P. v. Turner 1/10/07 CA3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2007 » P. v. Turner 1/10/07 CA3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C050169

Case Date: 03/21/2007

Preview:Filed 1/10/07

P. v. Turner CA3

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. LAFONZO RAY TURNER, Defendant and Appellant.

C050169 (Super. Ct. No. 04F01206)

Defendant Lafonzo Ray Turner successfully brought a Faretta1 motion and represented himself at trial, after which he was found guilty by a jury of one count of dissuading a witness in violation of Penal Code section 136.1, subdivision (a)(2).2 The

court sentenced defendant to the upper term of three years in state prison, plus one year to be served consecutively for a prior prison term found true by the jury.

Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
2

1

All further statutory references are to the Penal Code. 1

On appeal, defendant contends the trial court erred by (1) allowing defendant to represent himself; (2) not conducting, sua sponte, a hearing to determine defendant's competency to stand trial; (3) allowing defendant to continue representing himself in light of information that he suffered from mental illness; and (4) imposing the upper term in violation of both Blakely3 and the prohibition against dual use of facts. affirm. FACTUAL AND PROCEDURAL BACKGROUND The victim, Edd Stevenson, and his wife, Ronda Jackson, lived with their two children on Ridge Willow Court in South Sacramento. Defendant, Jackson's brother, stayed with them at We shall

their home for a brief period during December 2003. According to Stevenson and other prosecution witnesses, defendant came to Stevenson's house in the early morning hours of December 14, 2003, and, after exchanging words with Stevenson, shot him in the leg.4 Stevenson told Jackson, "`Your

brother just shot me,'" and later told police that he had been shot by defendant. Approximately two weeks after the shooting, defendant called Stevenson from jail and threatened him if he pressed

Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
4

3

Defendant testified that he was somewhere else on December 14, 2003, and denies any involvement in the shooting or making threats to Stevenson during subsequent telephone conversations. 2

charges.

Stevenson called the Sacramento County Sheriff's

Department and obtained a restraining order the next day. On September 24, 2004, after bailing out of jail, defendant telephoned Stevenson again and told him, "`Well, we coming for you, nigger! You dead, you and your family!'"

Defendant was ultimately charged, in an amended consolidated information, with assault with a firearm in violation of section 245, subdivision (a)(2) (count one); possession of a firearm by a convicted felon in violation of section 12021, subdivision (a)(1) (count two); dissuading a witness in violation of section 136.1, subdivision (a)(2) (counts three and five); and making a terrorist threat in violation of section 422 (count four). The information also

alleged two prior felony convictions, one of which was subsequently stricken by the prosecution. The trial court granted defendant's motion to represent himself at trial. The jury returned a verdict of guilty on the

charge of intimidating a witness; however, the court declared a mistrial on the remaining charges. Defendant was sentenced to

the upper term of three years for count three, plus an additional consecutive one-year enhancement for the prior prison term. Defendant filed a timely notice of appeal. DISCUSSION I Defendant contends the court committed reversible error when it granted his motion to represent himself because, he 3

urges, his request to do so was neither unequivocal nor unambiguous. We disagree.

"A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a

defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and

must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. Second, he must make his request unequivocally. [Citations.] [Citations.]

Third, he must make his request within a reasonable time before trial. 729.) [Citations.]" (People v. Welch (1999) 20 Cal.4th 701,

"Moreover, the defendant `should be made aware of the

dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."'" 218 Cal.App.3d 1102, 1105.) In order to determine whether defendant properly invoked his right of self-representation, we examine the whole record de novo. (People v. Dent (2003) 30 Cal.4th 213, 218.) In this case, defendant first raised the notion of selfrepresentation during the June 15, 2004, hearing on his initial Marsden5 motion. When the trial court denied defendant's request (People v. Hall (1990)

to have defense counsel, Jennifer Schiavo, replaced, defendant

5

People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 4

stated, "I refuse to go to trial with [defense counsel] . . . ." He added, "I'll go co-counsel or I'll go without her." However,

there was no further discussion in that regard, and pursuant to the court's order, defendant continued to be represented by Schiavo. At the hearing on defendant's second Marsden motion on February 23, 2005, defendant again sought to have Schiavo removed, stating, "If it's not to be that I can appoint a court appointed [attorney], I would like to file a Faretta motion and go pro per." The court denied that motion as well, noting that

Schiavo's representation had been adequate, and asked defendant, "What would you like to do at this point in time? Would you

like to think about representing yourself on this matter, or would you like to think about taking a little bit of time to think about working with Miss Schiavo?" Although defendant

initially indicated he wanted to represent himself, the court explained the dangers and pitfalls of self-representation and continued the matter to the following morning to give defendant time to carefully consider his decision. The following day, the court asked defendant if he still wanted to represent himself. Defendant told the court, "I You are forcing me

didn't say I wanted to represent myself. under duress to represent myself. file a Faretta Motion." [

Download P. v. Turner 1/10/07 CA3.pdf