P. v. Jones
Filed 12/5/13 P. v. Jones CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
DANIEL PAUL JONES,
Defendant and Appellant.
A135518
(
Super. Ct. No. 05-080483-1)
Appellant
Daniel Paul Jones was convicted after a jury trial of several counts relating
to his possession of illegal drugs and
firearms. On appeal, he argues (1) the
trial court erred in denying his pretrial motion to represent himself, (2) a
jury instruction regarding flight was impermissibly argumentative, (3) a
jury finding that certain firearms were “loaded†was not supported by
instruction regarding knowledge was contrary to law, (5) the trial court
erroneously admitted certain expert opinion testimony, (6) the trial court
erred in denying appellant’s request for appointed counsel at sentencing, and
(7) the trial court erred in failing to award appellant any presentence
contention and modify the judgment accordingly.
We otherwise affirm.
BACKGROUND
The
evidence at trial was as follows. In
December 2006, police officers went to Stephanie Smith’s apartment to execute a
search warrant. After knocking and announcing that police
officers were at the door, an officer saw appellant exit the apartment onto a
balcony and jump off the balcony. A
brief foot chase and physical struggle ensued before appellant was
apprehended. Keys to Smith’s apartment
were found on the ground near where the struggle had taken place.
Police
found two small bindles of methamphetamine on a table in the apartment’s
bedroom. In the bedroom closet, police
found two bags: one bag contained appellant’s birth certificate and
identification card; and the other contained two handguns, each with a loaded
magazine but no bullet in the firing chamber.
Steve Buchanan, an admitted felon, gang member, and former
methamphetamine user, testified that in November or December 2006, he saw
appellant with one of the handguns subsequently found by the police. The parties stipulated that appellant was a
felon during the time in question.
Smith
testified for the defense. In December
2006, she and appellant were friends but he did not have keys to her
apartment. At the time, she was a
regular drug user and allowed many people to come and go from her
apartment. Some of these people kept
items at her apartment. She testified
that the handguns found by the police were not appellant’s, although she did
not know whose they were. She further
testified, although she and appellant used methamphetamine together during that
time, the methamphetamine found by the police was solely hers, not appellant’s.
The
jury found appellant guilty of two counts of possession of a controlled
substance while armed with a loaded firearm (Health & Saf. Code,
§ 11370.1, subd. (a)), two counts of being a felon in possession of a
firearm (Pen. Code, former § 12021, subd. (a)(1)), one count of being a
felon in possession of ammunition while armed (id., former § 12022, subd. (a)(1), former § 12316, subd.
(b)(1)), and one count of resisting arrest (id.,
§ 69).
title="">[1] In March 2012, appellant was sentenced to an
aggregate prison term of 28 years to life.
This term runs concurrently with a prison term of 46 years to life
appellant was already serving on an unrelated
DISCUSSION
I. Faretta Motion
A.
Background
At
a December 28, 2010 hearing, with trial then set for January 18, 2011,
appellant moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). When the trial
court asked appellant why he wanted to represent himself, appellant stated only
that he thought he could “do a good job†representing himself and just as
“capable†a job as his counsel.
Appellant also sought to continue the January 18 trial date, asking for
“a little additional time so I can get all the discovery and everything needed
to prepare myself in this case.â€
Appellant could identify no reason why he had not made his
The
People opposed appellant’s motion, arguing that the case was already
“old.†After the indictment was filed in
April 2008, proceedings had been delayed in part because this case was postponed
pending appellant’s trial on the murder charge.
Even after the murder trial finished, a previous trial date in this case
had been vacated in February 2010 when appellant filed a successful motion to
replace his appointed counsel. Because
appellant had been sentenced on his murder conviction, this case was the only
matter keeping appellant in local custody and out of state prison. Both the People and appellant’s counsel
stated they would be ready for trial on January 18, 2011.
The
trial court found appellant’s Faretta motion
untimely and denied it. The court found
the purpose of appellant’s request was to delay the proceedings, granting the
request would in fact unreasonably delay the proceedings, and appellant was
currently represented by experienced trial counsel.
B.
Analysis
Appellant
contends his request was timely and the denial was improper. Although a trial court generally “must grant
a defendant’s request for self-representation if the defendant unequivocally
asserts that right within a reasonable time prior to the commencement of trial,
and makes his request voluntarily, knowingly, and intelligently,†an
the sound discretion of the court.’ â€
(People v. Lynch (2010) 50
Cal.4th 693, 721, 722 (Lynch),
abrogated on another ground by People v.
McKinnon (2011) 52 Cal.4th 610, 637-638.)
In
Lynch, the California Supreme Court
held that “timeliness for purposes of Faretta
is based not on a fixed and arbitrary point in time, but upon consideration of
the totality of the circumstances that exist in the case at the time the
self-representation motion is made.†(
The factors for consideration include “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.†(Id.
at p. 726.)
Appellant
urges us to reject Lynch as
inconsistent with Faretta. According to appellant, Faretta stands for the proposition that a request made “weeks
before trial†is timely. But
concluding “Faretta nowhere announced
a rigid formula for determining timeliness without regard to the circumstances
of the particular case. . . .
Rather, the high court’s statement in Faretta that the defendant’s motion was ‘weeks before trial’
implies a recognition that a motion that interferes with the orderly process of
a trial may be denied. [Citation.]†(Lynch,
supra, 50 Cal.4th at pp.
724-725.) In any event,
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450. 455.)
Appellant
next contends his request was timely even under Lynch’s totality of the circumstances test.
the court considered a Faretta motion
filed just over three weeks and heard two weeks before pretrial motions were to
begin. (Lynch, supra, 50 Cal.4th
at pp. 726-727.) The case involved
multiple counts and special circumstance allegations, requiring an estimated 65
prosecution witnesses, some elderly. (
The case was nearly four years old; and, although the court found the
delay “cannot be attributed to [the] defendant, he did not thereby escape any
responsibility for timely invoking his right to self-representation.†(Id.
at p. 727.) The defendant offered no
explanation why he had not made his request sooner. (Ibid.) Finally, the defendant “would have required
an undetermined amount of time to investigate and prepare for trial.†(Id.
at p. 728.) In light of all these
circumstances, the court found the motion untimely. (Ibid.)
Appellant
argues his case is factually distinguishable from Lynch, and instead is comparable to People v. White (1992) 9 Cal.App.4th 1062 (White). In
before the trial date. (
conclusion the request was untimely, the Court of Appeal explicitly noted that
“defense counsel had not yet announced ready†for the trial date and “the
[trial] court expressly recognized the possibility that, because of calendar
conflicts, [defense cocounsel] might have to be replaced, thus providing good
cause to continue the case.†(
the fact that the court expressly contemplated a continuance if defense
cocounsel was replaced because of a conflict in her schedule, we find [the] defendant’s
Faretta motion was timely.â€].)
The
facts of this case are more akin to Lynch
than White. A firm trial date had been set just weeks
away from the Faretta hearing and
both sides had announced they were ready for trial. Appellant’s Faretta motion would have required a continuance of an undetermined
length. Contrary to appellant’s
suggestion, the trial court was not bound to accept appellant’s
characterization that he would only need “a little additional time†to prepare,
particularly as appellant added that he needed to “get all the discovery and
everything needed to prepare myself in this case.†“A trial court may properly consider the
delay inherently caused by such uncertainty in evaluating timeliness. [Citations.]â€
(Lynch, supra, 50 Cal.4th at p. 728.)
The fact that the trial date was later continued a short time does not
impact our analysis, as “the trial court’s determination of untimeliness
necessarily must be evaluated as of the date and circumstances under which the
court made its ruling.†(
24-25, fn. 2.)
Moreover,
the case was many years old, rendering the delay more burdensome than it might
be for a newly-filed case. At the
estimated he would call eight witnesses.
There was a legitimate concern this evidence could grow stale. (See Lynch,
supra, 50 Cal.4th at p. 722
[timeliness requirement “reflects that ‘the government’s interest in ensuring
the integrity and efficiency of the trial at times outweighs the defendant’s
interest in acting as his own lawyer.’
[Citation.]â€].)
Finally,
appellant had earlier opportunities to invoke his right to self-representation,
even after his substitute counsel was appointed in February 2010. Appellant appeared in court at least six
times between February and November, but chose not to make his
December, three weeks before the trial date.
all, much less a worthy one, for his delay.
(See Lynch,
the defendant’s failure to “timely invok[e] his right to
self-representationâ€].) Accordingly,
given the totality of the circumstances, we agree with the trial court that
appellant’s request was not timely.
An
untimely Faretta motion “is
‘addressed to the sound discretion of the court.’ [Citation.]â€
(Lynch, supra, 50 Cal.4th at 722, fn. omitted.) In considering such a motion, “the trial
court considers such factors as ‘the quality of counsel’s representation of the
defendant, the defendant’s 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.’ [Citation.]†(Id.
at p. 722, fn. 10.) The trial court did
not abuse its discretion in denying appellant’s untimely motion.
II. Flight
Instruction
Based
on CALCRIM No. 372, the trial court instructed the jury regarding appellant’s
flight from the police officers as follows: “If the defendant fled or tried to
flee immediately after the crime was committed or after he was accused of
committing the crime, that conduct may show he was aware of his guilt. If you conclude that the defendant fled or
tried to flee, it is up to you to decide the meaning and importance of that
conduct. However, evidence that the
defendant fled or tried to flee cannot prove guilt by itself.†Appellant challenges the first sentence in
this instruction as argumentative, contending it impermissibly favors the
prosecution’s view of the evidence.
As
an initial matter, the People claim this argument is waived because appellant
did not object to the instruction below.
Appellant’s failure to object did not forfeit his claim. (People
v. Taylor (2010) 48 Cal.4th 574, 630 & fn. 13 (Taylor) [claim that flight instruction was impermissibly
argumentative not forfeited by failure to object below, citing Pen. Code,
§ 1259].) However, his claim is
meritless.
An
argumentative instruction is one that “invite[s] the jury to draw inferences
favorable to [one side] from specified items of evidence on a disputed question
of fact.†(People v. Wright (1988) 45 Cal.3d 1126, 1135.) Our Supreme Court has repeatedly held that
the CALJIC version of the flight instruction, CALJIC No. 2.52, is not
argumentative.
title="">[4] (See, e.g., Taylor, supra, 48 Cal.4th
at p. 630 [CALJIC No. 2.52 is not impermissibly argumentative; noting “we have
repeatedly rejected identical challengesâ€]; People
v. Mendoza (2000) 24 Cal.4th 130, 180-181 [CALJIC No. 2.52 “is not
argumentative; it does not impermissibly direct the jury to make only one
inferenceâ€].)
Appellant
contends such cases are inapplicable because of differences in the language of
CALJIC No. 2.52 and CALCRIM No. 372.
Appellant focuses on the order of CALCRIM No. 372’s statements, first
stating any flight may constitute evidence of consciousness of guilt, and only
second stating the jury determines the meaning and importance of any
flight. But we see no significance in
the order, as “we certainly do not view one part of an instruction in isolation
from another part.†(
Cal.App.4th 26, 31 [rejecting challenge to CALCRIM No. 372, including argument
based on differences in language from CALJIC No. 2.52].) The instruction as a whole clearly directs
that it is up to the jury to decide whether or what inferences to draw from any
flight. The flight instruction was not
argumentative.
III. Substantial
Evidence the Firearms Were Loaded
Appellant
was convicted of two counts of Health and Safety Code section 11370.1,
subdivision (a), which penalizes the possession of certain illegal drugs “while
armed with a loaded, operable firearm.â€
The handguns found in Smith’s apartment contained no bullet in the
firing chamber, but had loaded magazines attached. A police officer testified the following steps
were required to fire the guns: “Pick the gun up, take the slide, slide it
back, slide it forward. The round is in
the chamber and you pull the trigger.â€
Appellant argues no substantial evidence supports the jury’s finding the
handguns were “loaded†because the firing chambers were empty.
The
term “loaded†for purposes of Health and Safety Code section 11370.1 is not
defined by statute. Its meaning was
examined in People v. Clark (1996) 45
Cal.App.4th 1147 (Clark). The single-shot shotgun at issue in
chamber, but shells were found “in a covered storage compartment in the rear of
the [shotgun’s] stock.†(
compartment and placed by hand in the chamber before [the shotgun] could be
fired.†(Ibid.) In
adopt the definition of “loaded†contained in Penal Code former section 12031,
subdivision (g): “A firearm shall be
deemed to be loaded for the purposes of this section when there is an
unexpended cartridge or shell, consisting of a case that holds a charge of
powder and a bullet or shot, in, or
attached in any manner to, the firearm, including, but not limited to, in
the firing chamber, magazine, or clip thereof attached to the firearm
. . . .†(Italics
added.) The People argued in
were “attached†to the shotgun, the shotgun was loaded for purposes of Health
and Safety Code section 11370.1. (
The
court rejected this argument, first declining to import the definition in Penal
Code former section 12031, subdivision (g) because, “in general, the language
of a statute is to be given ‘its usual, ordinary import.’ [Citations.]â€
(Clark, supra, 45 Cal.App.4th at p. 1153.)
“Under the commonly understood meaning of the term ‘loaded,’ a firearm
is ‘loaded’ when a shell or cartridge has been placed into a position from
which it can be fired; the shotgun is not ‘loaded’ if the shell or cartridge is
stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate
storage compartment of the shotgun and were not yet ‘loaded’ as the term is
commonly understood.†(
But even if the definition contained in Penal Code former section 12031,
subdivision (g), did apply to Health and Safety Code section 11370.1, it would
not change the outcome because the court declined to construe the phrase
“attached in any manner to†as broadly as the People sought. (Clark,
at pp. 1153-1154.) Instead, the court
found the Legislature intended the definition to reflect the common meaning of
the term “loaded,†as indicated by the statute’s provision of “some examples of
how a shell would be ‘attached’ to a firearm so that the firearm is loaded,
i.e., in the firing chamber, magazine or
clip; situations in which the firearm would be ‘loaded’ in the usual
meaning of the word, i.e., the shell is placed in a position from which it can
be fired.†(Id. at p. 1154, italics added.)
We
agree with Clark that, when a shell
is loaded in a magazine attached to a handgun, it is in a position from which
it can be fired and the handgun is therefore “loaded†within the ordinary
meaning of that term. Indeed, this has
been the commonly understood meaning for some time. (See People
v. Simpson (1933) 134 Cal.App. 646, 651 [discussing crime of assault with a
deadly weapon: “An automatic repeating rifle may not be termed an unloaded gun
when its magazine contains loaded cartridges which may be instantly transferred
to the firing chamber by the mere operation of a lever. It is unreasonable to hold that a rifle is
unloaded and that it is not susceptible of immediate discharge under such
circumstances.â€].) We further agree with
Clark that “[t]here is nothing in
Health and Safety Code section 11370.1 which indicates the Legislature did not
intend to use the term ‘loaded’ in its commonly understood meaning.†(Clark,
supra, 45 Cal.App.4th at p.
1153.) Accordingly, substantial evidence
supported the jury’s finding that the handguns were loaded.
IV. Knowledge
Instruction
The
jury was instructed on the Health and Safety Code section 11370.1 charges:
“Knowledge that an available firearm is loaded and operable is not
required.†Appellant urges us to
reconsider our decision in People v. Heath
(2005) 134 Cal.App.4th 490 (Heath),
holding that such knowledge is not an element of a Health and Safety Code section
11370.1 violation. We decline to do so,
as Heath was properly decided for the
reasons set forth in that decision.
466 and Cunningham v. California
(2007) 549 U.S. 270, relied upon by appellant, do not impact
exposes a defendant to a greater potential sentence must be found by a jury,
not a judge, and established beyond a reasonable doubt, not merely by a
preponderance of the evidence.†(
given offense, knowledge must be established to expose a defendant to a greater
sentence, and thus are not relevant to this discussion. The jury instruction regarding knowledge was
not in error.
V. Opinion
Testimony
Subdivision
(a) of Health and Safety Code section 11370.1, which penalizes the possession
of certain illegal drugs “while armed with a loaded, operable firearm,â€
provides that “ ‘armed with’ means having available for immediate
offensive or defensive use.†During
trial, immediately after a police officer testified the handguns found in
Smith’s apartment could be fired after moving the slide back and forward, the
prosecutor asked, “In your opinion, is the firearm in that condition available
for offensive or defensive use?â€
Appellant’s counsel lodged several objections, including lack of
relevance and foundation, and the prosecutor laid a foundation for the
officer’s expertise in the use and functioning of firearms. The trial court allowed the officer’s
response: “Yes, I do believe they were available for offensive and defensive
use.â€
Appellant
argues the requirement of Health and Safety Code section 11370.1 that the
firearm be available for offensive or defensive use does not hinge on whether
the firearm contains bullets in the chamber or an attached magazine, but rather
has to do with the firearm’s proximity to the defendant and/or the illegal
drugs. Appellant’s characterization of
the appropriate issue in this case is “whether a gun in a closet is available
for such use.†Appellant contends the officer’s
expert testimony was therefore irrelevant and admitted in error because it was
not sufficiently beyond common experience to require expert opinion, it was an
impermissible legal opinion on an element of the offense, and the legal opinion
was erroneous.
We
need not decide whether the admission of the testimony was in error because any
such error was harmless. Although
appellant claims the appropriate standard is whether the error was harmless
beyond a reasonable doubt, “ ‘[t]he erroneous admission of expert
testimony only warrants reversal if “it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of
the error.†’ [Citation.]†(People
v. Pearson (2013) 56 Cal.4th 393, 446.)
In
the context of a statute with substantially similar relevant language, the
California Supreme Court has broadly construed the proximity required for a
firearm to be available for offensive or defensive use to a defendant
possessing illegal drugs. “[W]hen
. . . the evidence at trial shows that a firearm was found in close
proximity to the illegal drugs in a place frequented by the defendant, a jury
may reasonably infer (1) that the defendant knew of the firearm’s presence, (2)
that its presence together with the drugs was not accidental or coincidental,
and (3) that, at some point during the period of illegal drug possession, the
defendant was present with both the drugs and the firearm and thus that the
firearm was available for the defendant to put to immediate use to aid in the
drug possession. These reasonable
inferences, if not refuted by defense evidence, are sufficient to warrant a
determination that the defendant was ‘armed with a firearm . . .’ . . . .†(People
v. Bland (1995) 10 Cal.4th 991, 1002-1003, fn. omitted [construing Pen.
Code, former § 12022, subd. (a)(2)].)
In
this case, the jury found appellant guilty of being a felon in possession of a
firearm (Pen. Code, former § 12021, subd. (a)(1)), and thus clearly found
appellant possessed the handguns in question.
There was no dispute the handguns were found in the closet of the same room
in which the illegal drugs were found.
During closing arguments, appellant’s counsel argued the prosecution had
failed to prove the handguns and the drugs were appellant’s; no argument was
made the handguns were not found sufficiently near the drugs to satisfy the
requirement they be available for offensive or defensive use. In light of these circumstances, it is not
reasonably probable, absent the challenged testimony, the jury would not have
found the firearms available for appellant’s offensive or defensive use.
VI. Sentencing
Counsel
A.
Background
After
the jury verdicts issued in February 2011, appellant’s sentencing was continued
several times at the request of appellant’s counsel. In October 2011, appellant filed a
February 3, 2012, and continued the trial on the priors and sentencing to
February 17 at appellant’s request.
At
the February 17, 2012 hearing, appellant requested a continuance and the
appointment of an investigator to help him investigate various issues. The trial court found that the issues
identified by appellant had already been resolved at or after trial, but
nonetheless granted a brief continuance to allow time for appellant to file a
motion for a new trial. The court
informed appellant that it would appoint counsel if he wished. In response, appellant asked if he could
retain his own counsel. The court
replied, “you’re certainly free to hire your own counsel. But I’ll give you a limited period of time, and
if you don’t do that within that limited period of time . . . [t]hen
you’ll have to proceed because I think I’ve been pretty liberal with you in
terms of giving you continuances.†The
trial court set a filing date for appellant’s new trial motion and set it for
hearing on March 23. The court informed
appellant that, if the new trial motion was denied, he would be sentenced on
March 23.
On
March 23, 2012, appellant appeared at the hearing, without retained counsel, and
filed a motion for a continuance but no motion
for a new trial. The matter was
continued to March 27, and appellant’s retained counsel appeared and requested a
continuance to investigate a motion for a new trial, which the court denied
because the issues identified by appellant’s newly retained counsel had already
been litigated and resolved. Appellant
himself then attempted to argue for more time, citing several issues he was
pursuing. The trial court informed appellant
that the issues he raised either had been previously litigated or were not
proper bases for a new trial motion.
The
court proceeded to sentencing.
Appellant’s counsel stated he had been retained only for the purpose of
a new trial motion and would not be representing appellant for sentencing. Appellant then stated, “I’d like to fire
myself as my own attorney. I’m
incompetent.†The court refused, stating
that “this is an obvious play on your part to continue this, and it’s not going
to be continued.†The court proceeded to
sentence appellant.
B.
Analysis
Appellant
argues the trial court erred in denying him new appointed counsel for
sentencing purposes. The People claim
appellant never in fact requested appointed counsel. We need not decide whether the request was
sufficiently clear because, assuming it was, the trial court did not err in
denying it.
“In
considering whether to grant a defendant’s request to withdraw from
self-representation and have counsel appointed, we consider the ‘ “totality
of the facts and circumstances,†’ including [the] defendant’s prior history in
substitution of counsel, the reasons for the request, the stage of the trial
proceedings, the disruption that might ensue, and the likelihood of [the]
defendant’s ability to defend against the charges if he proceeds in propria persona. [Citation.]
The trial court need not review on the record each factor: ‘The standard
is whether the court’s decision was an abuse of its discretion under the
totality of the circumstances . . . .’ [Citation.]â€
(People v. Gonzalez (2012) 210
Cal.App.4th 724, 743 (Gonzalez)
[reviewing request for withdrawal made at sentencing hearing].)
More
than a year had passed since the jury verdict.
Appellant previously delayed sentencing with his Faretta motion, and had been properly warned of the risks of
self-representation when the trial court granted it. “ ‘That [appellant] was told of — and
affirmed his understanding of — the risks and disadvantages of
self-representation before he waived counsel reflected on his reasons for later
seeking to revoke the waiver.’
[Citation.]†(
At the February 17, 2012 hearing, the trial court warned appellant that
no further continuances would be granted.
There is support for the trial court’s conclusion that the purpose of
appellant’s request for counsel was delay, in light of appellant’s apparent
desire to pursue issues the trial court found (and appellant does not now
contest) were already decided or not proper bases for a new trial motion. Given the totality of these circumstances,
the trial court’s denial of appellant’s request for counsel was not an abuse of
discretion.
VII. Presentence
Credits
At
sentencing, the trial court did not award appellant any presentence credits for
time served prior to sentencing.
Appellant urges this court to calculate and award such credits. The People do not dispute that appellant is
entitled to credits but claim we should remand the matter because the record on
appeal is not sufficiently clear regarding the number of presentence days in
custody attributable to this case. We
find the record sufficiently clear and, in the interest of judicial efficiency,
we resolve the matter without remand.
(See People v. Flores (2009)
176 Cal.App.4th 1171, 1182.)
The
probation report provides that appellant was in custody from December 19-28,
2006, and from August 7, 2007 through the date of sentencing. However, with the exception of December 20-28,
2006, all of this time was either credited to appellant’s sentence on the
murder case or took place after appellant’s sentencing in the murder case.
credit for actual custody. (Pen. Code,
§ 2900.5, subds. (a)-(b).) Because
the time served took place prior to January 25, 2010, his conduct credits are
governed by the statute in place at that time, which provided two days of
credit for every four days of actual time served. (People
v. Brown (2012) 54 Cal.4th 314, 318.)
Accordingly, appellant is entitled to four days of conduct credit, for a
total of 13 days of presentence credits.
DISPOSITION
The
judgment is modified to provide for 13 days of presentence credits. As so modified, the judgment is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
NEEDHAM, J.
relating to stolen property found in Smith’s apartment.
for a trial court’s determination of the timeliness of a Faretta motion appears to be unclear, we need not decide the issue
because we reach the same result using either de novo review or a deferential
standard.
