court reasonably could have concluded that imposing such sanctions was not a viable alternative to denying Rodriguez’s request for pro per status. Rodriguez had violated the court’s protective order a minimum of 10 times. Given such willful and consistent disregard of the court’s orders, the court did not abuse its discretion in determining Rodriguez could not be trusted to follow the court’s orders and directives in the courtroom, and concluding that the court’s ability to conduct a fair trial would be compromised if Rodriguez were permitted to represent himself. (See Kirvin, supra, 231 Cal.App.4th at pp. 1516-1517 [finding the court did not need to consider alternative remedies where the defendant’s misconduct was “willful and repeated”].)

In sum, the trial court did not abuse its discretion in determining Rodriguez forfeited his right to self-representation.

III. A Limited Remand for Resentencing Is Required for the Trial Court to Strike Rodriguez’s One-year Prison Term Imposed Pursuant to Section 667.5, Subdivision (b), Based on Recent Amendments to the Provision
IV.
In October 2019, the Legislature passed Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (S.B. 136) amending section 667.5, subdivision (b). Prior to these amendments, “[i]n sentencing a defendant for a new felony offense, a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied ‘for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.’” (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for defendants who had remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Ibid.)

S.B. 136 amends section 667.5, subdivision (b) to state that a one-year term under that section shall be imposed “for each prior separate prison term for a sexually violent offense. . . .” Thus, S.B. 136 eliminates the prior prison term enhancement except in cases involving sexually violent offenses. Rodriguez’s prior conviction was not for a sexually violent offense. Accordingly, under section 667.5, subdivision (b), as amended, Rodriguez would not qualify for the imposition of the one-year enhancement for his prior prison term.

S.B. 136 became effective as of January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).) Section 667.5, subdivision (b), as amended, applies retroactively to Rodriguez, because his conviction is not yet final and the amended statute leads to a reduced sentence. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 748 [for a non-final conviction, “where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”].)

We remand for resentencing so the trial court may reconsider the entire sentencing scheme when striking the one-year priors. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 [trial courts are generally “afforded discretion by rule and statute to reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court”]; see People v. Hill (1986) 185 Cal.App.3d 831, 834 [on remand for resentencing a trial court is “[n]ot limited to merely striking illegal portions” of a sentence but “may reconsider all sentencing choices,” “because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components”].)

DISPOSITION

We remand for the trial court to resentence Rodriguez and strike the one-year prison prior term imposed under section 667.5, subdivision (b). The trial court is directed to ensure a corrected abstract of judgment is prepared and forwarded to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.