Filed 6/7/22 P. v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William R. Chidsey, Judge. Affirmed in part, reversed and remanded with directions in part.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

A jury found defendant and appellant Kevin Bryan Johnson guilty of two counts of assault with a firearm (Pen. Code,^[1] § 245, subd. (a)(2); counts 1 & 2) and one count of misdemeanor resisting arrest (§ 148, subd. (a)(1); count 3). Defendant was sentenced to a total term of five years in state prison as follows: the upper term of four years on count 1, plus a consecutive term of one year (one-third the middle term) on count 2; and a concurrent term on count 3. On appeal, defendant contends (1) the trial court erred when it denied his request to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta); (2) the trial court erred by not sua sponte instructing the jury on simple assault as a lesser included offense of assault with a firearm; and (3) the matter must be remanded for a new sentencing hearing under newly enacted sentencing laws. The People agree the matter should be remanded for a new sentencing hearing, but disagree with defendant’s remaining contentions.

II.

FACTUAL BACKGROUND

On March 23, 2021, Alexis E. and Manuel V. were working at a clinic, which was located in a commercial area, next to a shopping center and gas station, in Rancho Mirage. At approximately 3:00 p.m. that day, Alexis and Manuel went for a walk around the outside of the building together. Meanwhile, defendant was inside a nearby gas station store wearing a blue hat. Another customer at the gas station store became concerned when defendant looked at her in a “weird” way, causing her to become “so uncomfortable” that she waited inside the store until defendant left and walked across the street. This customer believed defendant was a transient.

After defendant left the gas station store, he walked to a nearby bench where an elderly couple, a man and a woman, were panhandling, and sat on the bench. The woman was “nervous” of defendant because he was “‘creeping’” her out. As Alexis and Manuel were walking near the bench, defendant got up and approached them. Manuel recognized defendant as the same person who he had confronted inside his car after defendant had broken into it the day before. When defendant approached Alexis and Manuel, he asked Manuel “if he left his keys in [Manuel’s] car” the day before. Manuel told defendant that he did not want to speak to him. Defendant, however, kept asking Manuel about his keys and grew upset.

The confrontation “escalated” until defendant grabbed a handgun out of his backpack. Defendant was close to Alexis and Manuel, about five to seven feet away. As soon as Alexis realized defendant was taking out a gun, she began to scream and ran away.^[2] When Manuel saw the gun, he “froze up” and watched as defendant pointed the gun at Manuel’s leg. After Manuel heard Alexis screaming, he also started running away from defendant.

The elderly woman on the bench heard Alexis screaming and looked up to see defendant pointing a gun at Alexis and Manuel. The woman tried to get the elderly man to move from the bench to hide behind a wall, telling him that defendant had a gun. The woman had observed defendant pull out the gun from his backpack and also saw defendant chasing after Alexis and Manuel with the gun still in his hand. After Alexis and Manuel ran back to their work, a coworker called 911. Defendant ran away from the shopping center.

The nervous customer from the gas station store was outside the store at this time and heard Alexis’s loud “earth-shattering scream” and saw Alexis and Manuel running away from defendant. The customer watched as defendant “put[] something in his backpack.” She also heard and observed the elderly woman on the bench screaming, “‘He has a gun. He has a gun. He has a gun.’” The customer got in her car and started quickly driving away. As she drove away, she saw defendant “doing something with his backpack” and became afraid for her life. She was scared because she believed defendant had seen her and was going to take out his gun. As she drove away, she also called 911.

Police officers arrived shortly thereafter in response to a person with a gun and located defendant in a sandy field near the shopping center. Defendant was uncooperative with the officers and physically resisted them. He refused to identify himself and was uncooperative during the infield show-up. He was eventually arrested and taken into custody. Although defendant’s backpack was located, no gun was recovered at the scene.

Alexis identified defendant as the perpetrator at an infield lineup and in court during trial. The elderly couple and the nervous customer also identified defendant at the infield lineup and in court. Manuel was unable to identify defendant at the infield lineup or in court.

The elderly man sitting on the bench with the elderly woman testified on behalf of the defense. The man corroborated that defendant had come to sit on the bench where he was seated and stated that defendant had remained on the bench until police arrived. He noted that defendant had gotten up to speak with Alexis and Manuel, but did not see defendant pull anything out from his backpack, including a gun. On cross-examination, however, the elderly man acknowledged that his back was facing Alexis and Manuel while defendant spoke to them and that he did not see anything happen that day.

III.

DISCUSSION

A. Denial of Motion for Self-Representation

Defendant contends the trial court erred in denying his request to represent himself, thereby violating his constitutional rights and warranting automatic reversal. We disagree.

1. Additional Background

The additional background is as follows: After voir dire was complete, the jury was impaneled, the trial court had ruled upon the motions in limine, and the parties were ready to give their opening statements, on August 30, 2021, defendant’s appointed trial counsel informed the court that defendant was requesting a Marsden^[3] hearing because he wanted to represent himself. The trial court then excluded the jurors and everyone else and held an in camera hearing in the presence of court staff, defendant, and defendant’s trial counsel. As to his Marsden request to replace appointed counsel, defendant complained that he had not received a list of witnesses to be called to testify, wanted trial counsel to employ body cam footage from police officers for impeachment, wanted Manuel to testify, and disagreed with trial counsel’s exercise or lack of exercise of peremptory challenges. He also asserted that his counsel did not listen to him. Defendant essentially disagreed with his counsel’s trial strategy. The trial court ultimately denied defendant’s Marsden request, and then addressed defendant’s request to represent himself.

The trial court began by providing defendant with the Faretta advisements, during which defendant frequently interrupted and argued with the court. The court asked defendant if he was “prepared to go forward today?” Defendant responded, “As soon as I get the—to see the body-cam footage and as soon as [Manuel] is subpoenaed per my request, as I requested several months ago, as well as Mr. [L.B.] telling me these guys were going to try to do this to me.” The court stated it would take the matter under submission during a short recess, after which it would issue its ruling in open court. Shortly thereafter, in open court, the trial court denied defendant’s request to represent himself, explaining as follows: “Mr. Johnson, I’ve had an opportunity to look at the law that pertains to this particular case, given an individual’s right to represent himself coupled with the Court’s responsibility in granting that right. What I have learned, looking at a number of cases, including California Supreme Court cases and a number of subordinate Court of Appeal cases, is that the Court is required, given the special nature of this particular case, to take into consideration the totality of the circumstances. [¶] This is what I’m alluding to. Counsel’s represented you for a period of time. You’ve had a lot of opportunities to voice your concerns that you have voiced today. You have, to my knowledge, not asserted a right to represent yourself. Last week, we had the opportunity to impanel a jury. We postponed the matter for a couple of days to accommodate witnesses that are anticipated to be called. During this period of time and before then, you would have had the right to assert your right to represent yourself. Here, however, we are ready to proceed. . . . [¶] . . . [¶] [¶] In effect, we are ready to go to trial. People are ready to go to trial. Your attorney who currently represents you has indicated he’s prepared to go to trial.” At that point, defendant began repeatedly interrupting and attempting to talk over the court, calling the court’s ruling “absurd.” In response, the court admonished defendant that he would be removed from the courtroom if he continued to be disruptive. The court thereafter denied defendant’s request to represent himself.

After both sides rested their cases and the jury was in the process of deliberating, the trial court memorialized an off-the-record exchange it had with defendant. The court stated to defendant, “Mr. Johnson, thank you for your comments this morning with respect to thanking me for denying your request to have your attorney removed and you substituted in pro per.” Defendant replied, “Thank you for making that decision.”

2. Legal Background and Analysis

The United States Supreme Court made clear that a criminal defendant has a constitutional right to self-representation. (Faretta, supra, 422 U.S. at pp. 835-836.) A trial court must grant a defendant’s request to represent himself if the request is timely and unequivocal, and the defendant makes his request voluntarily, knowingly, and intelligently. (People v. Johnson (2019) 8 Cal.5th 475, 499 (Johnson).) “A motion for self-representation 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 may be denied.” (People v. Marshall (1997) 15 Cal.4th 1, 23.) Whether to grant an untimely Faretta motion is “‘within the sound discretion of the trial court.’” (Johnson, supra, at p. 499; accord, People v. Wright (2021) 12 Cal.5th 419, 435-436.) Denial of a timely, unequivocal, and voluntary Faretta motion, however, is reversible per se. (People v. Welch (1999) 20 Cal.4th 701, 729.) We review denial of an untimely Faretta motion for abuse of discretion. (People v. Best (2020) 49 Cal.App.5th 747, 756.)

We first analyze whether the trial court erred in finding the request for self-representation untimely. Our Supreme Court has “long held that a Faretta motion is timely if it is made ‘within a reasonable time prior to the commencement of trial.’” (Johnson, supra, 8 Cal.5th at p. 499.) “[T]he ‘reasonable time’ requirement ‘must not be used as a means of limiting a defendant’s constitutional right of self-representation,’ but rather to prevent the defendant from ‘misus[ing] the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.’” (Ibid.) A timeliness requirement “reflects that ‘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.’” (Ibid.)

In determining whether a motion is timely, the California Supreme Court has rejected the idea of applying a “bright-line rule, explaining that ‘nothing in Faretta or its progeny either expressly or implicitly precludes consideration of factors other than the number of weeks between the self-representation motion and the trial in determining timeliness.’” (Johnson, supra, 8 Cal.5th at p. 502.) However, our high court has “held on numerous occasions that Faretta motions made on the eve of trial are untimely.” (People v. Lynch (2010) 50 Cal.4th 693, 722, abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637, 643; accord, People v. Wright, supra, 12 Cal.5th at p. 419.) In deciding whether a defendant’s Faretta motion is timely, “a trial court may consider the totality of the circumstances,” including “‘not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation.’” (Johnson, supra, 8 Cal.5th at p. 500.)

Our Supreme Court has not articulated a standard of review for determining the narrow question of whether a Faretta motion was timely. (Johnson, supra, 8 Cal.5th at p. 501.) However, in People v. Frierson (1991) 53 Cal.3d 730, the California Supreme Court held that a motion for self-representation made two days before the set trial date was made on “the eve of trial” and thus untimely. (Id. at p. 742.) In People v. Clark (1992) 3 Cal.4th 41, our high court found a Faretta motion was untimely when it was made several days after the case had been continued day-to-day “in the expectation that the motions would be concluded and jury selection set to begin at any time.” (Id. at p. 99.) In People v. Valdez (2004) 32 Cal.4th 73, the California Supreme Court held that a Faretta motion “made moments before jury selection was set to begin” was untimely. (Id. at p. 102.) In People v. Wright, supra, 12 Cal.5th 419, the high court concluded the defendant’s Faretta motion was untimely when it was made “two days before the scheduled trial date and conditioned his motion on the grant of a continuance, telling the court that if he did not have time to prepare, he would proceed with counsel.” (Id. at p. 437.) In People v. Jackson (2009) 45 Cal.4th 662, the Supreme Court concluded that the trial court did not abuse its discretion in denying the defendant’s request to represent himself when it was “‘just too late, made after a full day of voir dire and at the tail end of jury instruction.’” (Id. at p. 690.)

Based on our independent review of the record and after taking into consideration the totality of the circumstances, we conclude the trial court properly treated defendant’s Faretta motion as untimely. Thus, the trial court did not abuse its discretion in denying defendant’s day of trial self-representation request made while the jurors were outside the courtroom.

Here, defendant’s request came after voir dire was complete, the jury was impaneled, the court had ruled on the in limine motions, and the parties were about to give their opening statements. It appears the reasons for defendant’s request were the same as voiced in his Marsden hearing. The reasons related to a disagreement between defendant and his appointed trial counsel as to how to best defend against the charges. Further, the record reveals defendant’s self-representation request was equivocal because it was strictly in response to his trial counsel’s alleged shortcomings rather than a sincere desire to proceed in pro se. The court found that there was no issue as to the quality of representation provided by defendant’s trial counsel. Defendant indicated that he was not prepared to go forward with the trial that day and did not disclose how long it would take him to prepare for trial. Moreover, following presentation of the evidence and while the jurors were deliberating, defendant thanked the court for denying his Faretta request. If the request for self-representation was granted, the trial court could reasonably conclude defendant’s pro se status would cause significant delays and thereby obstruct the fair and effective administration of justice. (People v. Jackson, supra, 45 Cal.4th at p. 690.)

We find that no abuse of discretion occurred. The trial court did not err by denying defendant’s Faretta motion.

B. Instructional Error

Defendant contends the trial court prejudicially erred in failing to sua sponte instruct the jury with simple assault (§ 240), as a lesser included offense of assault with a deadly weapon (§ 245, subd.(a)(2)), on counts 1 and 2. Defendant believes it is reasonably probable that, had the jury been instructed with the lesser included offense, it would have returned a different verdict. (See People v. Watson (1956) 46 Cal.2d 818 (Watson).)

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.” (§ 245, subd.(a)(2).) It is undisputed that simple assault is a lesser included offense of assault with a firearm. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747; People v. Beasley (2003) 105 Cal.App.4th 1078, 1086, 1088.)

“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) “‘That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]’” (Id. at pp. 154-155; accord, People v. Campbell (2020) 51 Cal.App.5th 463, 500-501.)

“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (Breverman, supra, 19 Cal.4th at p. 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense . . . .” (Ibid.) Substantial evidence, in this context, means evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (Ibid.) It follows that there is no duty to instruct on simple assault as a lesser included offense to assault with a firearm if the evidence of firearm use is uncontroverted. (People v. Lesnick (1987) 189 Cal.App.3d 637, 643.) Failure to instruct sua sponte on a lesser included offense is reviewed independently. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)

The evidence in this case does not support a finding of simple assault. At trial, although the firearm was never recovered, the victims and witnesses consistently testified that defendant had taken a gun out of his backpack. Alexis and Manuel both testified that they had observed defendant take a gun out of his backpack. Although Alexis had immediately started screaming and running away before she noticed defendant pointing the gun at her and Manuel, Manuel saw defendant point the gun at him, after which he too started running away from defendant. This was consistent with the testimony of the elderly woman on the nearby bench who watched as defendant took the gun out and pointed it Alexis and Manuel. The elderly woman had also observed defendant chasing after Alexis and Manuel with the gun still in his hand.

As he did at trial, defendant argues that he did not have a gun and the gun was never recovered, and that if he did, he did not point it at the victims. To support this claim, he notes that Alexis did not see defendant point the gun at her before she started running away, and that Manuel only saw defendant point the gun at him, not at Alexis, before he too started running away. This argument, however, does not support his claim that the trial court had a sua sponte obligation to instruct the jury as to simple assault. As explained above, overwhelming evidence shows that defendant had taken a gun out of his backpack and pointed it at the victims. In addition, if the jury believed defendant did not have a gun, he would not have been found guilty of any form of assault. Similarly, if the jury believed defendant only displayed a gun but did not point it at the victims, he may have been guilty of brandishing a firearm, but he would not have been guilty of any form of assault.^[4]

Even assuming the trial court erred, the error was harmless. Failure to instruct on a lesser included offense is subject to the harmless error analysis under Watson, supra, 46 Cal.2d 818. (Breverman, supra, 19 Cal.4th at p. 178.) The conviction may only be reversed if the likelihood of a more favorable outcome is “reasonably probable.” (Watson, supra, at p. 836.) Here, for the reasons explained above, there is no probability that the jury could have found that defendant committed the lesser offense and not the greater. Overwhelming evidence in the record establishes that defendant had taken a gun out of his backpack and pointed it at the victims, causing the victims and nearby witnesses to be fearful for their lives. There is no evidence to suggest that defendant only committed a simple assault given the overwhelming evidence that defendant had pointed the gun at the victims. Therefore, even if the trial court erred by failing to instruct on the lesser included offense, the error was harmless because there is no reasonable probability that the jury would have found that only a simple assault occurred had an instruction on simple assault been given.

C. Amended Sentencing Laws

Defendant argues the matter must be remanded for a new sentencing hearing in light of Assembly Bill No. 124 and Senate Bill No. 567.^[5] The People agree the matter should be remanded for a new sentencing hearing, as do we.

While this appeal was pending, the Governor signed Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695) and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731), both effective January 1, 2022 and both of which make changes affecting a trial court’s sentencing discretion, including the ability to impose an upper term for a conviction. Among other things, Assembly Bill No. 124 sets a presumption that the trial court will impose the lower term under enumerated circumstances, such as where an offender’s childhood trauma or youth were contributing factors in the offense. (Stats. 2021, ch. 695, § 5.3.) Senate Bill No. 567, among other things, generally limits the trial court’s ability to impose the upper term unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or by the court in a court trial. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) Evidence of the defendant’s prior convictions, in the form of certified records of conviction, is an exception to this general rule and need not be submitted to a jury. (§ 1170, subd. (b)(3), added by Stats. 2021, ch. 731, § 1.3.)

As the parties point out, under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) This presumption has been extended to amendments providing trial courts discretion to impose lesser punishment at sentencing and amendments reducing the possible punishment for classes of persons. (See, e.g., People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 [Proposition 57, as approved by voters, Gen. Elec. (Nov. 8, 2016)]; People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 [Senate Bill No. 1393 (2017-2018 Reg. Sess.)]; People v. Valenzuela (2018) 23 Cal.App.5th 83, 87-88 [Senate Bill No. 620 (2017-2018 Reg. Sess.)].) Nothing in Assembly Bill No. 124 or Senate Bill No. 567 suggests legislative intent that the amendments apply prospectively only, and defendant’s case is not yet final. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Accordingly, we agree with the parties that Assembly Bill No. 124 and Senate Bill No. 567 apply retroactively in this case.

Because there is no clear indication what sentencing decisions the trial court would have made if it was bound by the new requirements under Assembly Bill No. 124 and Senate Bill No. 567, we agree with the parties that remand is appropriate so the trial court may fully resentence defendant anew, incorporating the new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

IV.

DISPOSITION

The judgment of conviction is affirmed. The sentence is reversed and the case is remanded to the trial court for a full resentencing hearing, consistent with the legislative changes made by Senate Bill No. 567 and Assembly Bill No. 124, discussed herein.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.

^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] During cross-examination, Alexis admitted that defendant had not made any threats and “just had [the gun] laid out on his hand.” She also acknowledged that defendant had not pointed the gun at her or Manuel and believed defendant showed them the gun to scare them.

^[3] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[4] Misdemeanor brandishing of a weapon or firearm under section 417, which was not charged in this case, is not a lesser and necessarily included offense of assault with a deadly firearm, but a lesser related offense. (People v. Steele (2000) 83 Cal.App.4th 212, 218.)

^[5] We note that defendant’s argument section only relates to Senate Bill No. 567, but the headnote relating to this argument mentions Assembly Bill No. 124. We will address Assembly Bill No. 124 in the event it is relevant when the matter is remanded for a new sentencing hearing.