P. v. Sneed























Filed 4/15/13 P. v. Sneed CA2/7

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




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THE PEOPLE, Plaintiff and Respondent, v. DONNIE KAY SNEED, Defendant and Appellant.

B233710 (Los Angeles County Super. Ct. No. BA314300)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Alex Ricciardulli, Judge. Affirmed.

Tara
Hoveland, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and
Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.



______________________________



Donnie Kay Sneed appeals from the judgment entered
following his conviction after a jury trial of failing to register as a sex
offender. Sneed elected to represent
himself throughout the proceedings. He
contends the trial court committed reversible error by failing to readvise him
of his right to counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1.
>The Charges and Pretrial Proceedings

On December 20, 2006, Sneed was charged
by felony complaint with one count of failing to register as a sex offender
(Pen. Code, § 290, subd. (a)(1)(A)), with special allegations he had suffered
two prior serious or violent felony convictions within the meaning of the
“Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds.
(b)-(i)) and had served one separate prison term for a felony (Pen. Code, §
667.5, subd. (b)). An arrest warrant was
issued.

On May 6, 2010, the day of the href="http://www.mcmillanlaw.com/">preliminary hearing, Sneed appeared in
court represented by a deputy public defender.
He asked to represent himself (Faretta
v.

California
(1975) 422 U.S.
806 [95 S.Ct. 2525, 45 L.Ed.2d 562]) and submitted the required form for in
propria persona status (Faretta
waiver form). On this form, Sneed
indicated he had represented himself before at a plea hearing. Sneed placed his initials next to seven
different warnings about the consequences of waiving his right to counsel. He signed the form, acknowledging he was
“freely and voluntarily giv[ing] up [his] right to have a professional attorney
represent [him].” After speaking with
Sneed and reviewing his completed Faretta
waiver form, the trial court found Sneed competent to represent himself. The court granted Sneed pro per privileges,
appointed standby counsel, relieved the public defender’s office as counsel of
record and granted the defense motion to continue the preliminary hearing.

Following a
preliminary hearing on July 22, 2010,
Sneed was held to answer. An information
was filed on August 5, 2010. At Sneed’s arraignment on the information, at
which standby counsel was present, Sneed appeared in pro per, entered a plea of
not guilty to the charge and denied the special allegations.

On November 10, 2010, the People filed
an amended information, charging Sneed with one count of failing to register as
a sex offender, with special allegations he had suffered three prior serious or
violent felony convictions within the meaning of the Three Strikes law and had
served one separate prison term for a felony.
Sneed was rearraigned, entered a plea of not guilty and denied the
special allegations. Standby counsel was
present in court at the time.

2. The
Trial Proceedings

a. Discussion
of Sneed’s Right to Counsel

Trial was set for February 18, 2011. Prior to jury selection on the morning of
trial, Sneed complained to the trial court about his inability to obtain
discovery from the People and to secure subpoenas for defense witnesses, and he
insisted the prior convictions alleged against him were not his. The court addressed Sneed’s concerns, and
began to explain to Sneed the voir dire process, when the following exchange
occurred:

“The
Court: Do you want me to ask them
anything else? I’m going to give you an
opportunity to also ask questions but –

“[Sneed]: You know I don’t know what to ask them. Like I said before, I object to this whole
thing.

“The
Court: Okay. Listen.
I’ve got that. You decided to
represent yourself. No one has forced
you to do so.

“[Sneed]: No. I
[sic] been forced.

“The
Court: You have not been forced.

“[Sneed]: I had two lawyers to [sic] take a conflict of
interest on the case.

“The
Court: Okay. That has been ruled on.

“[Sneed]: Yes sir.


“The
Court: If you want the public defender
who was originally representing you, we will get that public defender to
represent you. Don’t say you don’t have
a choice. You have a trained individual
who is ready, willing and able, far better able to represent you on these
serious charges. [¶] You have decided to represent yourself. It’s your choice. We respect that choice. We are going to make every effort to make
sure that you receive a fair trial. But
the fact that by representing yourself you’re going to have a very poor lawyer
– you know the old saying, a person who represents himself has a fool for a
lawyer – that’s not our fault. [¶] All right [sic]. Just so we have got that clear. [¶]
You know, I have no choice, you have a choice. You’ve got to do the best you can with the
choice you have made.”

The trial
court then completed its explanation of the voir dire process, asked Sneed if
he understood, and Sneed answered, “Yes.”
Sneed did not ask for appointed counsel at that time or at any other
time during the proceedings.

b.
>Summary of Trial Evidence

According
to the evidence presented at trial, on October 20, 2006, prior to being
released on parole, Sneed met with James Hadfield, a state correctional
counselor. Hadfield reviewed with Sneed
a parole release form and sex registration form informing Sneed of his duty to
register as a sex offender. Both
documents were signed by Hadfield, and signed, initialed and thumb-printed by
Sneed. During the interview, Sneed told
Hadfield that he intended to reside in the area of 5th and Main Streets in
downtown Los Angeles.

When Sneed
was paroled in 2006, he was ordered to reside at the VIP Motel in Maywood. Sneed never checked into the motel, and a
warrant was issued for his arrest. After
Sneed surrendered on the warrant and was taken into custody, he spoke with his
parole agent, Michael Williams. Sneed
told Williams he had registered in 2006 with the Los Angeles Police Department
in downtown Los Angeles. Williams found
no record in his parole file of Sneed having registered in 2006.

Los Angeles
Police Officer Kane Mayer and Los Angeles County Sheriff’s Detective Wilynn
Clinkscales checked the databases of their respective law enforcement agencies
and found no record of Sneed having registered in 2006 in Los Angeles County,
or in any other jurisdiction in California.

Sneed
neither testified nor presented other evidence in his defense.

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Verdict and Sentencing

The People’s theory was that Sneed
willfully failed to register within five days of being released from
incarceration in 2006. The defense
theory, which Sneed presented through cross-examination and argument to the
jury, was that he did register in 2006, but the computer records of his
registration were either never created or were lost or destroyed The jury found Sneed guilty of failing to
register as charged. After Sneed waived
his right to a jury trial on the special allegations, the trial court found
them true.

At
sentencing on June 3, 2011, the trial court heard and denied Sneed’s motions
for a new trial and to dismiss his prior strike convictions (Pen. Code, § 1385;
People v. Superior Court (>Romero) (1996) 13 Cal.4th 497,
531). The court sentenced Sneed as a
third strike offender to an aggregate state prison term of 25 years to life.

DISCUSSION

1. >Although the trial court may have erred in
failing to readvise Sneed of his right to counsel at arraignment or
rearraignment, the error was harmless



The Penal Code provides “a
defendant in felony proceedings shall be advised of the right to counsel on at
least two distinct occasions prior to trial: first, when the defendant is
brought before a magistrate and advised of the filing of the complaint [under
Penal Code, section 859], and second, after the preliminary examination, when
the defendant is arraigned . . . on the information [under Penal Code, section
987].” (People v. Crayton (2002) 28 Cal.4th 346, 360.) The “language of [Penal Code] section 987
sets forth no exceptions” to the rule. (>Id. at p. 361.) Here, there is no indication in the record as
to whether the trial court readvised Sneed of his right to counsel at either
the August 5, 2010 arraignment or the November 10, 2010 rearraignment, after
the court advised Sneed of his right to counsel on May 6, 2010. There are no reporter’s transcripts of these
later proceedings, and their accompanying minute orders make no reference to
Sneed having been advised of his right to counsel.

Assuming, without deciding, the
trial court failed to readvise Sneed and to obtain a new waiver of his right to
counsel, the trial court erred. But the
error is not reversible per se. “[W]hen
a defendant charged with a felony has been fully and adequately advised at the
. . . [arraignment on the complaint] of his or her right to counsel throughout
the proceedings (including trial) and the defendant has waived counsel under
circumstances that demonstrate an intention to represent himself or herself
both at the preliminary hearing and at trial, a superior court’s failure to
readvise the defendant and obtain a new waiver of counsel at the defendant’s
arraignment on the information in superior court, although erroneous under the
governing California statute, does not automatically require reversal of the
ensuing judgment of conviction.” (>People v. Crayton, supra, 28 Cal.4th at
p. 350.) We reverse only if we find a
reasonable probability that defendant was unaware of his right to be represented
by appointed counsel at trial or that he would have accepted the appointment of
counsel had the court made the statutorily required inquiry at
arraignment. (Id. at p. 365, citing People
v. Watson (1956) 46 Cal.2d 818, 836.)

The California Supreme Court has
explained “a trial court’s error in failing to comply with [Penal Code] section
987 clearly is susceptible to harmless error analysis. The complete record of the trial court
proceedings often will shed light upon whether a defendant, despite the absence
of an explicit readvisement by the superior court at arraignment, nonetheless
was aware that he or she had the right to appointed counsel at the subsequent
proceedings and whether an explicit advisement at the arraignment would have
been likely to lead the defendant to reconsider the decision to represent
himself or herself and request that counsel be appointed.” (People
v. Crayton, supra, 28 Cal.4th at p. 365.)

Sneed argues because (as he told
the trial court), he felt he had been forced to represent himself after one or
more of his prior counsel had declared a conflict of interest, it was
reasonably likely he would have accepted appointment of counsel had the trial
court made the statutorily required inquiry at arraignment or rearraignment. This claim is unpersuasive in light of the
trial court’s response to Sneed at the time.
The trial court told Sneed that he was not being forced to represent
himself, and strongly encouraged Sneed to request appointed counsel, even
offering to appoint the same deputy public defender who had originally
represented him, and reminded Sneed of the risks involved in representing
himself. This discussion between Sneed
and the trial court occurred on the day of trial, nine months after Sneed had
waived his right to counsel, and at a point when Sneed was experiencing
frustration in acting as his own attorney.
Nonetheless, Sneed decided not to accept the trial court’s offer of
appointed counsel. Under these
circumstances, we do not find that a proper readvisement at the arraignment or
rearraignment would have led Sneed to reconsider his decision to represent
himself and request that counsel be appointed.href="#_ftn1" name="_ftnref1" title="">[1]

2.
Sneed was
not prejudiced by the typographical error in the jury instructions

To convict a defendant of failing
to register pursuant to Penal Code section 290, subdivision (a)(1)(A), the
People must establish he or she had a duty to register, which includes proof
that the defendant was convicted of one or more sexually-related offenses
enumerated in the statute. (Pen. Code, §
290, subds. (a)(1)(A), (a)(2)(A) & (B).)


In this case, the People alleged
that Sneed had been convicted of forcible rape and forcible oral copulation,
both of which were among the statute’s enumerated predicate offenses in
2006. (See Pen. Code, § 290, subd.
(a)(1)(B) [“Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state . . . of a violation of . . . paragraph
(2) . . . of subdivision (a) of [Penal Code, s]ection 261 [forcible rape]; . .
. [Penal Code,] section 288a [forcible oral copulation is Penal Code, section
288a, subdivision (c)(1)].”) However, in
instructing the jury on the elements of the offense of failing to register, the
trial court told the jury that to prove Sneed guilty of the crime, the People
had to prove he “was previously convicted of Penal Code, section 261.2 [rather
than Penal Code, section 261, subdivision (a), paragraph (2)] and Penal Code,
section 288(A) [rather than Penal Code, section 288a, subdivision (c)(1)].”href="#_ftn2" name="_ftnref2" title="">[2] Sneed points out that the incorrect numbers
read by the trial court, which were also contained in the written instructions
the jury received, referred to nonexistent or inapplicable crimes.href="#_ftn3" name="_ftnref3" title="">[3] He maintains that by giving the wrong numbers
for the pertinent Penal Code sections, the trial court misstated the law and
thereby misdirected the jury on a key element of the offense. href="#_ftn4" name="_ftnref4" title="">[4] Sneed asserts the court’s error was
compounded by the prosecutor’s use of the same incorrect Penal Code sections in
arguing to the jury.

While the
instruction did not state the correct numbers for the Penal Code sections of
the pertinent predicate offenses element of the crime of failing to register,
we find the error to be harmless beyond a reasonable doubt. “[W]e may affirm despite the error if the
jury that rendered the verdict at issue could not rationally have found the
omitted element unproven; the error is harmless, that is, if the record
contains no substantial evidence supporting a factual theory under which the
elements submitted to the jury were proven but the omitted element was
not. [Citation.]” (People
v. Sakarias (2000) 22 Cal.4th 596, 625.)
It is clear from the record, the instruction referred to the predicate
offenses of forcible rape and forcible oral copulation. The certified abstract of judgment for the
1989 convictions, which the prosecution introduced into evidence, listed the
predicate convictions as count 1, Penal code, section “288(A) forcible oral
copulation” and count 3, Penal Code, section “261.2 forcible rape.” The trial court modified the relevant jury
instruction (CALCRIM No. 1170) so that it would match the Penal Code sections,
as they appeared in the abstract of judgment.
In arguing to the jury, the prosecutor named the alleged predicate
offenses and maintained the abstract of judgment and accompanying evidence
showed Sneed was previously convicted of forcible rape and forcible oral
copulation. More importantly, Sneed did
not challenge the evidence of the convictions during trial or in arguing to the
jury.href="#_ftn5" name="_ftnref5" title="">[5] While it would have been preferable for the
instructions to have stated the correct Penal Code sections, the inclusion of
the wrong Penal Code sections did not prejudice Sneed, in light of the
undisputed evidence of the prior sex-related convictions requiring him to
register under Penal Code section 290.

DISPOSITION

The
judgment is affirmed.





WOODS,
J.



We concur:





PERLUSS, P.
J. JACKSON,
J.