People v. Smith
| Decision Date | 31 October 2018 |
| Docket Number | H044392 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KEVAN ACTON SMITH, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS161119A)
A jury found defendant Kevan Acton Smith guilty of two counts of stalking in violation of Penal Code section 646.91 (counts 1 & 2) and making annoying phone calls in violation of section 653m, subdivision (b) (count 3).2 Count 1 involved a violation of section 646.9, subdivision (a), while count 2 involved a violation of section 646.9, subdivision (b). Both offenses involved a woman whom defendant first met in August 2014 when he went to her home to purchase a vehicle that she had listed for sale on Craig's List. Defendant chose to represent himself at trial.
Defendant appeals from an order granting probation. (§ 1237, subd. (a).) On appeal, defendant is represented by counsel, and he raises the following contentions: (1) the trial court's comment regarding library privileges during its Faretta advisement (see Faretta v. California (1975) 422 U.S. 806, 807, 835) violated his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution3; (2) his stalking conviction in count 1 must be reversed because count 1 is a lesser included offense of his stalking conviction in count 2; (3) the court should have awarded him additional custody credit and applied excess custody credit against any criminal justice administration fee (see Gov. Code, § 29550 et seq.); and (4) the two probation conditions concerning electronic devices, social media accounts, and applications were unconstitutional on their face.
We conclude that defendant's stalking conviction in count 1 cannot stand because it is a lesser included offense of his stalking conviction in count 2. Therefore, the stalking conviction in count 1 must be stricken and the assessments imposed by the trial court based on the number of criminal convictions must be corrected. Otherwise, we find no reversible error.
An information in case No. SS161119A charged defendant with two counts of stalking (§ 646.9). Count 1 of the information charged defendant with felony stalking in violation of section 646.9, subdivision (a), on or about May 28, 2016 in the County of Monterey. It was alleged that on that date, defendant "did willfully, maliciously, and repeatedly follow, and did willfully and maliciously harass JANE DOE, and made a credible threat with the intent that she be placed in reasonable fear for her safety and the safety of her immediate family."
Count 2 of the information charged defendant with felony stalking in violation of section 646.9, subdivision (b), on or about May 28, 2016 in the County of Monterey. It stated the same factual allegation and further alleged that "the defendant was subject to a temporary restraining order, injunction and other court order prohibiting the above described behavior against JANE DOE."
On November 1, 2016, the trial court granted defendant's request to represent himself.
On November 3, 2016, the trial court granted the prosecution's motion to consolidate case No. SS161119A and case No. MS343419A, which apparently charged defendant with violating section 653m, subdivision (b), on or about August 9, 2016.
On November 7, 2016, after the parties failed to reach a plea agreement, the court ruled on the People's motions in limine. The information in case No. SS161119A was orally amended to add a count charging defendant with the misdemeanor violation of section 653m, subdivision (b). Defendant indicated that he had no motions, except for a motion under section 17, subdivision (b), which the court denied. Jurors were selected and sworn.
After a jury trial in which defendant represented himself, the jury found defendant guilty of stalking in violation of section 646.9, subdivision (a) (count 1), stalking inviolation of section 646.9, subdivision (b) (count 2), and making annoying phone calls in violation of section 653m, subdivision (b) (count 3). After the jury's verdicts, the trial court found that defendant had violated probation in case Nos. MS331504A and MS332961A. It scheduled sentencing for December 13, 2016.
At the time set for sentencing, the trial court granted probation in this case and addressed defendant's violation of probation in the two misdemeanor cases. In case No. MS331504A, the trial court revoked probation, impliedly reinstated probation and expressly ordered defendant to serve a probationary jail term of 180 days with 180 days of credit for time served (consisting of 90 actual days and 90 days of conduct credit), and terminated probation. In case No. MS332961A, the court revoked probation, impliedly reinstated probation and ordered defendant to serve a consecutive probationary jail term of 120 days with 53 days of credit for time served (consisting of 27 actual days and 26 days of conduct credit), and terminated probation, effective upon completion of that probationary jail term.
In this case, the trial court placed defendant on formal probation for four years under certain terms and conditions. The court ordered defendant to serve 65 days in county jail as a condition of probation, with no credit for time served (zero days of credit) consecutive to the terms imposed in criminal case Nos. MS331504A and MS332961A.
Defendant argues that he reasonably understood the trial court's oral Faretta advisement, which included a comment about library privileges, as imposing a total denial of his library privileges and, consequently, the court's comment violated his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and under the California Constitution, article I, section 15. (See ante, fn. 3.) He further contends that he was thereby deprived of all means of presenting a defense,which violated his constitutional right of self-representation, citing People v. Blair (2005) 36 Cal.4th 686, 732 (Blair), abrogated on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920. The People argue that the forfeiture rule applies to those claims because defendant did not raise them below and that, in any event, defendant has shown neither error nor prejudice.
On November 1, 2016, the trial court discussed with defendant his request to represent himself and the Faretta advisement form defendant had completed. The court confirmed that the signature and initials on the form, also dated November 1, 2016, were his. Defendant affirmed that he had understood the questions that he had answered on the form.
The form cautioned that there were "many dangers and disadvantages in representing yourself" and provided some examples. On the form, defendant indicated that he understood those risks. He specified on the form that he had completed high school and had gone to college for "2 years or less." The form asked, among other things, whether defendant understood the following: Defendant circled the answer "yes" and initialed his answer.
At the hearing, the court orally warned defendant that, by representing himself, he would be putting himself at "a real disadvantage" and "a complete disadvantage" compared to an experienced attorney who knew the court rules governing trial, the rules of evidence, and the procedures for jury selection. The court told defendant that, if he represented himself, he would "be in a real hole" and it could be "like swimming in a tank full of sharks." The court advised defendant that, if he represented himself, he would lose any right to complain about inadequate representation and he could "do more harm than good" for himself. The court emphasized that he would not be given specialtreatment and he would be required "to follow all the rules just like an attorney does." The court also told defendant:
Defendant indicated that he understood the court's warnings. Defendant confirmed that he still wanted to represent himself. The court concluded that defendant had "voluntarily, intelligently, and with full understanding as to the dangers and disadvantages of self-representation, chosen to represent [himself]" and given up his right to counsel. The court relieved defendant's counsel.
On November 7, 2016, defendant appeared in propria persona. The court addressed the People's motions in limine. When the court first queried whether defendant had any pretrial motions, defendant reminded the court that he was in jail. He said, The court responded, "I did not say that." Defendant immediately replied in part, When defendant began complaining about his former counsel's failure to call the alleged victim, the trial court asked defendant whether he was making a motion to continue the trial. Defendant ...
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