Filed 9/21/20 P. v. McRorie 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE, C089955
Plaintiff and Respondent, (Super. Ct. No. 18CR000534)
v.
ROBERT VERN MCRORIE,
Defendant and Appellant.
Defendant Robert Vern McRorie, who represented himself during trial, was
convicted of crimes related to eluding and resisting a peace officer. On appeal, he
contends the trial court erred in denying his motions for advisory counsel. He also argues
he was denied reasonable access to a law library. He further requests we strike his prior
prison term enhancements. Finally, relying on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), defendant argues the trial court erred in imposing certain fines and fees
without holding a hearing to determine his ability to pay them. We will strike the prior
prison term enhancements, remand the matter for resentencing, and otherwise affirm the
judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
Just after midnight on March 11, 2018, a sergeant with the Tehama County
Sheriff’s Office saw defendant speeding by in a car. Using his radar, the officer
determined defendant was driving 70 miles per hour in a 55-mile-per-hour zone. The
officer activated his lights and pursued defendant. Defendant refused to pull over and
continued driving for over 11 miles. Even though other cars were also on the road,
defendant drove erratically, including crossing double yellow lines and traveling in the
oncoming lane of traffic, failing at least once to stop at a stop sign, and reaching speeds
in excess of 100 miles per hour in a 55-mile-per-hour zone. Eventually, defendant pulled
into a parking lot, got out of his car, and ran away toward a nearby creek. After
determining there was no one else in defendant’s car, the officer chased defendant on
foot. The officer finally caught up with defendant at the creek, and defendant dove into
the water and swam to the other side. A second officer arrived and the two officers
searched for defendant. The two officers eventually found defendant with the help of a
police helicopter; defendant was taken into custody.
Defendant was charged with attempting to elude a peace officer with willful or
wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a))
and willfully resisting, delaying, and obstructing a peace officer (Pen. Code, § 148, subd.
(a)(1)).1 With respect to the eluding an officer count, it was further alleged defendant
committed the crime while released from custody on bail or on his own recognizance
(§ 12022.1). It also was alleged defendant suffered eight prior prison terms (§ 667.5,
subd. (b)).
In April 2018, a doubt was declared as to defendant’s competency to stand trial.
(§ 1368 et seq.) Proceedings were stayed and a psychologist was appointed to evaluate
1 Undesignated statutory references are to the Penal Code.
2
defendant. The trial court found defendant incompetent to stand trial in May 2018. In
February 2019, the court found defendant was restored to competency and resumed
proceedings.
In March 2019, defendant filed a motion requesting to represent himself. The
motion included a signed Faretta2 waiver form with advisements. Included in the
petition was a statement from defendant that he understood that, “if I am permitted to
represent myself, . . . I will have to conduct my own defense without the aid of counsel,
unless the court grants a motion by me for advisory counsel.” Defendant stated that he
had represented himself and successfully obtained dismissals in three prior criminal
proceedings. Defendant also filed a motion for “[a]ncillary defense services,” including
advisory counsel and access to a law library.
During the hearing on defendant’s requests, the trial court noted that defendant
had previously been represented by six different attorneys, each of whom had declared a
conflict. The court denied prior requests for self-representation because it was concerned
defendant did not have an adequate legal education. But, after six attorneys declared a
conflict, the court felt it had “no choice but to allow” defendant to represent himself.
Defendant confirmed for the court that he had read and understood the Faretta waiver.
The court advised defendant of his rights and also explained the dangers and
disadvantages associated with representing himself. Defendant confirmed he understood.
With respect to defendant’s request for advisory counsel, the court responded, “So,
let me tell you right now there is no such thing as advisory counsel. There is no such
thing.” After further discussion, the court denied defendant’s request for advisory
counsel. In a subsequent written ruling, the court formally denied defendant’s request for
2 Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
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advisory counsel, citing People v. Goodwillie (2007) 147 Cal.App.4th 695. The court
also noted, “There is no constitutional right to advisory counsel.”
During the two-day trial in May 2019, the only testimony was from the two
officers at the scene. Defendant cross-examined each witness. After deliberating for less
than one hour, a jury found defendant guilty of eluding and resisting a peace officer. In
bifurcated proceedings, the court found true that defendant had eight prior prison terms.
In June 2019, the trial court sentenced defendant to state prison for an aggregate
term of nine years, as follows: three years (the upper term) for attempting to elude a
peace officer, one year concurrent for resisting a peace officer, and six consecutive years
for each of six prior prison term enhancements.3 The court also imposed a $600
restitution fine (§ 1202.4, subd. (b), a corresponding $600 parole revocation restitution
fine, suspended unless parole is revoked (§ 1202.45). In addition, the court imposed an
$80 court operations assessment (§ 1465.8) and a $60 court facilities assessment (Gov.
Code, § 70373). Defendant did not object to the fines and fees, nor did he claim he was
unable to pay them.
DISCUSSION
I
A defendant who elects to represent himself has no constitutional right to advisory
counsel or any other form of hybrid representation. (People v. Clark (1992) 3 Cal.4th 41,
111, abrogated on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462; People
v. Moore (2011) 51 Cal.4th 1104, 1119-1120, fn. 7.) The appointment of advisory
counsel rests in the sound discretion of the trial court and will not be set aside absent a
showing the ruling is arbitrary, capricious, or whimsical. (People v. Crandell (1988) 46
3 At the prosecution’s request, the court vacated one of the prior prison term
findings, bringing the total number to seven. Also at the prosecutor’s request, the court
did not impose sentence on one of the remaining prior prison terms.
4
Cal.3d 833, 863, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th
346, 364-365; see also People v. Garcia (2000) 78 Cal.App.4th 1422, 1431 [reasoning
that “if [a defendant] is not able to defend himself without the assistance of advisory
counsel, then he is not competent to represent himself”].) “In ruling on such a request,
the trial court may consider [a] defendant’s demonstrated legal abilities and reasons for
seeking the appointment of advisory counsel, including evidence of any manipulative
purpose. [Citation.] Other factors include the seriousness of the charges, the complexity
of the issues, and defendant’s education and familiarity with the justice system.
[Citations.]” (People v. Debouver (2016) 1 Cal.App.5th 972, 976.)
When a trial court fails to exercise its discretion because it erroneously believes it
lacks authority to appoint advisory counsel, a reviewing court will analyze the error as if
the trial court had exercised its discretion. (People v. Bigelow (1984) 37 Cal.3d 731, 743-
744.) Reversal is required if it would have been an abuse of discretion to refuse to
appoint advisory counsel (id. at p. 744); if it would not have been an abuse of discretion,
the error is reviewed under the Watson harmless error standard. (People v. Crandell,
supra, 46 Cal.3d at pp. 864-865; People v. Watson (1956) 46 Cal.2d 818, 836 [reversal is
required only if it is reasonably probable a result more favorable to defendant would have
been achieved had the error not occurred].)
According to defendant, the trial court failed to exercise its discretion to appoint
advisory counsel because it purportedly believed it had no such discretion. Defendant
points to the trial court’s remark during the hearing that there is “no such thing” as
advisory counsel. He also argues the trial court made clear in its written ruling that it was
denying his request because a defendant has no constitutional right to advisory counsel.
The People disagree, arguing that the court indicated in its written decision that it fully
understood its discretion because it relied on Goodwillie, which correctly states that a
trial court has authority to appoint advisory counsel. (People v. Goodwillie, supra, 147
Cal.App.4th 709-710 [“The weight of both federal and California precedent . . .
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establishes that a criminal defendant does not have a constitutional right to the assistance
of advisory counsel, but that it is within the discretion of trial courts to appoint advisory
counsel to assist a criminal defendant who is proceeding in propria persona].)
Regardless, defendant’s contentions are without merit because it would not have
been an abuse of discretion for the court to refuse defendant’s request. Although
defendant was initially found incompetent to stand trial, he was returned to competency
by the time the trial court granted his request to represent himself. In addition, the record
indicates he aggressively defended himself. Defendant, who had extensive experience
with the criminal justice system and boasted that he had obtained dismissals while
representing himself in three prior criminal cases, filed multiple motions in the trial court.
Defendant also cross-examined each of the two trial witnesses. Moreover, defendant
never explained to the trial court why he needed advisory counsel. The case against
defendant was not complex and only involved charges of eluding a peace officer with
willful and wanton disregard and resisting a peace officer, along with suffering prior
prison terms. On appeal, defendant fails to set forth any witnesses or evidence that would
have made a difference in his case. Under the circumstances, it is not reasonably likely
defendant would have obtained a more favorable result if advisory counsel had been
appointed for him. As such, even if the trial court had erred by misunderstanding the
scope of its discretion, any error would be harmless.
II
Defendant argues his constitutional rights were violated because he was denied
reasonable access to a law library. According to defendant, the jail should have provided
him with general access to a law library or legal research assistance, rather than limiting
him to requesting legal materials. Defendant contends he was prejudiced by the lack of
access because he was unable to “understand the significance of the element of ‘willful
and wanton disregard of the safety of others’ in the felony charged against him and focus
his legal arguments to the jury in negating that requirement.”
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A. Additional background
In his March 2019 request for ancillary services, defendant requested access to a
law library, runner, law clerk, photocopies at no charge, legal mail at no charge, an
investigator, and “anything else defendant needs as means to developing a defense.”
During the hearing, the court asked the jail sergeant about the jail’s policies and whether
the jail had a law library. The sergeant informed the court that the jail could get legal
research materials to defendant through request, and would help defendant to send
motions and other documents via legal mail. The court ordered the jail to accommodate
defendant with free photocopies and noncollect and confidential calls. It further
requested the jail to “accommodate [defendant] as much as possible knowing that he is
representing himself,” and the sergeant agreed. With respect to defendant’s request for a
law clerk, the court informed defendant that there were none. The court advised
defendant, “[Y]ou’re just going to have to, unfortunately, operate within the confines of
being in jail.”
In April 2019, defendant moved to require the jail to provide legal research
material and other services needed to prepare his defense. Defendant argued the jail had
only allowed him to submit three requests per month for legal research. He also noted it
typically took three days to obtain a response to his request for legal research. Defendant
estimated he would need to file a 70- to 80-page motion, with 20 witnesses and several
expert witnesses.
In support of his motion, defendant included an inmate grievance he had submitted
to the jail about his limited access to legal research. The jail responded that it only
allowed inmates representing themselves to make three legal requests with five items per
request every 30 days. Inmates not representing themselves were allowed to make one
request every 30 days. At the second appeal level for his grievance, the jail responded,
“You have been denied nothing. The court[ ] only ruled you may have access to the law
library and did not order us to give you free access to as many requests as you desire.
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Your other grievance for this same issue was reviewed by me earlier this week and sent
back to be returned to you.”
The court held a confidential ex parte hearing in May 2019. Defendant explained
he was locked in a cell 22 hours a day and was not able to get forms for subpoenas, had
no access to an investigator or law clerk, and was being restricted in making requests for
legal research. The court denied defendant’s motion, reasoning that “the Court made
very clear to you, when you chose to represent yourself that these were the limitations
that you were going to be operating under and, quite frankly, based on the motions that
you filed, which have a tremendous amount of legal authority, which I have to tell you is
impressive, I think that your access to legal research material is appropriate.”
B. Analysis
A defendant’s constitutional right to counsel “ ‘includes, and indeed presumes, the
right to effective counsel [citations], and thus also includes the right to reasonably
necessary defense services.’ ” (People v. Blair (2005) 36 Cal.4th 686, 732 (Blair),
overruled on another ground in People v. Black (2014) 58 Cal.4th 912, 919.) This does
not mean, however, that inmates have an “abstract, freestanding right to a law library or
legal assistance, [and] an inmate cannot establish relevant actual injury simply by
establishing that his prison’s law library or legal assistance program is subpar in some
theoretical sense.” (Lewis v. Casey (1996) 518 U.S. 343, 351 [135 L.Ed.2d 606, 618].)
“[T]he crucial question . . . is whether [the defendant] had reasonable access to the
ancillary services that were reasonably necessary for his defense.” (Blair, supra, 36
Cal.4th at p. 734.) Generally, only the complete denial of any means of presenting a
defense infringes on a defendant’s right under Faretta to represent himself or his right to
access the court. (See, e.g., Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1445-1447;
United States v. Wilson (9th Cir. 1982) 690 F.2d 1267, 1273; Blair, at p. 733 [a
defendant’s right of self-representation is violated when a defendant is deprived of “ ‘all
means of presenting a defense’ ”].)
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The record establishes that under the circumstances, defendant had reasonable
access to legal research materials to present his defense. Every 30 days, defendant was
allowed to submit three requests with five items each, for a total of 15 items per month.
Moreover, notwithstanding defendant’s standing complaint about his lack of access to
legal materials and his need for research assistance, he filed multiple pretrial motions,
which the trial court described as having a “tremendous” and “impressive” amount of
legal authority. Defendant also actively participated in the trial, including cross-
examining witnesses. On this record, we cannot say defendant was denied reasonable
access to legal materials or that, assuming he was denied reasonable access, defendant
was in any way prejudiced.
III
In October 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.)
(Senate Bill 136), which amended section 667.5, effective January 1, 2020 (Stats. 2019,
ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term
enhancement to only those who have served a prior prison sentence for a sexually violent
offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).
(§ 667.5, subd. (b).) The amendment applies “retroactively to all defendants whose
judgments are not yet final as of that date.” (People v. Petri (2020) 45 Cal.App.5th 82,
94.)
As the People concede, defendant is entitled to have all of the one-year prior
prison term enhancements stricken, including the prior that was found true but remains
unsentenced. Defendant’s case was not yet final on the effective date of the amendment
to prior section 667.5, subdivision (b). In addition, his prior prison term enhancements
were not based on sexually violent offenses.
Because the trial court imposed less than the maximum sentence, we will remand
the matter for resentencing to allow the court to exercise its sentencing discretion in light
of the changed circumstances. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
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IV
Relying on Dueñas, defendant argues due process requires that we strike the fines
and fees imposed or remand the matter for a hearing on his ability to pay them.
Defendant concedes that he did not object to the imposition of the fines and fees, even
though defendant was sentenced five months after Dueñas was decided. We decline
defendant’s invitation to excuse his failure to object and instead conclude he has forfeited
the issue on appeal.4
DISPOSITION
The trial court is directed to strike defendants’ prior prison term enhancements. In
all other respects, the judgment is affirmed. The matter is remanded for resentencing not
inconsistent with this opinion. Upon resentencing, the trial court is directed to prepare an
amended abstract of judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation.
KRAUSE , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
4 Even if defendant had preserved the issue for appeal, his arguments would be
meritless because we would join the courts that have concluded that Dueñas was wrongly
decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks
(2019) 40 Cal.App.5th 320, review granted, Nov. 26, 2019, S258946; People v. Aviles
(2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.)
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