People v. Jones CA2/6

Filed 3/6/14 P. v. Jones CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX

THE PEOPLE, 2d Crim. No. B245166
(Super. Ct. Nos. 2012021030, 2012017978)
Plaintiff and Respondent, (Ventura County)

v.

ROBERT NATHANIEL JONES,

Defendant and Appellant.

Robert Nathaniel Jones appeals from the judgments entered in two cases: Ventura
County Superior Court Case Nos. 2012021030 (case A) and 2012017978 (case B). In
case A appellant was convicted by a jury of felony receiving stolen property (Pen. Code,
§ 496, subd. (a))1 and two misdemeanors: possession of an injection device (Health &
Saf. Code, § 11364.1, subd. (a)) and giving false information to a police officer (§ 148.9,
subd. (a)). After his conviction, the court conducted a bifurcated jury trial on
enhancement allegations that appellant had served three prior separate prison terms.
(§ 667.5, subd. (b).) The jury found the allegations true. Appellant was sentenced to
prison for six years on the felony offense with the enhancements. He was sentenced to a
consecutive term of one year for the two misdemeanors. Accordingly, appellant's
aggregate sentence in case A is seven years.

1
All statutory references are to the Penal Code unless otherwise stated.
 In case B appellant had been placed on probation after pleading guilty to
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitting
allegations of three prior prison terms. (§ 667.5, subd. (b).) Concurrently with the jury
trial in case A, the court heard an alleged violation of probation in case B. The court
found appellant in violation of probation. It revoked probation and sentenced him to 240
days in county jail, to be served consecutively to the sentence imposed in case A.
During the jury trial, appellant was in custody and represented himself. He
contends that (1) he did not voluntarily and intelligently waive his right to counsel, (2) his
constitutional rights to self-representation and due process were violated because he was
denied reasonable access to a telephone for the purpose of contacting witnesses, (3) the
trial court erroneously failed to instruct sua sponte on the defense of innocent intent, (4)
the prosecutor engaged in misconduct, and (5) he was denied his right to counsel at
sentencing.
We modify the judgment to strike a $25 registration fee imposed pursuant to
section 987.5, subdivision (a). As modified, we affirm.
Facts2
At about 3:30 a.m. Officer Jeff O'Brien received a call that a woman had seen a
man at her window. O'Brien drove to the location and saw appellant. O'Brien got out of
his patrol vehicle and asked appellant to identify himself. Appellant gave a false name.
O'Brien conducted a pat-down search of appellant. In his pants pocket O'Brien found two
blank checks in the name of "a Mr. Schumacher." Appellant said that he had found the
checks in a parking lot or on the street. About two days earlier, the checks had been
stolen from Schumacher's vehicle. Inside appellant's duffel bag, O'Brien and another
officer found a Colorado driver's license, a bank statement, and credit cards in the name
of Vicki Bartson. Within the previous two days, these items had been stolen from
Bartson's vehicle. The police also found a bank statement in Schumacher's name and a
Department of Motor Vehicles printout that was not in appellant's name.

2
We summarize only the facts pertaining to case A.
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 The police questioned appellant about the items found in his possession.
Appellant said that they had been stolen by a friend named Holly Legarde. Two days
earlier, he had gone through Legarde's "bag" and had removed the stolen items because
"[h]e knew that they were stolen." He did not explain why he had held on to the items for
two days instead of turning them over to the police. Appellant said that he had been
trying to contact Officer Coffee and had twice telephoned Coffee's office. The arresting
officers contacted Coffee, who said "that he was working a case that had to do with
somebody who stole a purse." The "somebody" was Holly Legarde, and Coffee was
trying to talk to appellant about the matter.
During a booking search after appellant's arrest, a syringe was found in his shoe.
Waiver of Right to Counsel: Alleged Failure to Advise
Appellant of the Charges and Maximum Sentence
Appellant contends that he did not voluntarily and intelligently waive his right to
counsel because the trial court failed to advise him of the charges and maximum sentence
in case A. The court correctly informed appellant that the maximum sentence was six
years on the felony offense with the enhancements. But it did not inform him that he
could be sentenced to an additional one year for the two misdemeanors, increasing his
maximum sentence in case A to seven years. Appellant argues that "the court failed to
fully advise [him] of the charges by ignoring the two misdemeanor offenses."
"Pursuant to the Sixth Amendment of the federal Constitution, a defendant has the
right to conduct his or her own defense, providing he or she knowingly and intelligently
waives the right to counsel [citation] . . . ." (People v. Bradford (1997) 15 Cal.4th 1229,
1363.) "In order to make a valid waiver of the right to counsel, a 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."
[Citation.]' [Citation.] No particular form of words is required in admonishing a
defendant who seeks to waive counsel and elect self-representation; the test is whether
the record as a whole demonstrates that the defendant understood the disadvantages of
self-representation, including the risks and complexities of the particular case.

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[Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) "On appeal, we examine
de novo the whole record . . . to determine the validity of the defendant's waiver of the
right to counsel. [Citation.]" (Ibid.)
Here, the record establishes a valid waiver of appellant's right to counsel. The trial
court orally advised appellant at length of the dangers and disadvantages of self-
representation. In addition, appellant signed a "Waiver of Attorney" form that contained
the requisite advisement. Appellant answered "Yes" to the following question in the
form: "Do you understand everything on this form, including your rights, and the dangers
of not having a lawyer?" The advisement was not inadequate merely because the trial
court was off by one year on the maximum sentence and did not mention the
misdemeanors. The one year difference was immaterial. It is reasonable to infer that
appellant was aware of the misdemeanors because before waiving counsel he twice
entered not guilty pleas to them: once when the original information was filed and again
when the information was amended.
Waiver of Right to Counsel: Alleged Denial
of Reasonable Access to a Telephone
Appellant argues that he did not voluntarily and intelligently waive his right to
counsel because he "was not informed that he would be denied reasonable access to the
telephone to prepare for trial." (See People v. Jenkins (2000) 22 Cal.4th 900, 1040 ["a
defendant who is representing himself or herself may not be placed in the position of
presenting a defense without access to a telephone . . . or any other means of developing a
defense"].) The facts underlying his argument are as follows: On September 6, 2012, the
trial court granted appellant's request for an order requiring the Sheriff to provide him
access to a telephone so that he could contact witnesses for the trial, which was scheduled
to begin the next day. Appellant said that he wanted to contact three witnesses in Los
Angeles County and three in Ventura County. He did not identify the witnesses by name.
On September 7, 2012, a Friday and the last day to begin trial, appellant said that
he had not been allowed to use the telephone. The court expressed concern that, if it
proceeded to trial in these circumstances, "we're going to . . . have a reviewing court

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conclude that [appellant] was not given an opportunity to notify his witnesses." The
court ordered that appellant be permitted to make up to 10 calls into the Los Angeles
area, each call not to exceed 15 minutes.
The prosecutor offered to continue the trial to give appellant adequate time to "call
your witnesses or have more time to examine the evidence that you've been supplied this
morning." Appellant declined the prosecutor's offer and said that he "[a]bsolutely"
wanted "to proceed to trial today." When the court said that it would grant a request for a
continuance, appellant replied, "I'm not asking for a continuance. I'm asking for a
dismissal . . . ."
The court summoned a jury panel. Before the jurors entered the courtroom,
appellant stated, "you know what, can I still ask for a continuance?" The court inquired
why he needed a continuance. Appellant responded that he had just received documents
from the prosecutor and needed time to review them. The court refused to continue the
trial on this ground. It noted that appellant had been "given the [documents] before we
called up the jury." Appellant did not say that he wanted a continuance because he
needed time to contact his witnesses.
On Monday morning, September 10, 2012, appellant said that over the weekend
he had not been allowed to telephone his witnesses. The court stated that it would take a
"two-and-a-half-hour" lunch break, during which appellant would be allowed to use the
telephone. Appellant thanked the court. He made three telephone calls during the lunch
break.
In the afternoon on September 10, 2012, the People rested. The trial court told
appellant that the following morning he would have the opportunity to call witnesses to
testify on his behalf. Appellant replied that he had not been able to contact his witnesses.
The following morning appellant did not call any witnesses and declined to testify.
Appellant maintains that his waiver of counsel was invalid because it "was based
on a reasonable expectation that he would be given access to the telephone . . . to prepare
for trial," and this expectation was not met. Appellant has forfeited or waived this
argument for two reasons. First, on September 7, 2012, he did not accept the prosecutor's

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and court's offer of a continuance to allow him time to telephone his witnesses. (See
Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 182, fn. 32
["by failing to request a continuance to conduct discovery in the trial court," plaintiffs
waived the argument "that they should have been permitted to conduct further
discovery"].) Second, on September 10, 2012, appellant did not request additional time
to telephone his witnesses after he was unable to contact them during the two-and-one-
half hour lunch break. It is reasonable to infer that the court would have granted a one-
day recess if appellant had asked for it. The trial was ahead of schedule. It was Monday,
the People had rested, and the trial court had told the jurors that their service would be
completed "by the end of business this coming Friday."
If appellant's argument were not waived, we would reject it on the merits.
Appellant refused to identify the witnesses whom he had been unable to contact and did
not make an offer of proof as to their expected testimony. Appellant has therefore not
shown that he was prejudiced by the alleged denial of reasonable access to a telephone.
(See People v. Lint (1960) 182 Cal.App.2d 402, 421 ["There was no offer o[f] proof
made and as a consequence there is nothing in the record before us upon which we can
determine whether [the] exclusion [of an absent witness's former testimony] prejudiced
the rights of the appellant"].)
Right to Self-Representation and Due Process:
Alleged Denial of Reasonable Access to a Telephone
Appellant contends: "[T[he repeated denial of reasonable access to the telephone
to prepare for trial violated [his] Sixth Amendment right to self-representation and
Fourteenth Amendment right to due process." We reject this contention for the same
reasons that we rejected appellant's argument that his waiver of counsel was invalid
because of the denial of reasonable access to a telephone.
Alleged Instructional Error
Appellant argues that the trial court erroneously failed to instruct sua sponte that
an intent to return stolen property to the true owner (innocent intent) is a defense to the
charge of receiving stolen property. "[T]he mere receipt of stolen goods with knowledge

6
that they have been stolen is not itself a crime if the property was received with intent to
restore it to the owner without reward or with any other innocent intent [citation]. The
critical factor is the defendant's intent at the time he receives or initially conceals the
stolen property from the owner. The intent to restore must exist at the moment the stolen
property is accepted by the receiver if he is to be acquitted." (People v. Wielograf (1980)
101 Cal.App.3d 488, 494.)
" 'A trial court's duty to instruct, sua sponte, on particular defenses arises " 'only if
it appears that the defendant is relying on such a defense, or if there is substantial
evidence supportive of such a defense and the defense is not inconsistent with the
defendant's theory of the case.' " ' [Citation.]" (People v. Martinez (2010) 47 Cal.4th
911, 953.) "[A] trial court has no obligation to instruct sua sponte on a defense supported
by 'minimal and insubstantial' evidence [citation] . . . ." (People v. Barnett (1998) 17
Cal.4th 1044, 1152.)
At trial it did not appear that appellant was relying on the defense of innocent
intent. During his brief closing argument, appellant never referred to his mental state. In
any event, the trial court did not have a duty to instruct sua sponte on the defense of
innocent intent because it was supported by " 'minimal and insubstantial' evidence."
(People v. Barnett, supra, 17 Cal.4th at p. 1152.) Appellant's statements to the police
were the sole basis for the defense. Appellant did not tell the police that he had taken the
stolen items from Holly Legarde's bag because he intended to return them to the true
owners. An officer testified: "He only told me that he knew that Holly was a thief and
that Holly steals things. And he knew that they were stolen, so he took them from her."
Appellant did not say what he had intended to do with the stolen items when he took
them: "He kept saying he was going to talk to another officer, but he was never able to
explain why [for two days] he had maintained custody of the stolen property" instead of
turning it over to the police. "He mentioned that [during these two days] he was in very
close proximity to the police department . . . ."
People v. Wielograf, supra, 101 Cal.App.3d 488, is instructive. There, the
defendant was found guilty of receiving a stolen vehicle. He kept the vehicle in his

7
garage for five days before notifying the police. On appeal he contended that the trial
court had erroneously failed to instruct sua sponte on the defense of innocent intent. The
defendant claimed "that both his direct testimony concerning his intent and the
circumstantial evidence on this point were to the effect that he intended to return the
property to the owner." (Id., at pp. 493-494.) The appellate court concluded that the trial
court had not erred. "[D]ays went by," and the stolen vehicle remained in the defendant's
garage. "He had ample time and opportunity to execute his guiltless 'intents.' " (Id., at
p. 495.) Appellant likewise "had ample time and opportunity" to turn the stolen items
over to the police.
Alleged Prosecutorial Misconduct
"A prosecutor commits misconduct when his conduct either infects the trial with
such unfairness as to render the subsequent conviction a denial of due process, or
involves deceptive or reprehensible methods employed to persuade the trier of fact.
[Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 711.) "As a general rule a defendant
may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and
on the same ground—the defendant made an assignment of misconduct and requested
that the jury be admonished to disregard the impropriety. [Citation.]" (People v.
Samayoa (1997) 15 Cal.4th 795, 841.)
Appellant asserts that, during closing argument, the prosecutor "improperly urged
the jury to convict appellant because appellant had been 'fairly' prosecuted." In support
of his assertion, appellant cites pages 375, 377, and 380-383 of volume 3 of the reporter's
transcript. The cited pages do not support appellant's assertion. They show that the
prosecutor argued that appellant had "been treated with fairness," charged
"appropriately," and "given a fair trial," not that he should be convicted because of this
fairness. We reject appellant's contention that, by making the fairness argument, the
prosecutor was "vouching for the truth of the charges." (Bold and capitalization omitted.)
In any event, appellant forfeited this claim of misconduct because he failed to object and
request an admonition. (People v. McKinzie (2012) 54 Cal.4th 1302, 1358.)

8
 Appellant contends that the prosecutor engaged in misconduct because "the
prosecution implied that appellant committed, and could have been charged, with more
serious offenses." "[T]he prosecution explicitly suggested that appellant was likely guilty
of identity theft, vehicle burglary, and drug possession." In support of his contention,
appellant cites the following excerpt from the prosecutor's closing argument: "[W]e all
must be thinking that this defendant likely engaged in vehicle burglaries and likely was
about to or had committed some type of identity theft and probably possessed drugs."
Appellant forfeited this claim of misconduct because he failed to object and request an
admonition. (People v. McKinzie, supra, 54 Cal.4th at p. 1358.) Appellant later objected
that it was not "correct" for the prosecutor to argue that the stolen property he possessed
had come from "vehicle burglar[ies]." The trial court did not err in overruling this
objection because Bartson's and Schumacher's property had been stolen from their
vehicles.
Appellant faults the prosecutor for telling the jury during opening statement that
appellant possessed "tools for identity theft like credit cards and blank checks."
Appellant objected at this point, and the court overruled the objection. Appellant failed
to preserve this claim of misconduct for appellate review because he merely said, "I
object to that, your Honor," without stating the basis for his objection. "Ordinarily, the
failure to object specifically on grounds of misconduct . . . forfeits the claim . . . .
[Citation.]" (People v. Tully (2012) 54 Cal.4th 952, 1037-1038; see also People v.
Thomas (2012) 54 Cal.4th 908, 938-939.)
Appellant argues that the prosecutor committed misconduct by eliciting testimony
from a police officer that the syringe found in appellant's shoe contained a "brown
substance" that she believed to be heroin. Appellant objected that the substance had not
been "tested to confirm it was heroin." The trial court did not rule on the objection.
Instead, it admonished the jury that "we need to be clear that [appellant] is not being
accused of being in possession of a controlled substance." Appellant asserts that the
prosecutor's misconduct was exacerbated when he referred to the police officer's
testimony during closing argument. The prosecutor said that the officer "believed . . .

9
that there was a small amount, a residue amount of heroin within the syringe." Appellant
interjected: "Was the chick [sic] tested?" "This is BS." Because appellant neither
objected on misconduct grounds nor requested an admonition to disregard the police
officer's testimony concerning the contents of the syringe, this claim of misconduct has
not been preserved for appellate review. (People v. Tully, supra, 54 Cal.4th at pp. 1037-
1038; People v. Thomas, supra, 54 Cal.4th at pp. 938-939)
In any event, the alleged misconduct of the prosecutor is not reversible error.
" 'Reversal of a judgment of conviction based on prosecutorial misconduct is called for
only when, after reviewing the totality of the evidence, we can determine it
is reasonably probable that a result more favorable to [the] defendant would have
occurred absent the misconduct.' [Citation.]" (People v. Williams (2013) 218
Cal.App.4th 1038, 1073; accord, People v. Tully, supra, 54 Cal.4th at p. 1010.) In view
of the overwhelming evidence against appellant, it is not reasonably probable that a result
more favorable to him would have occurred absent the alleged misconduct.
Right to Counsel at Sentencing
Appellant maintains that he was denied his Sixth Amendment right to counsel at
sentencing. Before imposing sentence, the trial court asked if the probation report
contained inaccurate information. Appellant replied: "Yes, there is. And I would like to
consult an attorney for that." He also wanted to discuss with counsel his "options as far
as appeal goes and options as far as a motion for a new trial." Appellant requested that
the court appoint counsel to represent him.
The prosecutor responded that he wanted to "make some statements regarding the
sentencing" and that he would be on military leave for the next two-and-one-half months.
The prosecutor continued: "Even if we can't proceed to sentencing today, I would like to
make some statements for the record." Appellant inquired, "Is it possible to just continue
this for two months until he gets back?" The court responded, "This is a possibility, but
it's not the best practice." The time was approximately 9:00 a.m. The court put the
matter over until 4:30 p.m. and "ask[ed] that a member of Conflict Defense Associates
consult with [appellant]."

10
 At 4:56 p.m. the trial court announced that it had "not been successful in having
anyone from the Conflict Defense Associates appear." The date was October 4, 2012,
and the prosecutor said that he would not return to work until December 18, 2012. The
court asked appellant if he would waive time until December 18. Appellant replied, "Not
that long." Over appellant's objection, the court denied his request for appointed counsel.
Appellant falsely accused the judge of calling him a "nigger" in response to his
statement that the judge should "get a white robe and a hood."3 Appellant continued: "So
I don't think you should be sentencing me. I object to any further prosecution from you
or the DA." The court inquired whether appellant wanted to comment on his claim that
the probation report contained an error. Appellant stated, "I haven't had a chance to
consult an attorney, so I really can't do myself justice." The court responded, "So
[appellant] declines to call any error to the Court's attention with respect to the probation
report. Got it." After the court imposed sentence, appellant said to the judge: "You're
full-a shit."
Where, as here, a self-represented defendant requests the appointment of counsel
after commencement of the trial, the court has discretion whether to grant the request.
(People v. Lawley (2002) 27 Cal.4th 102, 149.) "[T]he trial court must consider the
totality of the circumstances in exercising its discretion. [Citation.]" (Ibid.) Relevant
factors include "the reasons set forth for the request" and "disruption or delay which
reasonably might be expected to ensue from the granting of" the request. (People v.
Gallego (1990) 52 Cal.3d 115, 164.)
The trial court did not abuse its discretion. Appellant failed to give a valid reason
for the appointment of counsel. He said that he wanted to consult with counsel because

3
Appellant engaged in a course of conduct designed to provoke the judge. For
example, after the People rested in the bifurcated jury trial on the prior prison term
allegations, the judge said to appellant, "[T]his is an opportunity for you to present any
evidence." Appellant responded by making an obscene gesture with his middle finger.
He said: "You didn't tell me I could present any evidence, so don't sit here and give 'em
that bullshit, man." Appellant acknowledges that he "irritated the judge throughout the
trial."
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the probation report contained inaccurate information. But he would not identify the
inaccuracy. For all the court knew, the alleged inaccuracy was immaterial or even
nonexistent. Appellant also said that he wanted to discuss with counsel his "options as
far as appeal goes and options as far as a motion for a new trial." His appellate options
had nothing to do with sentencing. The trial court correctly informed him that a notice of
appeal must be filed within 60 days after sentencing. (Cal. Rules of Court, rule 8.308(a).)
On the other hand, the sentencing of appellant precluded him from moving for a new trial
because "[t]he application for a new trial must be made and determined before judgment .
. . ." (§ 1182.) But it was speculative whether appellant had grounds for a new trial. He
did not mention any grounds, let alone the statutory grounds listed in section 1181.
Furthermore, the appointment of counsel would have disrupted the proceedings
because appellant refused to continue the matter until the prosecutor returned from
military leave. The prosecutor would not have been present to refute appointed counsel's
arguments. The District Attorney could have assigned another deputy to appear in place
of the prosecutor, but the deputy would have lacked the knowledge of the case that the
prosecutor had acquired during the trial.
We also take into consideration appellant's vacillation concerning a continuance.
In the morning appellant was willing to continue sentencing until the prosecutor's return.
Appellant asked the court, "Is it possible to just continue this for two months until he gets
back?" But in the afternoon appellant would not consent to a continuance of this
duration. In view of appellant's vacillation and refusal to identify the allegedly inaccurate
information in the probation report, the court could have reasonably concluded that he
was attempting "to manipulate the court system." (People v. Trujillo (1984) 154
Cal.App.3d 1077, 1087.) In such circumstances, a court does not abuse its discretion if it
denies a self-represented defendant's request for appointed counsel. (Ibid.)
Fee for Appointed Counsel
Pursuant to section 987.5, subdivision (a), appellant was assessed a registration fee
of $25. This fee applies only when the defendant was "represented by appointed
counsel." (Ibid.) The People concede that the fee must be stricken from the judgment.

12
 Disposition
The judgment is modified to strike the $25 registration fee imposed
pursuant to section 987.5, subdivision (a). In all other respects, the judgment is affirmed.
The superior court clerk shall prepare an amended abstract of judgment showing the
modification and shall transmit a certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

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 Kent M. Kellegrew, Judge

Superior Court County of Ventura

______________________________

Mark R. Feeser, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.

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