P. v. Jones

Filed 8/2/06 P. v. Jones CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. Affirmed with directions.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Deputy

Senior Assistant Attorney General, and Steven T. Oetting, Supervising Deputy Attorney General, for Plaintiff and Respondent.

In defendant Timothy Lewis Jones's second appeal in this case, defendant seeks reversal of judgment entered following jury convictions for kidnapping to commit rape, two counts of forcible oral copulation, three counts of forcible rape, and failure to register as a sex offender. The jury also found true that one of the victims was 65 years of age or older. In a bifurcated trial, the court found true all of the other enhancement allegations. The trial court sentenced defendant to 150 years to life, plus 27 years, for a total prison term of 177 years to life.

Following defendant's successful appeal and remand of the case to the trial court, defendant accepted representation by appointed counsel conditional upon the trial court granting defendant cocounsel status. Later, during the trial, defendant sought to fire his appointed counsel. Defendant contends the trial court should have construed this request as a renewed Faretta^[1] request for self-representation rather than as a Marsden^[2] request for new appointed counsel.

Defendant also challenges the trial court orders imposing a restitution fine and a parole revocation fine of $10,000 each, rather than imposing the same fines of $200 each imposed originally, before defendant's successful appeal in this case. Defendant contends that increasing the fines, following his successful appeal and remand for a new trial, violates his constitutional privilege against double jeopardy and right to due process.

We conclude defendant did not unequivocally make a Faretta demand in the trial court. Merely requesting to fire his attorney was not sufficient to trigger his Faretta rights.

As to defendant's challenge to his increased restitution and parole revocation fines, the People agree the fines should be reduced to the amount of the fines imposed in the original sentencing hearing. Accordingly, we affirm the judgment, with the exception of the restitution and parole revocation fines, which shall be reduced to the $200 amount originally imposed for each fine.

1. Factual Background

Because this appeal concerns only defendant's Faretta right to represent himself and a sentencing issue, we will give a very brief summary of the facts relevant to defendant's conviction.

In the instant case, defendant was convicted of committing sexual offenses against two victims. The first incident occurred on November 21, 1998, around 7:00 a.m. While Jane Doe 1, who was 84 years old, was walking her dog and picking up cans in a parking lot on Foothill Boulevard, defendant attacked and raped her.

The second incident occurred on October 3, 1999, around midnight. Defendant approached Jane Doe 2, who was sitting on a cement planter in front of a building. They talked awhile and then walked to a vacant lot near 5th and D Streets in San Bernardino. Suddenly defendant threw Jane Doe 2 down on the ground in the vacant lot and raped her.

On October 9, 1999, Officer Casarez noticed defendant walking in the area where Jane Doe 2 had been raped. Casarez had previously seen defendant walking with Jane Doe 2 shortly before defendant had raped her. Casarez stopped defendant, asked defendant for his name, and arrested defendant after defendant told Casarez his true name.

The court files reveal defendant pleaded guilty in 1982 to assault with intent to commit rape. (Pen. Code, § 220.)^[3] As a consequence, defendant was required to register as a sex offender but failed to do so after his original registration in 1998.

2. Denial of Right to Self-Representation

Defendant contends the trial court deprived him of his Faretta right to self-representation. We conclude there was no such violation since he did not make an unequivocal request to represent himself.

A. Procedural Background

After defendant was convicted of all of the charged crimes, defendant appealed and prevailed on the ground the trial court deprived him of his Sixth and Fourteenth Amendment rights to represent himself (case No. E031659). This court reversed the judgment. Following remand, defendant initially demanded to represent himself but on November 25, 2003, advised the court that he no longer wished to do so and agreed to the court appointing Christine Bordner as his attorney.

In August 2004, defendant requested that he be permitted to act as cocounsel with Bordner. Defendant acknowledged that he did not wish to represent himself. Accordingly, the trial court granted defendant cocounsel status, conditional upon Bordner serving as lead counsel and defendant following her orders. The trial court explained to defendant that Bordner was to have the final say as to how the defense would be conducted and the only counsel speaking for the defense. Defendant could speak through her. Defendant agreed to these conditions.

In September 2004, defendant wrote to the court explaining that he wished to fire his attorney because the jail would not give him access to the law library unless he was in pro per.

In November 2004, defendant again wrote to the court, stating he wanted to fire Bordner because of her limited contact with him. Defendant said he wanted Jeff Aaron or another attorney appointed. The court held a Marsden hearing on December 6, 2004, and asked defendant if he wanted to represent himself. Twice defendant responded that he did not. The court denied defendant's Marsden motion.

During the trial, on April 13, 2005, defendant told the court he intended to file a writ of mandate based on receiving ineffective assistance of counsel (IAC). The trial court concluded defendant was receiving adequate representation and told defendant he could file a writ.

Thereafter, on April 18, 19, and 21, 2005, defendant filed in the trial court documents asserting he was receiving IAC. In a letter filed on April 18th, defendant stated that â€