People v. Bates CA2/6

Filed 10/20/15 P. v. Bates CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B256944 (Super. Ct. No. NA097723-01) Plaintiff and Respondent, (Los Angeles County)

v.

DUSTIN JAY BATES,

Defendant and Appellant.

Dustin Jay Bates appeals from the judgment entered after a jury convicted him of petty theft with three prior convictions in violation of Penal Code section 484, subdivision (a), and former Penal Code section 666, subdivision (a).1 The jury found true one prior prison term (§ 667.5, subd. (b)) and one prior "strike" allegation. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Appellant was sentenced to prison for five years. Pursuant to section 1170.18, in February 2015 his felony sentence was recalled and he was resentenced to a misdemeanor. He was given credit for time served and placed on parole for one year. Appellant contends that the trial court (1) erroneously denied his Marsden motion to discharge appointed counsel and substitute another appointed attorney (People v. Marsden (1970) 2 Cal.3d 118), and (2) erroneously granted his Faretta

1 All statutory references are to the Penal Code.

motion for self-representation. (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]. ) We affirm. Facts Relating to the Marsden Motion2 On January 16, 2014, appellant was arraigned on the information. The minutes show that C. Bonillo was standing in for Deputy Public Defender Florentina Demuth, appellant's counsel of record. One week later, Demuth had a video conference with appellant while he was in jail. The Marsden hearing occurred 21 days after appellant's arraignment. During the period between the video conference and the Marsden hearing, Demuth had not spoken to her client. Appellant complained that at the video conference he had been unable to communicate with Demuth because the equipment was not working. He stated, "[I]f she doesn't know the video machine ain't working properly . . . I don't want her as my attorney." Appellant also complained that Demuth had "decided to . . . have a doctor from Department of Mental Health come talk to me." He accused Demuth of "helping . . . the prosecutor, . . . having psychiatric professionals come to try to doubt my credibility and, basically, tarnish my word." Appellant said that he had "nothing against [Demuth] personally" and that she was "a nice lady." The trial court responded that Demuth was "not responsible for the video conference machine not working." It informed appellant that his counsel at the arraignment, Ms. Bonillo, had requested the psychological evaluation based on her "brief contact" with him. "So Ms. Demuth had nothing to do with that. That's Ms. Bonillo." The court assured appellant that "[t]here is no stigma to a psych evaluation." Appellant continued to insist that he "couldn't hear or talk" to Demuth during the video conference. He accused Demuth of failing to "follow up and clarify" the communication problem. Appellant asked, "[W]hat is her defense to that point?" In her defense, Demuth declared, "[Appellant] is not telling the truth." She explained that nothing was wrong with the video equipment. "He could hear me just 2 We omit a summary of the facts underlying appellant's petty theft conviction because they are not relevant to the issues on appeal. 2