P. v. Turner

1
Filed 1/10/07 P. v. Turner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
LAFONZO RAY TURNER,
Defendant and Appellant.
C050169
(Super. Ct. No.
04F01206)
Defendant Lafonzo Ray Turner successfully brought a Faretta1
motion and represented himself at trial, after which he was
found guilty by a jury of one count of dissuading a witness in
violation of Penal Code section 136.1, subdivision (a)(2).2 The
court sentenced defendant to the upper term of three years in
state prison, plus one year to be served consecutively for a
prior prison term found true by the jury.
1 Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]
(Faretta).
2 All further statutory references are to the Penal Code.

-- 1 of 16 --

2
On appeal, defendant contends the trial court erred by
(1) allowing defendant to represent himself; (2) not conducting,
sua sponte, a hearing to determine defendant’s competency to
stand trial; (3) allowing defendant to continue representing
himself in light of information that he suffered from mental
illness; and (4) imposing the upper term in violation of both
Blakely3 and the prohibition against dual use of facts. We shall
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Edd Stevenson, and his wife, Ronda Jackson,
lived with their two children on Ridge Willow Court in South
Sacramento. Defendant, Jackson’s brother, stayed with them at
their home for a brief period during December 2003.
According to Stevenson and other prosecution witnesses,
defendant came to Stevenson’s house in the early morning hours
of December 14, 2003, and, after exchanging words with
Stevenson, shot him in the leg.4 Stevenson told Jackson, “‘Your
brother just shot me,’” and later told police that he had been
shot by defendant.
Approximately two weeks after the shooting, defendant
called Stevenson from jail and threatened him if he pressed
3 Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(Blakely).
4 Defendant testified that he was somewhere else on December 14,
2003, and denies any involvement in the shooting or making
threats to Stevenson during subsequent telephone conversations.

-- 2 of 16 --

3
charges. Stevenson called the Sacramento County Sheriff’s
Department and obtained a restraining order the next day.
On September 24, 2004, after bailing out of jail, defendant
telephoned Stevenson again and told him, “‘Well, we coming for
you, nigger! You dead, you and your family!’”
Defendant was ultimately charged, in an amended
consolidated information, with assault with a firearm in
violation of section 245, subdivision (a)(2) (count one);
possession of a firearm by a convicted felon in violation of
section 12021, subdivision (a)(1) (count two); dissuading a
witness in violation of section 136.1, subdivision (a)(2)
(counts three and five); and making a terrorist threat in
violation of section 422 (count four). The information also
alleged two prior felony convictions, one of which was
subsequently stricken by the prosecution.
The trial court granted defendant’s motion to represent
himself at trial. The jury returned a verdict of guilty on the
charge of intimidating a witness; however, the court declared a
mistrial on the remaining charges. Defendant was sentenced to
the upper term of three years for count three, plus an
additional consecutive one-year enhancement for the prior prison
term.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends the court committed reversible error
when it granted his motion to represent himself because, he

-- 3 of 16 --

4
urges, his request to do so was neither unequivocal nor
unambiguous. We disagree.
“A criminal defendant has a right to represent himself at
trial under the Sixth Amendment to the United States
Constitution. [Citations.] A trial court must grant a
defendant’s request for self-representation if three conditions
are met. First, the defendant must be mentally competent, and
must make his request knowingly and intelligently, having been
apprised of the dangers of self-representation. [Citations.]
Second, he must make his request unequivocally. [Citations.]
Third, he must make his request within a reasonable time before
trial. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701,
729.) “Moreover, the 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.”’” (People v. Hall (1990)
218 Cal.App.3d 1102, 1105.)
In order to determine whether defendant properly invoked
his right of self-representation, we examine the whole record de
novo. (People v. Dent (2003) 30 Cal.4th 213, 218.)
In this case, defendant first raised the notion of self-
representation during the June 15, 2004, hearing on his initial
Marsden5 motion. When the trial court denied defendant’s request
to have defense counsel, Jennifer Schiavo, replaced, defendant
5 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

-- 4 of 16 --

5
stated, “I refuse to go to trial with [defense counsel] . . . .”
He added, “I’ll go co-counsel or I’ll go without her.” However,
there was no further discussion in that regard, and pursuant to
the court’s order, defendant continued to be represented by
Schiavo.
At the hearing on defendant’s second Marsden motion on
February 23, 2005, defendant again sought to have Schiavo
removed, stating, “If it’s not to be that I can appoint a court
appointed [attorney], I would like to file a Faretta motion and
go pro per.” The court denied that motion as well, noting that
Schiavo’s representation had been adequate, and asked defendant,
“What would you like to do at this point in time? Would you
like to think about representing yourself on this matter, or
would you like to think about taking a little bit of time to
think about working with Miss Schiavo?” Although defendant
initially indicated he wanted to represent himself, the court
explained the dangers and pitfalls of self-representation and
continued the matter to the following morning to give defendant
time to carefully consider his decision.
The following day, the court asked defendant if he still
wanted to represent himself. Defendant told the court, “I
didn’t say I wanted to represent myself. You are forcing me
under duress to represent myself. [¶] So under duress, yes, I
file a Faretta Motion.” When asked if he wanted the court to
provide him with an opportunity to represent himself, defendant
replied, “I want the court to provide me with proper
representation and appoint counsel.” A recess was then taken to

-- 5 of 16 --

6
give defendant time to review documentation explaining his
rights pursuant to Faretta.
After the recess, the court confirmed that defendant had
reviewed the documents provided to him and asked if he still
wanted to represent himself, to which defendant replied, “As I
said before, under duress I am being forced to represent myself.
I don’t want to represent myself, and as the rule states, number
one, I have a right to be appointed counsel.” Noting that
counsel (i.e., Schiavo) had already been appointed, the court
asked defendant whether he was simply requesting that another
attorney be appointed to represent him. Defendant responded
affirmatively, reiterating several of the complaints previously
raised during the Marsden hearing. The court reiterated that
defendant was still represented by Schiavo and asked if he
wished to “continue with that representation” or represent
himself. Defendant said, “I would like to represent myself
under duress.”
It is undisputed that defendant was extremely dissatisfied
with Schiavo’s representation and that his request to represent
himself arose in conjunction with the court’s denial of his
February 23, 2005, Marsden request. However, the fact that the
Faretta motion was made in conjunction with the court’s denial
of the Marsden motion alone “does not compel the conclusion that
the pro se motion and its attendant waivers are unintelligent or
unknowing.” (People v. Joseph (1983) 34 Cal.3d 936, 944, fn. 3;
see also People v. Smith (1985) 38 Cal.3d 945, 957 [no error in
granting Faretta motion after Marsden motion properly denied].)

-- 6 of 16 --

7
Furthermore, the record suggests that although defendant
would have preferred to have counsel of his choice, his Faretta
request was unequivocal under the circumstances. Defendant was
given the opportunity to consider his request overnight. After
doing so, he proclaimed that, although he did not want to, he
was forced to represent himself “under duress” because the court
would not substitute new counsel in for Schiavo. Defendant
argues those statements demonstrate that his assertion of his
Faretta rights was neither unambiguous nor unequivocal. Not so.
As between representing himself and continuing to be represented
by Schiavo, defendant was unequivocal in his request to
represent himself. In other words, since he was not entitled to
counsel of his choice (Harris v. Superior Court (1977) 19 Cal.3d
786, 795 [indigent defendant’s right to appointed counsel does
not include right to counsel of his choice]), it was his desire,
albeit begrudgingly, to exercise his right to represent himself.
That decision of self-representation was subsequently
confirmed by the court in several respects. After accepting the
signed Faretta warnings from defendant, the court and defendant
had the following exchange:
“THE COURT: All right. Mr. Turner, before we proceed, I
want to make sure you understand what you are doing today. [¶]
You do have the right to be represented by an attorney at all
stages of these proceedings. An attorney has been appointed,
and it’s now your choice to not proceed with that attorney, is
that correct?
“THE DEFENDANT: Under duress.

-- 7 of 16 --

8
“THE COURT: I understand you say you are doing that under
duress.
“THE DEFENDANT: Yes.
“THE COURT: You also understand it’s not a smart move to
actually proceed without an attorney?
“THE DEFENDANT: I understand.
“THE COURT: You understand that the penalty that you could
be subject to if you are found guilty of all of these offenses
are [sic] up to 22 years in the state prison?
“THE DEFENDANT: I understand.
“THE COURT: You understand that the court is not going to
help you any time with regard to the legal issues that are
associated with your case?
“THE DEFENDANT: I understand.
“THE COURT: You understand that the prosecutor is going to
be a trained attorney, someone who does understand the laws of
evidence, and the issues that are associated with your case
because of his or her legal training?
“THE DEFENDANT: I understand.
“THE COURT: You have on [sic] obligation also to comply
with all the rules of evidence. Do you understand that?
“THE DEFENDANT: Yes, I understand.
“THE COURT: If you are convicted of these charges, you do
not have the ability to then appeal based on the representation
that you did not have adequate counsel. [¶] Do you understand
that?
“THE DEFENDANT: I understand.

-- 8 of 16 --

9
“THE COURT: If you are disruptive, you can then lose this
status of representing yourself. [¶] Do you understand that?
“THE DEFENDANT: I understand.
“THE COURT: And you have the right to hire your own
attorney at any point in time. You also have the right to have
an attorney appointed to represent you on this matter. [¶] Do
you understand that?
“THE DEFENDANT: I understand.
“THE COURT: You still wish to represent yourself?
“THE DEFENDANT: Under duress.
“THE COURT: I understand that. I [sic] court is going to
grant your request to represent yourself on each of your three
cases.”
At the March 10, 2005, hearing, after defendant again
mentioned that he was continuing to represent himself in “a
duress situation you all left me in and forced me in,” the court
asked defendant if he would like counsel appointed for him.
Defendant replied, “I asked you that in the beginning. You put
me in the situation. I’m going to stay in the situation. I
don’t want an attorney. I will stay pro per.”
At the April 20, 2005, hearing, the court noted in one of
defendant’s motions a statement that defendant did not want
legal representation because he believed the court would assign
Schiavo as his counsel. The court explained to defendant that
his defense would be assigned to the public defender’s office,
which would then assign a particular attorney to the case.
Defendant again confirmed that he wished to continue

-- 9 of 16 --

10
representing himself because did not want to be “inappropriately
reassigned [to] Miss Schiavo.”
Again, at the April 22, 2005, hearing, the court inquired
about defendant’s decision to represent himself, particularly in
light of the prosecutor’s experience and the “significant
sentences” associated with the charges. Defendant told the
court, “I would like to continue to represent myself,
Sir . . . .”
Finally, at the hearing on April 26, 2005, the court once
again asked defendant if it was still his desire to represent
himself. Defendant confirmed that it was, and indicated that he
did not wish to have an attorney appointed to represent him.
Contrary to defendant’s assertion that the record does not
show his “‘sincere desire to forego counsel and represent
himself,’” the record clearly demonstrates his sincere desire to
forego counsel if he could not have appointed counsel of his
choice. The trial court took painstaking efforts to make
defendant aware of the perils and pitfalls of self-
representation and insure his continuing desire to act as his
own counsel. The record is replete with defendant’s unequivocal
statements that, given the choice between self-representation
and representation by someone other than counsel of his
choosing, he wished to represent himself. We find no error in
the trial court’s granting of defendant’s Faretta motion.
II
Defendant asserts that the trial court erred in not
conducting a hearing, sua sponte, into defendant’s competency to

-- 10 of 16 --

11
stand trial. In particular, he urges that substantial evidence
existed to raise a reasonable doubt as to his mental stability,
such that a competency hearing was necessary. We disagree.
A defendant is incompetent to stand trial when he suffers a
mental disorder or developmental disability rendering him
“unable to understand the nature of the criminal proceedings or
to assist counsel in the conduct of a defense in a rational
manner.” (§ 1367, subd. (a); see also People v. Danielson
(1992) 3 Cal.4th 691, 726.) “As a matter of due process, the
trial court is required to conduct a section 1368 hearing to
determine a defendant’s competency whenever substantial evidence
of incompetence has been introduced.” (People v. Frye (1998)
18 Cal.4th 894, 951-952, citing People v. Hale (1988) 44 Cal.3d
531, 539; People v. Stankewitz (1982) 32 Cal.3d 80, 92;
People v. Pennington (1967) 66 Cal.2d 508, 518.) Substantial
evidence is evidence that raises a reasonable doubt about the
defendant’s competence to stand trial. (People v. Davis (1995)
10 Cal.4th 463, 527; People v. Howard (1992) 1 Cal.4th 1132,
1163; People v. Jones (1991) 53 Cal.3d 1115, 1152.)
Defendant argues there was “extensive substantial evidence
of [defendant’s] incompetence” before the court as of April 22,
2005. First, defendant points to a letter from Tami Turner, his
friend and former fiancée, which was provided to the court on
March 10, 2005. In that letter, Turner informed the court that
defendant was not fit to represent himself because of a “long
time physiological [sic] mental illness,” that he “needs
psychotic medication,” and that he was institutionalized at Napa

-- 11 of 16 --

12
State Mental Hospital at the age of 12. Turner’s letter also
states that defendant had a “physicological [sic] evaluation in
November of 2004” and that he “was given psychotic medication.”
The name and address of an outpatient clinic where Turner claims
defendant was seen were also provided in the letter.
Defendant asserts that Turner’s letter is, on its face,
substantial evidence of defendant’s incompetence. We disagree.
Turner alleges mental illness in defendant’s childhood but
provides no information as to his recent condition other than to
mention that he had an “evaluation” in 2004 for which he was
allegedly prescribed medication. Not only are the allegations
vague and general, but they are virtually unsubstantiated. More
important, however, is the fact that there is nothing in the
letter to suggest that Turner has either the training or the
expertise to evaluate defendant’s mental competency. Finally,
Turner’s opinion regarding “differences” between defendant and
his previous counsel and her request that the court “appoint
another public defender” throw into question altogether the
motive underlying the letter.
As evidence of his questionable competency, defendant also
points to several other facts, such as (1) his complaint, at the
March 9, 2005, hearing, that he was evaluated by a
“psychiatric . . . person” who evaluated him and wanted to
medicate him; (2) an issue raised in one of his motions
regarding the absence of an inquiry as to his mental competency
in conjunction with his execution of the Faretta waivers; and

-- 12 of 16 --

13
(3) the fact that defendant was apparently taking “his own”
medication at the county jail. We are not persuaded.
Put into context, defendant’s comment about having had a
psychiatric evaluation was part and parcel of defendant’s
request to the court that he be moved to another facility, not
an indicator that he lacked mental stability.
The issue raised by defendant’s motion was similarly taken
out of context. Without any prompting by defendant, the court
noted a statement in defendant’s motion that he was “forced into
a Faretta under duress without investigating into the
defendant’s mental stability.” When the court inquired whether
defendant questioned his own mental competence, defendant
confirmed that he did not and clarified that he raised the issue
only because he was under the impression, from talking to “other
individuals,” that part of the procedure in considering a
Faretta motion included a “line of questioning” regarding the
defendant’s mental stability. Defendant gave the court no
reason to believe there was an issue as to his mental
competence, either objectively or in his own mind, and we see
nothing in the record to suggest otherwise.
Finally, defendant makes much of a statement by Julie
Pederson, a supervisor at the main jail, that defendant was
taking “his own” medication. Defendant concedes the medication
was not identified, but expects us now, without any factual
support, to assume that it was taken to treat an unidentified
mental illness. There is nothing in the record to support that
conclusion, and we reject it.

-- 13 of 16 --

14
None of the examples cited by defendant raise a reasonable
doubt as to his competence to stand trial, nor do other
behavioral issues he points out, such as complaints of law
enforcement threats and conspiracies, false complaints of
counsel misconduct and write-ups for bad behavior, none of which
appear to be out of the ordinary for a defendant dissatisfied
with his state of incarceration. We also note that defendant’s
conduct in representing himself throughout the trial, although
at times disrespectful and belligerent, demonstrated his
capacity to prepare and present his defense and, to a certain
degree, understand the procedures inherent in that process. He
effectively wrote and argued motions, cross-examined witnesses,
negotiated jury instructions, discussed exhibits, and asserted
objections.
We conclude the court was under no compulsion to conduct a
competency hearing on this record.
III
In an argument virtually identical to his first contention,
defendant urges that the trial court erred by allowing him to
continue to represent himself once it learned he suffered from a
mental illness. For the reasons already discussed in part II of
this opinion, we reject the notion that there was reasonable
doubt as to defendant’s competency, and we therefore reject this
contention as well.

-- 14 of 16 --

15
IV
Citing Blakely, supra, 542 U.S. 296, defendant contends he
was entitled to a jury trial on aggravating factors used by the
court to impose the upper term sentence. We disagree.
In Blakely, the United States Supreme Court reiterated its
holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490
[147 L.Ed.2d 435] (Apprendi) that, “‘[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.’” (Blakely,
supra, 542 U.S. at p. 301.) The statutory maximum is the
greatest sentence the court can impose based on facts reflected
in the jury’s verdict or admitted by the defendant. (Id. at
p. 303.)
Although defendant concedes that the California Supreme
Court subsequently held, in People v. Black (2005) 35 Cal.4th
1238, 1261, 1262-1264, that the California sentencing scheme --
including the procedure for selecting an upper term -- does not
violate the holding in Blakely, he raises the contention solely
to preserve it for federal court review. Nonetheless, we are
bound by the holding in Black. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
In any event, we point out that not only does the holding
in Black defeat defendant’s claim of error, it fails because the
trial court imposed the upper term based, at least in part, on
the fact that “the defendant does have multiple convictions, one
prior conviction that was proven to the jury, which prior

-- 15 of 16 --

16
conviction resulted in the one-year enhancement,” and another
that “was stricken” from the information. The rule of Blakely
does not apply to the use of prior convictions to increase the
penalty for a crime. (Apprendi, supra, 530 U.S. at p. 490.)
Since one valid factor in aggravation is sufficient to expose
defendant to the upper term (People v. Cruz (1995)
38 Cal.App.4th 427, 433), the trial court’s consideration of
other factors, in addition to defendant’s prior convictions, to
impose the upper term did not violate the rule of Blakely.
DISPOSITION
The judgment is affirmed.
RAYE , Acting P.J.
We concur:
MORRISON , J.
CANTIL-SAKAUYE , J.

-- 16 of 16 --