P. v. Prieto

Filed 4/9/20 P. v. Prieto CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARKOS ANTHONY PRIETO,
Defendant and Appellant.
F076200
(Super. Ct. No. BF166768A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua
and Tiffany Organ-Bowles, Judges.
William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Amanda D. Cary, Lewis A. Martinez, and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-

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2.
INTRODUCTION
Defendant Markos Anthony Prieto—charged and convicted as Marcos Anthony
Prieto—contends reversal is required because the court erroneously conditioned its grant
of his self-representation motion on him forfeiting a continuance. He further argues he is
entitled to a remand to permit the court to exercise its discretion whether to permit him to
seek mental health diversion under the newly enacted section 1001.36 of the Penal Code.
Additionally, the parties agree Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill
136), which amended Penal Code section 667.5, former subdivision (b), applies
retroactively to defendant, and his prior prison enhancements must be stricken under the
amended statute.
We remand for the court to strike the enhancements imposed under Penal Code
section 667.5, former subdivision (b) and to resentence defendant accordingly. In all
other respects, the judgment is affirmed.
FACTUAL BACKGROUND
In September 2016, defendant, who was incarcerated, was assigned to the
electronic monitoring program (EMP). Through the EMP, defendant was released from
custody to his home and was required to wear an ankle monitor. Before his release, a
sheriff’s aide advised defendant he could be charged with escape if he took off the ankle
monitor.
Three days after his release into the EMP, the sheriff’s office received a tamper
notice from defendant’s ankle monitor. Two deputies went to defendant’s registered
address and found the ankle monitor in the driveway. The monitor’s strap had been cut.
The deputies knocked on the door to the house and announced their presence but no one
answered. Three months later, a probation officer encountered defendant, and defendant
falsely identified himself when the officer asked for his identity. After the probation
officer ran the name defendant provided through dispatch and was unable to verify
defendant’s identity, she took him to the central receiving facility to identify him.

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3.
Defendant was subsequently arrested and charged with escape by use of force in violation
of Penal Code section 4532, subdivision (b)(2).
Before trial on the escape charge, defendant requested the appointment of a new
attorney and the court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden). During the hearing, defendant stated he would feel more comfortable
representing himself than proceeding with his appointed counsel. The court ultimately
denied defendant’s request to substitute a new attorney and noted defendant could raise
his request for self-representation before a different court.
A week later, on the day of the scheduled jury trial—which was the last day of the
60-day trial period—another court heard defendant’s request to represent himself
pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). During the Faretta
hearing, the court directed defendant to complete an advisement and waiver of right to
counsel form and admonished defendant of the risks and expectations of self-
representation, including that defendant would “be at a considerable disadvantage going
up against the seasoned trial attorney.” The court explained defendant would not receive
special treatment or help whatsoever from the court if he represented himself. Defendant
repeatedly stated that he “insist[ed] on representing [him]self.” Before reviewing the
advisement and waiver of counsel form with defendant, the court asked defendant if he
would be ready to proceed with trial that day if the court granted his request to appear pro
se. Defendant responded, “Yeah.” The court again confirmed:
“THE COURT: You would be ready. No continuances or—
“THE DEFENDANT: If I had to, I will, you know, I’ll wing it, but I
could—I need to study, reading, but if I have to, I will.”
The judge later asked defendant if he understood “that no continuances [we]re
going to be allowed in this case absent a showing of good cause and that those requests
made most likely before the trial will be denied.” Defendant responded, “Now I do.”
The court advised defendant against proceeding pro se and recommended he accept the

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4.
court-appointed counsel. The prosecutor objected to defendant’s request for self-
representation, noting the potential for delay if defendant wanted time to research
defenses and the charges.
Defendant again repeatedly advised the court he would be ready to proceed with
trial that day.
“THE COURT: And, [defendant], as you sit there now, if this motion
is granted and you by law can represent yourself, is it your understanding
that you are ready to proceed to trial since today is the day for jury trial?
“THE DEFENDANT: Yeah, I understand.
“THE COURT: Is that a yes?
“THE DEFENDANT: Yes.”
“[THE COURT:] [Defendant], if I understood you correctly, you
stated numerous times you are ready for trial to begin today if you are
representing yourself. Is that correct?
“THE DEFENDANT: If the CALCRIM was all I needed to be—
“THE COURT: It’s a yes or no question, sir.
“THE DEFENDANT: All right. If the CALCRIM is what I needed
to—is all I need, then, yes, I am ready, but other than that, then I’m unsure.
But yes.
“THE COURT: All right. Let me ask you one more time, and all I
want to hear is yes or no. [¶] If this motion is granted, since today is day 60
of 60 for purposes of jury trial, are you ready to proceed to jury trial today?
“THE DEFENDANT: Yeah, we could go to jury trial today.
“THE COURT: Is that a yes?
“THE DEFENDANT: Yes, your Honor.”
Defendant’s former counsel informed the court she had provided defendant with
all of the discovery in the case except for the body camera footage. She explained,
though the Faretta hearing took place on the last day of the 60-day trial period, defendant

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5.
had voiced his request for self-representation after the Marsden hearing, which was
originally scheduled weeks before but had to be rescheduled based on defense counsel’s
scheduling conflict.
The court held the request was “not untimely in that even though today is day 60
of 60, it appears to the Court that [defendant] has reasons for making this motion, as well
as [defendant] is ready to proceed today with trial so it would not cause any delay
whatsoever.” It noted defendant, “while not substantially qualified to represent himself,
is at least competent enough to do so.” Accordingly, the court accepted defendant’s
understanding and waiver of his right to an attorney and granted his request to represent
himself.
The case was then assigned to the trial department. The trial court confirmed
defendant intended to represent himself and that he was ready to proceed with trial.
“THE COURT: Okay. Are you ready to proceed to trial today?
“[DEFENDANT]: Yes.
“THE COURT: So you want to go forward with trial?
“[DEFENDANT]: Yeah.”
The judge also confirmed defendant had received the discovery file and the
preliminary hearing transcript from his former counsel. The case proceeded to trial and a
jury convicted defendant of escape by force, and found true two charged prison prior
enhancements under Penal Code section 667.5, former subdivision (b) and a strike prior.
The trial court sentenced defendant to eight years, the midterm doubled based on his
strike prior, enhanced by an additional two years based on defendant’s prison prior
enhancements, for a total term of imprisonment of 10 years’ imprisonment.

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6.
DISCUSSION
I. The Court Did Not Err in Analyzing Potential for Delay When Considering
Defendant’s Faretta motion
Defendant first contends the court erred in conditioning the grant of his Faretta
motion on him forgoing a continuance.
A. Standard of Review and Applicable Law
A criminal defendant has a constitutional right to counsel at all critical stages of a
criminal prosecution. (People v. Doolin (2009) 45 Cal.4th 390, 453.) However, a
defendant also has the constitutional right to waive his right to counsel and represent
himself upon a timely and unequivocal request. (See Faretta, supra, 422 U.S. at pp. 819,
835; People v. Marshall (1997) 15 Cal.4th 1, 20–21.)
A trial court must grant a defendant’s request for self-representation if the
defendant is mentally competent, unequivocally asserts that right within a reasonable
time prior to the commencement of trial, and makes his request voluntarily, knowingly,
and intelligently. (People v. Welch (1999) 20 Cal.4th 701, 729; People v. Windham
(1977) 19 Cal.3d 121, 127–128.) “The timeliness requirement ‘serves to prevent a
defendant from misusing the motion to delay unjustifiably the trial or to obstruct the
orderly administration of justice.’ [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p.
454.) When considering whether a motion for self-representation is timely, “a trial court
properly considers not only the time between the motion and the scheduled trial date, but
also such factors as whether trial counsel is ready to proceed to trial, the number of
witnesses and the reluctance or availability of crucial trial witnesses, the complexity of
the case, any ongoing pretrial proceedings, and whether the defendant had earlier
opportunities to assert his right of self-representation.” (People v. Lynch (2010) 50
Cal.4th 693, 726, abrogated on other grounds as stated in People v. McKinnon (2011) 52
Cal.4th 610, 637.)

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7.
B. Analysis
Defendant argues the court improperly curtailed his right to self-representation and
violated his rights to due process and a fair trial by indicating it would grant his timely
Faretta motion only if he would immediately proceed to trial. He further contends the
court was required to grant him a reasonable continuance to allow him to prepare his
defense. He asserts it is immaterial that he did not actually seek a continuance because
the court committed reversible error by preemptively denying any such request. The
People respond the court was allowed to consider defendant’s representation he was
ready to proceed to trial without delay in ruling upon his Faretta motion, and “the court’s
grant of self-representation was not conditioned upon [defendant] not asking for a
continuance.” We agree with the People.
Our Supreme Court has held a court does not abuse its discretion in concluding a
defendant can represent himself only if he is ready to proceed to trial without delay. (See
People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez) [“‘a midtrial Faretta motion may be
denied on the ground that delay or a continuance would be required’”]; People v. Jenkins
(2000) 22 Cal.4th 900, 1039–1040 (Jenkins) [same]; People v. Clark (1992) 3 Cal.4th 41,
110 (Clark) [same].) In Valdez, Jenkins, and Clark, the California Supreme Court
recognized the existence of case law suggesting a continuance is required where a
Faretta motion is granted,1 but it explained this authority was not controlling where the
1Prior to the California Supreme Court’s decisions in Valdez, Jenkins and Clark, a
number of courts had held or suggested that once a trial court grants an untimely motion for self-
representation, it must then grant “a reasonable continuance for preparation by the defendant.”
(See People v. Fulton (1979) 92 Cal.App.3d 972, 976 [“While it is now settled that a trial court
may deny a request for self-representation made on the very eve of trial, on the ground that
granting the motion would involve a continuance for preparation, the very rationale of that
doctrine requires that, if the trial court, in its discretion, determines to grant the request for self-
representation it must then grant a reasonable continuance for preparation by the defendant”];
People v. Bigelow (1984) 37 Cal.3d 731, 741, fn. 3 [noting in dictum trial court “should have
considered granting a continuance” where it did not intend to deny defendant’s motion for self-
representation as untimely]; see also People v. Wilkins (1990) 225 Cal.App.3d 299, 307; People
v. Hill (1983) 148 Cal.App.3d 744, 756.)

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8.
“trial court made clear its intent to deny the Faretta motion as untimely if a continuance
would be necessary,” and “[t]he Faretta motion was ultimately granted only when
defendant expressly represented he was able to proceed without a continuance.” (Clark,
supra, at p. 110; see Valdez, supra, at pp. 102–103 [holding trial court acted within its
discretion by conditioning grant of Faretta motion, made “moments before jury selection
was set to begin,” on defendant’s agreement trial would not be delayed, reasoning that
trial court’s authority to deny a Faretta motion as untimely necessarily includes authority
to condition grant of a Faretta motion on defendant’s agreement grant of motion would
not result in delay]; Jenkins, supra, at p. 1039 [reaffirming principle announced in Clark
“sanction[ing] the trial court’s decision to condition the granting of the right of self-
representation on defendant’s waiver of a continuance”].)
Thus, here, the court was entitled to consider whether defendant was ready to
proceed with trial when evaluating whether his Faretta motion, made on the last day of
the trial period, was timely and should be granted. (See Valdez, supra, 32 Cal.4th at p.
103; see also People v. Tyner (1977) 76 Cal.App.3d 352, 355 [defendant’s motion for
self-representation was timely because it was “made prior to trial and was not
accompanied by any request for a continuance” and “its grant would not have obstructed
the orderly administration of justice”]; People v. Herrera (1980) 104 Cal.App.3d 167,
174–175 [finding Faretta request timely because defendant indicated he did not need
continuance]; see generally People v. Lynch, supra, 50 Cal.4th at p. 722 [purpose of
timeliness requirement is “‘to prevent the defendant from misusing the [Faretta] motion
to unjustifiably delay trial or obstruct the orderly administration of justice’”].) And it
was not error for the court to grant defendant’s Faretta motion only if defendant was
ready to proceed to trial immediately. (See Valdez, supra, at pp. 102–103; Clark, supra,
3 Cal.4th at p. 110; Jenkins, supra, 22 Cal.4th at p. 1039.) Thus, we cannot conclude
defendant’s rights to due process and a fair trial were violated.

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9.
Notably, the court did not explicitly condition the grant of the motion on
defendant’s agreement he would not request a continuance of the trial proceedings.
Rather, the court informed defendant “no continuances [we]re going to be allowed in this
case absent a showing of good cause and that those requests made most likely before the
trial will be denied.” (Italics added.) This statement was not the functional equivalent of
a preemptive bar against any continuance. Instead, it appropriately notified defendant a
continuance would not be granted in the absence of good cause. (See People v. Espinoza
(2016) 1 Cal.5th 61, 81 [finding no error where court admonished defendant “that if he
chose to represent himself, he was ‘not going to get any continuances unless they are
reasonable requests, which given the time frame we’ve given to the jurors we need to
move forward with this case” and holding the court “acted within its discretion to
condition the grant of defendant’s Faretta motion on his ability to immediately proceed
to trial unless he had a reasonable basis for a short continuance”]; People v. Windham,
supra, 19 Cal.3d at p. 128, fn. 5 [“a defendant should not be allowed to misuse the
Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the
orderly administration of justice. For example, a defendant should not be permitted to
wait until the day preceding trial before he moves to represent himself and requests a
continuance in order to prepare for trial without some showing of reasonable cause for
the lateness of the request. In such a case the motion for self-representation is addressed
to the sound discretion of the trial court[.]” (Italics added.)]; see also Pen. Code, § 1050,
subd. (e) [“Continuances shall be granted only upon a showing of good cause”]; People v.
Jenkins, supra, 22 Cal.4th at p. 1039 [“Defendant was no more entitled to a continuance
when he became his own counsel than he was entitled to a continuance at former
counsel’s request”].) Defendant never requested a continuance. Instead, he repeatedly
confirmed he was ready to proceed with trial that day. And we cannot conclude on the
record before us that if defendant had sought a reasonable continuance for good cause,
the trial court would have necessarily denied such a request.

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10.
We reject defendant’s first contention.
II. Penal Code Section 1001.36 Does Not Apply Retroactively to Defendant
Defendant contends his case should be remanded to the trial court to determine
whether he should be granted pretrial diversion pursuant to the newly enacted Penal Code
section 1001.36, which he claims applies to him retroactively. The People maintain
section 1001.36 does not apply retroactively to cases that are already adjudicated. We
agree with the People.
“[Penal Code s]ection 1001.36 created a diversion program for
defendants who suffer from medically recognized mental disorders,
‘including, but not limited to, bipolar disorder, schizophrenia,
schizoaffective disorder, or post-traumatic stress disorder ….’ (§ 1001.36,
subd. (b)(1)(A).) Enacted as part of Assembly Bill No. 1810 (2017–2018
Reg. Sess.) …, which was a budget trailer bill, the law took effect on
June 27, 2018. (Stats. 2018, ch. 34, §§ 24, 37.) Three months later, the
statute was amended to prohibit its use in cases involving murder, voluntary
manslaughter, rape and other sex crimes, the use of a weapon of mass
destruction, and any offense ‘for which a person, if convicted, would be
required to register pursuant to Section 290, except for a violation of
Section 314[, i.e., indecent exposure].’ (§ 1001.36, subd. (b)(2)(B); see id.,
subd. (b)(2)(A)–(H); Stats. 2018, ch. 1005, § 1.)” (People v. Craine (2019)
35 Cal.App.5th 744, 750.)
In People v. Craine, we addressed the retroactivity issue and concluded Penal
Code section 1001.36 does not apply retroactively to cases like the present one:
“[Penal Code s]ection 1001.36 was enacted during the pendency of
this appeal. It authorizes, in lieu of criminal prosecution, the placement of
certain alleged offenders into mental health treatment programs. The
statute expressly contemplates a ‘pretrial diversion’ procedure (id., subd.
(a)), but Craine contends he is still a ‘potential candidate for diversion,’
assuming the law applies retroactively. The issue of retroactivity is
currently under review by the California Supreme Court. (See People v.
Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220.)
“We conclude the text of [Penal Code] section 1001.36 and its
legislative history contraindicate a retroactive intent with regard to
defendants, like Craine, who have already been found guilty of the crimes
for which they were charged. The statute potentially mitigates punishment

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11.
for a specific class of persons, i.e., mentally disordered alleged offenders
whose charges have not yet been adjudicated (id., subds. (a), (c)), and
Craine is not a member of the class. The primary legislative goal of
diverting mentally ill defendants from the criminal justice system through
preadjudicative intervention programs cannot be achieved once the
defendant has been tried, adjudged guilty, and sentenced.
“Secondary goals of judicial economy and fiscal savings would
actually be thwarted by attempting to apply the statute to defendants who
have begun serving their sentences. In many instances, such individuals
will have been released from confinement by the time their cases are
remanded to determine their fitness for any supposed diversionary relief.
Furthermore, although [Penal Code] section 1001.36 provides for the
dismissal of charges and expungement of a defendant’s record of arrest,
there is no mention of similar relief for a record of conviction. [T]here are
distinctions between a preconviction and postconviction dismissal of
charges, and the Legislature’s failure to address those differences also
weighs against any inference of retroactive intent.” (People v. Craine,
supra, 35 Cal.App.5th at pp. 749–750.)
Here, defendant was convicted and sentenced before Penal Code section 1001.36
became effective. Consequently, the new law does not apply to him retroactively.
Accordingly, we reject defendant’s second contention.
III. Senate Bill 136
In supplemental briefing, defendant contends his 2 one-year prior prison term
enhancements imposed pursuant to Penal Code section 667.5, former subdivision (b)
must be stricken in light of Senate Bill 136, which was signed into law on October 8,
2019, and became effective on January 1, 2020. The People concede Senate Bill 136
applies retroactively to this case and the prison prior enhancements should be stricken.
(See In re Estrada (1965) 63 Cal.2d 740, 742.) We remand for the trial court to strike
these enhancements.
At the time defendant was charged, convicted, and sentenced, Penal Code section
667.5, former subdivision (b) provided, in part:
“[W]here the new offense is any felony for which a prison sentence or a
sentence of imprisonment in a county jail under subdivision (h) of Section

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12.
1170 is imposed or is not suspended, in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for each
prior separate prison term or county jail term imposed under subdivision (h)
of Section 1170 or when sentence is not suspended for any felony ….”
After defendant was sentenced, but while his case was still pending on appeal, the
Legislature enacted Senate Bill 136. (Stats. 2019, ch. 590, § 1.) Effective January 1,
2020, Penal Code section 667.5, subdivision (b) now provides, in pertinent part:
“[W]here the new offense is any felony for which a prison sentence or a
sentence of imprisonment in a county jail under subdivision (h) of Section
1170 is imposed or is not suspended, in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for each
prior separate prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code ….”
In other words, a prior prison term enhancement will now only apply if a
defendant served the prior prison term for a qualifying “sexually violent offense.” The
Legislature did not expressly declare or in any way indicate it did not intend Senate Bill
136 to apply retroactively.
“When an amendatory statute … lessens the punishment for a crime …, it is
reasonable for courts to infer, absent evidence to the contrary and as a
matter of statutory construction, that the Legislature intended the
amendatory statute to retroactively apply to the fullest extent
constitutionally permissible—that is, to all cases not final when the statute
becomes effective. [Citations.]” (People v. Garcia (2018) 28 Cal.App.5th
961, 972; see In re Estrada, supra, 63 Cal.2d at p. 745.)
We conclude Senate Bill 136 applies retroactively to this case and, because defendant’s
prior prison terms were not served for sexually violent offenses, the related enhancements
imposed pursuant to section 667.5, former subdivision (b) are now unauthorized and must
be stricken. A remand for resentencing would be an idle act and a waste of judicial
resources since the trial court has no practical sentencing discretion under the
circumstances. We therefore will order the enhancements stricken under our authority
pursuant to Penal Code section 1260.

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13.
DISPOSITION
The two enhancements imposed under Penal Code section 667.5, former
subdivision (b) are ordered stricken. In all other respects, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment to reflect the new
sentence and to forward a copy to the appropriate authorities.
PEÑA, J.
WE CONCUR:
HILL, P.J.
LEVY, J.

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