Filed 6/10/21 P. v. Wade CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B298456
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146856)
v.
GERALD CURTIS WADE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Patrick J. Hoynoski, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Noah P. Hill and Nima
Razfar, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________________
INTRODUCTION
Appellant Gerald Curtis Wade was charged with two
counts of violating Penal Code section 422 (making a
criminal threat) for threatening to kill Michael Chatman and
Raymond Rash, managers of the property where he lived.1
At appellant’s request, he was initially permitted to
represent himself. However, the right was subsequently
revoked, based on his conduct during the preliminary
hearing. During trial, appellant requested the court instruct
the jury on self-defense. The court refused, finding the
instruction inapplicable to the charges. The jury found
appellant guilty, and he was sentenced to a total of 10 years
and four months in prison, including a five-year
enhancement pursuant to section 667, subdivision (a)(1), and
a one-year enhancement pursuant to section 667.5 (stayed),
both based on the same prior conviction.
On appeal, appellant argues the court erred in: (a)
refusing to instruct the jury on self-defense; (b) terminating
appellant’s self-representation; and (c) imposing two
sentence enhancements based on the same prior conviction.
The People counter that: (a) even if self-defense were
1 Undesignated references are to the Penal Code.
2
applicable to criminal threats, substantial evidence did not
support the giving of the instruction; and (b) the court
correctly terminated appellant’s self-representation when he
proved unduly disruptive. The People concede the court
erred in imposing two sentence enhancements based on the
same prior conviction. We agree the court improperly
imposed two sentence enhancements, but otherwise discern
no error. We therefore remand the matter to the court with
instructions to strike the one-year sentence enhancement,
and otherwise affirm the judgment.
STATEMENT OF RELEVANT FACTS
A. Appellant Asserts, Then Loses, the Right to
Self-Representation
In August 2018, appellant, upon receiving a notice to
vacate the room he occupied at a transitional housing site,
allegedly threatened to kill Chatman and Rash -- both
assistant managers -- and engaged in a physical altercation
with Chatman, who thereafter called the police. A felony
complaint was filed against appellant, charging him with
two counts of violating section 422, subdivision (a).2
2 (Pen. Code, § 422, subd. (a) [“Any person who willfully
threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that the
statement . . . is to be taken as a threat, even if there is no intent
of actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person
(Fn. is continued on the next page.)
3
On September 4, 2018, appellant appeared for a
preliminary hearing, and requested to represent himself;
after providing appellant with a Faretta waiver and
reviewing it with him, the court (Wallenstein, J.) granted his
request.3 As part of the waiver, appellant acknowledged
that he “must not disrespect or abuse the dignity of the
Court” and that “the Judge may terminate my right to act as
my own attorney in the event that I engage in serious
misconduct, refuse to come to court or obstruct the conduct
and progress of the trial.”
Appellant was unprepared to proceed with the
preliminary hearing on that day and at future hearings, and
the court granted him several continuances. At two hearings
in November 2018, appellant behaved in a disrespectful and
disruptive manner. At a November 9 hearing, appellant
threatened, a gravity of purpose and an immediate prospect of
execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for
his or her immediate family’s safety, shall be punished by
imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison”].)
3 “As established by the high court in Faretta [v. California
(1975) 422 U.S. 806], a defendant has a federal constitutional
right to the assistance of counsel during all critical stages of a
criminal prosecution. [Citations.] A defendant may nonetheless
waive this right and personally represent himself or herself, as
long as the defendant’s waiver of the right to counsel is valid. . . .
If a defendant validly waives the right to counsel, a trial court
must grant the request for self-representation.” (People v.
Daniels (2017) 3 Cal.5th 961, 977-978.)
4
interrupted the court (Olson, J.) at least six times and
accused the court of violating his due process rights. He
repeatedly argued that the criminal complaint filed against
him must be signed, even after the court advised him that
any request for relief should be made in the form of a
motion. At the November 28 preliminary hearing, appellant
interrupted the court (Lonergan, J.) several times, and was
admonished. Appellant admitted he had a “habit” of
interrupting. After the fourth such interruption, the court
warned appellant: “[I]f you continue to disrupt the court, I
will stop the proceedings and provide you an attorney.”
Appellant then stated he had two motions to file and was
“asking to put in my two documents. Then I’ll be quiet.”
The court accepted the motions and instructed the People to
call their first witness. Appellant immediately interrupted
and asked to be removed from the courtroom. When asked if
he still wished to represent himself, appellant responded
that he did, but that he objected to the hearing because it
violated his rights. As the court attempted to permit the
People to proceed, appellant continued to interrupt, insisting
he be removed from the courtroom, while accusing the court
of violating his rights. After appellant had interrupted at
least 12 times from the time the hearing began, the court
appointed Glen Kiyohara as his counsel.4 Appellant was
then removed, and the preliminary hearing proceeded
without him. After the hearing concluded and appellant had
4 Kiyohara had been appointed as “standby counsel.”
5
been held to answer, the court noted that it had appointed
Kiyohara as counsel “based on Mr. Wade’s attempt to
obstruct the proceedings, his refusal to participate and his
continued interruptions of this court.”5
In December 2018, the People filed an information,
charging appellant with two counts of violating section 422,
subdivision (a). Each count included enhancement
allegations under sections 667.5, subdivision (b), 1170.12,
and 667, subdivision (a)(1).
B. Trial
Trial commenced in April 2019. Four witnesses
testified. The relevant portions of their testimony are
summarized below:
1. The Prosecution Case
(a) Michael Chatman
Chatman testified that he and Rash were the
managers of the property where appellant was living, which
consisted of three houses and a patio area. The residents
were assigned to rooms in the houses and had agreed to
abide by certain rules. Chatman lived in one of the three
houses, and appellant lived in another. On the day of the
incident, based on appellant’s failure to abide by the
5 Judge Lonergan also remarked that he had spoken with a
previous judge who had indicated there was an incident in which
the court was unable to bring appellant into the courtroom, but
clarified that he was “not sure what happened there . . . .”
6
residency rules, a notice to vacate was placed on the door of
his room.6
Chatman came out of his residence and saw Rash and
appellant in the patio area. Appellant was walking toward
him in a rage, yelling, “you thought you threw me under the
bus. You motherfuckers.” Appellant also said, “I am going
to kill you motherfuckers.” Chatman responded that
appellant was responsible for his own eviction. As Chatman
approached the patio, appellant continued to rage that he
was going to “kill you . . . because y’all try to put me under
the bus . . . .” When Chatman reached the patio, he sat
down. Appellant, now directing his comments to both
Chatman and Rash, stated, “I’ll have all of you
motherfuckers killed in here.” He then approached
Chatman and started reaching toward his rear waistband
area, causing Chatman, who knew appellant had knives, to
fear for his safety. Appellant swung at Chatman with his
fist, but missed. Appellant continued to threaten Chatman,
but eventually appellant stepped back, and Chatman stood
up.
Appellant then stated he wanted his things, and
Chatman agreed to accompany him to his residence to
retrieve them. Appellant, seeing the eviction notice again,
flew into a rage and rushed Chatman while reaching again
toward his waistband and threatening to kill him. Chatman
6 Rash testified that it was he who placed the notice on the
door of appellant’s room.
7
believed appellant had a weapon, and began “swinging for
my life because I didn’t want him to get whatever he was
reaching for. . . . [¶] . . . [¶] I was determined not to let
whatever he was reaching for come out.” Chatman admitted
he “kept swinging as hard as I could.” The two started
fighting; when Chatman believed appellant was no longer
able to fight back, and heard appellant’s girlfriend Jeannette
White say, “that’s enough,” he backed off. However,
appellant again rushed Chatman, threatening to kill him,
and the fight resumed. Chatman “g[o]t the best of”
appellant, and appellant ended up on the ground; Chatman
then ran out of the house and called 911. Though hit by
appellant, Chatman did not seek medical treatment.
(b) Raymond Rash
Rash testified that he was sitting in the patio area
when he saw appellant enter the house where appellant
resided, and where Rash had placed a notice requiring
appellant to vacate on the door to his room. Appellant
entered the residence, cursed, exited, and angrily confronted
Rash, stating, “I’m going to get you, you motherfucker.” As
appellant walked toward Rash, he reached toward the small
of his back, repeating the threat, this time including
Chatman: “You pussy motherfucker, I’m going to kill you
and Michael Chatman.” Appellant then asked, “Where is
that motherfucker, Michael Chatman? I’m going to kill him.”
During this time, Chatman was walking toward Rash and
appellant, and appellant walked off the patio, enraged,
8
stating he would kill Chatman. When Chatman and
appellant both returned to the patio, Chatman attempted to
explain to appellant that his own actions had precipitated
the situation. Appellant responded by trying to hit
Chatman, and Chatman blocked the blow. The pair then
went to appellant’s residence. Appellant was “highly
aggressive” with Chatman and threw the first punch;
Chatman defended himself. Appellant continued to scream
at Chatman, and threaten to kill everyone. On
cross-examination, Rash testified to seeing Chatman
straddle appellant and hit him, with the blows having “the
desired effects.”
2. The Defense Case
(a) Jeannette White
White lived in the same house as appellant, and had
been romantically involved with him. She stated that while
sitting in the living room, she “just saw [appellant and
Chatman] were talking, and then all of a sudden they
started like -- there was just fists hitting back and forth.”
White had been watching something on her phone, and
initially did nothing. But, when the fighting persisted, she
asked Chatman to stop because appellant was on the
ground, and Chatman was straddling him and hitting him.
She saw Chatman hit appellant approximately six times,
hard, and appellant seemed “like he was kind of like going
out . . . [¶] . . . [¶] [in] a daze,” from the punches.
9
On cross-examination, White testified she had been
watching something on her phone when the fight in the
house began, and was distracted, but reacted “when I noticed
they w[ere] hitting each other . . . .” She “didn’t see who hit
first,” but Chatman and appellant “were hitting” and
appellant was “defending hi[m]self. He was on the floor
when I intervened.” She then testified that appellant did not
strike Chatman.
(b) Deputy Joshua Hernandez
Los Angeles County Sheriff’s Deputy Hernandez was
one of the deputies who responded to the incident. He
interviewed Chatman and Rash, and summarized their
statements in a report.
Deputy Hernandez testified that Rash told him
appellant tried to hit Chatman on the patio, and later on, the
two got into a physical fight. He stated Rash did not tell him
appellant had threatened to kill everyone until after Rash
told him about the physical fight. The deputy also testified
that Chatman told him that after appellant tried to hit him
on the patio, Chatman dodged that punch and struck
appellant twice in the face in self-defense. Chatman told
Hernandez that appellant then reached for his waistband,
and fearing he had a weapon, Chatman struck him once
more and stated he would call 911. It was only then that
Chatman reported appellant had threatened to kill everyone.
Deputy Hernandez testified he found no weapons on
appellant.
10
On cross-examination, the deputy testified his report
was a summary of what he was told, and that he found both
Chatman and Rash credible and consistent. He testified it
was possible Chatman had reported that appellant’s threats
were made before the fight.
C. Jury Instructions and Closing Arguments
After the conclusion of testimony from the witnesses,
appellant asked the court (Coen, J.) to instruct the jury on
self-defense, specifically CALJIC Nos. 5.30,7 5.50,8 and 5.51.9
7 (CALJIC No. 5.30 [“It is lawful for a person who is being
assaulted to defend . . . himself . . . from attack if, as a reasonable
person, . . . he . . . has grounds for believing and does believe that
bodily injury is about to be inflicted upon . . . him . . . . In doing
so, that person may use all force and means which . . . he . . .
believes to be reasonably necessary and which would appear to a
reasonable person, in the same or similar circumstances, to be
necessary to prevent the injury which appears to be imminent”].)
8 (CALJIC No. 5.50 [“A person threatened with an attack
that justifies the exercise of the right of self-defense need not
retreat. In the exercise of . . . his . . . right of self-defense a
person may stand . . . his . . . ground and defend . . . himself . . .
by the use of all force and means which would appear to be
necessary to a reasonable person in a similar situation and with
similar knowledge . . . . This law applies even though the
assailed person might more easily have gained safety by flight or
by withdrawing from the scene”].)
9 (CALJIC No. 5.51 [“Actual danger is not necessary to
justify self-defense. If one is confronted by the appearance of
danger which arouses in . . . his . . . mind, as a reasonable person,
an actual belief and fear that . . . he . . . is about to suffer bodily
(Fn. is continued on the next page.)
11
The court responded that it did not think the instructions
applied “in this case because the defendant is not charged
with any sort of assault, [or] assaultive behavior. So, in
other words, they would have to believe . . . that the
defendant exercised force that was reasonably necessary, but
that reasonably necessary force is not threats. So it just
doesn’t seem like it would equate to what the defendant is
charged with.” Appellant countered that, in self-defense, a
person “may use all force and means which he believes to be
reasonable necessary,” and “it’s our position that he used
threats against the assault,” and that “threats” fell within
the “means” permitted in self-defense. The court,
characterizing the argument as a “stretch,” commented:
“Again, if the defendant was charged with some sort of
assaultive behavior, whether it be a 245 [assault with a
deadly weapon] or attempted murder, what have you, then I
think there would be substantial evidence warranting the
giving of these instructions thus far. But with these charges,
I don’t . . . believe that it equates to that and that’s why I
won’t give those instructions.”
The next court day, appellant elected not to testify, and
the parties stipulated to the admission of a medical
injury, and if a reasonable person in a like situation, seeing and
knowing the same facts, would be justified in believing . . .
himself . . . in like danger, and if that individual so confronted
acts in self-defense upon these appearances and from that fear
and actual beliefs, the person’s right of self-defense is the same
whether the danger is real or merely apparent”].)
12
document attesting that appellant had received a diagnosis
of “a closed head injury, a jaw strain, a nasal fracture, and
scalp laceration . . . .”
D. Verdict and Sentencing
The jury found appellant guilty on both counts. In
mid-May, the court held a trial on the prior convictions and
found appellant previously had been convicted of a serious
and violent felony. The court sentenced appellant to a total
of 10 years and four months in prison, consisting of: (1) two
years for count 1, doubled to four years due to sections 667
and 1170.12; (2) eight months for count 2, doubled to 16
months due to sections 667 and 1170.12; and (3) an
additional five years under section 667(a)(1). The court also
imposed and stayed an additional one-year enhancement
pursuant to section 667.5. Appellant timely appealed.
DISCUSSION
A. The Court Did Not Err in Refusing to
Instruct on Self-Defense
The court declined appellant’s request to instruct the
jury on self-defense, opining this defense was inapplicable.
It stated that “if the defendant was charged with some sort
of assaultive behavior, whether it be a 245 [assault with a
deadly weapon] or attempted murder, what have you, then I
think there would be substantial evidence warranting the
giving of these instructions thus far. But with these charges,
13
I don’t . . . believe that it equates to that and that’s why I
won’t give those instructions.”
On appeal, appellant argues self-defense is a viable
defense to the charge of making a criminal threat. He
additionally argues that substantial evidence supported the
giving of a self-defense instruction, and the refusal to give
such an instruction was not harmless. We need not decide
whether self-defense is a viable defense to the charge of
making a criminal threat because substantial evidence did
not support the giving of a self-defense instruction, and any
error in failing to give the instruction would have been
harmless.
1. Substantial Evidence Did Not Support
a Self-Defense Instruction
It is undisputed that a court “‘should instruct the jury
on every theory of the case, but only to the extent each is
supported by substantial evidence.’” (People v. Flannel
(1979) 25 Cal.3d 668, 685 (Flannel); see also Mathews v.
United States (1988) 485 U.S. 58, 63 [“a defendant is entitled
to an instruction as to any recognized defense for which
there exists evidence sufficient for a reasonable jury to find
in his favor”]). “If the evidence should prove minimal and
insubstantial, however, the court need not instruct on its
effect.” (Flannel, supra, at 684.) The trial court found that
substantial evidence would have warranted a self-defense
instruction were such an instruction applicable to criminal
threats. However, “[o]n appeal, we independently review the
14
court’s refusal to instruct on a defense.” (People v. Orlosky
(2015) 233 Cal.App.4th 257, 270.) “A ‘ruling or decision,
itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. If right upon any theory
of the law applicable to the case, it must be sustained
regardless of the considerations which may have moved the
trial court to its conclusion. [¶] . . . [¶] In other words, it is
judicial action, and not judicial reasoning or argument,
which is the subject of review; and, if the former be correct,
we are not concerned with the faults of the latter.’” (People
v. Dawkins (2014) 230 Cal.App.4th 991, 1004.) Thus, we
independently determine whether substantial evidence
supported a self-defense instruction. We find that
substantial evidence did not support findings that: (a)
appellant’s threats were made in self-defense; (b) Chatman
was the aggressor; or (c) appellant regained any right to self-
defense thereafter.
(a) No Evidence Supported a Finding
That Any Threats Occurred Only
During the Fight
In requesting instructions on self-defense, appellant’s
counsel posited that the jury might have found appellant
uttered his threats only in the course of his physical
altercations with Chatman, and did so as a reasonable
response to the blows Chatman was inflicting. The evidence
did not support such a finding.
15
Both Chatman and Rash testified unequivocally that
appellant’s threats were made almost upon sight -- well
before any physical altercation occurred. Both victims
testified that appellant was infuriated by the notice to vacate
and upon seeing them, hurled a mixture of threats and
insults at both men. Both victims also testified that
appellant was the one who initiated the physical altercations
with Chatman, and Chatman was defending himself. Their
testimony was uncontradicted by any percipient witness.10
The only reasonable conclusion from this evidence is that
appellant began threatening the victims before any physical
altercation began.
Appellant argues that because both victims did not tell
Deputy Hernandez about the threats until after they told
him about appellant’s physical assaults, this is “substantial
evidence to support that appellant only made the threats
after the physical altercation began.” We disagree. The
order in which the victims related events to Deputy
Hernandez is, at best, minimal and insubstantial evidence
as to the order the events actually occurred. Nothing in the
record suggests the victims’ statements were in strict
chronological order. Moreover, Deputy Hernandez testified
that what was contained in his report was only a summary
of what the victims had told him, and confirmed that
Chatman might have told him the threats were made before
10 White acknowledged having seen only a portion of the
physical altercation inside the house and did not claim to have
seen appellant or Chatman before they entered the house.
16
the fight began. On this record, we find no substantial
evidence supported a finding that appellant made his threats
only after the physical altercation began. Accordingly,
substantial evidence did not support instructing the jury on
self-defense.11
(b) Substantial Evidence Did Not
Support Finding That Chatman
Was the Aggressor
“It is well established that the ordinary self-defense
doctrine . . . may not be invoked by a defendant who, through
his own wrongful conduct (e.g., the initiation of a physical
assault or the commission of a felony), has created
circumstances under which his adversary’s attack or pursuit
is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768,
773, fn. 1.) Even had substantial evidence supported a
finding that appellant made his threats as a reaction to
Chatman’s striking him, Chatman’s attack was legally
justified as a defense to appellant’s assault, foreclosing
appellant from claiming self-defense.
The evidence did not support a conclusion that
Chatman was the aggressor in the altercations with
11 To the extent Hernandez’s testimony can be read to suggest
Rash told him appellant uttered a particular threat “after the
physical confrontation,” this does not assist appellant. It does not
contradict Rash’s testimony that appellant made multiple threats
to kill him and Chatman before assaulting Chatman. Nor would
a threat made after the fight have been justified by self-defense.
17
appellant. Chatman testified that: (1) appellant swung at
him and missed while they were on the patio; (2) appellant
rushed him after they had both gone to appellant’s room and
appellant saw the eviction notice on the door again; and (3)
after Chatman stopped striking appellant, believing he could
no longer fight, appellant rushed him again, causing the
fight to resume. Rash testified that: (1) appellant swung at
Chatman on the patio, but Chatman blocked the blow; and
(2) at appellant’s residence, appellant was “highly
aggressive” with Chatman and punched him, while Chatman
defended himself. Finally, Deputy Hernandez testified that
Rash told him appellant tried to hit Chatman on the patio,
and later on, the two got into a physical fight. The deputy
also testified that Chatman reported that appellant had
tried to hit him on the patio, and that Chatman had dodged
and struck appellant twice in self-defense.12 In short, the
uncontradicted evidence established that appellant was the
aggressor, and Chatman fought back to defend himself. On
this record, appellant had no claim of self-defense. (In re
Christian S., supra, 7 Cal.4th at 773, fn. 1.)
Citing People v. Frandsen (2011) 196 Cal.App.4th 266
for the proposition that “the defendant has a right to defend
12 White admitted she did not see how the fight began, and
that she “didn’t see who hit first.” She confirmed that Chatman
and appellant “were hitting” and that “there was just fists hitting
back and forth.” Her later self-contradictory testimony that
appellant did not hit Chatman was not substantial evidence that
Chatman was the aggressor.
18
himself, ‘even when the defendant set in motion the chain of
events that led the victim to attack the defendant,’”
appellant argues that he was entitled to defend himself
“even if appellant’s own actions prompted Mr. Cha[t]man to
attack him.” Appellant misinterprets Frandsen. There, the
court held that “‘the defense [of self-defense] is available
when the victim’s use of force against the defendant is
unlawful, even when the defendant set in motion the chain
of events that led the victim to attack the defendant.’”
(Id. at 274.) In other words, “[o]nly when the victim resorts
to unlawful force does the defendant-aggressor regain the
right of self-defense.” (Id. at 273.) But “‘a defendant who—
through his own wrongful conduct, such as initiating a
physical assault or committing a felony—has created
circumstances under which his adversary’s attack or pursuit
is legally justified may not invoke self-defense.’” (Ibid.,
citing People v. Szadziewicz (2008) 161 Cal.App.4th 823,
833-834.) Absent evidence that in the course of the
altercation initiated by appellant, Chatman engaged in
unlawful force -- a proposition we expressly reject below --
appellant had no right to invoke the doctrine of self-defense.
(c) Appellant Did Not Regain His
Right to Self-Defense
In his reply brief, citing People v. Quach (2004) 116
Cal.App.4th 294 (Quach), appellant argues he regained his
right to self-defense “because the evidence shows that Mr.
Cha[t]man used excessive force.” (Id. at 301 [“‘Where the
19
original aggressor is not guilty of a deadly attack, but of a
simple assault or trespass, the victim has no right to use
deadly or other excessive force. . . . If the victim uses such
force, the aggressor’s right of self-defense arises’”].) Black’s
Law Dictionary defines “excessive force” as “[u]nreasonable
or unnecessary force under the circumstances.” (Black’s Law
Dict. (11th ed. 2019).) Substantial evidence does not support
a finding that Chatman’s response was unreasonable or
unnecessary.
Appellant suggests Chatman used excessive force
because he “kept attacking even after he had gotten the
better of appellant,” because Chatman was “‘swinging as
hard as he could,’” because appellant appeared to be “‘in a
daze’” from Chatman’s punches, because appellant suffered
documented injuries while Chatman did not, and because
appellant was unarmed. None of this constitutes evidence of
excessive force.
Chatman testified he struck appellant after appellant
rushed him and threatened to kill him. Chatman further
testified appellant reached for his back as he did so, leading
Chatman, who had seen appellant carrying knives, to believe
he had a weapon. Chatman testified he was “swinging for
my life because I didn’t want him to get whatever he was
reaching for. . . . [¶] . . . [¶] I was determined not to let
whatever he was reaching for come out.” While no weapon
was ever found on appellant, nothing suggests Chatman’s
fear that appellant had a weapon was unreasonable. The
fact that Chatman “got[] the better of appellant,” that
20
appellant suffered injuries, or that appellant appeared to be
dazed at some point in the fight, is evidence only that
Chatman was, in this instance, a more proficient pugilist,
not that anything he did was unnecessary or unreasonable
under the circumstances. Appellant cites no authority to the
contrary.13 Because Chatman’s response to appellant’s
actions was not excessive, appellant never regained any
right to self-defense.
2. Any Error Would Have Been Harmless
Appellant argues that because the failure to instruct on
self-defense “deprived appellant of his due process right to
present a complete defense . . . the error must be assessed
under the Chapman standard of prejudice, requiring
respondent to prove the error harmless beyond a reasonable
13 In the sole case appellant does cite, Quach, the court
reversed an attempted murder conviction when it found a jury
instruction on self-defense for mutual combatants erroneously
stated the law, in part because it failed to mention that an
aggressor could regain his right to self-defense if the victim
unreasonably responded with deadly or other excessive force.
(Quach, supra, 116 Cal.App.4th at 301.) The evidence at trial
supported a finding that, after the defendant’s efforts at calming
a rival gang member had failed, the gang member shot at the
defendant who then returned fire. (Id. at 297-298.) Here,
Chatman did not escalate the amount or type of force used -- he
defended himself against appellant’s fists using his own, and
inflicted injuries consistent with a fistfight. The fact that
Chatman may have landed more blows does not render his
response excessive.
21
doubt” rather than the Watson standard, which requires
reversal only “if it is ‘reasonably probable’ that appellant
would have received a more favorable outcome had the error
not occurred.” However, appellant argues that we need not
separately analyze these standards, as reversal is required
even under the Watson standard. We disagree that reversal
is required.
If the court had given appellant’s requested
instructions, the jury would have been required to find, at a
minimum, that appellant threatened Chatman and Rash
only while engaged in a physical altercation with Chatman,
and not before. (CALJIC No. 5.30.) As discussed above, no
evidence supported a finding that appellant’s threats were
made only during the altercation, and there was
uncontradicted evidence they were made before. Moreover,
there was no evidence as to when any threat allegedly made
during the altercation with Chatman occurred. Accordingly,
the jury could not have determined it was made after
appellant, the aggressor, could have reacquired a right to
self-defense. In short, even had the requested instructions
been given, we find no possibility appellant would have
obtained a more favorable result.
B. The Court Did Not Err in Terminating
Appellant’s Self-Representation
When the court (Wallenstein, J.) granted appellant’s
request to represent himself, appellant acknowledged that
he “must not disrespect or abuse the dignity of the Court”
22
and that “the Judge may terminate my right to act as my
own attorney in the event that I engage in serious
misconduct, refuse to come to court or obstruct the conduct
and progress of the trial.” As noted, on more than one
occasion, appellant repeatedly interrupted the judges
presiding over the proceedings and accused them of
misconduct. At the preliminary hearing, the court
(Lonergan, J.) appointed Kiyohara as appellant’s counsel,
thereby revoking appellant’s right to represent himself.
Appellant argues this was an abuse of discretion because
“the record fails to establish that [appellant] engaged in a
pattern of misconduct that threatened the core integrity of
the trial” and that there were only “two occasions where
appellant became frustrated due to a misunderstanding with
the court.”
Appellant’s right to self-representation “‘is not a license
to abuse the dignity of the courtroom. Neither is it a license
not to comply with relevant rules of procedural and
substantive law.’” (People v. Welch (1999) 20 Cal.4th 701,
734.) The right may be exercised only if the defendant “‘is
able and willing to abide by rules of procedure and
courtroom protocol.’” (Ibid., italics omitted.) “This rule is
obviously critical to the viable functioning of the courtroom.
A constantly disruptive defendant who represents himself,
and who therefore cannot be removed from the trial
proceedings as a sanction against disruption, would have the
capacity to bring his trial to a standstill.” (Ibid.) “Thus, a
trial court must undertake the task of deciding whether a
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defendant is and will remain so disruptive, obstreperous,
disobedient, disrespectful or obstructionist in his or her
actions or words as to preclude the exercise of the right to
self-representation. The trial court possesses much
discretion when it comes to terminating a defendant’s right
to self-representation and the exercise of that discretion ‘will
not be disturbed in the absence of a strong showing of clear
abuse.’” (Id. at 735.)
In the proceedings below, appellant behaved in a
disruptive and disrespectful manner. During one hearing,
appellant interrupted the court (Olson, J.) several times,
accused the court of misconduct, and argued with the court
regarding the need for his criminal complaint to be signed,
even after being told the proper way to bring an issue to the
court was by filing a motion. Again, at the preliminary
hearing, appellant disrupted the proceedings at least 12
times, once even admitting he had a “habit” of interrupting.
After the fourth interruption, the court (Lonergan, J.)
admonished appellant that if he continued to disrupt the
proceedings, the court would appoint standby counsel
Kiyohara as appellant’s attorney. Despite this warning,
appellant interrupted the proceedings at least eight more
times. On this record, we find the court was well within its
discretion to terminate appellant’s self-representation.14
14 Appellant also argues the court erroneously relied on an
alleged previous disruptive incident with a different judge that
had not actually occurred. While it is unclear what incident the
court was referring to, the court did not base its revocation
(Fn. is continued on the next page.)
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C. The Court Erred in Imposing a Second
Sentence Enhancement Based on the Same
Prior Conviction
After finding beyond a reasonable doubt that appellant
had previously been convicted of a serious and violent felony,
the court enhanced appellant’s sentence by five years under
section 667, subdivision (a)(1), and then again by an
additional year pursuant to section 667.5; the second
enhancement was stayed. Appellant argues the court could
not impose both enhancements based on the same prior
conviction and requests we strike the enhancement under
section 667.5. The People agree. “[W]hen multiple statutory
enhancement provisions are available for the same prior
offense, one of which is a section 667 enhancement, the
greatest enhancement, but only that one, will apply.”
(People v. Jones (1993) 5 Cal.4th 1142, 1150, 1152, 1153
[concluding court erred in imposing enhancements under
both sections 667 and 667.5 based on same prior offense and
“remand[ing] to the trial court with directions to strike the
one-year enhancement of defendant’s sentence for his prior
offense of kidnapping under subdivision (b) of section
667.5”].) The court erred in enhancing the sentence under
decision on this alleged incident, but on appellant’s “attempt to
obstruct the proceedings,” “refusal to participate[,] and his
continued interruptions of this court.” Appellant additionally
argues he was able to abide by the court rules in other instances,
but fails to explain how those instances would negate the
disruptions he caused at the preliminary hearing.
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section 667.5 when it had already enhanced it under section
667.
DISPOSITION
The matter is remanded to the trial court with
directions to strike the one-year sentence enhancement
imposed pursuant to section 667.5, and to issue an amended
abstract of judgment and forward it to the California
Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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