P. v. Henry

Filed 1/21/10 P. v. Henry CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Cary H. Nishimoto, Judge. Affirmed as modified.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

In August 2008, a jury found appellant Ibrahim Basil Henry (Henry) guilty of stalking (Pen. Code,^[1] 646.9, subd. (b);^[2]count 1), two counts of second degree robbery ( 211; counts 2 and 3); and first degree residential robbery ( 459; count 4). The trial court sentenced him to a total of nine years in state prison as follows: the upper term of six years on count 4 (base term) and three consecutive one-year (one-third of the mid term) terms on counts 1, 2, and 3.

On appeal, Henry contends the trial courts denial of his request to represent himself at trial violated his constitutional right to self-representation and is reversible per se or an abuse of discretion. Respondent makes an unopposed request that the court order the abstract of judgment be corrected to reflect a $4,000 restitution fine and a $4,000 parole revocation fine. Respondent also notes that the judgment reflects an inaccurate number of presentence custody credit days. We will order the judgment modified to reflect presentence custody credit of 186 days with a 50 percent credit of 93 days of good time/work time, for a total of 279 days. The abstract of judgment shall be corrected to include a $4,000 restitution fine and a $4,000 parole revocation fine. In all other respects, we affirm the judgment.

BACKGROUND

On April 22, 2008, Henry appeared with his counsel, Deputy Alternate Public Defender Terrell Powell (Powell), for a pretrial conference. Trial was set for May 29, 2008. Powell told the court that Henry wished to proceed in propria persona. The relevant proceedings were as follows: THE COURT: Mr. Henry, were going to provide you with the courts pro per policy memorandum, also a waiver form. You can review the memorandum. [] Have you had an opportunity to discuss the charges in this case with Mr. Powell? [] THE DEFENDANT: No, not all of them. [] THE COURT: Mr. Powell, you can take time to discuss the charges with him, explain to him what the People would have to prove in the cases and also what the maximum punishment is. [] After youve done that, Mr. Henry, if you still wish to represent yourself, you can read the pro per policy memorandum, fill out the waiver form, and well recall the case.

Henry then requested that he be given a sentence of three years probation. The prosecutor rejected his proposal and offered two years in state prison. The trial court explained to Henry: So there you have it, Mr. Henry, the maximum time you can get if you go to trial and youre convicted is eight years. The People have offered you two years. Theyve rejected your offer of probation with three years suspended. So you can discuss it with Mr. Powell and if you still wish to represent yourself you can read the pro per policy memorandum, fill out the waiver form, and well recall the case.

After a recess, the proceedings resumed: THE COURT: . . . Mr. Powell, I understand after discussing the case with you Mr. Henry wishes to have you continue representing him. [] MR. POWELL: Yes, Your Honor. [] THE COURT: Is that correct, Mr. Henry? [] THE DEFENDANT: Yes.

On May 27, 2008, Henry appeared with Powell for a trial readiness conference before Commissioner John L. Mason. Powell requested a two-week continuance because he was starting a trial in another matter that afternoon.^[3] Henry did not want to waive time and indicated that he wants to go pro per, so he may start his trial within the period. He stated he wanted to represent himself in order to start trial that day. The court told Henry he could represent himself if he could meet certain conditions. The court then gave Henry a Faretta[v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta)] form to complete. Upon receiving the Faretta form, Henry asked the trial court for another attorney to represent him. The court told Henry to fill out the form first and then see what would happen.

After it received the completed Faretta form, the court questioned Henry, indicating it did not find Henry capable of representing himself. The court referred to the Faretta form where Henry had answered no to the question, Do you know what has to be involved before you can be found guilty? Henry told the court that he meant yes. The court further noted that Henry had answered no to the question, Do you know the minimum or maximum possible punishment for the offense that you are charged with? Henry changed his answer, replying that Powell had so informed him. The court continued: THE COURT: He wouldnt be able to sit with you when you were filling out the form. [] You thought that he would go over it with you. [] Do you have some input? [] [THE DEFENDANT]:^[4] I do believe that Judge Meigs is the one that will be trying this case, and he has had Mr. Henry before him. [] I have some cases that I presented to Mr. Powell. [] It would be best for Judge Meigs to review this issue with [Henry] and have a chance to review the cases that I am going to present. The matter was continued to the next day for Judge John V. Meigs to decide Henrys Faretta motion.

On May 28, 2008, Henry appeared with Powell before Judge Meigs for trial readiness. The court asked Powell when he would be ready to proceed; Powell responded he would be finished with his other trial by June 6, 2008. The court then noted the Faretta waiver in the file and asked: Mr. Henry, is it your desire to represent yourself in this case? [] THE DEFENDANT: Yes, Sir. [] . . . [] THE COURT: So youll be able to start jury selection tomorrow? [] THE DEFENDANT: Yes, Sir. [] THE COURT: Representing yourself? [] THE DEFENDANT: Yes, Sir. [] THE COURT: And have you ever handled a case before? [] THE DEFENDANT: No, Sir. [] THE COURT: Youve never represented yourself? [] THE DEFENDANT: I have on one additional case, but it didnt go all the way through, they sent me a public defender at the last minute. [] THE COURT: So you were actually represented by counsel? [] THE DEFENDANT: Yeah, I had counsel guiding me through the case. [] THE COURT: What type of case was that? [] THE DEFENDANT: Misdemeanor. [] THE COURT: What was the charge? [] THE DEFENDANT: Suspended license. [] THE COURT: Driving with a suspended license? [] THE DEFENDANT: Yes, Sir. [] THE COURT: Was that actually tried before a jury? [] THE DEFENDANT: Yeah, we went as far as a trial. [] THE COURT: I mean was there a jury selected? [] THE DEFENDANT: No. The case got dismissed before we got that far. [] THE COURT: So the case never went to trial? [] THE DEFENDANT: No, Sir. [] THE COURT: And Mr. Henry, do you know what the People have to prove in this case? [] THE DEFENDANT: Yes, Sir. [] THE COURT: Youve gone over theyou understand that you have a right to be represented by an attorney in this case? [] THE DEFENDANT: Yes, Sir. [] THE COURT: And youre currently being represented by Mr. Powell who is a very experienced criminal trial attorney. [] THE DEFENDANT: Judge, Im aware of that, but some of the things I done asked him for he hasntseems like hes working with the D.A. instead of against the D.A. [] THE COURT: Do you understand what your defenses are in this case? [] THE DEFENDANT: Yes, Sir. I mean, yes, Judge. [] THE COURT: And you understand that Ms. Derringer is an experienced prosecutor with over 20 years experience prosecuting cases such as this? [] THE DEFENDANT: Yes, Sir. [] THE COURT: And you understand that if you represent yourself youre going to be held to the same standard that the court will hold an attorney to? [] THE DEFENDANT: (Shakes head up and down.) Yes, Judge. [] THE COURT: Youre not going to be given any special benefits because youre not an attorney. [] THE DEFENDANT: Yes, Judge. [] THE COURT: And youre not going to be able to start the trial and then say this is more than I anticipated I need a lawyer. [] THE DEFENDANT: Yes, judge. [] THE COURT: And so why is it, Mr. Henry, that you waited until the day the case was set for trial readiness to request to represent yourself? [] THE DEFENDANT: Well, because I was late noticed that he had another trial going on somewhere else and he just told me that yesterday so I told the Judge yesterday that if I can get another state appointed public defender to take over the case since he has another case to take care of, a trial. I mean Im trying to go to trial and we have a speedy trial and we have three more days to pick a jury. Im ready. Im not[] THE COURT: But you dont knowyou really dont know anything about the case or about any type of trial procedure. [] THE DEFENDANT: Well, the case is about me so I mean I know about the case. I dont know as far as the procedure. [] THE COURT: So the only reason you want to represent yourself is because Mr. Powell wont be free to try the case until next Thursday or next Friday? [] THE DEFENDANT: Not only that. Not only that. I done asked a few questions of Mr. Powell towards the case about the victim, and hes telling me he got to get this from the D.A. And Im like, you know, your own attorney, why would you have to get her rap sheet [] THE COURT: Well, what makes you think that Mr. Powell has the ability to get a rap sheet? [] THE DEFENDANT: I mean, like you say, hes state appointed. [] THE COURT: No, it doesnt work that way, Mr. Henry. It kind of shows how little you know about the system. Defense attorneys dont have access to that type of information. The only way they can get it is if its given to them by the People and then there are requirements that have to be met before they can even get it in that case. But the only people that have access to that information is law enforcement, not defense attorneys. Mr. Powell doesnt [] THE DEFENDANT: I know the law enforcement has it. [] THE COURT: So the only way he can get that is by going through the district attorney. [] THE DEFENDANT: I didnt know that. [] THE COURT: Well, I think it kind of shows how little you know about whats going to be required. [] Mr. Henry, Im going to find that your request to proceed in pro per is untimely and its based strictly on your concern about your speedy trial rights, and Im going to find good cause to trail the matter until Mr. Powell is ready to proceed. So well put the case over for trial readiness until June 6th. And if Mr. Powell has finished his other trial, well start jury selection on June 9th. So June 6th will be day 7 of 10. [] THE DEFENDANT: So Im being denied for this, Im trying to go pro per? [] THE COURT: Yes. [] THE DEFENDANT: They said I can go pro per before. [] THE COURT: Well see you next Friday. [] THE DEFENDANT: So I cant go pro per? Can I get my lawyer? [] THE COURT: Im denying your request as untimely. [] THE DEFENDANT: Can I get a lawyer? [] THE COURT: You have a lawyer. Mr. Powell. [] THE DEFENDANT: Can I call for a lawyer to come in today? [] THE COURT: Mr. Henry [] THE DEFENDANT: Im just asking. [] THE COURT: Mr. Henry, no competent attorney who was appointed this case or who you hire would be able to proceed to trial on this case today because that lawyer needs to familiarize himself with the case. Mr. Powell is ready to try your case, hes just engaged in another trial. So for that and other reasons I have indicated your motion to proceed in pro per is denied. . . .  

DISCUSSION

1. Applicable Legal Principles

A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. (People v. Koontz (2002) 27 Cal.4th 1041, 1069; Faretta, supra, 422 U.S. at p. 819.) If the defendant is mentally competent and, within a reasonable time before trial, makes an unequivocal request knowingly and intelligently after having been advised by the court of the dangers of self-representation, the request must be granted. (Faretta, supra, 422 U.S. at p. 835 [95 S.Ct. at p. 2541]; People v. Valdez (2004) 32 Cal.4th 73, 9798; People v. Welch (1999) 20 Cal.4th 701, 729.) No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation. [Citation.] Rather, the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. (People v. Blair (2005) 36 Cal.4th 686, 708.)

A defendants right to self-representation, however, is absolute only if he or she invokes that constitutional right unequivocally a reasonable time prior to the start of trial. (People v. Windham (1977) 19 Cal.3d 121, 127128 (Windham).) There is no bright-line rule for determining when a Faretta motion is timely. (See People v. Clark (1992) 3 Cal.4th 41, 99 (Clark).) The timeliness requirement prevent[s] a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. [Citation.] If the motion is untimelyi.e., not asserted within a reasonable time prior to trialthe defendant has the burden of justifying the delay. (People v. Valdez, supra, 32 Cal.4th at p. 102.) An untimely request is addressed to the sound discretion of the trial court. (Ibid.)

If a defendant asserts the right to self-representation on the eve of trial or after trial has commenced, the trial court has discretion to deny the request. (Windham, supra, 19 Cal.3d at pp. 127128 [once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court]; Clark, supra, 3 Cal.4th at pp. 99100 [trial court had discretion to deny motion for self-representation because it was made when the trial date was being continued on a day-to-day basis, in effect on the eve of trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 625626 [motion made on the Friday before a trial scheduled to begin the following Monday was untimely].)

Regarding the requirement that the request be unequivocal, the defendants conduct or words reflecting ambivalence about self-representation may support the courts decision to deny the defendants motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) A reviewing court considers the record as a whole, including proceedings after appellants purported invocation of the right to represent himself, to determine whether appellants request was knowing, intelligent and unequivocal. (Id. at pp. 2425; see also People v. Dent (2003) 30 Cal.4th 213, 218 [[i]n determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo.].)

When a defendants Faretta request is timely and otherwise proper, the trial courts refusal to grant it is reversible error per se. (People v. Joseph (1983) 34 Cal.3d 936, 946948.) When the Faretta request is untimely, the courts refusal to grant it is reviewed for an abuse of discretion. (People v. Burton (1989) 48 Cal.3d 843, 852854.)

The importance of the right to self-representation requires trial courts confronted with nonconstitutionally based motions for self-representation [to] inquire sua sponte into the reasons behind the request. (Windham, supra, 19 Cal.3d at p. 129, fn. 6) and to exercise their sound discretion after considering several factors. Notably, the Windhamfactors include: the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. (Id. at p. 128.)

The Supreme Court declined in Windham, however, to mandate a rule that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation which is based on nonconstitutional grounds. (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) If the record contains substantial evidence that otherwise supports the inference that the court had the Windham factors in mind when it ruled, it is proper to affirm the courts exercise of discretion in denying the untimely motion. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) Even where the court has failed to make the sua sponte inquiry at all, denial of the untimely motion may be an appropriate exercise of discretion. In People v. Dent, supra, 30 Cal.4th 213, for example, the trial court denied a motion for self-representation without a Windham inquiry solely because it was a death penalty case. The Supreme Court stated, Even though the trial court denied the request for an improper reason, if the record as a whole establishes defendants request was nonetheless properly denied on other grounds, we would uphold the trial courts ruling. (Id. at p. 218.)

2. The Trial Court Did Not Err in Denying Henrys Request to Represent Himself

a. Timeliness of Request

When Henry made his first request to represent himself on April 22, 2008, which he subsequently withdrew, trial was set for May 29, 2008. It is unclear from the transcript whether that was still the operative trial date when Henry appeared with his counsel at the readiness conference on May 27, 2008. If so, the timeliness of Henrys request would seem to be a close callif the trial were set for May 29, 2008, then the request appears for all practical purposes to be on the eve of trial and thus untimely. (People v. Frierson (1991)53 Cal.3d 730, 742; Clark, supra, 3 Cal.4th at pp. 99100; People v. Wilkins (1990) 225 Cal.App.3d 299, 303; People v. Rudd, supra, 63 Cal.App.4th at pp. 625626.)

If, however, jury selection was set for June 9, 2008, as the court estimated, Henrys request, twelve days before trial, would probably be found timely. In People v. Tyner (1977) 76 Cal.App.3d 352 (Tyner), defendant sought to represent himself after the matter was called for jury trial but before the jury was impaneled. (Id. at p. 354.) He stated his displeasure with the quality of the deputy public defenders representation, said he wanted to dismiss counsel and represent himself, was aware he was facing a sentence of ten years to life, and stated he was ready to proceed without a continuance. He . . . indicated that his theory of defense was mistaken identification and that he was ready to cross-examine adverse witnesses and had prepared fifty questions in which to cross-examine the witnesses. (Ibid.) The court of appeal concluded the request was timely: appellants motion for self-representation was made prior to trial and was not accompanied by any request for a continuance, thus its grant would not have obstructed the orderly administration of justice. (Id. at p. 355.)

Similarly, in People v. Nicholson (1994) 24 Cal.App.4th 584 (Nicholson), trial was set for August 4, 1992, and on that date, the court announced that jurors would not be sworn until August 10, and voir dire would begin on August 13. The Faretta motions (there were two defendants) were made on August 4, 1992. We decided the trial court had abused its discretion and assumed the motions were not timely, stating, however, that [h]ad we taken the position that the motions were timely because trial had not commenced on August 4 and that it did not in fact begin until August 10, the erroneous denial of the motions would per se require reversal. (Nicholson, supra, 24 Cal.App.4th at p. 595.) Thus, Nicholson provides additional support for a determination that Henrys request was timely.

In People v. Herrera (1980) 104 Cal.App.3d 167, the motion to proceed in propria persona was made the morning of trial before the jury was selected and was not accompanied by a request for continuance. (Id. at pp. 174175.) In its initial discussion, the trial court assumed the request was untimely and that Hererra did not have an absolute right to represent himself. (Id. at p. 173.) Nonetheless, the court of appeal determined the motion was not untimely on the record before it, noting that the trial court had failed to consider the Windham factors. (Id. at p. 175.) The defendant had made his Faretta motion at the earliest opportunity, which just happened to be shortly before trial. (Id. at p. 174.)

As the Supreme Court explained in Windham, the requirement that defendant assert his right within a reasonable time prior to the commencement of trial should not be and, indeed, must not be used as a means of limiting a defendants constitutional right of self-representation. (Windham, supra, 19 Cal.3d at p. 128 and fn. 5.) The courts key concern was that a defendant not use Faretta as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. (Id. at p. 128 fn. 5)

Under the above authorities, we conclude that Henrys May 2008 request was timely.

b. Equivocal Nature of Request

Not only did Henrys request need to be timely, it had to be unequivocal. (Windham, supra, 19 Cal.3d at pp. 127128.) The Supreme Court instructs that [b]ecause the court should draw every reasonable inference against waiver of the right to counsel, the defendants conduct or words reflecting ambivalence about self-representation may support the courts decision to deny the defendants motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. (Marshall, supra, 15 Cal.4th at p. 23.) Our review of the record with respect to Henrys assertion of his right to self-representation shows that his request was equivocal.

May 27, 2008 was not the first time Henry sought to represent himself. In April, defense counsel told the court of Henrys wishes to proceed in propria persona. As the court asked additional questions, Henrys responses (e.g., that he had not discussed all of the charges in the case with his counsel, that the prosecutor had rejected his request for probation) and his subsequent withdrawal of the request after a recess, support an inference that Henrys principal concern was negotiating a plea arrangement and that frustration with his counsels efforts prompted his request to represent himself (and later change of mind).

On May 27, 2008, when Henry again indicated he did not want to waive time and wanted to represent himself at trial, the court followed up with questions about his knowledge of the proceedings. Although technical legal knowledge, as such, [is] not relevant to an assessment of [defendants] knowing exercise of the right to defend himself (Faretta, supra, 422 U.S. at p. 836), the trial court must still ascertain[] that [defendant] has voluntarily and intelligently elected to [proceed pro se], irrespective of how unwise such a choice might appear to be. (Windham, supra, 19 Cal.3d at p. 128, italics added.) When asked about two of the responses he had given on the Faretta waiver form, Henry changed them. In contrast with the fifty questions Tyner had prepared for cross-examination (Tyner, supra, 76 Cal.App.3d at p. 354), Henrys less thoughtful responses to the courts questions fail to demonstrate the requisite knowing and intelligent waiver of his right to counsel and instead suggest equivocation.

Then, on May 28, 2008, Henry told the court he was able to begin jury selection the next day and did not request a continuance. He informed the court that he had represented himself before in a case involving a suspended license, but he also stated he had counsel guiding him through the case. That matter was dismissed before trial, so Henry had not had any experience representing himself in an actual trial. Henry acknowledged he knew he was represented by a very experienced attorney, he would be facing a very experienced prosecutor, he would be held to the same standards as any other attorney, and he would not be given any special benefits because he was not a lawyer.

When asked why he had waited so long to make the Faretta request, Henry responded that he had only learned the previous day that his counsel had another trial about to start. He added: I told the judge yesterday that if I can get another state appointed public defender to take over the case since he has another case to take care of, a trial. This statement suggests Henry was less interested in representing himself than in avoiding delay: I mean Im trying to go to trial and we have a speedy trial and we have three more days to pick a jury. Im ready. Indeed, the statement suggests Henry would have had no problem being represented by another public defender. Further indication of his concern with going to trial as soon as possible rather than invoking his right to represent himself occurred on June 9, 2008, when Henrys counsel sought a one-week continuance. Henry refused to waive time (and the trial went forward), but he did not seek to represent himself.

We conclude on this record that Henrys words and conduct reveal equivocation about waiving his right to counsel and asserting his right to defend himself.

c. No Abuse of Discretion

If Henrys timely request had been unequivocal, this court would next examine the Windham factors to determine whether the trial court properly exercised its discretion in denying Henrys request to represent himself. The trial court did not conduct a Windham inquiry as such, but the record shows the factors were in fact addressed.

To begin with, there was no serious question about the quality of counsels representationhis counsel was prepared to proceed at the relevant times, but had scheduling conflicts.

Second, the record does not indicate that Henry had a proclivity to substitute counsel (Windham, supra, 19 Ca.3d at p. 128), although on May 28, 2008, Henry appeared to suggest to the court that he would have been satisfied with another public defender so that the case could get to trial. Only when he lost the Faretta motion did he seek appointment or perhaps retention of new counsel. His proclivity, if he had any, was to move his case forward.

Third, the reasons Henry gave the court for seeking to represent himself, as noted, had to do with his frustrations with the progress of his case. He was not offered the plea deal he wanted, so he sought to represent himself. His counsel needed a two-week continuance, so Henry made the Faretta request. His refusal to waive time on June 9, 2008, underscores the primacy of a speedy trial among Henrys concerns. As the Supreme Court made clear in Marshall, passing anger or frustration is a basis for denying a Faretta motion. (Marshall, supra, 15 Cal.4th at p. 23.)

Fourth, the trial was estimated to be five days, and although to a trained attorney the legal and evidentiary issues do not appear complicated, it is also true that the prosecutor called an expert in domestic violence issues to testify. By the same token, as in Nicholson, Henry knew the facts better than anyone.

Fifth, Henry gave no particular indication during the April 22, May 27, and May 28, 2008, hearings that he would disrupt the trial or delay the proceedings; he had not requested a continuance, but instead wanted to go to trial immediately. He addressed the court with respect and nothing in the record suggests [he] would have behaved in a disruptive manner.^[5] (Nicholson, supra, 24 Cal.App.4th at p. 592.)

Taken together, the Windham factors reveal that Henry was annoyed and frustrated by the pace of the proceedings. His request to represent himself was an impulsive response to these frustrations, and that, all things considered, he would have been just as satisfied to be represented by counsel. Thus, drawing every inference against supposing Henry wished to waive his right to counsel, we conclude on this record that Henrys conduct or words reflecting ambivalence about self-representation supports the trial courts decision to deny his request to represent himself. (Marshall, supra, 15 Cal.4th at p. 21 [high courts emphasis in Faretta . . . on the defendants knowing, voluntary, unequivocal, and competent invocation of the right [of self-representation] suggests that an insincere request or one made under the cloud of emotion may be denied.)

The trial court did not abuse its discretion in denying Henrys Faretta motion.

d. Harmless Error

Even if we were to find the court abused its discretion in denying Henrys motion to represent himself, Henry must still demonstrate harmless error under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 for state law errors. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050 [although trial court erred in handling of untimely, nonconstitutional motion for self-representation, this error is not automatically reversible, but is reviewed under the harmless error test of Watson]; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.)

When we consider, under Watson, whether it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error, we cannot ignore that a defendant representing himself or herself rarely, if ever, could achieve a better result than competent counsel could obtain. (See, e.g., Faretta, supra, 422 U.S. at p. 834[[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsels guidance than by their own unskilled efforts]; People v. Rivers, supra, 20 Cal.App.4th at p. 1051 [it is candidly recognized that a defendant who represents himself virtually never improves his situation or achieves a better result than would trained counsel].) Henry provides no reason for us to conclude this general principle is not fully applicable in this case.

Here, the evidence against Henry was overwhelming. As succinctly stated by respondent: Appellant knew there was a valid restraining order and stay order against him, but he continued to stalk and harass Mercedes. He threatened to kill Mercedes and [her] family. Further, he stole Mercedes[s] keys to her home and entered her apartment using her keys. He ransacked the apartment and stole her purse and CDs. Medina also testified that appellant called Mercedes names, struck her in the face and body, and ripped earrings out of Mercedes[s] ears which caused her ears to bleed. Further, appellant continuously called Mercedes while he was in jail and told her not to press charges or testify in court.

Under all these circumstances, any error in failing to make a Windham inquiry or in denying the motion was clearly harmless. (See People v. Rivers, supra, 20 Cal.App.4th at p. 1053.)

3. The Abstract of Judgment Must Be Corrected

As Respondent points out, without opposition, the courts oral pronouncement of the fines and custody credits conflict in certain instances with the relevant minute order and abstract of judgment.

As a general rule, the courts oral pronouncement of judgment controls, and where discrepancies exist between the reporters transcript and the clerks transcript, the former generally controls. (People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471; In re Candelario (1970) 3 Cal.3d 702, 705.) Judgments that fail to reflect the courts oral pronouncements may be corrected as clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario, supra, 3 Cal.3d at p. 705.) Courts have the inherent power to correct clerical errors in [their] records so as to make these records reflect the true facts. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)

Respondent raises three issues and proposes appropriate unopposed dispositions, with which we agree.

First, the trial court appeared to rely on the statement by counsel for Henry at sentencing that Henry had presentence custody credit of 282 days, consisting of 188 actual days and 94 days of good time/work time. Regardless of the reason, the courts calculation was incorrect: Henry was arrested on February 29, 2008, and sentenced on September 2, 2008, therefore, his accurate presentence custody credit was 186 days with a 50 percent credit of 93 days of good time andwork time, for a total of 279 days. We will order the judgment to be modified to reflect the correct presentence custody credit days.

Second, the trial court imposed a $1,000 fine on each of the four felony counts in this case, for a total of $4,000. The trial court apparently imposed the fine pursuant to section 1202.4, subdivision (b), which provides that a separate and additional restitution fine be imposed in every case. The abstract of judgment, like the corresponding minute order, shows only the $1,000 fine under section 1202.4, subdivision (b). We will order the abstract of judgment to be corrected to show the proper restitution fine of $4,000.

Third, the court imposed a $200 parole revocation restitution fine for each count pursuant to section 1202.45 for a total of $800. Section 1202.45 mandates that the parole revocation restitution fine be the same amount as the restitution fine imposed under section 1202.4, subdivision (b). ( 1202.45; People v. McElroy (2005) 126 Cal.App.4th 874, 885.) Accordingly, the abstract of judgment shall be corrected to reflect a parole revocation fine of $4,000.

DISPOSITION

The judgment shall be modified to reflect presentence custody credit of 186 days with a 50 percent credit of 93 days of good time and work time, for a total of 279 days. The abstract of judgment shall be corrected to include a $4,000 restitution fine and a $4,000 parole revocation fine. As modified the judgment is affirmed.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

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^[1]Unless otherwise indicated, all further statutory references are to the Penal Code.

^[2]Count 1 was previously alleged pursuant to Penal Code section 646.9, subdivision (a).

^[3]ART refers to the Reporters Augmented Transcript on Appeal (May 27, 2008).

^[4]The transcript attributed these statements to Henry, although it appears that both Henry and Powell were addressing the court at the same time.

^[5]Outside of court, Henry revealed far more disruptive inclinations, most notably in calling Mercedes, the victim and principal witness against him, repeatedly to persuade her not to testify and to drop the charges. Even then, when his counsel discovered a conflict in continuing to represent Henry resulting from Henrys jailhouse phone campaign, he mentioned nothing to the court about representing himself or any problem with substitute counsel, only his ongoing concern about his speedy trial rights.