People v. Bush

Filed 2/8/17 Unmodified opinion attached CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, A140589 Plaintiff and Respondent, (Sonoma County v. Super. Ct. No. SCR636522) WILLIAM DAVID BUSH, ORDER MODIFYING OPINION AND Defendant and Appellant. DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on January 11, 2017, be modified as follows: 1. At the end of the first (split) paragraph on page 23, after the last sentence before the Faretta citation, add as footnote 17 the following footnote, which will require renumbering of all subsequent footnotes: 17 In his petition for rehearing, defendant argues this court should have examined whether the inadequate admonishment affected or contributed to the guilty verdict rather than to his decision to decline representation. But we have used the same formulation that our Supreme Court applied in Burgener, in the same context, although Burgener did so without deciding whether it was the proper test, because the error in the case before it was not harmless. (Burgener, supra, 46 Cal.4th at p. 245.) Other appellate courts have applied the same standard. (See, e.g., Sullivan, supra, 151 Cal.App.4th at p. 553; Noriega, supra, 59 Cal.App.4th at pp. 321-322; People v. Wilder (1995) 35 Cal.App.4th 489, 502; People v. Fabricant (1979) 91 Cal.App.3d 706, 713-714.) In any event, on the facts of this

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B.

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case, the two formulations are essentially the same. As discussed, defendant’s adamant refusal to accept counsel—a personal choice, which must be respected, even if unwise (see Faretta, supra, 422 U.S. at p. 834)—demonstrates that the single omission in the admonishment would not have deterred him from representing himself and, consequently, would not have affected the verdict.

2. On page 41, in the first full paragraph after the second sentence, the language is modified to read as follows: Attempting to avoid this conclusion, defendant cites only the unsworn, out- of-court statements he made to the police that the money came from a legitimate ATM business. No other evidence was offered indicating such a business actually existed, however, and defendant does not dispute he also provided a contradictory explanation that his mother gave him the money. (See, e.g., People v. Player (1958) 161 Cal.App.2d 360, 362 [“Inconsistent statements relevant to the crime charged . . . . tend[] to show a consciousness of guilt”]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [evidence of false exculpatory statements “suggest that there is no honest explanation for incriminating circumstances”].) These unsworn, uncorroborated statements, which he later contradicted, could not have led a rational jury to believe the money in his car trunk came from a lawful ATM business. Even if the trial court erred in not instructing the jury on the elements of an unlawful sale of marijuana, therefore, it was harmless error.